Exhibit 10.36
Net Building Lease
by and between
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, as
Trustees of ▇▇▇▇▇▇▇▇▇▇ Investment Properties, Landlord
and
SC Corporation
dated March 6, 1997
Table of Contents
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ARTICLE I - Reference Data
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1.1 Subjects Referred To..................................................
1.2 Exhibits..............................................................
ARTICLE II - Premises and Term
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2.1 Premises..............................................................
2.2 Term..................................................................
2.2A Option to Terminate...................................................
2.3 Option to Extend......................................................
ARTICLE III - Landlord's Work
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ARTICLE IV - Rent
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4.1 The Fixed Rent........................................................
4.2 Real Estate Taxes.....................................................
4.3 Shared Costs..........................................................
4.4 Utilities.............................................................
4.5 Late Payment of Rent..................................................
ARTICLE V - Tenant's Additional Covenants
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5.1 Affirmative Covenants.................................................
5.1.1 Perform Obligations...........................................
5.1.2 Use...........................................................
5.1.3 Repair and Maintenance........................................
5.1.4 Compliance with Law...........................................
5.1.5 Tenant's Work.................................................
5.1.6 Indemnity.....................................................
5.1.7 Landlord's Right to Enter.....................................
5.1.8 Personal Property at Tenant's Risk............................
5.1.9 Payment of Cost of Enforcement................................
5.1.10 Yield Up......................................................
5.1.11 Estoppel Certificate..........................................
5.1.12 Landlord's Expenses re Consents...............................
5.1.13 Financial Statements..........................................
5.2 Negative Covenants....................................................
5.2.1 Assignment and Subletting.....................................
5.2.2 Overloading and Nuisance......................................
5.2.3 Installation, Alterations or Additions........................
ARTICLE VI - Casualty or Taking
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6.1 Termination...........................................................
6.2 Restoration...........................................................
6.3 Award.................................................................
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ARTICLE VII - Defaults
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7.1 Events of Default......................................................
7.2 Remedies...............................................................
7.3 Remedies Cumulative....................................................
7.4 Landlord's Right to Cure Defaults......................................
7.5 Effect of Waivers of Default...........................................
7.6 No Accord and Satisfaction.............................................
ARTICLE VIII - Mortgages
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8.1 Rights of Mortgage Holders.............................................
8.2 Lease Subordinate to Mortgages.........................................
ARTICLE IX - Miscellaneous Provisions
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9.1 Notices from One Party to the Other....................................
9.2 Quiet Enjoyment........................................................
9.3 Lease Not To Be Recorded...............................................
9.4 Bind and Inure; Limitation of Landlord's
Liability .........................................................
9.5 Landlord's Default.....................................................
9.6 Brokerage .........................................................
9.7 Applicable Law and Construction........................................
9.7.1 Applicable Law...................................................
9.7.2 No Other Agreement...............................................
9.7.3 No Representations by Landlord...................................
9.7.4 Titles...........................................................
9.7.5 "Landlord" and "Tenant"..........................................
9.8 Submission Not an Offer................................................
9.9 Landlord's Waiver......................................................
EXHIBITS
EXHIBIT A-1 - Site Plan
EXHIBIT B-1 - Office Floor Plan
EXHIBIT B-2 - Floor Plan Showing Premises
EXHIBIT C - Description of Landlord's Work
EXHIBIT D - Projected Shared Costs Budget
EXHIBIT E - Approved Alterations
EXHIBIT F - Form of Landlord's Waiver
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ARTICLE I
Reference Data
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1.1 Subjects Referred To.
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Each reference in this Lease to any of the following subjects shall be
construed to incorporate the data stated for that subject in this Section 1.1.
Date of this Lease: ______________, 1997
Premises: The 50,263 rentable square foot area shown on Exhibit
B-2 attached hereto in the 300,114 rentable square
foot building ("Building") located at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇, including
75 parking spaces, as shown on the plan attached
hereto as Exhibit A-1
Landlord: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, as Trustees of
▇▇▇▇▇▇▇▇▇▇ Investment Properties, under declaration of
trust dated July 6, 1962, recorded with the Middlesex
South Registry of Deeds in Book 10095, Page 307, as
amended
Address of
Landlord: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Tenant: SC Corporation, a Delaware corporation
Address of Tenant: ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Term: Commencing on April 1, 1997 (as the same
may be modified pursuant to Section 2.2)
and terminating on August 31, 2002
Annual Fixed
Rent Rate: $196,026.00 per annum ($16,335.50
monthly)
Permitted Uses: Warehouse and distribution, with
ancillary office, showroom and retail use
Public Liability
Insurance Limits: Bodily Injury: $2,000,000
Property Damage: $2,000,000
Tenant's Share: 16.7%
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ARTICLE II
Premises and Term
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2.1 Premises. Landlord hereby leases and demises to Tenant and Tenant
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hereby leases from Landlord, subject to and with the benefit of the terms,
covenants, conditions and provisions of this Lease, the Premises. Tenant shall
have, as appurtenant to the Premises, the right to use in common with others
entitled thereto the driveways on the parcel of land on which the Building is
located (the "Lot") (the Building and the Lot are hereafter referenced as the
"Property"), and the exclusive right to use the parking area shown on Exhibit
A-1 (subject to rights of passage thereover for other tenants of the Building).
Landlord and Tenant acknowledge that the Premises constitute a portion of the
premises under a lease (the "Prime Lease") from the predecessor in interest to
Landlord to the predecessor in interest to Footstar Corporation, a Texas
corporation (the "Sublandlord") dated October 15, 1968 as subleased from
Sublandlord to Landlord pursuant to a sublease on or about the date hereof (the
"Sublease"). Consequently, (i) during the pendency of the Prime Lease and the
Sublease, this Lease shall constitute a sub-sublease between Landlord as
sub-sublandlord and tenant as sub-subtenant and (ii) after the termination of
the Prime Lease, this Lease shall constitute a direct lease between Landlord and
Tenant.
2.2 Term. TO HAVE AND TO HOLD for the Term, unless sooner terminated as
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hereinafter provided. Tenant acknowledges that prior to April 1, 1997, Landlord
will be performing Landlord's Work (as defined in Article III) in the Premises.
Tenant shall
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cooperate with Landlord and conduct its operations so as to permit
Landlord to achieve such completion as promptly as possible. Landlord will
cooperate with Tenant and provide Tenant reasonable access to the Premises prior
to the commencement of the Term; provided, however, that Tenant's access shall
not materially impede Landlord's completion of the Landlord's Work. If Tenant
occupies the Premises prior to April 1, 1997, it shall so occupy them on all of
the terms and conditions of this Lease, except that the Rent set forth in
Article IV hereof shall not be payable for the period prior to April 1, 1997
with the exception of Tenant's obligations to pay for utilities servicing the
Premises which obligation shall commence upon such occupancy. Notwithstanding
anything to the contrary herein, the Term shall not commence (and Annual Fixed
Rent shall not be payable) until the Landlord has substantially completed the
Landlord's Work with the exception of so-called punch list items having an
aggregate cost of no more than $15,000.00. Upon such substantial completion, at
the request of either party, the other party will execute a certificate
evidencing such substantial completion.
2.2A Option to Terminate. Provided that (a) Tenant is not in default
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under this Lease at the time it delivers the Termination Notice (as hereinafter
defined) and (b) Tenant delivers with the Termination Notice the Termination Fee
(as hereinafter defined), Tenant shall have the right to cause the Term of this
Lease to expire on any date (the "Termination Date") after the third anniversary
of the Commencement Date upon ninety (90) days' prior written notice (the
"Termination Notice") to
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Landlord. The Termination Fee shall mean a sum equal to one-half of the Annual
Fixed Rent to become due and payable between the Termination Date and August 31,
2002. Tenant's option under this Section 2.2A shall cease to be effective and
shall become null and void upon Tenant's exercise of its option to extend under
Section 2.3 hereof.
2.3 Option to Extend. Provided that (a) the other tenant of the
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Building has not exercised its option to expand its premises (which option shall
be conditioned upon its exercise on or prior to September 1, 2001), and (b)
Tenant is not in default under this Lease at the time of exercise or extension
hereunder, Tenant shall have one right and option to extend the Term for an
additional period of five (5) years. Such option shall be exercised by written
notice from Tenant to Landlord given by no earlier than September 1, 2001 and no
later than December 1, 2001. If such option is so exercised, all of the terms,
covenants, conditions and provisions of this Lease shall apply during the Term
as extended, except that the Fixed Rent Rate shall be Two Hundred Twenty-One
Thousand One Hundred Fifty-Seven and 20/100 Dollars ($221,157.20) per annum,
payable monthly in installments of Eighteen Thousand Four Hundred Twenty-Nine
and 77/100 ($18,429.77) Dollars. Unless the context clearly requires otherwise,
the word "Term" as used in this Lease shall mean and include the period set
forth in Section 1.1 above and the period as to which the option set forth
herein has been exercised.
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ARTICLE III
Landlord's Work
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Landlord shall cause to be performed the work required by Exhibit C
("Landlord's Work"). All such work shall be done in a good and workmanlike
manner employing good materials and so as to conform to all applicable
governmental laws, ordinances and regulations. Landlord shall use reasonable
efforts to complete Landlord's Work by no later than April 1, 1997. In addition,
upon a mutually satisfactory schedule, Landlord shall have the Premises wet
vacuumed once. Until the 3,600 square foot office area shown on Exhibit B-1 has
been completed, Landlord agrees to provide to Tenant an equivalent area of
office space elsewhere in the Building to allow Tenant to commence its business
operations. Additionally, until the warehouse portion of the Premises has been
substantially completed, Landlord, at the request of Tenant, will provide space
within the Building but outside of the Premises for Tenant's warehousing upon
compliance with Landlord's reasonable requirements (such as the provision of
evidence of satisfactory insurance with respect to the use thereof).
ARTICLE IV
Rent
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4.1 The Fixed Rent. Tenant covenants and agrees to pay rent to Landlord
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at the Address of Landlord or at such other place or to such other person or
entity as Landlord may by notice to Tenant from time to time direct, at the
Annual Fixed Rent Rate, in equal installments of 1/12th of the Annual Fixed Rent
Rate in advance on
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the first day of each calendar month included in the Term; and for any portion
of a calendar month at the end of the Term, at that rate payable in advance for
such portion.
4.2 Real Estate Taxes. Tenant shall pay to Landlord in accordance with
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Section 4.3 below Tenant's Share of: (i) all taxes, assessments (special or
otherwise), levies, fees, and all other government levies and charges, general
and special, ordinary and extraordinary, foreseen and unforeseen, which are, at
any time prior to or during the Term hereof, imposed or levied upon or assessed
against (A) the Property, (B) any Fixed Rent, Additional Rent or other sum
payable hereunder or (C) this Lease, or the leasehold estate hereby created, or
which arise in respect of the leasing, operation, possession or use of the
Property; (ii) all gross receipts or similar taxes imposed or levied upon,
assessed against or measured by any Fixed Rent, Additional Rent or other sum
payable hereunder; and (iii) all sales, value added, use and similar taxes at
any time levied, assessed or payable on account of the leasing or use of the
Property (collectively "taxes and assessments" or if singular "tax or
assessment"); provided that for any fraction of a tax or assessment period, or
installment period thereof, included in the Term at the beginning or end
thereof, Tenant shall pay to Landlord, within ten (10) days after Landlord's
invoice therefor, Tenant's Share of the fraction of taxes and assessments so
levied or assessed or becoming payable which is allocable to such included
period. Nothing contained in this Lease shall, however, require Tenant to pay
any franchise, corporate, estate, inheritance, succession capital levy or
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transfer tax of Landlord, or any income, profits or revenue tax or charge upon
the rent payable by Tenant under this Lease (other than any tax referred to in
clause (ii) above) unless (a) such tax is imposed, levied or assessed in
substitution for any other tax or assessment which Tenant is required to pay
pursuant to this Section 4.2, or (b) if at any time during the Term of this
Lease, the method of taxation shall be such that there shall be levied, assessed
or imposed on Landlord a capital levy or other tax directly on the rents
received from the Property and/or any tax or assessment measured by or based, in
whole or in part, upon such rents or measured in whole or in part by income from
the Property (if in computing such rents or income there is not allowable as a
deduction for the taxable year substantially all of the depreciation or interest
deductions allowed for federal income tax purposes for the taxable year), or
upon the value of the Property or any present or future improvement or
improvements on the Property, in which case Tenant's Share of all such taxes and
assessments or the part thereof so measured or based ("Substitute Taxes"), shall
be payable by Tenant, provided however, Tenant's obligation with respect to the
aforesaid Substitute Taxes shall be limited to the amount thereof as computed at
the rates that would be payable if the Property were the only property of
Landlord. Landlord shall promptly furnish to Tenant a copy of any notice of any
public, special or betterment assessment received by Landlord concerning the
Premises.
4.3 Shared Costs. Tenant shall reimburse Landlord for Tenant's Share of
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taxes, insurance,
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maintenance, and repair of the Property as set forth in this Section 4.3
("Shared Property Costs"). The initial budget for Shared Property Costs for the
period from March 15, 1997 through December 31, 1998 is attached hereto as
Exhibit D. Tenant shall, together with its payments of Fixed Rent hereunder, and
as Additional Rent hereunder, make monthly payments to Landlord equal to 1/12th
of Tenant's Share of the annual Shared Property Costs, with an appropriate
additional payment by Tenant to Landlord or reimbursement by Landlord to Tenant
upon reconciliation of actual costs, accompanied by supporting data in
reasonable detail, within thirty (30) days after the end of each calendar year
of this Lease and at the end of the Term hereof. For calendar year 1999 and all
subsequent calendar years falling entirely or partially within the Term,
Landlord shall prepare budgets for the Shared Property Costs. It is presently
anticipated by the Landlord that such budgets shall be agreed upon between the
Landlord and the tenant for the remaining space in the Building. Promptly upon
arriving at any revised budget for the Shared Property Costs, Landlord shall
deliver a copy thereof to the Tenant. To the extent that Landlord determines in
its reasonable discretion that it is economically reasonable, Landlord may
purchase a capital item to lower annual operating expenses and include within
each year's Shared Operating Costs the amortized cost of such capital item (with
an interest rate equal to 2% plus the prime rate of interest then in effect for
The First National Bank of Boston or its successors and an amortization period
equal to the useful life (as reasonably determined by the Landlord in accordance
with generally accepted accounting practices) of such
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capital item). The foregoing sentence shall not be deemed to apply to
expenditures for capital items constituting the Building's system and structures
(for example, the roof and mechanical systems of the Building), but rather shall
apply to items such as snow blowers designed to lower annual operating expenses
incurred in connection with the Building.
4.4 Utilities. The Premises shall be separately metered, and
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Tenant shall pay directly to the proper authorities charged with the collection
thereof all charges for water, sewer, gas, electricity, telephone and other
utilities or services used or consumed on the Premises, whether called charge,
tax, assessment, fee or otherwise, including, without limitation, water and
sewer use charges and taxes, if any, all such charges to be paid as the same
from time to time become due. Tenant shall make its own arrangements for such
utilities and Landlord shall be under no obligation to furnish any utilities to
the Premises and shall not be liable for any interruption or failure in the
supply of any such utilities to the Premises.
4.5 Late Payment of Rent. If any installment of Fixed Rent or payment
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of Additional Rent is paid later than five (5) days after the date the same was
due, it shall bear interest from the due date at the prime commercial rate of
The First National Bank of Boston, as it may be adjusted from time to time, plus
four percent per annum, but in no event more than the maximum rate of interest
allowed by law, the payment of which shall be Additional Rent.
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ARTICLE V
Tenant's Additional Covenants
-----------------------------
5.1 Affirmative Covenants. Tenant covenants at its sole expense at all
---------------------
times during the Term and for such prior or subsequent time as Tenant occupies
the Premises or any part thereof:
5.1.1 Perform Obligations. To perform promptly all of the
-------------------
obligations of Tenant set forth in this Lease; and to pay when due the Fixed
Rent and Additional Rent and all charges, rates and other sums which by the
terms of this Lease are to be paid by Tenant.
5.1.2 Use. To use the Premises only for the Permitted Uses, and from
---
time to time to procure all licenses and permits necessary therefor at Tenant's
sole expense.
5.1.3 Repair and Maintenance. Except as otherwise provided in
----------------------
Article VI, to keep the Premises including, without limitation, all improvements
thereon and all heating, plumbing, hot water, ventilating, electrical,
air-conditioning, security, alarm, mechanical and other fixtures and equipment
now or hereafter on the Premises in good order, condition and repair and in at
least as good order, condition and repair as they are in on the Commencement
Date; and to make all ordinary repairs and to do all other work necessary for
the foregoing purposes whether the same may be ordinary or extraordinary,
foreseen or unforeseen. To the extent that Tenant is responsible for repair and
maintenance pursuant to this Paragraph, Landlord shall cooperate with Tenant and
provide to Tenant the benefit of any warranties benefitting Landlord. It is
expressly understood and agreed that, except as
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set forth in the next paragraph, Landlord shall not be obligated during the term
of this Lease to make any repairs or alterations to the Premises.
Landlord shall be responsible for necessary repairs and maintenance to
the roof, structure and exterior of the Building and to maintain in good
condition all lawns and planted areas adjacent to the Premises and to keep in
good repair and clean and neat and free of snow and ice all surfaced roadways,
walks and parking and loading areas adjacent to the Premises, the costs of such
repairs, maintenance and work shall be included in the Shared Operating Costs.
Additionally, Landlord shall be responsible (i) for all capital replacements to
the roof, structure and exterior of the Building except to the extent
necessitated by Tenant's negligence or violation of the terms of this Lease, and
(ii), provided that Tenant has complied with its obligations set forth in the
first paragraph of this Section, all capital replacements of the heating,
plumbing, hot water, ventilating, electrical, air conditioning, security, alarm,
elevator, mechanical and other fixtures and equipment now in the Premises or
placed therein in connection with Landlord's Work.
5.1.4 Compliance with Law. Except as provided in Section 5.1.3, to
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make all repairs to the Premises required by any law or ordinance or any order
or regulation of any public authority; to keep the Premises equipped with all
safety equipment so required; to pay all municipal, county, or state taxes
assessed against the leasehold interest hereunder, or against personal property
of any kind on or about the Premises; and to comply with
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the orders, regulations, variances, licenses and permits of or granted by
governmental authorities with respect to zoning, building, fire, health and
other codes, regulations, ordinances or laws applicable to the Premises, and the
condition, use or occupancy thereof, except that Tenant may defer compliance so
long as the validity of any such order, regulation, code, ordinance or law shall
be contested by Tenant or Landlord in good faith and by appropriate legal
proceedings, if Tenant first gives Landlord appropriate assurance reasonably
satisfactory to Landlord against any loss, cost or expense on account thereof,
and provided such contest shall not subject Landlord to criminal penalties or
civil sanctions, loss of property or material civil liability.
5.1.5 Tenant's Work. To procure at Tenant's sole expense all
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necessary permits and licenses before undertaking any work on the Premises; to
do all such work in compliance with the applicable provisions of Section 5.2.3
hereof; to do all such work in a good and workmanlike manner employing materials
of good quality and so as to conform with all applicable zoning, building, fire,
health and other codes, regulations, ordinances and laws; to furnish to Landlord
prior to the commencement of any such work costing in excess of $10,000.00 a
bond or other security acceptable to Landlord assuring that any work commenced
by Tenant will be completed in accordance with the specifications approved in
writing by Landlord, and that no liens for labor or materials will attach to the
Premises with respect to any such work; to pay promptly when due the entire cost
of any work on the Premises undertaken by Tenant so that the Premises shall at
all times be
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free of liens for labor and materials; to employ for such work one or more
responsible contractors whose labor will work without interference with other
labor working on the Premises; to require such contractors employed by Tenant to
carry workmen's compensation insurance in accordance with statutory requirements
and comprehensive public liability insurance covering such contractors on or
about the Premises in amounts that at least equal the limits set forth in
Section 1.1 and to submit certificates evidencing such coverage to Landlord
prior to the commencement of such work; and to 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.
5.1.6 Indemnity. Tenant shall defend, with counsel selected by
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Tenant and reasonably satisfactory to Landlord, all actions, against Landlord,
any partner, trustee, stockholder, officer, director, employee or beneficiary of
Landlord, holders of mortgages on the Premises and any other party having an
interest in the Premises (herein, "Indemnified Parties") with respect to, and
shall pay, protect, indemnify and save harmless, to the extent permitted by law,
all Indemnified Parties from and against, any and all liabilities, losses,
damages, costs, expenses (including reasonable attorneys' fees and expenses),
causes of action, suits, claims, demands or judgments of any nature arising from
(i) injury to or death of any person, or damage to or loss of property, on or
about the Premises or connected with the use, condition or occupancy of any
thereof, (ii) violation by Tenant of this Lease, (iii) any act, fault, omission,
or other misconduct of Tenant or
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its agents, contractors, licensees, sublessees or invitees, or (iv) any contest
initiated by Tenant referred to in Section 5.1.4. Tenant shall not be liable for
any incidental or consequential damages to Landlord by reason of any default by
Tenant hereunder, whether or not Tenant is notified that such damages may occur.
5.1.7 Landlord's Right to Enter. To permit Landlord and its agents
-------------------------
to enter the Premises at reasonable times upon reasonable advance notice (with
no notice required in the event of an emergency) to examine the Premises, to
make such repairs and replacements as Landlord may elect, without, however, any
obligation to do so (except as otherwise set forth herein), and to show the
Premises to prospective purchasers, lenders and tenants, and, during the last
six months of the Term, to keep affixed in suitable places notices of
availability of the Premises.
5.1.8 Personal Property at Tenant's Risk. All of the furnishings,
----------------------------------
fixtures, equipment, effects and property of every kind, nature and description
of Tenant and of all persons claiming by, through or under Tenant which, during
the continuance of this Lease or any occupancy of the Premises by Tenant or
anyone claiming under Tenant, may be on the Premises, shall be at the sole risk
and hazard of Tenant and if the whole or any part thereof shall be destroyed or
damaged by fire, water or otherwise, or by the leakage or bursting of water
pipes, steam pipes, or other pipes, by theft or from any other cause, no part of
said loss or damage is to be charged to or to be borne by Landlord.
5.1.9 Payment of Cost of Enforcement. To pay on demand Landlord's
------------------------------
expenses, including reasonable attorneys' fees,
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incurred in enforcing any obligation of Tenant under this Lease or in curing any
default by Tenant under this Lease as provided in Section 7.4. Landlord shall
pay on demand Tenant's expenses, including reasonable attorneys' fees, incurred
in enforcing any obligation of Landlord under this Lease.
5.1.10 Yield Up. At the expiration of the Term or earlier
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termination of this Lease: to surrender all keys to the Premises, to remove all
furnishings, fixtures, equipment and other personal property (including Tenant's
racking systems) now or hereafter located in the Premises, purchased or leased
by Tenant with its own funds, which are not affixed to the Building or Land or
which Landlord has agreed in writing that Tenant may remove at the expiration of
the Term (Landlord expressly agreeing that Tenant's racking system is to be so
removed), to remove such installations made by Tenant as Landlord may request
and all Tenant's signs wherever located, to repair all damage caused by such
removal and to yield up the Premises (including all installations and
improvements made by Tenant, except for trade fixtures, and such of said
installations or improvements as Landlord shall request Tenant to remove),
broom-clean and in the same good order and repair in which Tenant is obliged to
keep and maintain the Premises by the provisions of this Lease. Any property not
so removed shall be deemed abandoned and may be retained by Landlord or may be
removed and disposed of by Landlord in such manner as Landlord shall determine
and Tenant shall pay Landlord the entire cost and expense incurred by Landlord
in effecting such removal and disposition and in making any incidental repairs
and
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replacements to the Premises. For each day after the expiration of the Term,
or the earlier termination of this Lease, and prior to Tenant's performance of
its obligation to yield up the Premises under this Section 5.1.10, Tenant shall
pay to Landlord as rent an amount equal to one and one-half times the Fixed Rent
computed on a daily basis, together with all Additional Rent payable with
respect to each such day.
5.1.11 Estoppel Certificate. Upon not less than 15 days' prior
--------------------
notice by Landlord, to execute, acknowledge and deliver to Landlord a statement
in writing, addressed to such party as Landlord shall designate in its notice to
Tenant, certifying that this Lease is unmodified and in full force and effect
and that, to its knowledge, Tenant has no defenses, offsets or counterclaims
against its obligations to pay the Fixed Rent and Additional Rent and any other
charges and to perform its other covenants under this Lease (or, if there have
been any modifications that the same is in full force and effect as modified and
stating the modifications and, if there are any defenses, offsets or
counterclaims, setting them forth in reasonable detail), the dates to which the
Fixed Rent and Additional Rent and other charges have been paid and a statement
that Landlord is not in default hereunder (or if in default, the nature of such
default, in reasonable detail). Any such statement delivered pursuant to this
Section 5.1.11 may be relied upon by any prospective purchaser or mortgagee of
the Premises, or any prospective assignee of any such mortgagee.
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5.1.12 Landlord's Expenses Re Consents. To reimburse Landlord
-------------------------------
promptly on demand for all reasonable legal expenses incurred by Landlord in
connection with all requests by Tenant for consent or approval hereunder.
5.1.13 Financial Statements. Tenant shall furnish to Landlord and
--------------------
to any holder of a mortgage on the Premises as Landlord may designate by notice
to Tenant, within 90 days after each fiscal year of Tenant, a current balance
sheet and an annual operating statement, audited and certified by a certified
public accountant acceptable to Landlord (Landlord agreeing that any of the so-
called Big Six accounting firms are acceptable) and to any such holder of a
mortgage.
5.2 Negative Covenants. Tenant covenants at all times during the Term
------------------
and for such further time as Tenant occupies the Premises or any part thereof:
5.2.1 Assignment and Subletting. Without the consent of
-------------------------
Landlord, which consent shall not be unreasonably withheld, not to assign,
transfer, mortgage or pledge this Lease or to grant a security interest in
Tenant's rights hereunder, or to sublease (which term shall be deemed to include
the granting of concessions and licenses and the like) or permit anyone other
than Tenant to occupy all or any part of the Premises or suffer or permit this
Lease or the leasehold interest hereby created or any other rights arising under
this Lease to be assigned, transferred or encumbered, in whole or in part,
whether voluntarily, involuntarily or by operation of law. Without limiting the
foregoing, Landlord shall not be deemed unreasonable in withholding its consent
if
-18-
(i) any defaults then existing with respect to the obligations of Tenant
under this Lease shall not have been cured, or (ii) in the case of a proposed
assignment, sublease or occupancy by another, the proposed assignee, sublessee,
or occupant is not credit worthy or not qualified to do business in the state in
which the Premises are located or such assignee, sublessee, or occupant does not
execute and deliver to Landlord an agreement satisfactory to Landlord by which
such assignee, sublessee or occupant shall be bound by and shall assume all the
obligations of Tenant under this Lease relating to the portion or all of the
Premises acquired by such assignee, sublessee or occupant.
If for any assignment or sublease or occupancy by another, Tenant
receives rent or other consideration, either initially or over the term of the
assignment, sublease or occupancy, in excess of the rent called for hereunder,
or in case of sublease of part of the Premises, in excess of such rent fairly
allocable to the part so subleased, after appropriate adjustments to assure that
all other payments called for hereunder are appropriately taken into account,
Tenant shall pay to Landlord, as Additional Rent, fifty (50%) percent of the
excess of each such payment of rent or other consideration received by Tenant
promptly after its receipt.
For the purposes of this Section 5.2.1, the transfer in the aggregate
in any one year of 10% or more in interest in Tenant (whether stock, partnership
interest or other form of ownership or control) by any person or persons having
an interest in ownership or control of Tenant shall be deemed an assignment of
this Lease. The preceding sentence shall not apply to changes in the
-19-
percentage ownership of the initial Tenant named herein if such initial Tenant
is a corporation and the outstanding voting stock thereof is listed on a
recognized securities exchange.
Any attempted assignment, transfer, mortgage, pledge, grant of security
interest, sublease or other encumbrance shall be void. No assignment, transfer,
mortgage, grant of security interest, sublease or other encumbrance, whether or
not approved, and no indulgence granted by Landlord to any assignee, sublessee
or occupant shall in any way impair Tenant's continuing primary liability (which
after an assignment or subletting shall be joint and several with the assignee
or sublessee) of Tenant hereunder, and no approval in a particular instance
shall be deemed to be a waiver of the obligation to obtain Landlord's approval
in any other case.
5.2.2 Overloading and Nuisance. Not to injure, overload, deface or
------------------------
otherwise harm the Premises; nor commit any nuisance; nor permit the emission of
any objectionable noise or odor; nor make, allow or suffer any waste; not to
dump, flush, or in any way introduce any hazardous substances or any other toxic
substances into the septic, sewage or other waste disposal system serving the
Premises; not to (i) generate, (ii) store or use (except for minimal quantities
typically used in connection with the Permitted Uses and then only in compliance
with any and all Federal, state and local laws and ordinances) or (iii) dispose
of hazardous or toxic substances in or on the Premises, or dispose of hazardous
or toxic substances from the Premises to any other location, or commit or suffer
to be committed in or on the Premises
-20-
any act which would require the filing of notice pursuant to Chapter 232 of the
Acts of 1982, without the prior written consent of Landlord and then only in
compliance with any and all Federal, state and local laws and ordinances
regulating such activity; nor make any use of the Premises which is improper,
offensive or contrary to any law or ordinance or which will invalidate any of
Landlord's insurance; nor conduct any auction, fire, "going out of business" or
bankruptcy sales. "Hazardous substances" and "toxic substances", as used in this
paragraph, shall have the same meanings as defined and used in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended, 42
U.S.C.(S).9061 et seq.; in the Hazardous Materials Transportation Act, 49
-- ---
U.S.C.(S).1802; in the Toxic Substances Act, 15 U.S.C.(S).2601 et seq.; and in
-- ---
the regulations adopted and publications promulgated pursuant to said Acts.
Landlord represents to Tenant that it has no actual notice of any
violation of any law or ordinance regulating hazardous or toxic substances with
respect to the Premises.
5.2.3 Installation, Alterations or Additions. With the exception of
--------------------------------------
alterations and additions not affecting the Building's structure and systems and
costing not more than $5,000.00 in the aggregate, not to make any installations,
alterations or additions in, to or on the Premises (including, without
limitation, buildings, lawns, planted areas, walks, roadways, parking and
loading areas) nor to permit the making of any holes in the walls, partitions,
ceilings or floors, nor permit the painting or placing of any exterior signs,
placards or other
-21-
advertising media, awning, aerials, antennas, or flagpoles, or the like, without
on each occasion obtaining the prior written consent of Landlord, and then only
pursuant to plans and specifications approved by Landlord in advance in each
instance. Notwithstanding the foregoing, Landlord has consented to the
alterations and additions described on Exhibit E attached hereto.
ARTICLE VI
Casualty or Taking
------------------
6.1 Termination. In the event that the Building or the Premises, or any
-----------
material part thereof, shall be taken by any public authority or for any public
use, or shall be destroyed or damaged by fire or casualty, or by the action of
any public authority, then this Lease may be terminated at the election of
Landlord. Such election, which may be made notwithstanding the fact that
Landlord's entire interest may have been divested, shall be made by the giving
of notice by Landlord to Tenant within 30 days after the right of election
accrues. Either Landlord or Tenant may terminate this Lease upon thirty (30)
days prior written notice to the other party in the event of a casualty or
taking which either (i) causes more than fifty percent (50%) of the Premises to
be unusable for the Permitted Uses or (ii) results in damage which can not be
restored within six (6) months after the date thereof, such election to be made
within thirty (30) days after the casualty or taking.
6.2 Restoration. If this Lease is not terminated in accordance with
-----------
Section 6.1, this Lease shall continue in force
-22-
and a just proportion of the rent reserved, according to the nature and extent
of the damages sustained by the Premises, shall be suspended or abated until the
Premises, or what may remain thereof, shall be put by Landlord in proper
condition for use, which Landlord covenants to do with reasonable diligence to
the extent permitted by the net proceeds of insurance recovered or damages
awarded for such taking, destruction or damage and subject to zoning and
building laws or ordinances then in existence. Net proceeds of insurance
recovered or damages awarded refers to the gross amount of such insurance or
damages less the reasonable expenses of Landlord in connection with the
collection of the same, including without limitation, fees and expenses for
legal and appraisal services.
6.3 Award. Except as otherwise set forth in this paragraph,
-----
irrespective of the form in which recovery may be had by law, all rights to
damages or compensation shall belong to Landlord in all cases. Tenant hereby
grants to Landlord all of Tenant's rights to such damages and covenants to
deliver such further assignments thereof as Landlord may from time to time
request. Tenant may separately pursue an award for its personal property,
equipment, and moving expenses, and, at no cost to Landlord, Landlord shall
cooperate with Tenant with respect to the same.
ARTICLE VII
Defaults
--------
7.1 Events of Default. (a) If Tenant shall default in the performance
-----------------
of any of its obligations to pay the Fixed Rent or
-23-
Additional Rent hereunder and if such default shall continue for 5 days after
notice from Landlord designating such default or (b) if Tenant shall default in
the performance of any of its other obligations under this Lease and such
default shall continue for 30 days after notice from Landlord to Tenant
designating such default or such longer period as is reasonably necessary
provided such default is not curable within thirty (30) days but Tenant
commences curing such default within thirty (30) days of such notice and
thereafter diligently prosecutes the same, or (c) if Tenant becomes insolvent or
fails to pay its debts as they fall due, or (d) if a trust mortgage or
assignment is made by Tenant for the benefit of creditors, or (e) if Tenant
proposes a composition, arrangement, reorganization or recapitalization with
creditors, or (f) if the leasehold estate under this Lease or any substantial
part of the property of Tenant is taken on execution, or by other process of
law, or is attached or subjected to any other involuntary encumbrance, or (g) if
a receiver, trustee, custodian, guardian, liquidator or similar agent is
appointed with respect to Tenant or if any such person or a mortgagee, secured
party or other creditor takes possession of the Premises or of any substantial
part of the property of Tenant and if such appointment or taking of possession
is not terminated within sixty (60) days after it first occurs, or (h) if a
petition is filed by or with the consent of Tenant under any federal or state
law concerning bankruptcy, insolvency, reorganization, arrangement, or relief
from creditors, or (i) if a petition is filed against Tenant under any federal
or state law concerning bankruptcy, insolvency,
-24-
reorganization, arrangement, or relief from creditors, and such petition is not
dismissed within 60 days thereafter, or (j) if Tenant dissolves or is dissolved
or liquidates or adopts any plan or commences any proceeding, the result of
which is intended to include dissolution or liquidation, or (k) if Tenant
violates the provisions of Section 5.2.1 of this Lease, then, and in any of such
cases, Landlord and the agents and servants of 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 demand or notice and
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 or mail a notice of
termination addressed to Tenant, and repossess the same as of Landlord's former
estate and expel Tenant and those claiming through or under Tenant and remove
its 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 prior breach of covenant, and upon such
entry or mailing as aforesaid this Lease shall terminate, Tenant hereby waiving
all statutory rights (including without limitation rights of redemption, if any,
to the extent such rights may be lawfully waived) and Landlord, without notice
to Tenant (but subject to any so-called Landlord's Waiver which Landlord may
have executed), may store Tenant's effects, and those of any person claiming
through or under Tenant at the expense and risk of Tenant, and, if Landlord so
elects may, subject to any so-called Landlord's Waiver which Landlord may have
executed, sell
-25-
such effects at public auction or private sale and apply the net proceeds to the
payment of all sums due to Landlord from Tenant, if any, and pay over the
balance, if any, to Tenant.
7.2 Remedies. In the event that this Lease is terminated under any of
--------
the provisions contained in Section 7.1 or shall be otherwise terminated for
breach of any obligation of Tenant, Tenant covenants to pay forthwith to
Landlord, as compensation, the excess of the total rent reserved for the residue
of the Term over the rental value of the Premises for said residue of the Term.
In calculating the rent reserved there shall be included, in addition to the
Fixed Rent and Additional Rent, the value of all other considerations agreed to
be paid or performed by Tenant for said residue. Tenant further covenants as
additional and cumulative obligations after any such termination to pay
punctually to Landlord all the sums and to perform all the obligations which
Tenant covenants in this Lease to pay and to perform in the same manner and to
the same extent and at the same time as if this Lease had not been terminated.
In calculating the amounts to be paid by Tenant pursuant to the next preceding
sentence Tenant shall be credited with the portion of any amount paid to
Landlord as compensation as in this Section 7.2 provided, allocable to the
corresponding portion of the Term and also with the net proceeds of any rent
obtained by Landlord by reletting the Premises, after deducting all Landlord's
reasonable expenses in connection with such reletting, including, without
limitation, all repossession costs, brokerage commissions, fees for legal
services and expenses of cleaning the Premises and removing items therefrom that
were to
-26-
have been removed by Tenant hereunder, it being agreed by Tenant that Landlord
may but shall not be obligated to (i) relet the Premises or any part or parts
thereof, for a term or terms which may at Landlord's option be equal to or less
than or exceed the period which would otherwise have constituted the balance of
the Term and may grant such concessions and free rent as Landlord in its
reasonable judgment considers advisable or necessary to relet the same, (ii)
make such alterations, repairs and decorations in the Premises as Landlord in
its reasonable judgment considers advisable or necessary to relet the same, and
(iii) keep the Premises vacant unless and until Landlord is able to rent the
Premises to a Tenant which is at least as desirable and financially responsible
as Tenant is on the date of this Lease, on terms not less favorable to Landlord
than those of this Lease. No action of Landlord in accordance with the foregoing
or failure to relet or to collect rent under reletting shall operate or be
construed to release or reduce Tenant's liability as aforesaid.
Except if this Lease is terminated during the last twelve (12) months
of the scheduled Term, in lieu of any other damages or indemnity and in lieu of
full recovery by Landlord of all sums payable under all the foregoing provisions
of this Section 7.2, Landlord may by notice to Tenant, at any time after this
Lease is terminated under any of the provisions contained in Section 7.1 or is
otherwise terminated for breach of any obligation of Tenant and before such full
recovery, elect to recover, and Tenant shall thereupon pay, as liquidated
damages, an amount equal to the aggregate of the Fixed Rent and Additional Rent
accrued in the 12
-27-
months ended next prior to such termination, plus the amount of rent of any kind
accrued and unpaid at the time of termination and less the amount of any
recovery by Landlord under the foregoing provisions of this Section 7.2 up to
the time of payment of such liquidated damages.
Nothing contained in this Lease shall, however, limit or prejudice the
right of Landlord to prove for and obtain in proceedings under any federal or
state law relating to bankruptcy or insolvency or reorganization or arrangement,
an amount equal to the maximum allowed by any statute or rule of law in effect
at the time when, and governing the proceedings in which, the damages are to be
proved, whether or not the amount be greater than the amount of the loss or
damages referred to above.
7.3 Remedies Cumulative. Any and all rights and remedies which Landlord may
-------------------
have under this Lease, and at law and equity, shall be cumulative and shall not
be deemed inconsistent with each other, and any two or more of all such rights
and remedies may be exercised at the same time insofar as permitted by law.
7.4 Landlord's Right to Cure Defaults. Landlord may, but shall not be
---------------------------------
obligated to, cure, at any time, following 10 days' prior written notice to
Tenant, except in cases of emergency when no notice shall be required, any
default by Tenant under this Lease; and whenever Landlord so elects, all costs
and expenses incurred by Landlord, including reasonable attorneys' fees, in
curing a default shall be paid by Tenant to Landlord as Additional Rent on
demand, together with interest thereon at the rate
-28-
provided in Section 4.3 from the date of payment by Landlord to the date of
payment by Tenant.
7.5 Effect of Waivers of Default. Any consent or permission by Landlord to
----------------------------
any act or omission which otherwise would be a breach of any covenant or
condition herein, or any waiver by Landlord of the breach of any covenant or
condition herein, shall not in any way be held or construed (unless expressly so
declared) to operate so as to impair the continuing obligation of any covenant
or condition herein, or otherwise, except as to the specific instance, operate
to permit similar acts or omissions.
The failure of Landlord to seek redress for violation of, or to insist upon
the strict performance of, any covenant or condition of this Lease shall not be
deemed a waiver of such violation nor prevent a subsequent act, which would have
originally constituted a violation, from having all the force and effect of an
original violation. The receipt by Landlord of rent with knowledge of the breach
of any covenant of this Lease shall not be deemed to have been a waiver of such
breach by Landlord, or by Tenant, unless such waiver be in writing signed by the
party to be charged. No consent or waiver, express or implied, by Landlord to or
of any breach of any agreement or duty shall be construed as a waiver or consent
to or of any other breach of the same or any other agreement or duty.
7.6 No Accord and Satisfaction. No acceptance by Landlord of a lesser sum
--------------------------
than the Fixed Rent, Additional Rent or any other charge then due shall be
deemed to be other than on account of the earliest installment of such rent or
charge due, unless Landlord
-29-
elects by notice to Tenant to credit such sum against the most recent
installment due, nor shall any endorsement or statement on any check or any
letter accompanying any check or payment as rent or other charge be deemed a
waiver, an agreement or an accord and satisfaction, and Landlord may accept such
check or payment without prejudice to Landlord's right to recover the balance of
such installment or pursue any other remedy in this Lease provided.
ARTICLE VIII
Mortgages
---------
8.1 Rights of Mortgage Holders. The word "mortgage" as used herein includes
--------------------------
mortgages, deeds of trust or other similar instruments evidencing other
voluntary liens or encumbrances, and modifications, consolidations, extensions,
renewals, replacements and substitutes thereof. The word "holder" shall mean a
mortgagee, and any subsequent holder or holders of a mortgage. Until the holder
of a mortgage shall enter and take possession of the Premises for the purpose of
foreclosure, such holder shall have only such rights of Landlord as are
necessary to preserve the integrity of this Lease as security. Upon entry and
taking possession of the Premises for the purpose of foreclosure, such holder
shall have all the rights of Landlord. Notwithstanding any other provision of
this Lease to the contrary, including without limitation Section 9.4, no such
holder of a mortgage shall be liable either as mortgagee or as assignee, to
perform, or be liable in damages for failure to perform, any of the obligations
-30-
of Landlord unless and until such holder shall enter and take possession of the
Premises for the purpose of foreclosure. Upon entry for the purpose of
foreclosure, such holder shall be liable to perform all of the obligations of
Landlord accruing from and after such entry, subject to and with the benefit of
the provisions of Section 9.4, provided that a discontinuance of any foreclosure
proceeding shall be deemed a conveyance under said provisions to the owner of
the Premises. No Fixed Rent, Additional Rent or any other charge shall be paid
more than 15 days prior to the due dates thereof and payments made in violation
of this provision shall (except to the extent that such payments are actually
received by a mortgagee in possession or in the process of foreclosing its
mortgage) be a nullity as against such mortgagee and Tenant shall be liable for
the amount of such payments to such mortgagee.
The covenants and agreements contained in this Lease with respect to
the rights, powers and benefits of a holder of a mortgage (including, without
limitation, the covenants and agreements contained in this Section 8.1)
constitute a continuing offer to any person, corporation or other entity, which
by accepting a mortgage subject to this Lease, assumes the obligations herein
set forth with respect to such holder; such holder is hereby constituted a party
of this Lease as an obligee hereunder to the same extent as though its name were
written hereon as such; and such holder shall be entitled to enforce such
provisions in its own name. Tenant agrees on request of Landlord to execute and
deliver
-31-
from time to time any agreement which may be necessary to implement the
provisions of this Section 8.1.
8.2 Lease Subordinate to Mortgages. This Lease is and shall continue to be
------------------------------
subject and subordinate to any presently existing and, providing any future
mortgagee agrees to execute a so-called subordination, non-disturbance and
attornment agreement with Tenant in such mortgagee's then standard form, any
future mortgage or mortgages secured by the Premises, and to any and all
advances hereafter made thereunder, and to the interest of the holder or holders
thereof in the Premises. The holder of any such presently existing mortgage
shall have the election to subordinate the same to this Lease, exercisable by
filing with the appropriate recording office a notice of such election,
whereupon this Lease shall have priority over such mortgage. A copy of such
filing shall be given to Tenant. Tenant agrees to execute and deliver any
instruments of subordination necessary to carry out the agreements contained in
this Section 8.2. Any such mortgage to which this Lease is subordinated may
contain such terms, provisions and conditions as the holder deems usual or
customary.
ARTICLE IX
Miscellaneous Provisions
------------------------
9.1 Notices from One Party to the Other. All notices required or permitted
-----------------------------------
hereunder shall be in writing and addressed, if to the Tenant, at the Address of
Tenant or such other address as Tenant shall have last designated by notice in
writing to Landlord, with a copy to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., ▇▇▇▇▇▇▇, ▇▇▇▇ &
-32-
▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and, if to Landlord, at the
Address of Landlord or such other address as Landlord shall have last designated
by notice in writing to Tenant, with a copy to ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq., ▇▇▇▇
and ▇▇▇▇ LLP, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. Any notice shall be deemed duly
given when deposited in the U.S. Mail, mailed to such address postage prepaid,
registered or certified mail, return receipt requested, when deposited with a
recognized overnight courier service, or when delivered to such address by hand
with receipt acknowledged.
9.2 Quiet Enjoyment. Landlord agrees that upon Tenant's paying the rent and
---------------
performing and observing the terms, covenants, conditions and 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 without any manner of
hindrance or molestation from Landlord or anyone claiming under Landlord,
subject, however, to the terms of this Lease.
9.3 Lease not to be Recorded. Tenant agrees that it will not record this
------------------------
Lease, and will not record any notice hereof.
9.4 Bind and Inure; Limitation of Landlord's Liability. The obligations of
--------------------------------------------------
this Lease shall run with the land, and this Lease shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns. No owner of the Premises shall be liable under this Lease except for
breaches of Landlord's obligations occurring while owner of the Premises. The
obligations of Landlord shall be binding upon the assets of Landlord which
comprise the Premises but not upon other assets of Landlord. No individual
partner, trustee, stockholder, officer,
-33-
director, employee or beneficiary of Landlord shall be personally liable under
this Lease and Tenant shall look solely to Landlord's interest in the Premises
in pursuit of its remedies upon an event of default hereunder, and the general
assets of Landlord and of the individual partners, trustees, stockholders,
officers, employees or beneficiaries of Landlord shall not be subject to levy,
execution or other enforcement procedure for the satisfaction of the remedies of
Tenant.
9.5 Landlord's Default. Landlord shall not be deemed to be in default in
------------------
the performance of any of its obligations hereunder unless it shall fail to
perform such obligations and such failure shall continue for a period of 30 days
following receipt of notice from Tenant or, provided that Landlord is diligently
prosecuting such cure, such additional time as is reasonably required to correct
any such default after notice has been given by Tenant to Landlord specifying
the nature of Landlord's alleged default. Landlord shall not be liable in any
event for incidental or consequential damages to Tenant by reason of any default
by Landlord hereunder, whether or not Landlord is notified that such damages may
occur. Tenant shall have no right to terminate this Lease for any default by
Landlord hereunder and no right, for any such default, to offset or counterclaim
against any rent due hereunder.
9.6 Brokerage. Tenant warrants and represents that it has had no dealings
---------
with any broker or agent in connection with this Lease other than Boston Real
Estate Partners ("Broker") to whom Landlord agrees to pay a total $25,000.00
commission if and only if (i) the Term commences and (ii) Tenant commences
payment of
-34-
Annual Fixed Rent, and Tenant covenants to defend with counsel reasonably
approved by Landlord, hold harmless and indemnify Landlord from and against any
and all cost, expense or liability for (i) any compensation, commissions and
charges claimed by any other broker or agent with respect to Tenant's dealings
in connection with this Lease or the negotiation thereof or (ii) any additional
compensation, commissions and charges claimed by Broker.
9.7 Applicable Law and Construction.
-------------------------------
9.7.1 Applicable Law. This Lease shall be governed by and construed in
--------------
accordance with the laws of the state in which the Premises are located. If any
term, covenant, condition or provision of this Lease or the application thereof
to any person or circumstances shall be declared invalid, or unenforceable by
the final ruling of a court of competent jurisdiction having final review, the
remaining terms, covenants, conditions and provisions of this Lease and their
application to persons or circumstances shall not be affected thereby and shall
continue to be enforced and recognized as valid agreements of the parties, and
in the place of such invalid or unenforceable provision, there shall be
substituted a like, but valid and enforceable provision which comports to the
findings of the aforesaid court and most nearly accomplishes the original
intention of the parties.
9.7.2 No Other Agreement. There are no oral or written agreements
------------------
between Landlord and Tenant affecting this Lease. This Lease may be amended, and
the provisions hereof may be waived or
-35-
modified, only by instruments in writing executed by Landlord and Tenant.
9.7.3 No Representations by Landlord. Neither Landlord nor any agent of
------------------------------
Landlord has made any representations or promises with respect to the Premises
or the Building except as herein expressly set forth, and no rights, privileges,
easements or licenses are granted to Tenant except as herein expressly set
forth.
9.7.4 Titles. The titles of the several Articles and Sections contained
------
herein are for convenience only and shall not be considered in construing this
Lease.
9.7.5 "Landlord" and "Tenant". Unless repugnant to the context, the
-----------------------
words "Landlord" and "Tenant" appearing in this Lease shall be construed to mean
those named above and their respective heirs, executors, administrators,
successors and assigns, and those claiming through or under them respectively.
If there be more than one tenant the obligations imposed by this Lease upon
Tenant shall be joint and several.
9.8 Submission Not an Offer. The submission of a draft of this Lease or a
-----------------------
summary of some or all of its provisions does not constitute an offer to lease
or demise the Premises, it being understood and agreed that neither Landlord nor
Tenant shall be legally bound with respect to the leasing of the Premises unless
and until this Lease has been executed by both Landlord and Tenant and a fully
executed copy delivered.
9.9 Landlord's Waiver. Upon the request of Tenant, Landlord agrees to
-----------------
execute a Landlord's Waiver in substantially the form
-36-
attached hereto as Exhibit F pursuant to which Landlord will consent to the
granting of a security interest in the personal property owned by Tenant and
located in the Premises and other related rights.
WITNESS the execution hereof under seal as of the day and year set
forth in Section 1.1.
LANDLORD: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------------------
As Trustee and for Co-Trustees
of ▇▇▇▇▇▇▇▇▇▇ Investment Properties,
and not individually
TENANT: SC Corporation
By: /s/ [SIGNATURE APPEARS HERE]
---------------------------------
Its: Sr. VP - CEO
----------------------------
Hereunto duly authorized
-37-
