EXHIBIT 10.33
L E A S E
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000 XXX XXXXXX, XXXXXXXX, XXXXXXXXXXXXX
Tenant: Xxxxxxx Shoe Company, Inc.
TABLE OF CONTENTS
1. LEASE INFORMATION AND DEFINITIONS .........................................1
1.1. LEASE INFORMATION .......................................................1
1.2. EXHIBITS ................................................................2
1.3. GENERAL DEFINITIONS .....................................................2
2. LEASE OF PREMISES .........................................................3
2.1. AGREEMENT TO LEASE ......................................................3
2.2. PREMISES, EXCEPTIONS AND APPURTENANCES ..................................3
2.3. RESERVATIONS ............................................................3
2.4. EXPANSION PREMISES ......................................................4
2.5. CONDITION ...............................................................4
3. TERM AND COMMENCEMENT .....................................................4
3.1. TERM ....................................................................4
3.2. OPTIONS TO EXTEND THE TERM ..............................................4
3.3. ACCELERATED COMMENCEMENT ................................................5
4. RENT.......................................................................6
4.1. FIXED RENT ..............................................................6
4.2. PAYMENT OF FIXED RENT ...................................................6
4.3. PAYMENT OF RENT .........................................................6
5. ADDITIONAL RENT ...........................................................6
5.1. TAXES ...................................................................6
5.2. OPERATING COSTS .........................................................7
5.3. OTHER ADDITIONAL RENT ...................................................8
6. CONDITION OF THE PREMISES .................................................9
6.1. CONDITION ...............................................................9
7. COVENANTS .................................................................9
7.1. COVENANTS ...............................................................9
8. USE OF LEASED PREMISES ...................................................10
8.1. PERMITTED USE ..........................................................10
8.2. USE COVENANTS ..........................................................10
8.3. ACCESS TO PREMISES .....................................................11
8.4. SIGNS ..................................................................11
9. MAINTENANCE, ALTERATIONS AND REMOVAL .....................................11
0.1. MAINTENANCE ............................................................12
9.3. REMOVAL ................................................................13
10. UTILITY SERVICES ........................................................14
10.1. SEPARATE UTILITIES ....................................................14
10.2. SERVICES ..............................................................14
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10.3. PAYMENT FOR SERVICES ..................................................14
10.4. USE OF SERVICES .......................................................14
10.5. MEASUREMENT OF USAGE ..................................................15
10.6. NO LIABILITY ..........................................................15
11. LIABILITY AND INSURANCE .................................................15
11.1. LIABILITY .............................................................15
11.2. INSURANCE .............................................................15
11.3. WAIVER OF SUBROGATION .................................................16
12. ASSIGNMENT OR SUBLETTING ................................................16
12.1. RESTRICTION ...........................................................16
12.2. TRANSFERS OF INTERESTS ................................................17
12.3. REIMBURSEMENT OF COSTS ................................................17
12.4. AGREEMENT OF ASSIGNEE/SUBTENANT .......................................17
12.5. LIABILITY OF TENANT ...................................................17
12.6. EXCESS RENT ...........................................................18
13. MORTGAGES ...............................................................18
13.1. SUBORDINATION .........................................................18
13.2. MORTGAGEE'S ELECTION ..................................................18
13.3. ASSIGNMENT OF LEASES AND RENTS ........................................19
14. STATUS REPORTS ..........................................................19
14.1. ESTOPPEL CERTIFICATE ..................................................19
15. DAMAGE BY CASUALTY ......................................................19
15.1. CASUALTY ..............................................................19
15.2. TERMINATION ...........................................................20
15.3. TENANT'S OBLIGATION ...................................................20
15.4. ABATEMENT .............................................................20
16. EMINENT DOMAIN ..........................................................21
16.1. TAKING ................................................................21
16.2. TERMINATION ...........................................................21
16.3. OBLIGATION TO RESTORE .................................................21
16.4. ABATEMENT .............................................................21
16.5. AWARDS ................................................................21
17. DEFAULT .................................................................22
17.1. EVENT OF DEFAULT ......................................................22
17.2. TERMINATION ...........................................................22
17.3. REMEDIES ..............................................................23
17.4. SELF-HELP .............................................................24
17.5. LANDLORD'S DEFAULT ....................................................25
18. NOTICES .................................................................25
18.1. NOTICES ...............................................................25
18.2. NOTICES TO MORTGAGEE. AZARDS ..........................................26
19. ENVIRONMENTAL HAZARDS....................................................26
19.1. OBLIGATIONS ...........................................................26
19.2. INDEMNIFICATION .......................................................26
19.3. PROVISIONS ............................................................26
20. MISCELLANEOUS PROVISIONS ................................................27
20.1. CONSENTSIWAIVERS ......................................................27
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20.2. DISPUTED PAYMENTS .....................................................27
20.3. FORCE MAJEUR ..........................................................28
20.4. QUIET ENJOYMENT .......................................................28
20.5. HOLDING OVER . ........................................................28
20.6. VACATING ..............................................................28
20.7. LATE PAYMENTS .........................................................28
20.8. WAIVER OF COUNTERCLAIMS ...............................................28
20.9. CONSENTS ..............................................................29
20.10. BINDING EFFECT; PARTIES; LANDLORD LIABILITY . ........................29
20.11. NOTICE OF LEASE . ....................................................29
20.12. BROKERS . ............................................................30
20.13. GENERAL PROVISIONS.
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L E A S E
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This Lease entered into by and between Landlord (as defined in Section 1,
together with its successors and assigns) and Tenant (as defined in Section 1,
together with its successors and permitted assigns).
1. LEASE INFORMATION AND DEFINITIONS
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1.1. LEASE INFORMATION.
For the purposes of this Lease, the following terms shall have the meanings set
forth below, unless the context otherwise requires:
"Lease Date": , 1997.
_____________________
"Landlord": Xxxx X. Xxxxxx, 111, as Trustee of Brockton Oak Real
Estate Trust
"Landlord's Address": c/o Creative Development Company
00 Xxxxxxxx Xxxxxx
Xxxxxx, XX 021 10
"Tenant": Xxxxxxx Shoe Company, Inc.
a Delaware corporation
"Tenant's Address": 000 Xxxxxxx Xxxxxx Xxxxxx, XX 00000
Xxxxxx, XX 00000
"Tenant's Trade Name": Xxxxxxx Shoe Company
"Premises": Approximately 215,000 square feet of space in the
Building (as defined in Section 1.3), which Building
is located at 000 Xxx Xxxxxx in Brockton,
Massachusetts. The Premises are located substantially
as outlined on the plan attached hereto as Exhibit A.
"Commencement Date": February 1, 2001.
"Term": Six (6) years, expiring January 31, 2007.
"Annual Fixed Re': Lease Annual Monthly
Year Fixed Rent Installments
---- ---------- ------------
1-6 $600,000 $50,000
"Permitted Use": Warehouse use.
"Insurance Amounts': $3,000,000 for injury to persons and for damage to
property.
"Premises Rentable Are": 215,000 square feet.
"Building Rentable Area": 445,000square feet.
"Broker": Whittier Partners
"Option Periods": Two (2) 5-year options
1.2. EXHIBITS.
The following Exhibits, Riders and Addenda are attached to this Lease and are
incorporated herein by reference:
Exhibit A Plan of Premises
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Exhibit B Plan of Expansion Premises
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1.3. GENERAL DEFINITIONS.
For the purposes of this Lease, the following terms shall have the meanings set
forth below, unless the context otherwise requires:
"Alterations": Any and all alterations, installations, improvements,
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additions or other physical changes in or about the Premises, whether interior,
exterior, structural, nonstructural or otherwise.
"Applicable Law": All laws now or hereafter in effect and applicable with
respect to the matter referred to herein, including all applicable
constitutional provisions, statutes, ordinances, codes, by-laws, regulations,
rulings, decisions, rules, orders, determinations and requirements of any
Federal, State, county, local or other legislative, executive, judicial or other
governmental body or authority.
"Approvals": All governmental or private approvals and authorizations of
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any nature, including all permits, licenses, orders, variances, and the like.
"Building": The building in which the Premises are located.
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"Common Facilities": The portions of the Building and the Land which are
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reasonably necessary for access to and the use and enjoyment of the Premises
(except the interior of the Premises and of other rentable portions of the
Building) and which are designated as such from time to time by the Landlord;
the Common Facilities may include: common entranceways, hallways, stairways,
elevators and lobbies, common toilets, common loading docks, and common
walkways, exterior spaces, parking areas and landscaped areas.
"Default Interest Rate": An interest rate equal to the greater of (i) 1%
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per month or (ii) 500 basis points above the base lending rate (prime rate)
announced from time to time by The Bank of Boston, N.A., but in no event shall
the Default Interest Rate be greater than that permitted by Applicable Law.
"Including": Including without limitation.
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"Land": The parcel of land on which the Building is located.
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"Lease Year": Each successive twelve-month period included in whole or in
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part in the Term of this Lease; the first Lease Year beginning on the
Commencement Date and ending at midnight on the day before the first anniversary
of the Commencement Date (provided that if the Commencement Date is not the
first day of a calendar month, the first Lease Year shall end at midnight on the
last day of the calendar month that includes the first anniversary of the
Commencement Date).
"Mortgage": Any real estate mortgage, ground lease, deed of trust or any
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other security agreement or indenture affecting the Premises, Building or
Property.
"Mortgagee": The holder of any Mortgage.
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"Property": The Land and the Building and all other buildings and
improvements on the Land.
"Tenant's Agents": Tenant's subtenants, licensees and concessionaires; the
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employees, agents, contractors, subcontractors, suppliers, transporters,
licensees, invitees, guests or customers of Tenant or of Tenant's subtenants,
licensees or concessionaires; and anyone else claiming by, through or under
Tenant.
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"Tenant's Share": The amount of a respective item multiplied by a
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fraction, the numerator of which is the Premises Rentable Area and the
denominator of which is the Building Rentable Area.
"Unavoidable Delays": Delays caused by strikes, lockouts, labor
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difficulties, inability to obtain labor or materials, government restrictions,
sabotage, riots, civil commotion, enemy action, explosions, fire, unavoidable
casualty, accidents, acts of God or similar causes beyond the reasonable control
of Landlord.
2. LEASE OF PREMISES
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2.1. AGREEMENT TO LEASE.
In consideration of the rents and covenants contained herein to be paid,
performed and observed by Tenant, the Landlord hereby leases to the Tenant and
the Tenant hereby leases from the Landlord, subject to the terms and provisions
hereinafter set forth, the Premises.
2.2. PREMISES, EXCEPTIONS AND APPURTENANCES.
2.2.1. Excepted and excluded from the Premises are: (i) the ceiling,
floor, perimeter walls and exterior walls and windows (except the interior
surfaces and coverings thereof); and (ii) any space in the Premises used for
pipes, ducts, wires, meters, vents, flues, conduits, utility lines, fan rooms,
shafts, stacks, utility closets, janitor closets, stairways and elevator xxxxx
and not serving the Premises exclusively.
2.2.2. Included as appurtenant to the Premises are the non-exclusive
right to use, in common with others lawfully entitled thereto and in connection
only with business in the Building: (i) the Common Facilities, but only for the
purposes for which such Common Facilities (and portions thereof) shall have been
designated by Landlord; and (ii) the pipes, ducts, wires, meters, vents, flues,
conduits and utility lines serving the Premises. Such rights shall always be
subject to reasonable rules and regulations from time to time established by
Landlord and to the right of Landlord to designate and change from time to time
the Common Facilities.
2.2.3. The Premises are leased subject to existing encumbrances of record,
if any.
2.3. RESERVATIONS.
The Landlord reserves the right (without thereby assuming the obligation): to
install, maintain, use, repair, replace and relocate, within or without the
Premises, pipes, ducts, wires, meters, vents, flues, conduits, utility lines and
other equipment which now are, or hereafter may be, in the reasonable judgment
of the Landlord, reasonably required to be in the Premises or the Building to
service the Premises or other parts of the Building; to change the size, type
and shape of any and all buildings on the Land; to alter, reduce, increase and
relocate all parking areas, driveways and walkways, from time to time, provided
same does not impair Tenant's reasonable use of the Premises; and to make
additions to the Building and erect additional buildings and structures on the
Land. Should Landlord make additions to the Building or reconfigure the
Building, the Building Rentable Area shall be appropriately increased or
decreased by Landlord.
2.4. EXPANSION PREMISES.
On or prior to February 1, 2000, Landlord shall notify Tenant in writing of the
availability of the portion of the Building currently subleased to Apron's
Unlimited, Inc. (New England Sports) and consisting of 175,000 square feet of
rentable floor area (the "Expansion Premises"). Tenant shall have the option, to
be exercised by written notice to Landlord on or prior to March 1, 2000, to
lease the Expansion Premises. If Tenant so elects to lease the Expansion
Premises, such space shall be leased upon the same terms and conditions
contained in this Lease and shall be and become part of the Premises hereunder,
including without limitation with respect to the payment of additional rent, the
Term of this Lease and the extensions thereof, and the leasing of such space in
its "as is" condition as of the Commencement Date, except that the Annual Fixed
Rent for the Expansion Premises during the Term shall be $525,000, and Tenant's
Share hereunder shall be recalculated based upon the combined area of the
original Premises and the Expansion Premises. If Tenant fails to deliver written
notice to Landlord exercising its option by March 1, 2000 (or if Landlord shall
fail to notify Tenant by February 1, 2000, by the date 30 days after the date of
Landlord's notice), the option granted hereunder shall be deemed waived for all
purposes, and Landlord may lease the Expansion Premises to any party and upon
any terms free of any rights of Tenant. If Tenant shall
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exercise the option, Landlord and Tenant agree to execute an amendment to this
Lease so adding the Expansion Premises to the Premises.
2.5. CONDITION.
This Lease is conditioned on the execution by Tenant of a sublease (the
"Sublease") of the Premises with the current lessee, now known as Macy's East,
Inc. ("Macy's"), and Landlord's consent to same. If such condition is not
satisfied, Tenant may terminate this Lease by giving written notice thereof to
the Landlord. Such right to terminate shall be of no further force and effect if
not exercised within 6 months after the Lease Date.
3. TERM AND COMMENCEMENT
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3.1. TERM.
To have and to hold the Premises for the Term (also referred to as the "original
Term") beginning on the Commencement Date and expiring at midnight on the last
day of the Term, unless sooner terminated as hereinafter provided.
3.2. OPTIONS TO EXTEND THE TERM.
3.2.1. The Tenant shall have the option to extend the Term of this Lease
for the Option Periods (the "extension Terms"), provided that: (i) Tenant is not
in default (subject to notice and cure periods) under any of the terms and
conditions of this Lease at the time it elects to exercise each such option or
at the commencement of each such extension Term; and (ii) Tenant has given
Landlord written notice of its election to extend the Tenn no later than 12
months prior to the expiration date of the original Term (as it may have been
previously., extended). In the event that Tenant %,hall so extend the Tenn, such
extension shall be upon the same terms and conditions as set forth in this
Lease, except: (i) after the exercise of the second extension, no further right
to extend shall be deemed to be included; and (ii) the Annual Fixed Rent payable
hereunder during the extension Terms shall be adjusted in accordance with the
provisions of Section 3.2.2 below. Should Tenant so extend the Term of this
Lease, the term "Tenn" as used herein shall mean the original Term together with
the extension Tenn.
3.2.2. The Annual Fixed Rent payable by the Tenant during each extension
Term (if Tenant exercises its option to extend the Term), shall be as follows:
(a) The Annual Fixed Rent during the first extension Term shall
equal the Annual Fixed Rent payable during the last Lease
Year of the original Term, increased by the CPI Increase (as
defined below) from the Commencement Date to the last day of
the original Term.
(b) The Annual Fixed Rent during the second extension Term shall
equal the Annual Fixed Rent payable during the last Lease
Year of the first extension Term, increased by CPI Increase
from the first day of the first extension Term to the last
day of the first extension Term.
The "CPI Increase" shall be determined by calculating the percentage of increase
in the Price Index (as defined below), between the Price Index published next
prior to the first date of calculation and the Price Index published next prior
to the last date of calculation, and the Annual Fixed Rent shall be increased by
the percentage amount of such increase, provided in no event will the CPI
Increase for any extension Term be less than 0% or be more than 20%.
The term "Price Index", as used in this Lease, means the Consumer Price Index
for all Urban Consumers (CPI-U): U.S. City Average, All Items (1982-84=100),
published by the Bureau of Labor Statistics, U.S. Department of Labor. If any
expenditure groups, items, or components used to compute the Price Index are
added, deleted, or otherwise changed, or if the weights assigned to any spending
categories are materially altered, or if the Price Index population is
materially changed, or if the Price Index is calculated with respect to a
different base year, or if the Bureau of Labor Statistics should otherwise cease
to publish such Price Index in its present form and calculated on the present
basis, then Landlord shall appropriately adjust the Price Index or designate a
comparable index or designate an index reflecting changes in the cost of living
determined in a similar manner or, by substitution, combination or weighting of
available indices, expenditure groups, items, components or population,
establish such a substituted Price Index.
3.2.3. During the extension Term, Tenant shall continue to pay all
additional rent and other payments as provided in this Lease.
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3.3. ACCELERATED COMMENCEMENT.
If , after the satisfaction of the condition contained in Section 2.5 and prior
to the Commencement Date, the current lease (the "Macy's Lease") between
Landlord and Macy's shall terminate, then the Term of this Lease shall commence
as of the date of the termination of the Macy's Lease, with the Term nonetheless
continuing to expire on January 31, 2001, and during the period from such
early commencement of the Tenn and until the originally scheduled Commencement
Date (February 1, 2001), this Lease, and all of the terms and provisions
thereof, shall be in full force and effect, except that the Annual Fixed Rent
payable by Tenant during such period shall equal the annual fixed rent payable
to Macy's under the Sublease.
4. RENT
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4.1. FIXED RENT.
Fixed rent ("Fixed Rent") shall be payable by Tenant during each Lease Year of
the original Term hereof in the annual amount of the Annual Fixed Rent.
4.2. PAYMENT OF FIXED RENT
4.2.1. Tenant's obligation to pay the Fixed Rent shall commence on the
Commencement Date.
4.2.2. All Fixed Rent shall be payable in advance in equal monthly
installments due on the first day of each calendar month during the Term hereof,
without offset or deduction and without previous demand therefor. Fixed Rent for
the first calendar month of the Term shall be payable on or prior to the
Commencement Date. Fixed Rent for any partial calendar month at the commencement
or expiration of the Tenn hereof shall be pro-rated on a per them basis at the
Fixed Rent applicable to such month(s). If the first Lease Year is longer than
one year, Fixed Rent for such Lease Year shall be increased proportionately to
the greater length of such Lease Year.
4.3. PAYMENT OF RENT.
4.3.1. All payments of Fixed Rent, additional rent or other amounts due
under any provision of this Lease shall be made payable to the Landlord and made
at Landlord's Address or such other payee and/or address as Landlord may
designate in writing from time to time.
4.3.2. All amounts payable by Tenant to Landlord hereunder, including
Fixed Rent, additional rent and all other payments and charges, and all amounts
payable to third parties and required to be paid by Tenant hereunder, shall be
deemed rent hereunder; and all provisions governing the payment of rent, and all
remedies applicable to the nonpayment of rent shall be applicable thereto.
4.3.3. Notwithstanding the fact that the amounts of Fixed Rent set forth
in this Section 4 were or may have been determined with reference to the floor
area of the Premises, said amounts set forth above are stipulated to be the
amounts of Fixed Rent due hereunder, whether or not the actual floor area of the
Premises is in fact actually more or less than the floor area figures used to
determine said Fixed Rent.
5. ADDITIONAL RENT
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5.1. TAXES.
5.1.1. The Tenant shall pay to Landlord, as additional rent hereunder,
during the Term and any extension thereof- (i) Tenant's Share of the Taxes (as
defined below); and (ii) 100% of any portion of the Taxes attributable to any
Alterations made by the Tenant or to any of Tenant's property. Such additional
rent for any partial Tax Year (as defined below) at the commencement or
expiration of the Term shall be pro-rated on a per them basis.
5.1.2. The Tenant shall pay such additional rent to the Landlord within
10 days of billing therefor. Such billing may, without limitation, be
coordinated with the due dates of installment
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payments required by the taxing itithority.
5.1.3. The following terms as used herein shall have the meanings set
forth below:
"Tax Year": The taxing authority's fiscal year, currently the
period commencing on July I of a year and ending on June 30 of the following
xxxx.xx managing agents and for legal, accounting or other professional fees
relating to the Operation of the Property.
(d) Costs of and charges for all electrical, water, sewer, gas,
oil, telephone, alarm or other utility service to the Common
Facilities, and for such service to the Premises or to any
rentable portions of the Building, including all costs as
provided in Section 10 hereof.
(e) Costs relating to the Operation of heating, ventilating, air
conditioning, sprinkler and elevator systems, and water
lines, electrical lines, gas lines, sanitary sewer lines and
storm water lines located on the Premises, Building or Land.
(f) Costs in connection with the Operation of the exterior
portions of the Property, including: landscaping (including
planting and replanting); parking (including cleaning,
repaving and restriping); the exterior and roof of the
Building; signs and lighting; storage, collection and removal
of trash, rubbish, garbage and other refuse; and snow and ice
removal.
(g) Costs of all the premiums for all insurance carried by
Landlord on the Property (including insurance on the
Building, the Common Facilities and the Land), including all
costs as provided in Section I I hereof. Such insurance shall
include, without limitation, any of the following insurance
carried by Landlord: fire, extended coverage and all risk
insurance, flood insurance, rental value insurance, bodily
injury, public liability, and property damage liability
insurance, automobile parking lot liability insurance, sign
insurance, sprinkler insurance, boiler insurance and workers'
compensation insurance; all with limits and on such forms and
with such companies and against such risks as may be
reasonably determined by Landlord or as may be required by
the holder of any Mortgage on all or any portion of the
Property.
(h) Personal property, sales and use taxes on material,
equipment, supplies and services; the costs of all permits
and licenses; and fees for fire, security and police
protection.
(i) All other expenses (whether or not similar in type to the
costs specifically enumerated above) incurred in connection
with the Operation of the Common Facilities.
Operating Costs shall not include: (i) Structural Repairs (as defined in Section
9.1.2); (ii) costs, if any, associated with the maintenance of vacant leasable
space in the Building; (iii) costs associated with renting vacant leasable space
in the Building; and (iv) legal fees arising out of tenant disputes or from the
sale or refinancing of the Property.
5.3. OTHER ADDITIONAL RENT.
5.3.1. This is, and is intended to be, a NET LEASE. Except as expressly
otherwise provided: for herein all costs and expenses paid or incurred by
Landlord of any kind or nature whatsoever in maintaining and/or repairing the
Premises or the Building or the Land or any additions to the Building, or any
other buildings or structures on the Land (other than costs of maintaining or
repairing the interior of space leased to others or available for lease to
others) shall be included in determining the costs of which Tenant is obligated
to pay a proportionate share as provided herein.
6. CONDITION OF THE PREMISES
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6.1. CONDITION.
The Tenant shall accept the Premises in their "as is" condition as of the
Commencement Date, without representation or warranty, express or implied, in
fact or in law, by Landlord and without recourse to Landlord as to the nature,
condition or
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usability thereof and agrees that Landlord has no work to perform in or on the
Premises; and Tenant agrees further that any and all work to be done in or on
the Premises will be at Tenant's sole cost and expense.
7. COVENANTS
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7.1. COVENANTS.
Tenant covenants and agrees with Landlord as follows:
(a) To pay when due all Fixed Rent, all additional rent and all other
amounts due under this Lease from Tenant at the times and in the
manner set forth herein, without offset or deduction and without
previous demand therefor.
(b) To procure any Approvals required for any use to be made of the
Premises by Tenant.
(c) To pay promptly when due the entire cost of any work (including
all Alterations) to the Premises undertaken by Tenant so that the
Premises shall at all times be free of liens for labor and
materials.
(d) To permit Landlord and its agents to enter and examine the
Premises at reasonable times on prior reasonable notice and to
show the Premises to prospective purchasers or, during the last
12 months of the Tenn, tenants; and to permit Landlord to enter
the Premises to make such repairs, improvements, alterations or
additions thereto or to the Building as may be required in order
to comply with Applicable Law (without thereby obligating
Landlord to make such repairs, improvements, alterations or
additions), or as may be required or permitted of Landlord under
the terms of this Lease.
(e) To pay when due any and all Federal, State, or local taxes based
upon Tenant' s use or occupation of the Premises or pertaining to
Tenant's personal property or resulting from any Alterations made
by Tenant to the Premises.
(f) To comply with Applicable Law pertaining to the Premises or
Tenants use and occupation of the Premises.
(g) To refrain from doing anything, taking any action or failing to
act in such a manner that will cause any increase in the fire
insurance rates pertaining to the Premises or the Building and to
comply with any rules, regulations or recommendations of the
National Board of Fire Underwriters, any rating bureau, or any
similar association performing such function; and failing same,
without limiting other remedies of Landlord, Tenant shall pay to
Landlord, as additional rent hereunder, the entire amount of any
increase in insurance premiums resulting therefrom, such
addition. al rent to be paid to Landlord within 10 days after the
receipt of invoices from Landlord d therefor.
(h) To permit no waste with respect to the Premises.
(i) Upon the request of Landlord at any time or times during the Term
or thereafter until Tenant's obligations hereunder have been
performed in full, to promptly provide. Landlord with audited
financial statements of Tenant, such request to be made no more
frequently than annually.
8. USE OF LEASED PREMISES
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8.1. PERMITTED USE.
The Tenant shall have the right to use the Premises only for the Permitted Use,
and for no other purposes whatsoever, but in no event shall Tenant conduct at
the Premises any business use which is offensive, constitutes a nuisance or
violates any provisions of any zoning or building laws or any other Applicable
Law.
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Subject to Tenant obtaining all necessary Approvals and such use being in
compliance with all Applicable Law, Tenant shall have the right, during the
Term, to use all or any part of the Premises as a factory outlet store for
Tenant's products.
8.2. USE COVENANTS.
Tenant further agrees to conform to each of the following provisions during the
entire Term of this Lease or any extension thereof-
(a) Tenant shall always conduct its operations in the Premises under
Tenant's Trade Name, unless Landlord shall otherwise consent in
writing, which consent shall not be unreasonably withheld or delayed.
(b) Tenant shall not permit any auction, fire, going-out-of-business or
bankruptcy sales to be conducted within the Premises without the
prior written consent of the Landlord.
(c) Tenant shall not use the sidewalks, parking areas, landscaped areas
or any other exterior space on the Property for advertising or
business purposes without the prior written consent of the Landlord.
(d) Tenant shall, at its own cost and expense, ensure that all trash,
refuse and the like is kept at all times in covered containers in
such places as Landlord may designate from time to time and is
removed and disposed of regularly.
(e) Tenant shall ensure that floor load limitations are not exceeded in
the Premises.
(f) Tenant shall not use the Premises for any unethical or unfair method
of business operation, nor perform any act or carry on any practice
which may injure the Premises or any other part of the Building or
the Property, nor cause any offensive odors or loud noise, nor
constitute a nuisance or menace to any other occupant of the
Building.
(g) Tenant shall not abandon the Premises; however, the foregoing shall
not forbid Tenant from vacating the Premises, so long as all of the
other covenants and conditions hereunder continue to be satisfied by
Tenant (including the payment of rent and the maintaining of all
required insurance), and provided Tenant keeps the Premises heated to
at least the levels required to protect the Building and all of its
systems and keeps the Premises secure.
(h) Tenant shall comply with such reasonable rules and regulations as
Landlord has promulgated or may promulgate during the term hereof of
any extension thereof.
(i) Tenant shall not install any equipment in the Premises that could
cause the electrical service to the Premises or the Building to be
overloaded. Tenant shall keep the Common Facilities free of any and
all of Tenant's equipment, refuse or property.
(k) Tenant will park its vehicles and will cause Tenant's Agents to park
their vehicles only in the parking areas adjacent to the Premises,
being those areas (i) located to the rear of the Building and (ii)
located at the side of the Building along the length of the Premises.
8.3. ACCESS TO PREMISES.
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Tenant shall have access to the Premises at all times, subject to such
reasonable security restrictions as may from time to time be in effect, to
Unavoidable Delays, and to restrictions based on emergency conditions.
8.4. SIGNS.
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Tenant may provide and install, at its sole expense, signs at the Premises and
exterior signs on the portion of the Building leased by Tenant, identifying
Tenant by Tenant's Trade Name and by the designated address of the Premises,
which signs shall be subject to the prior written approval of Landlord, which
approval shall not be unreasonably withheld. Such signs shall be in a style in
keeping with other such signs in the Building (and in accordance with any
Building standards for location, size and graphics, as may be established from
time to time by Landlord). Tenant shall be responsible for obtaining all permits
and approvals required for such signs before installing same. Tenant shall, at
its sole expense, maintain such
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signs in good repair and condition. Tenant shall remove such signs on the
expiration of the Tenn and shall be responsible for any damage or repairs to the
Premises and Building related to the erection and removal of said signs.
9. MAINTENANCE, ALTERATIONS AND REMOVAL
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9.1. MAINTENANCE.
9.1.1. Except only for maintenance and repairs to be performed or made by
Landlord as expressly provided in this Section, and ordinary wear and tear
(provided good maintenance practices are employed, but this exception shall not
excuse Tenant from any obligation hereunder to make necessary repairs or
replacements), the Tenant shall keep and maintain the Premises in a neat, clean
and sanitary condition and in good order, repair, and condition (and shall make
any necessary replacements), including the maintenance and repair of all of the
following, even if otherwise excluded from the Premises pursuant to Section 2.2:
any improvements constructed or installed by Tenant; all electrical, plumbing,
gas, HVAC, sewage and other utility facilities and equipment exclusively serving
the Premises; interior walls, floors, and ceilings; sprinklers, fixtures, signs
(if and where permitted) and all interior building appliances and similar
equipment; and the exterior and interior portions of all windows, window frames,
doors, door frames, and all other glass or plateglass thereon or therein. Tenant
shall also be responsible for the cost of repairs to the Building (including the
Common Facilities and the Premises) and the Property caused by any act or
negligence of Tenant or Tenant's Agents, including damage to the roof,
foundations and exterior walls of the Building and Premises or to the utilities
servicing the Building and the Premises; and if such repairs are required,
Landlord may demand that Tenant make the same forthwith, at its sole cost or
expense, or Landlord may cause such repairs to be made and the cost of same
shall be paid by Tenant, as additional rent, promptly upon demand therefor.
9.1.2. The Landlord shall, promptly after receipt of written notice from
the Tenant, make any necessary repairs (or replacement) to the roof,
foundations, exterior walls and structural components of the Building
("Structural Repairs"); provided Landlord shall not be responsible repairs
required by reason of any act or negligence by the Tenant or Tenant's Agents.
9.1.3. Landlord shall maintain the Common Facilities in at least as good
order and repair as same are now in, except for repairs and maintenance made
necessary by any act or negligence or default of Tenant or Tenant's Agents, in
which case such repairs and maintenance (and/or replacement) shall be made by
Tenant at its sole cost and expense, or Landlord may cause such repairs to be
made and the cost of same shall be paid by Tenant, as additional rent, promptly
upon demand therefor. The Common Facilities shall be subject to the exclusive
control and management of the Landlord who shall have the right, without
limitation, and in addition to the previous provisions hereof: to police the
same; to change the area, level, location and arrangement of Common Facilities,
provided same does not impair Tenant's reasonable use of the Premises; to close
all or any portion of said areas or facilities to such extent as may be legally
sufficient to prevent a dedication thereof or the accrual of any right to any
person or the public therein; and to close temporarily all or any portion of the
parking areas (if any) to discourage noncustomer parking and for the reasonable
stockpiling of snow. The Landlord shall operate the Common Facilities in such
manner as the Landlord in its reasonable discretion shall determine.
9.1.4. Except as specifically provided in subsections 9.1.2 and 9.1.3
above, Landlord shall not be responsible for any maintenance or repairs to the
Premises, the Building or the Property.
9.1.5. All costs incurred by Landlord in performing its obligations under
this Section 9.1 shall be included as a part of the Operating Costs, except for
Structural Repairs, the costs of which shall be borne by Landlord and shall not
be included as part of the Operating Costs.
9.2. ALTERATIONS
9.2.1. The Tenant shall not make any Alterations without on each occasion
obtaining Landlord's prior written consent thereto; provided, Tenant may make
non-structural Alterations (meaning Alterations which do not involve the change,
alteration or modification of the roof, foundation, exterior walls and
structural components of the Building or of any Building systems or facilities)
which, for any one project, cost less than $50,000 without Landlord's prior
consent, however, Tenant shall promptly provide Landlord with written notice of
such work and its scope.
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9.2.2. Tenant shall provide Landlord with plans, specifications and other
documents as may be reasonably required by Landlord in connection with the
consideration of such consent; and all costs (including reasonable attorneys'
fees) incurred by Landlord in connection with the consideration of such consent
(whether or not such consent is given) shall be home by Tenant and shall
promptly be paid by Tenant to Landlord.
9.2.3. If Landlord consents in writing to such Alterations, such work
shall be performed in accordance with the terms and conditions of such consent,
with all Applicable Law (including the obtaining of all Approvals) and with all
the provisions of this Lease including the provisions of Section 7. 1 (c)
hereof. Tenant shall procure all necessary Approvals before undertaking any
Alterations, shall do all such work in a good and workerlike manner, employing
materials of good quality and complying with all Applicable Law. Once commenced
by Tenant, such work shall proceed diligently and continuously to completion. In
performing such Alterations, Tenant shall avoid interfering with the use. and
occupancy of other tenants of the Building and shall keep all areas outside the
Premises clean and free of debris at all times. Tenant shall comply, and shall
cause its contractors to comply, with any reasonable directive from the Landlord
regarding the performance of the Alterations. In no event shall any Alterations,
or the work in connection therewith, impair the safety of the structure of the
Building nor diminish the value of the Building or the Premises as then
constituted. At any time while any construction work is being performed upon the
Premises, Tenant shall maintain workmen's compensation, public liability,
builder's risk and contractor's liability insurance in the statutory amounts
(for workmen's compensation) or in the amounts reasonably required by Landlord
(for other insurance); and Landlord, and any other parties designated by
Landlord, shall be named additional insureds on such policies. After any
Alterations are completed, Tenant shall cause all required inspections of the
Premises to be made and shall deliver to Landlord a copy of a Certificate of
Occupancy or similar document evidencing completion of the Alterations and
compliance with all Applicable Law. Tenant shall save Landlord harmless and
indemnified from all injury, loss, claims or damage to any person or property
occasioned by or growing out of such work including, without limitation,
reasonable attorneys' fees and upon receipt of notice from Landlord, Tenant
shall take over Landlord's defense in any action related to work undertaken by
Tenant on the Premises. It is agreed by Landlord that Alterations can include
the installation of conveyor systems, racking and other fixtures relating to a
distribution center, and Tenant shall have the right, and obligation, to remove
all such systems, fixtures and equipment at the expiration or earlier
termination of this Lease.
9.3. REMOVAL.
9.3.1. The Tenant shall at the expiration or earlier termination of this
Lease remove its goods and effects and peaceably yield up the Premises clean and
in good order, repair and condition, ordinary wear and tear excepted (but this
exception shall apply only if Tenant has employed good maintenance practices,
and this exception shall not excuse Tenant from any obligation hereunder to make
necessary repairs and replacements), and except for repairs which the Landlord
expressly agrees to make as herein provided; and Tenant shall repair any injury
done to the Premises or the Building or the Property by the installation or
removal of the Tenant! s fixtures or other property.
9.3.2. All Alterations, or other additions, improvements and fixtures
which may be made or installed by either the Landlord or the Tenant and which
are attached to a floor, wall or ceiling, including any wall or floor coverings,
shall remain upon the Premises, and at the expiration or earlier termination of
this Lease shall be surrendered with the Premises as a part thereof, however,
the Landlord upon termination of this Lease, may require the Tenant to restore
the Premises to their condition at the commencement of this Lease, in whole or
in part.
9.3.3. Notwithstanding subsection 9.3.2 above, any trade fixtures,
furniture, movable equipment and other personal property installed by the Tenant
and owned by the Tenant which may be removed from the Premises without injury
thereto shall remain the property of the Tenant and shall be removed by the
Tenant from the Premises prior to the expiration or earlier termination of this
Lease; provided, if the Premises or the Building is damaged by or as a result of
the removal of any such articles, Tenant shall promptly repair such damage, at
Tenant's sole cost and expense. In the event Tenant fails to remove said
articles prior to the expiration or earlier termination of this Lease, or if
such articles are stored by Landlord (without any responsibility by Landlord for
any damage resulting therefrom, and at Tenant's sole cost and expense) and
Landlord elects to end such storage, 30 days after such expiration or earlier
termination they shall be deemed abandoned and may be disposed of by Landlord in
any way Landlord sees fit, at Tenant's sole cost and expense.
10. UTILITY SERVICES
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10.1. SEPARATE UTILITIES.
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The Tenant shall obtain directly from the supplier or utility company all
utility services provided to the Premises which are now or are hereafter
separately metered and served by such supplier or utility company, or which are
not now provided to the Premises by the Landlord, and Landlord shall have no
responsibility in connection therewith.
10.2. SERVICES.
10.2.1. Water, The Landlord shall provide hot water for lavatory purposes
and cold water for normal drinking, lavatory and toilet purposes to the
Building's restrooms. Tenant shall pay to Landlord, as additional rent
hereunder, during the Tenn and any extensions thereof, Tenant's Water Share of
the water and sewer charges assessed against the Property. Such additional rent
shall be paid within 10 days after Tenant's receipt of a xxxx therefor.
"Tenant's Water Share" shall be determined by Landlord based on the occupancy
levels of the various tenants at the Building.
10.2.2. Electricity. The Tenant shall be responsible, at Tenant's sole
cost and expense, for all electrical service to the Premises. Tenant shall also
be responsible for keeping all light fixtures property lamped and for the
replacement of all burnt out lamps at the Premises. The Landlord shall have the
right, in its sole discretion, to designate from time to time (and to change any
previous designation) the particular utility company or companies who will be
supplying electrical services to the Building or any portion thereof, and, if
Landlord has so designated such companies, Tenant shall contract for its
electrical service exclusively from such companies.
10.2.3. Heat. The Tenant shall responsible for providing heat to the
Premises during the normal heating season, and shall at all times keep the
Premises heated at least to minimum levels to protect the Premises and the
Building's systems and facilities.
10.3. PAYMENT FOR SERVICES.
The Tenant shall pay directly to the supplier or utility company all charges for
utility services supplied to the Premises as provided in Section 10. 1 above and
for all services which are the Tenant's responsibility as provided in Section
10.2 above. The Tenant shall also pay to Landlord, as additional rent hereunder,
within 10 days of being billed therefor: (i) all charges for common utility
services provided to the Premises which are reasonably allocable to the Premises
by Landlord (including pursuant to utility monitor metering as provided in
Section 10.5); and (ii) all charges provided for herein with respect to the
overloading or overutilization of utility services serving the Premises.
10.4. USE OF SERVICES.
Tenant shall not introduce to the Premises personnel, fixtures or equipment
which (individually or in the aggregate) overload the capacity of the
electrical, HVAC or mechanical systems or other utility systems serving the
Premises or the Building. Without limiting Landlord's rights hereunder, if
Tenant uses the Premises or installs fixtures or equipment which would so
overload said utility systems, as reasonably determined by Landlord, Tenant
shall pay, on demand, as additional rent, the cost of providing and installing
any additional equipment or other facilities and services may be required as a
result thereof. In addition to the foregoing, if water is consumed on the
Premises for other than ordinary drinking and lavatory purposes or in excessive
quantities (as reasonably determined by Landlord) or if other utilities are used
on the Premises for other than ordinary purposes or in excessive quantities (as
reasonably determined by Landlord), Tenant shall pay to Landlord, on demand from
time to time, as additional rent, the additional charges resulting therefrom, as
reasonably estimated by Landlord.
10.5. MEASUREMENT OF USAGE.
Landlord reserves the right, at any time, to install monitor or check meters to
measure consumption of any or all common utilities in the Premises and/or to
have any and all utilities supplied to the Premises separately metered and
directly served by a utility company; and the costs incurred by Landlord in
connection with the installation, maintenance and repair of such meters or of
such separate supplying shall be borne by Tenant and shall be paid to Landlord,
as additional rent, on demand from time to time.
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10.6. NO LIABILITY.
The Landlord shall not be liable for any interruption of electricity, gas, oil,
water, telephone, sewage or other utility service supplied to the Premises.
11. LIABILITY AND INSURANCE
11.1. LIABILITY.
11.1.1. The Tenant shall save the Landlord harmless and indemnified from
all injury, loss, claims, damage or liability of whatever nature (including,
without limitation, court costs and reasonable attorney's fees) incurred by
Landlord, and arising: from any act, omission or negligence of the Tenant or
Tenant's Agents with respect to the Premises, the Common Facilities, the
Building or the Property; from the use or occupation thereof by Tenant or
Tenant's Agents or the business conducted thereat by Tenant or Tenant's Agents;
from any default by Tenant hereunder; or in any other respect at, about or in
connection with the Premises during the Term hereof. Upon request of Landlord,
the Tenant shall take over Landlord's defense in any action related to such
matter for which Tenant has agreed to indemnify Landlord.
11.1.2. Neither the Landlord nor any agent or employee of the Landlord
shall be liable for any damage to the person or property of the Tenant or of
Tenant's Agents. Without in any way limiting the generality of the foregoing,
Landlord, its agents or employees shall not be liable, in any event, for any
such damage, or from any damage or loss from interruption of business,
resulting: (i) from any casualty; (ii) from steam, gas, electricity, water, rain
or snow, from leaks from pipes, appliances or plumbing, from falling plaster or
other building components, from dampness or from any other similar cause; (iii)
from any hidden defect on the Premises, the Building or the Land; and/or (iv)
from any acts or omissions of persons occupying adjacent premises or other parts
of the Building or otherwise entitled to use the Property.
11.1.3. All provisions in this Lease dealing with the indemnification and
the like of the Landlord by Tenant shall be deemed modified in each case by the
insertion in the appropriate place of the language "except as otherwise provided
in Chapter 186, Section 15 of the General Laws of Massachusetts as then in
effect."
11.1.4. Notwithstanding anything to the contrary in this Lease, in no
event whatsoever shall landlord be responsible for indirect, incidental or
consequential damages.
11.2. INSURANCE.
11.2.1. The Tenant shall maintain during the Tenn of this Lease, at its
own expense, comprehensive public liability insurance, written on an occurrence
basis, in responsible companies qualified to do business in Massachusetts, which
shall insure the Landlord (as a named, insured party) and all persons claiming
under the Landlord (including Mortgagees), as well as the Tenant against all
claims for injuries to persons (including death) occurring in or about the
Premises, the Building or the Property (for each occurrence) and against all
claims for damages to or loss of property occurring in or about the Premises
(for each occurrence) in the amounts of at least the Insurance Amounts or such
higher amounts of liability insurance coverage as Landlord shall reasonably
require from time to time. The Tenant shall furnish the Landlord with
certificates for such insurance prior to the commencement of the Term hereof and
at least 30 days prior to the expiration date of any of such policies. Each such
policy shall contain a provision that it shall be noncancellable with respect to
the Landlord's or any Mortgagee's interests without at least 30 days' prior
written notice to the Landlord.
11.2.2. The Landlord shall maintain fire and extended coverage insurance
covering the Building (but excluding, unless Landlord elects otherwise, any
property or improvements installed by or belonging to Tenant) against loss by
fire and other similar hazards included within customary building fire and
extended coverage insurance polices, and against other hazards determined by
Landlord, in amounts and forms and with deductibles all as determined by
Landlord. All costs incurred by Landlord hereunder shall be included as a part
of the Operating Costs, as provided in Section 5 hereof.
11.2.3. The Tenant shall, at its own expense, maintain fire and
comprehensive casualty insurance of adequate amounts with respect to its own
fixtures, furnishings, merchandise, equipment and other property contained in
the Premises.
11.3. WAIVER OF SUBROGATION
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Landlord and Tenant each hereby releases the other from any and all liability or
responsibility to the other (or anyone claiming through or under them by way of
subrogation or otherwise) for any loss or damage to property caused by fire or
any of the extended coverage or other insured casualties, even if such fire or
other casualty shall have been caused by the fault or negligence of the other
party, or anyone for whom such party may be responsible; provided, however, such
release shall only be effective to the extent of any insurance coverage provided
by insurance policies maintained by the releasor which policies contain the
clause or endorsement to the effect that any such release shall not adversely
affect or impair said policies or prejudice the right of the releasor to recover
thereunder; and provided, however, that this release shall be applicable and in
force and effect only with respect to loss or damage occurring during such time
as the releasor's insurance policies then in effect shall contain such a clause
or endorsement. Landlord and Tenant each hereby agree that it shall cause such a
clause or endorsement to be included in its policies, if obtainable, and, if
necessary, pay any additional premium that may be charged therefor.
12. ASSIGNMENT OR SUBLETTING
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12.1. RESTRICTION.
12.1.1. The Tenant shall not assign this Lease, shall not sublet all or
any portion of the Premises and shall not permit occupation of the whole or any
part thereof by another, by license or otherwise, without, on each occasion,
first obtaining the Landlord's approval in writing, which approval shall: not be
unreasonably withheld with, to an assignment of this Lease to occupancy tenant
or the subletting of all or a portion of the Premises to an occupancy tenant.
Without limitation, it shall not be unreasonable for Landlord to withhold such
approval from any assignment or subletting where, in Landlord's opinion, (i) the
proposed assignee or sublessee does not have a financial standing and credit
rating reasonably acceptable to Landlord, (ii) the proposed assignee or
sublessee does not have a good reputation in the community, or (iii) the
business in which the proposed assignee or sublessee is engaged could detract
from the Building, its value or the costs of ownership thereof.
12.1.2. The Tenant shall not collaterally assign this Lease, nor permit
any assignment of this Lease by mortgage or by operation of law .
12.1.3. The foregoing restrictions shall be binding on any assignee or
sublessee to which Landlord has consented, provided Landlord's consent to any
further assignment or sub-subleasing by any assignee or sublessee may be
withheld at Landlord's sole and absolute discretion.
12.1.4. Consent by the Landlord to any assignment or subletting shall not
include consent to the assignment or transferring of any lease renewal or
extension option rights, any rights of first refusal or option rights regarding
the rental of additional space, any special privileges or extra services granted
to Tenant by separate agreement, by addendum or amendment of the Lease.
12.2. TRANSFERS OF INTERESTS.
If at any time Tenant's interest in this Lease is held by a corporation, trust,
partnership, limited liability company or other entity, the transfer of more
than 25% of the stock, beneficial interests, partnership interest, membership
interest or other ownership interest therein (whether at one time or in the
aggregate) shall be deemed an assignment of this Lease. The foregoing provision
shall not be applicable so long as the Tenant is a corporation, the outstanding
voting stock of which is listed on a recognized security exchange.
12.3. REIMBURSEMENT OF COSTS.
Tenant shall reimburse Landlord on demand for any reasonable costs that Landlord
may incur in connection with the consideration of any proposed assignment or
subletting, including, without limitation, the reasonable costs of investigating
the acceptability of the proposed assignee or subtenant, and reasonable legal
costs incurred in connection with any request for approval of any proposed
assignment or subletting, in each case whether or not said proposed assignment
or subletting is approved by Landlord.
12.4. AGREEMENT OF ASSIGNEE/SUBTENANT.
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It shall be a condition of the validity of any assignment or subletting which
has been approved in writing by Landlord that the assignee or subtenant shall
agree directly with Landlord, by written instrument in form satisfactory to
Landlord, to be bound by all the obligations of the Tenant hereunder, including,
without limitation, the obligation to pay rent and other amounts provided for
under this Lease, the covenant against further assignment and subletting, and
the covenant to use the Premises only for the purposes specifically permitted
under this Lease.
12.5. LIABILITY OF TENANT.
Notwithstanding any assignment or subletting of this Lease, Tenant and any
guarantor of Tenant's obligations under this Lease shall remain fully and
primarily liable for the prompt and timely payment of all Fixed Rent, additional
rent and other charges hereunder and for the timely performance of all of the
Tenant's other 3 agreements and obligations hereunder; and the Tenant and any
guarantor of Tenant's obligations under this Lease shall be deemed to have
waived any and all suretyship defenses. No consent by the Landlord to an
assignment, sublease or other indulgence or favor at any time granted by the
Landlord to Tenant or to anyone claiming under the Tenant, nor acceptance of
rent from, or other dealing with, anyone claiming under the Tenant, shall be
deemed to constitute any consent to any further assignment, sublease or other
indulgence, or relieve the Tenant or any such guarantor from their obligations
under this Lease.
12.6. EXCESS RENT.
If Landlord shall consent to any assignment of this Lease by Tenant or a
subletting of the whole of the Premises by Tenant at a rent which exceeds the
rent payable hereunder, or if Landlord shall consent to a subletting of a
portion of the Premises by Tenant at a rent in excess of the subleased portion's
pro- share (on a square footage basis) of the rent payable hereunder by Tenant,
then Tenant shall pay to Landlord, as additional rent, forthwith upon Tenant's
receipt of the same or any installment thereof, 50% of the net amount of any
consideration given for any such assignment and/or 50% of the net amount of any
such excess rent. The term "Net amount" shall mean all such excess rent or other
payments or consideration, less only reasonable leasing commissions, tenant
improvement costs, legal fees and tenant allowances reasonably incurred by
Tenant in connection with such subleasing or assignment. Each request by Tenant
for permission to assign this Lease or to sublet the whole or any part of the
Premises shall be accompanied by a warranty by Tenant as to the amount of rent
to be paid to Tenant by the proposed assignee or sublessee. For purposes of this
Section 14.6, the term "rent" shall mean all fixed rent, additional rent or
other payments and/or consideration payable by one party to another for the use
and occupancy of the Premises or any portion thereof or to acquire an assignment
of Tenant's interest in this Lease.
13. MORTGAGES
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13.1. SUBORDINATION.
This Lease shall be subject and subordinate to any existing Mortgages on the
Premises or the Property and to any and all advances made or to be made
thereunder and to any extensions and/or renewals and/or modifications thereof-,
and the Tenant shall from time to time, upon request of the Landlord, confirm
the foregoing and execute, acknowledge and deliver instruments confirming same.
In addition, and without limiting the foregoing, the Tenant shall from time to
time, upon request of the Landlord, also subordinate this Lease to any future
Mortgages hereafter placed upon the Premises or the Property, and to any and all
advances made or to be made thereunder and to any extensions, renewals,
modifications and/or replacements thereof (and to any replacements of any
existing Mortgages), and Tenant shall from time to time, upon request of the
Landlord, execute and acknowledge instruments evidencing such subordination
pursuant to this sentence, provided that in such instrument of subordination the
Mortgagee agrees that so long as the Tenant shall not be in default under this
Lease, the Mortgagee will not disturb the peaceful, quiet enjoyment of the
Premises by the Tenant. The Tenant hereby irrevocably appoints the Landlord its
attorney-in-fact (which appointment is coupled with an interest) to execute and
deliver any such instrument of subordination for and on behalf of the Tenant. If
this Lease is so subordinated, no entry under any such Mortgage or sale for the
purpose of foreclosing the same or repossession or other action pursuant to such
Mortgage shall be regarded as an eviction of the Tenant, constructive or
otherwise, or give the Tenant any right to terminate this Lease. Upon request of
Landlord, any such Mortgagee or any new owner or possessor, Tenant shall attorn
to the Mortgagee or new owner or possessor, and shall agree in writing with any
of said parties to so attorn.
13.2. MORTGAGEE'S ELECTION.
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If any Mortgagee elects, by written notice given to the Tenant, to have this
Lease and the interest of the Tenant hereunder superior to any such Mortgage,
then this Lease and the interest of the Tenant hereunder, shall be deemed
superior to any such Mortgage, whether this Lease was executed (and notice
thereof recorded) before or after the execution and/or recording of such
Mortgage.
13.3. ASSIGNMENT OF LEASES AND RENTS.
If Landlord shall at any time, or from time to time, assign Landlord's interest
in this Lease, or the rents payable hereunder, conditionally or otherwise, to
any Mortgagee, the Tenant agrees to each of the following:
(a) That the execution of such assignment by the Landlord, and the
acceptance thereof by such Mortgagee, shall never be deemed an
assumption by such Mortgagee of any of the obligations of the
Landlord hereunder, unless such Mortgagee shall, by written notice
sent to the Tenant, specifically otherwise elect.
(b) That, except as aforesaid, such Mortgagee shall be treated as having
assumed the Landlord's obligations hereunder only upon the occurrence
of both (i) the foreclosure of such Mortgagee's Mortgage and (ii) the
taking of possession of the Premises by such Mortgagee.
(c) To execute an agreement in form satisfactory to such Mortgagee
consenting to such assignment and acknowledging and recognizing such
assignment.
14. STATUS REPORTS
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14.1. ESTOPPEL CERTIFICATE.
Recognizing that Landlord may find it necessary to establish to third parties,
such as accountants, banks, Mortgagees (or prospective Mortgagees) purchasers
(or prospective purchasers) or the like, the then current status of performance
hereunder, Tenant, on the written request of the Landlord or of any Mortgagee
made from time to time will promptly furnish a written statement in form
satisfactory to Landlord and/or such Mortgagee as to the status of any matter
pertaining to this Lease. Without limiting the foregoing, such statement
furnished pursuant to this Section 16.1 shall, if and to the extent requested by
Landlord or any Mortgagee: (1) ratify this Lease; (2) express the Commencement
Date and the expiration date of the Term of this Lease; (3) certify that this
Lease is in full force and effect and has not been assigned, modified,
supplemented or amended (except by such writings as shall be stated); (4)
certify that all conditions under this Lease to be performed by Landlord have
been satisfied except as stated; (5) certify that there are no defenses or
offsets against the enforcement of this Lease by Landlord, except as stated; (6)
certify as to the amount of advance rental, if any (or none if such is the
case), paid by Tenant; (7) certify as to the date to which rental has been paid;
(8) certify as to the amount of security deposited with Landlord; and (9)
certify that as of such date (or as of any date designated by Landlord or such
Mortgagee) the entire cost of any work to the Premises undertaken by Tenant has
been paid for, and all liens for material and/or labor in connection therewith
have been discharged. Any statement furnished pursuant to this Section 16.1 may
be relied upon by any purchaser or Mortgagee of the Premises or the Property, or
by any other third party interested in the status of this Lease or the Property.
15. DAMAGE BY CASUALTY
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15.1. CASUALTY.
If the Premises or the Building shall be damaged or destroyed by fire or other
casualty or cause (a "casualty"), the Tenant shall immediately give notice
thereof to the Landlord. Unless this Lease is terminated as provided in this
Section, the Landlord at its own expense, and proceeding with all reasonable
dispatch, but subject to Unavoidable Delays, shall repair and reconstruct the
same so as to restore the Premises (but not any Alterations made by or for
Tenant or any trade fixtures, equipment or personal property of Tenant) to
substantially the same condition they were in prior to such casualty, subject to
zoning and building laws then in existence. Notwithstanding the foregoing, in no
event shall Landlord be obligated either (i) to repair or rebuild if the damage
or destruction results from any casualty not insured against or (ii) to expend
for such repair or rebuilding more than the amount of the insurance proceeds
(net of all costs and expenses incurred by Landlord in collecting the same, and
net of all insurance proceeds retained by any Mortgagee) received by Landlord on
account thereof.
15.2. TERMINATION.
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15.2.1. If either the Premises or the Building shall be damaged or
destroyed to the extent of 25% or more by any casualty (whether insured against
by the Landlord or not), or shall be damaged or destroyed to any lesser extent
by any cause not insured against by the Landlord, the Landlord may elect, by
written notice to the Tenant given within 90 days after the occurrence of such
casualty, to terminate this Lease, such termination to be effective on the date
set forth in such notice or, if no date is so set forth, 90 days after such
notice.
15.2.2. If the Premises or the Building shall, within the last two years
of the Term, be damaged or destroyed by any casualty to such extent that in the
judgment of Landlord the same cannot be reasonably expected to be restored to
substantially the same condition as prior to such damage or destruction within
90 days (or such shorter period to the date of expiration of the Term) from the
time that such repair and reconstruction work would be commenced, then the
Landlord or (but only if such damage also impairs Tenant's reasonable use of the
Premises) the Tenant shall have the right to terminate this Lease by notice to
the other given within 90 days after the occurrence of such casualty; however,
nothing herein shall prevent Landlord from terminating (or nullify any notice by
Landlord terminating) this Lease pursuant to subsection 15.2.1 above.
Notwithstanding the foregoing, if any Option Periods remain to be exercised by
Tenant, and if Tenant duly exercises such option to extend within 15 days after
Landlord's notice of termination hereunder, such termination notice shall be
deemed void and of no force and effect and the provisions of this Section 15.2.2
shall no longer be applicable to such casualty.
15.2.3. If the Premises shall be damaged or destroyed by any casualty and
such damage impairs Tenant's reasonable use of the Premises, Tenant may elect to
terminate this Lease if (i) such damage, in the reasonable judgment of Landlord
cannot be reasonably repaired (such that same no longer impairs Tenant's
reasonable use of the Premises) within 180 days or (ii) such damage is not so
reasonably repaired within 270 days. Tenant shall exercise its option to
terminate by giving written notice to Landlord, as applicable, within 30 days
after such casualty or within 30 days after such 270- period.
15.3. TENANT'S OBLIGATION.
In the event that the Premises or the Building are damaged or destroyed by any
casualty, then, unless this Lease is terminated as above provided, the Tenant,
at its own expense and proceeding with all reasonable dispatch, shall repair or
replace suitably all Alterations made by or for Tenant and any trade. fixtures,
equipment or personal property of Tenant which shall have been damaged or
destroyed.
15.4. ABATEMENT.
If this Lease is not terminated as above provided, then from and after such
casualty and until the Premises are substantially restored as above provided,
the Fixed Rent reserved herein shall xxxxx proportionately according to the
extent that the Premises have been rendered untenantable by such damage or
destruction.
16. EMINENT DOMAIN
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16.1. TAKING.
In the event of any taking by eminent domain, which shall be deemed to include a
voluntary conveyance in lieu of a taking (a "taking"), of all of the Property,
this Lease shall terminate as of the date when Tenant is required to vacate the
Premises.
16.2. TERMINATION.
16.2. 1. In the event of any taking of all or any part of the Building, or
in the event of any taking which reduces the total area of the Land by more than
15%, the Landlord or (but only if such taking also impairs Tenant's reasonable
use of the Premises) the Tenant shall have the right to terminate this Lease by
giving written notice to the other of its election to terminate within 90 days
after the date of filing of the notice of such taking; and this Lease shall
terminate on the date set forth in such notice.
16.2.2. The rights to terminate contained in this Section may be exercised
notwithstanding that the entire interest of the party exercising such right may
have been divested by such taking.
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16.3. OBLIGATION TO RESTORE.
If following any taking of all or any part of the Premises, the Building or the
Land, the Lease is not terminated as provided in Section 16.2, then the
Landlord, at the Landlord's expense, but only to the extent of the award for any
such taking received by Landlord (net of all costs and fees incurred by Landlord
in collecting the same and net of any portion of the award retained by any
Mortgagee), and proceeding with all reasonable dispatch, subject to Unavoidable
Delays, shall do such work as may be required to put what may remain of the
Premises (but not any Alterations made by or for Tenant or any trade fixtures,
equipment or personal property of Tenant) in reasonably proper condition for the
conduct of the Tenant's business; and the Tenant, at the Tenant's expense and
proceeding with all reasonable dispatch, shall do such work as may be required
to repair and replace the Alterations made by or for Tenant and any trade
fixtures, equipment and personal property of the Tenant as may be necessary to
put the remainder of the Premises in reasonably proper condition for the
Tenant's business.
16.4. ABATEMENT.
In the event of a taking, from and after the date on which the Tenant is
required to vacate the portion of the Premises so taken and until the Premises
are substantially restored as above provided, or if this Lease is terminated as
above provided, until the date of termination, the Fixed Rent reserved herein
shall xxxxx proportionately according to the extent that the Premises have been
rendered untenantable by such taking; and from and after the date on which the
Landlord shall substantially restore the Premises as above provided the Fixed
Rent shall be reduced by the proportion that the floor area of the portion so
taken bears to the floor area of the Premises on the date prior to such I to
such taking.
16.5. AWARDS.
The Landlord reserves and excepts all rights to damages to the Land, the
Building, the Premises, the leasehold hereby created, or awards with respect
thereto, then or thereafter accruing, by reason of any taking by eminent domain
or by reason of anything lawfully done or required by any public authority; and
the Tenant grants to the Landlord all the Tenant's rights, if any, to such
damages, except with respect to the value of its personal property which may be
compensable by separate award without reducing the amount of any award to
Landlord and relocation expenses; and Tenant shall execute and deliver to the
Landlord such further instruments of assignment thereof as the Landlord may from
time to time request.
17. DEFAULT
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17.1. EVENT OF DEFAULT.
Each of the following shall be an event of default hereunder (an "Event of
Default"):
(a) The failure of Tenant to pay when due any Fixed Rent, additional rent
or other payments hereunder, which failure continues for 5 days after
written notice thereof is given by Landlord to Tenant.
(b) The failure of Tenant to perform any other obligation hereunder
(other than payment of Fixed Rent, additional rent or other payments
hereunder), which failure continues for 30 days after notice thereof
is given by Landlord to Tenant; provided, if such failure by its
nature cannot be cured within 30 days, Tenant shall be given such
additional time as is reasonably necessary, not to exceed 60 days,
provided Tenant has commenced diligently to correct said failure and
thereafter diligently pursued such correction to completion.
(c) The estate hereby created shall be taken on execution or other
process of law; or the Tenant or any guarantor of Tenant's
obligations under this Lease shall become insolvent or become unable
to meet its obligations as they become due; or the Tenant or any
guarantor of Tenant's obligations under this Lease shall make or
offer to make, in or out of bankruptcy, a composition with its
creditors; or the Tenant or any guarantor of Tenant! s obligations
under this Lease shall be declared bankrupt, shall make an assignment
for the benefit of its creditors or if a receiver, trustee or other
officer shall be appointed to take charge of all or any substantial
part of its property by a court.
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(d) A petition for relief shall be filed by or against the Tenant or any
guarantor of Tenant's obligations under this Lease under the United
States Bankruptcy Code or any successor or similar state or federal
statute now or hereafter in effect; but if the same is filed against
but not by Tenant or any guarantor of Tenant's obligations under this
Lease, it shall not be an Event of Default unless same shall not be
dismissed within 30 days after the date on which it is filed.
(e) Tenant shall default in the performance or observance of any term,
covenant or condition of this Lease, and Landlord shall have given
Tenant notice of at least 2 defaults hereunder in the preceding 12-
month period, regardless of whether Tenant remedies the same within
any grace period provided herein.
17.2. TERMINATION.
Upon the occurrence of any Event of Default, notwithstanding any prior waivers
or consent, the Landlord lawfully may, in addition to and not in derogation of
any remedies for any preceding breach of covenant, immediately or at any time
thereafter and without prior demand or prior notice, terminate this Lease by
notice in writing (such termination to be effective forthwith, or on a date
stated in said notice), and/or with or without process of law (forcibly, if
necessary) enter into and upon the Premises or any part thereof in the name of
the whole and repossess the same and expel the Tenant and Tenant's Agents and
any other parties claiming through or under the Tenant and remove Tenant's and
their effects (forcibly, if necessary) without being deemed guilty of any manner
of trespass and without prejudice to any remedies which might otherwise be used
for arrears of rent or preceding breach of covenant, and upon entry as aforesaid
or on the date of termination pursuant to the foregoing notices, whichever
occurs first, this Lease shall terminate; and the Landlord without notice to the
Tenant may store the Tenant's chattels and those of any person claiming under
the Tenant at the expense and risk of the Tenant or of such person, and, if the
Landlord so elects, may sell such chattels at public auction or private sale and
apply the net proceeds after deduction of reasonable costs to the payment of all
sums due to the Landlord hereunder.
17.3. REMEDIES.
17.3.1. In the case of any termination as described in Section 17.2, the
Tenant shall, at the election of the Landlord, which election may be changed at
any time:
(a) Pay to the Landlord in equal monthly installments, in advance, sums
equal to the aggregate rent (as defined below) herein provided for
or, if the Premises have been relet, sums equal to the excess of the
aggregate rent herein provided for over the sums actually received by
the Landlord from such reletting, plus, in any case, Landlord's
Default Expenses (as defined below), such sums being payable as
liquidated damages for the unexpired Tenn hereof; or
(b) Pay to the Landlord as damages a sum which, at the time of such
termination or at the time to which installments of liquidated
damages shall have been paid pursuant to subsection (a) above,
represents the amount by which the then rental value of the Premises
is less than the aggregate rent herein provided for the residue of
the Tenn and pay from time to time to the Landlord upon demand such
additional sums as are equal to the excess, if any, of the aforesaid
rental value of the Premises over the rent actually received by
Landlord for the period from such termination, or from the time to
which installments of liquidated damages shall have been paid, or
from the time to which these additional sums may have been paid by
Tenant under this subsection, whichever the case may be, to the time
for which the Landlord may specify in its demand hereunder (but in no
event to the time later than the expiration of the Tenn hereof),
plus, in any case, Landlord's Default Expenses .
In any event, regardless of any other remedy available to Landlord, Tenant shall
indemnify the Landlord against loss of the aggregate rent herein provided from
the time of such termination to the .expiration date of the Term as provided
herein, plus, in any case, Landlord's Default Expenses.
17.3.2. In the event of an Event of Default, if the Landlord shall elect
not to terminate this Lease upon such default, it may relet the Premises or any
part or parts thereof in the name of either the Landlord or the Tenant, for a
term or terms which may, at the Landlord's option, extend beyond the balance of
the Term of this Lease and may remove and store the Tenant's effects at the
Tenant's expense; and the Tenant agrees that in the event of such reletting the
Tenant shall pay the Landlord any deficiency between the aggregate rent to be
paid hereunder and the net amount of the rents collected during
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such reletting, plus in any case, Landlord's Default Expenses. All such expenses
and deficiencies shall be paid by Tenant, as additional rent, in monthly
installments upon statements rendered by the Landlord to the Tenant.
17.3.3. In the event of an Event of Default, whether or not the Landlord
shall elect to terminate this Lease, or in the event of an occurrence or default
which would become an Event of Default with the passage of time, in addition to
all other rights and remedies of Landlord upon default, Tenant agrees that the
Tenant shall pay to the Landlord any other costs and expenses, including
attorney's fees, incurred by the Landlord as a consequence of such default, and
shall indemnify and hold Landlord harmless from and against same.
17.3.4. In addition to the rights and remedies provided in this Section,
Landlord shall have all other rights and remedies at law or in equity for any
breach by Tenant of the provisions of this Lease. All rights and remedies which
the Landlord may have under this Lease or at law or in equity shall be
cumulative and shall not be deemed inconsistent with each other, and any two or
more of such rights and remedies may be exercised at the same time insofar as
permitted by law.
17.3.5. The following terms as used herein shall have the meanings set
forth below:
"Aggregate rent": All Fixed Rent, additional rent and all other
--------------
monetary amounts payable hereunder, as same may be adjusted from time to
time under the provisions hereof; provided, at Landlord's option, the
additional rent due under this Lease for periods after any default and
entry hereunder and/or after any termination by Landlord shall be computed
and determined based upon the reasonable projected amounts of same for the
balance of the unexpired Tenn, but in no event less than an annual rate
equal to the amount of additional rent paid or payable with respect to the
most current Lease Year, Tax Year or Operating Year, as appropriate.
"Landlord's Default Expenses": Any expenses incurred by the
----------------------------
Landlord as a consequence of any default by Tenant hereunder or in
connection with any reletting, including but not limited to, attorneys'
fees, brokers' fees and expenses of repairing, maintaining and putting the
Premises in good order and condition and preparing the same for re-rental.
17.4. SELF-HELP.
17.4.1. If the Tenant shall default in the performance or observance of
any agreement, condition or obligation in this Lease to be performed or observed
by Tenant and shall not cure such default within 30 days after notice from
Landlord specifying the default, Landlord may, at its option, without waiving
any claim for breach of agreement, at any time thereafter cure such default for
the account of Tenant, and make all necessary payments in connection therewith,
including but not limiting the same, attorneys' fees, costs or charges of or in
connection with any legal action which may have been brought; and any amount
paid by Landlord in so doing shall be deemed paid for the account of Tenant.
Tenant agrees to reimburse Landlord for all of the foregoing costs with interest
thereon from the date such costs are incurred at the Default Interest Rate, such
sums payable by Tenant to Landlord to be deemed additional rent and payable on
demand. Notwithstanding the foregoing, Landlord may cure any such default as
aforesaid prior to the expiration of said 30 day period, in the event of an
emergency or if the curing of such default prior to the expiration of said 30
day period is otherwise reasonably necessary to protect the Property or
Landlord's interest therein, or to prevent injury or damage to persons or
property.
17.4.2. If the Landlord shall default in the performance of its
maintenance or repair obligations under this Lease, and shall not cure such
default within 30 days after written notice from the Tenant specifying the
default (or, if the failure is of a nature that cannot reasonably be remedied
within 30 days, then within such additional period as is reasonably required to
correct the default), be reasonably necessary, provided such repairs are
diligently pursued), and Landlord's failure to perform such repairs impairs the
ability of Tenant to operate its business at the Premises, then, the Tenant
shall have the right to give Landlord (and Landlord's Mortgagee) written notice
of Tenant's intent to cure Landlord's failure, which notice shall include
detailed information on the means and methods of repair proposed (the "Cure
Notice"). If Landlord has not remedied the failure within 7 days after receipt
of the Cure Notice, then Tenant shall have the right to cure such failure. If
Tenant incurs third party expenses curing Landlord's failure pursuant to this
subsection, then Tenant may send Landlord a detailed xxxx itemizing such
expenses, and Landlord shall pay Tenant the reasonable cost of Tenant's cure of
Landlord's failure accomplished pursuant to this subsection. In effecting its
cure pursuant to the Cure Notice, Tenant shall be required to comply with the
restrictions contained in any other leases for space in the Building, such as to
the time, place and/or manner of Landlord fulfilling the obligations which was
the subject of the Cure Notice, and to coordinate with any other tenants in the
Building. Tenant agrees to indemnify and save harmless Landlord from and against
all claims of whatever
19
nature arising from any act, omission or negligence of Tenant, or Tenant's
contractors, licensees, invitees, agents, servants or employees as a result of
Tenant' s cure pursuant to this subsection.
17.5. LANDLORD'S DEFAULT.
The Landlord shall not be deemed to be in default hereunder unless its default
shall continue for 30 days, or such additional time as is reasonably required to
correct its default, after written notice thereof has been given by the Tenant
to the Landlord specifying the nature of the alleged default.
18. NOTICES
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18.1. NOTICES.
Any notice or other communication relating to this Lease shall be given in
writing and shall be deemed to be duly given if sent either (i) by registered or
certified mail, postage prepaid, return receipt requested or (ii) by overnight
mail service as provided by the U.S. mail or by a nationally recognized private
common carrier, and addressed to the party for whom it is intended at Landlord's
Address or at Tenant! s Address, as appropriate, or at the address as designated
by such party in a notice given as herein provided as its address for receiving
notices hereunder. The foregoing shall not be deemed to preclude the giving of
written notice hereunder in any other manner, in which case the notice shall
have been deemed to have been given when actually received by the party for whom
designated.
18.2. NOTICES TO MORTGAGEE.
After receiving written notice from any person, firm, or other entity, that it
holds a Mortgage which includes as part of the mortgaged premises the Premises
or any part thereof, the Tenant shall, so long as such Mortgage is outstanding,
be required to give to such holder, at its address set forth in such written
notice from such holder, the same notice as is required to be given to the
Landlord under the terms of this Lease, such notice to be given by the Tenant to
the Landlord and such holder concurrently. It is further agreed that such holder
shall have the same opportunity to cure any default, and the same time within
which to effect such curing, as is available to the Landlord; and if necessary
to cure such -a default, such holder shall have access to the Premises.
19. ENVIRONMENTAL HAZARDS
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19.1. OBLIGATIONS.
19.1.1. Tenant, and Tenant's Agents, shall not use, maintain, generate,
allow or bring on the Premises or the Property or transport or dispose of on or
from the Premises or the Property (whether into the ground, into any sewer or
septic system, into the air, by removal off-site or otherwise) any Hazardous
Matter.
19.1.2. Tenant shall promptly deliver to Landlord copies of any notices,
orders or other communications received from any governmental agency or official
affecting the Premises and concerning alleged violations of Environmental
Requirements.
19.2. INDEMNIFICATION.
Tenant shall save Landlord (together with its officers, directors, stockholders,
partners, beneficial owners, trustees, employees, agents, contractors,
attorneys, and mortgagees) harmless and indemnified from and against any and all
Environmental Damages which may be asserted on account of- (i) the presence or
release of any Hazardous Matter upon, in or from the Premises during the Tenn
and during any period when the Tenant, or Tenant's Agents, or any of its assigns
or sublessees, are occupying the Premises or any part thereof-, or (ii) the
activities or other action or inaction of Tenant or Tenant's Agents in violation
of Environmental Requirements; or (iii) the breach of any of Tenant's
obligations under this Section.
19.3. PROVISIONS.
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19.3.1. The provisions of this Section shall be in addition to any other
obligations and liabilities Tenant may have to Landlord under this Lease or
otherwise at law or in equity; and in the case of conflict between this Section
and any other provision of this Lease or any requirement imposed by law or in
equity, the provision imposing the most stringent requirement on Tenant shall
control. The obligations of Tenant under this Section shall survive the
expiration or termination of this Lease and the transfer of title to the
Property.
19.3.2. The following terms as used herein shall have the meanings set
forth below:
"Hazardous Matter": Any substance: (i) which is or becomes defined
----------------
as Hazardous Waste, Hazardous Material or oil under M.G.L. Chapter 2 1 C, M.G.L.
Chapter 2 1 D, M.G.L. Chapter 2 1 E, the Comprehensive Environmental Response
Compensation and Liability Act (CERCLA), 42 U.S.C. (S)9601 et seq., or the
Resource Conservation and Recovery Act (RCRA), 42 U.S.C. (S)6901 et seq., and
the regulations promulgated thereunder, as same may be amended, supplemented or
replaced from time to time; or (ii) which is toxic, explosive, corrosive,
flammable, infectious, radioactive, carcinogenic, mutagenic or otherwise
hazardous to health and which is or becomes regulated pursuant to any Applicable
Law.
"Environmental Requirements": All Applicable Law, the provisions
of any all Approvals, and the terms and conditions of this Lease, insofar as
same relate to the release, maintenance, use, keeping in place, transportation,
disposal or generation of Hazardous Matter, including those pertaining to
reporting, licensing, permitting, health and safety of persons, investigation,
remediation, and disposal .
"Environmental Damages": All liabilities, injuries, losses,
claims, damages (whether special, consequential or otherwise), settlements,
attorneys' and consultants' fees, fines and penalties, interest and expenses,
and costs of environmental site investigations, reports and cleanup, including
costs incurred in connection with: any investigation or assessment of site
conditions or of health of persons using the Building or Property; risk
assessment and monitoring; any cleanup, remedial, removal or restoration work
required by any governmental agency or recommended by Landlord's environmental
consultant; any decrease in value of the Property; any damage caused by loss or
restriction of rentable or usable space in the Property; or any damage caused by
adverse impact on marketing or financing of the Property.
20. MISCELLANEOUS PROVISIONS
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20.1. CONSENT/WAIVERS.
No consent or waiver, express or implied, by the Landlord to or of any breach in
the performance by the Tenant of its agreements hereunder shall be construed as
a consent or waiver to or of any other breach in the performance by the Tenant
of the same or any other agreement. No acceptance by the Landlord of any rent or
other payment hereunder, even with the knowledge of any such breach, shall be
deemed a waiver thereof nor shall any acceptance of rent or other such payment
in a lesser amount than is herein required to be paid by the Tenant, regardless
of any endorsement on any check or any statement in any letter accompanying the
payment of the same, be construed as an accord and satisfaction or in any manner
other than as a payment on account by the Tenant. No reference in this Lease to
any assignee, sublessee, licensee or concessionaire, or acceptance by the
Landlord from other than the Tenant of any payment due hereunder shall be
construed as a consent by the Landlord to any assignment or subletting by the
Tenant, or to give to the Tenant any right to permit another to occupy any
portion of the Premises except as herein expressly provided. No waiver by the
Landlord in respect of any one tenant shall constitute a waiver with respect to
any other tenant. Failure on the part of the Landlord to complain of any action
or nonaction on the part of the Tenant or to declare the Tenant in default, no
matter how long such failure may continue, shall not be deemed to be a waiver by
the Landlord of any of its rights hereunder.
20.2. DISPUTED PAYMENTS.
If at any time a dispute shall arise as to any amount or sum of money to be paid
by one party to the other under the provisions hereof, the party against whom
the obligation to pay the money is asserted shall have the right to make payment
"under protest" and such payment shall not be regarded as a voluntary payment
and there shall survive the right on the part of the party making such payment
to institute suit to recover such payment. If it shall be adjudged that there
was no legal obligation on the part of said party to pay such sum or any part
thereof, said party shall be entitled to recover such sum or so much thereof as
it was not legally required to pay under the provisions of this Lease; if at any
time a dispute shall arise between the parties hereto as to any work to be
performed by either of them under the provisions hereof, the party against
21
whom the obligation to perform the work is asserted may perform such work and
pay the cost thereof "under protest" and the performance of such work shall in
no event be regarded as a voluntary performance and there shall survive the
right on the part of said party to institute suit for the recovery of the cost
of such work. If it shall be adjudged that there was no legal obligation on the
part of said party to perform the same or any part thereof and that there was a
legal obligation on the other party to perform same, said party who performed
same shall be entitled to recover the cost of such work or the cost of so much
thereof as said party was not legally required to perform under the provisions
of this Lease and which the other party was legally required to perform.
20.3. FORCE MAJEUR.
The Landlord shall not be liable for a delay or failure in the co commencement,
performance or completion of any of its obligations hereunder where such delay
or failure is attributable to Unavoidable Delays.
20.4. QUIET ENJOYMENT.
Landlord agrees that, upon Tenant's paying the rent and performing and observing
the agreements, obligations and other provisions on its part to be performed and
observed, Tenant shall and may peaceably and quietly have, hold and enjoy the
Premises during the Term of this Lease without any manner of hindrance or
molestation from Landlord or anyone claiming under Landlord, subject, however,
to the rights of holders of present and future Mortgages, and to the terms and
provisions of this Lease.
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20.5. HOLDING OVER.
If the Tenant continues to occupy the Premises after the termination of this
Lease, it shall have no more rights than a tenant by sufferance, but shall be
liable for 150% of aggregate rent (as defined in Section 17.3) during such
occupancy and shall be liable for any loss or expense incurred by Landlord due
to such holding over. Nothing in this Section shall be construed to permit such
holding over.
20.6. VACATING.
Neither the vacating of the Premises by Tenant nor the delivery of keys to or
the acceptance of keys by the Landlord or any employees or agents of Landlord
shall operate as a termination of this Lease or a surrender or an acceptance of
surrender of the Premises.
20.7. LATE PAYMENTS.
20.7. 1. In the event any rent (whether Fixed Rent or additional rent) or
any other payments due from Tenant under this Lease are not paid when due, then
Tenant shall pay to Landlord, as additional rent, interest on such overdue
amounts from the date such amounts become due to the date on which same are paid
(the "delinquency period") at an interest rate equal to the Default Interest
Rate with respect to the delinquency period (such Default Interest Rate to be
recalculated, if appropriate, for each day during the delinquency period).
20.7.2. If, during the Term, Landlord receives a check from Tenant which
is returned by Tenant's bank for insufficient funds or are otherwise returned
unpaid, if Landlord so elects, all checks thereafter shall be either bank
certified, cashiers' or treasurer's checks. All bank charges resulting from any
returned checks, together with a reasonable service charge for the
administrative and overhead expenses of Landlord, shall be paid by Tenant as
additional rent hereunder.
20.8. WAIVER OF COUNTERCLAIMS.
If Landlord commences any summary proceeding for nonpayment of Fixed Rent,
additional rent or any other payments due hereunder, Tenant hereby waives the
right to interpose any counterclaim of whatever nature or description in any
such proceeding, other than compulsory counterclaims; provided, however, that
Tenant shall have the right to bring a separate action against Landlord to the
extent otherwise allowed under this Lease as long as Tenant does not attempt to
have such action joined or otherwise consolidated with Landlord's summary
proceeding.
20.9. CONSENTS.
Except as otherwise specifically provided in this Lease, any consent or approval
to be given by Landlord under this Lease may be withheld or denied at Landlord's
sole and absolute discretion. Whenever in this Lease the consent or approval of
Landlord is required, and it is specifically provided that such consent or
approval is not to be unreasonably withheld, delayed or conditioned, but
nevertheless Landlord shall refuse or delay or condition such consent or
approval, Tenant shall not be entitled to make any claim, and Tenant hereby
waives any claim, for money damages (nor shall Tenant claim any money damages by
any setoff, counterclaim or defense) based upon any claim or assertion by Tenant
that Landlord unreasonably withheld or delayed or conditioned its consent or
approval; and Tenant! s sole remedy in such circumstances shall be an action or
proceeding for specific performance, injunctive relief or declaratory judgment.
20.10. BINDING EFFECT; PARTIES; LANDLORD LIABILITY.
20.10.1. The conditions in this Lease contained to be kept and performed
by the parties hereto shall be binding upon and inure to the benefit of said
respective parties, their heirs, legal representatives, successors and assigns;
provided, however, nothing in this Section shall be construed to permit any
assignment by Tenant, except in accordance with the terms of this Lease, and no
assignee of Tenant shall have any rights hereunder unless the assignment was
accomplished in accordance with this Lease.
20.10.2. Wherever in this Lease reference is made to either of the
parties, it shall be held to include and apply to the heirs, legal
representatives, successors and assigns of such party as if in each case so
expressed, unless the context requires otherwise and regardless of the number or
gender of such party. Notwithstanding the foregoing provisions of this Section,
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the term "Landlord" as used in this Lease means only the owner for the time
being of the Premises, so that in the event of any sale or sales of the Premises
or of this Lease the Landlord shall be and hereby is entirely released of all
covenants and obligations of the Landlord hereunder.
20.10.3. If the Landlord shall at anytime bean individual, joint venture,
tenancy in common, firm, company, corporation, partnership (general, limited or
limited liability), trust or trustees of a trust, it is specifically understood
and agreed that there shall be no personal liability of the Landlord or any
joint venturer, tenant, member, manager, shareholder, director, officer, partner
(general or limited), trustee, beneficiary or holder of any ownership interest,
under any of the provisions hereof or arising out of the use or occupation of
the Premises by Tenant. In the event of a breach or default by Landlord of any
of its obligations under this Lease, Tenant shall look solely to the equity of
the Landlord in the Premises for the satisfaction of Tenant's remedies, and it
is expressly understood and agreed that Landlord's liability under the terms,
covenants, conditions, warranties and obligations of this Lease shall in no
event exceed the loss of such equity interest. It is further understood and
agreed that the liability of any party who is a Landlord (whether the original
Landlord or any successor Landlord) shall be limited to defaults occurring or
arising during the period for which such party shall have been a Landlord, and
such party shall not be liable for defaults occurring or arising at any time
before such party obtained its interest as lessor or after such party disposed
of its interest as lessor.
20.11. NOTICE OF LEASE.
Landlord and Tenant each agree upon request of the other to execute and deliver
to the other a notice of lease or short form of lease suitable for recording and
setting forth the name of the Landlord and the Tenant, the term of the Lease and
an appropriate description of the Premises. No copy of this Lease or any portion
hereof shall be recorded in any Registry of Deeds or Land Court Registry
District.
20.12. BROKERS.
Tenant warrants and represents that it has dealt with no broker in connection
with the consummation of this Lease except the Broker, and in the event of any
brokerage claims against Landlord predicated upon dealings by Tenant with any
broker except the Broker, Tenant agrees to defend the same and indemnify and
hold Landlord harmless against any such claim.
20.13. GENERAL PROVISIONS.
20.13.1. If any provision of this Lease or the application thereof to any
person or circumstance shall be to any extent invalid or unenforceable, the
remainder of this Lease and the application to persons or circumstances other
than those as to which it is invalid or unenforceable shall not be affected
thereby, and each term and provision of this Lease shall be valid and be
enforced to the fullest extent permitted by law.
20.13.2. This Lease shall constitute the only agreement between the
parties relative to the Premises and no oral statements and no prior written
matter not specifically incorporated herein shall be of any force or effect. In
entering into this Lease, the Tenant relies solely upon the representations and
agreements contained herein. This agreement shall not be modified except by
writing executed by both parties.
20.13.3. In no case shall mention of specific instances under a more
general provision be construed to limit the generality of said provision.
20.13.4. The section and article headings throughout this instrument, if
any, are for convenience and reference only, and the words contained therein
shall in no way be held to limit, define or describe the scope or intent of this
Lease or in any way affect this Lease.
20.13.5. This Lease shall be construed without regard to any presumption
or other rule requiring construction against the party causing this Lease to be
drafted.
20.13.6. Landlord and Tenant agree that time is of the essence of this
Lease.
20.13.7. If more than one party is lessee hereunder, the obligations of
Tenant hereunder shall be joint and several.
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20.13.8. Employees or agents of the Landlord have no authority to make or
agree to make a Lease or any other agreement in connection herewith. The
submission of this document or a summary of some or all of its provisions for
examination and negotiation does not constitute an option to lease, or a
reservation of, or option for, the Premises, and this document shall become
effective and binding only upon the execution and delivery hereof by both
parties. Executed under seal, in multiple counterparts, as of Lease Date.
TENANT:
XXXXXXX SHOE COMPANY, INC.
By:
--------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Chairman, Chief Executive Officer
LANDLORD:
-----------------------------------------
Xxxx X. Xxxxxx, III
as Trustee of
Brockton Oak Real Estate Trust
and not Individually
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