EXHIBIT 10.32
EXHIBIT A
SUBLEASE
THIS SUBLEASE (this "Sublease") is entered into as of June __, 1997, by and
between MACY'S EAST, INC., an Ohio corporation, successor by merger to Xxxxxx
Xxxxx Stores Corporation, an Ohio corporation ("Macy's"), as sublandlord, and
XXXXXXX SHOE COMPANY, INC., a corporation ("Xxxxxxx"), as subtenant.
I. Master Lease and Prior Sublease.
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X. Xxxx'x entered into a Lease (as amended, the "Master Lease"), dated
December 13, 1990, with Xxxx X. Xxxxxx, III, Trustee of Brockton Oak Real Estate
Trust, under Declaration of Trust dated August 24, 1989 ("Landlord"), a true and
accurate copy of which, together with the First Amendment to Lease dated January
28, 1991 and the Second Amendment to Lease dated July 24, 1991, which constitute
all amendments to the Lease, has been delivered to Xxxxxxx. Xxxxxxx acknowledges
and agrees that this Sublease shall be subject and subordinate to the Master
Lease in all respects. If the Master Lease is terminated, then this Sublease
shall automatically terminate.
X. Xxxx'x has entered into a Prior Sublease dated December 1, 1995 with
Reebok International, Inc., which sublease the parties thereto intend to
terminate by mutual agreement.
II. Definitions
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A. Common Area: All parking areas, truck ways, entrances, exits, curbs,
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gutters, loading docks, signs, pedestrian sidewalks and ramps, landscaped areas,
exterior stairways, internal roads and other areas and improvements provided for
the general use, in common of tenants of the Macy's Parcel, their officers,
agents, employees, customers and invitees,
B. Common Area Maintenance Cost: Common Area Maintenance Cost shall
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include, but not be limited to, the cost of small tools and supplies to be
utilized for Common Area Maintenance; all cost of policing, security protection,
traffic direction, control and regulation of the Common Area; all costs of
compliance with governmental environmental requirements affecting the Common
Area and arising from the Operation of the Common Area; all premiums for public
liability and property damage insurance required to be carried by Landlord to
insure the Common Area under the provisions of this Sublease, all personal
property taxes on equipment used for Common Area Maintenance; all cost of
removing ice and snow from the Common Area; all cost of collecting, cleaning,
storage, and removal of rubbish, dirt and debris from the Common Area (other
than emptying Occupants' trash receptacles and the cartage of such trash); all
costs associated with minor repairs to the parking areas located in the Common
Area; all cost for labor, utilities and materials utilized in the maintenance
and replacement of the landscaping in the Common Area; all charges for utilities
services incurred in connection with Common Area Maintenance, including for the
illumination of the Common Area, together with all costs of maintaining and
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replacing lighting fixtures in the Common Area; all costs of maintaining and
replacing the Common Utility Lines.
X. Xxxx'x Parcel: That property covered by the Master Lease and
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described in Exhibit A attached hereto.
X. Xxxxxxx'x Proportionate Share: 47.70%.
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III. Grant: Premises., Term; Holdover.
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X. Xxxx'x, for and in consideration of the rents, covenants and
agreements contained in this Sublease, agrees to sublet to Xxxxxxx portions of
the premises located at 000 Xxx Xxxxxx, in Brockton, Massachusetts (the
"Building"), consisting of the following locations:
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SPACE XXX (S.F.) DESCRIPTION
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A 22,150 Platform Area
B 93,030 1' Level Warehouse Space
C 93,030 2' Level Warehouse Space
D 6,300 Maintenance Area
TOTAL 214,510
(the parcels combined are shown on the attached Exhibit B, and are hereafter
referred to as the "Premises").
X. Xxxxxxx shall have and Macy's hereby grants to Xxxxxxx the right,
privilege and easement for the benefit of the Premises and Xxxxxxx and its
permittees to use, in common with others, the Common Areas, such use to be for
the intended uses and purposes of the Common Areas and the improvements thereon,
including ingress and egress and parking and passage, and such other things as
are permitted under this Sublease. Xxxxxxx'x use of the Common Areas shall be
limited to the non-exclusive use for its permittees of parking spaces in the
area at the rear of the Building.
X. Xxxx'x reserves the right to install and maintain within the wall,
columns and suspended ceilings of the Premises, wires, pipes, cables, flues,
ducts and conduits for ventilation, heating, air conditioning, water, gas,
sewer, drains, sprinklers and electricity leading to other portions of the
Building and to have access thereto at all reasonable times, after providing
reasonable advance notice to Xxxxxxx (except in case of emergency).
D. The initial term of this Sublease (the *Term") shall be for a period
of approximately three (3) years and eight (8) months, commencing on June 1,
1997 and expiring on January 31, 2001, unless earlier terminated as provided in
this Sublease, or because the Master Lease has been terminated.
IV. Rents
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A. Commencing on June __, 1997, Xxxxxxx agrees to pay to Macy's without
demand, on the first day of each month during the Term and thereafter until this
Sublease is terminated, without deduction or setoff, monthly rent of $41,998.75
("Rent"). Rent for any partial month during the Term shall be prorated on a per
them basis.
V. Use of Premises.
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X. Xxxxxxx shall use the Premises solely for the storage and
distribution of merchandise. If permitted by law and by the terms of the Master
Lease, Xxxxxxx may use the Premises for the light manufacture of merchandise. If
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at any time Xxxxxxx receives notice from either Macy's or Landlord that
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Xxxxxxx'x manufacturing use violates any law or the Master Lease, Xxxxxxx shall
immediately discontinue such use. Xxxxxxx shall use the Parking Areas solely for
the parking and storage of automobiles and trailers as permitted by Section III
B hereof, and for no other purposes whatsoever. Xxxxxxx shall at all times
maintain the Premises, the entrances thereto, and the Parking Areas, in a neat,
clean and orderly condition and will not permit any accumulation of rubbish in
the entrance ways or exterior of the Premises or the Parking Areas. Furthermore,
Xxxxxxx shall use the Premises in such a manner so as not to disturb the
residential neighbors of the Premises. Xxxxxxx will regulate its trucks to
minimize truck traffic at the Premises between 9:00 p.m. and 6:00 a.m. daily.
X. Xxxxxxx shall have the right to install within the Premises
conveyance systems, racking and other fixtures related to a distribution center
and may remove such systems at the end of the Term, provided Xxxxxxx repairs
prior to the end of the Term all damage to the Premises attributable to the
installation, use or removal of such equipment, fixtures and systems. Xxxxxxx
shall have the right to install reasonable signs on the exterior of the Demised
Premises, provided such signs comply with all applicable laws and regulations.
Xxxxxxx shall obtain, at its own cost and expense, all necessary approvals for
such signs, including, if necessary, the approval of the Landlord under the
Master Lease.
VI. Assignment and Subletting. Xxxxxxx may not assign, mortgage or
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hypothecate this
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Sublease or the leasehold estate created hereby or any interest therein, nor may
Xxxxxxx sublet the Premises or any portion thereof, without in each and every
instance obtaining the written consent of Macy's and the Landlord, which consent
by Macy's shall not be unreasonably withheld or delayed.
VII. Utilities. Xxxxxxx shall reimburse Macy's for the cost of utilities
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supplied to the Premises during Xxxxxxx'x occupancy, within 20 days after
receipt by Xxxxxxx of an invoice (with supporting documentation) from Macy's.
Xxxxxxx'x cost of utilities shall be calculated as follows:
Electricity: Xxxxxxx shall pay the entire cost of electricity to
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the Premises as measured by a check meter provided by Macy's.
Gas: Xxxxxxx shall pay the entire cost of gas service to the
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Premises as measured billed by the gas company.
Water: Xxxxxxx shall pay its Proportionate Share (47.70%) of the
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water usage at the Building.
VIII. Additional Rent. Xxxxxxx shall pay to Macy's Xxxxxxx'x Proportionate
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Share of (i) all taxes assessed against the Macy's Parcel, and (ii) Common Area
Maintenance Costs. Such payment shall be made within 20 days after receipt by
Xxxxxxx of an invoice (with supporting documentation) from Macy's.
IX. Damages or Destruction. Xxxxxxx will promptly notify Macy's of any damage
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to, or destruction of, the Premises by fire or other casualty. If greater than
ten percent (10%) of the Premises is substantially damaged or destroyed by fire
or other casualty, then Xxxxxxx shall have the right to terminate this Sublease,
in which case this Sublease shall be deemed terminated as of the date of the
fire or casualty and Macy's shall reimburse Xxxxxxx for its proportionate share
of any prepaid Rent. Macy's shall have no obligation to repair the Premises or
the Building.
X. Condemnation. If the Premises is taken in any proceeding by public
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authority by condemnation or otherwise, or acquired for public or quasi-public
Purposes, then this Sublease shall be deemed terminated as of the date of such
taking or acquisition, unless Macy's can provide a satisfactory substitute
premises that is suitable to Xxxxxxx. In no event shall Xxxxxxx be entitled to
all or any portion of any award or damage by reason of such taking or
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acquisition of all or any portion of the Premises; provided, however, that
Xxxxxxx may pursue an independent claim for any losses it suffers as a result of
such taking. Macy's shall have no obligation to repair the Premises or the
Building.
XI. Repairs and Alterations.
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X. Xxxxxxx shall, at its own expense, keep and maintain the interior of
the Premises, HVAC equipment and systems, mechanical equipment, and sprinklers
exclusively serving the Premises, in the same condition and repair as they are
in as of the Commencement Date of this Sublease. Any repairs required to the
interior of the Premises shall be made by Xxxxxxx, at its expense. Macy's shall
be under no obligation to make any repairs, alterations, replacements or
improvements to and upon the Premises to comply with the Americans with
Disabilities Act. Unless caused by Xxxxxxx', its agents' or employees' gross
negligence or willful misconduct, Xxxxxxx shall not be responsible for
repairing: the exterior of the Building; the roof, HVAC equipment and systems,
mechanical equipment and sprinklers not exclusively serving the Premises; or the
structural portions of the Building. With respect to the immediately preceding
sentence, Macy's shall use reasonable efforts to encourage Landlord to comply
with its obligations under the Master Lease to repair same.
X. Xxxxxxx shall have the right, at its sole cost and expense, to
provide security for, the Premises and Building.
XII. Compliance with Law: Environmental Regulations
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X. Xxxxxxx shall, at its own expense, comply with all laws, rules
orders, ordinances, directions, regulations and requirements of federal, state,
county and municipal authorities now in force or which hereafter may be in
force, with respect to Xxxxxxx'x specific use, occupation or alteration of the
Premises, including without limitation, environmental laws and regulations
(collectively, "Laws*). Xxxxxxx agrees to indemnify and save Macy's harmless
from and against any penalty, damage or charge imposed for any violation by
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Xxxxxxx, its agents or employees of any of the Laws.
X. Xxxxxxx shall not cause or permit any hazardous material to be
brought upon, stored, or used in or about the Premises, other than standard
office and janitorial supplies in such amounts customary for normal uses.
Xxxxxxx shall inspect, use, store, generate, and dispose of all hazardous
materials or oil in compliance with the Laws and shall cause its agents to
comply with such Laws. Xxxxxxx shall not release, or permit to be released by
its agents, employees or contractors, on, in, or from the Premises or in
connection with Xxxxxxx'x use of the Premises, any hazardous material or oil in
violation of the Laws. Xxxxxxx shall comply and shall cause its agents to comply
with 310 CMR Part 30, relating to the handling, storage, generation,
transportation and disposal of hazardous waste. If Xxxxxxx or its agents
generate hazardous wastes, then Xxxxxxx shall provide Xxxxxxx'x generator number
and copies of permits required under 310 CMR Part 30 to Macy's, and shall
provide Macy's within seven days of its request thereof, copies of all manifests
used for the transportation and disposal of hazardous wastes. Immediately upon
discovering a release of hazardous material at the Premises, or a violation of
the Laws, Xxxxxxx shall promptly notify Macy's in writing. Xxxxxxx shall be
responsible for all costs incurred and all fines assessed in connection with the
handling, storage, generation, use, transportation and disposal of hazardous
material by Xxxxxxx and its agents as a result of violations of its obligations
under this Article X. "Hazardous material" as used herein means any substance
defined as hazardous under the Comprehensive Environmental Response Compensation
and Liability Act (CERCLA) 42 U. S. C. (S)960 1, et seq.; the Massachusetts
Contingency Plan, M. G. L. Ch. 2 1 E, (S)2; M. G. L. Ch. 2 1 C; 3 10 CMR Part
30; the Clean Air Act, 42 U. S. C. (S)740 1, et seq. and 40 CFR Parts 50-85; or
the Massachusetts Clean Air Act, M.G. L. Ch. 111, (S) 142, et seq. and 3 10 CMR
Parts 6-8; or listed in the United States Department of Transportation Hazardous
Materials Table, 49 CFR 172. 101, as amended; or listed in the Environmental
Protection Agency as a hazardous substance, 40 CFR Part 302, as amended.
Xxxxxxx'x obligations under this Section shall survive the expiration or
termination of this Sublease.
XIII. Condition of Premises.
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A. On or before June 30, 1997 (subject to Subsection XXI C hereof),
Macy's shall complete "Macy's Work" as described in Exhibit C and deliver
possession of the Premises to Xxxxxxx (the actual date of delivery being herein
called the "Delivery Date"). Provided Macy's Work is completed in a good and
workmanlike manner, Xxxxxxx shall accept the Premises in its "AS IS" condition
as of the Delivery Date. Macy's makes no representations, covenants or
warranties with respect to the condition of the Premises, except that Macy's
Work shall be completed in a good, workmanlike manner. Xxxxxxx has inspected the
Premises and the mechanical equipment located therein and is relying on its own
inspection with respect to the condition thereof Xxxxxxx may request early entry
upon the Premises to commence Xxxxxxx'x improvements, fixturing and equipment
installation, which early entry shall be subject to Macy's reasonable approval,
provided any such early entry shall not interfere with Macy's Work.
B. Any installation, alteration, construction or modification to the
Premises by Xxxxxxx on or for the Premises shall be approved in writing by
Macy's prior to commencement of any work. Within 30 days after receiving a
complete set of plans for such work from Xxxxxxx, Macy's shall either approve or
disapprove such plans.
X. Xxxx'x reserves the right at any time and from time to time (and
after providing Xxxxxxx reasonable advance notice), solely in connection with
its maintenance and repair obligation hereunder, to make or permit alterations
or additions in or to the Building, and in connection therewith, to close
entrances, doors, corridors, elevators and other facilities, all without any
liability to Xxxxxxx, its employees, agents or invitees, for any expense,
injury, loss, damage, interference or annoyance resulting from any such
alteration or addition or any work in connection therewith; provided that
Xxxxxxx'x use of the Premises, the dimensions or location of the Premises, and
Xxxxxxx'x access to the Premises are not materially, adversely impaired. Macy's
shall use reasonable efforts to minimize the detrimental impact of Macy's work,
if any, on Xxxxxxx'x use of the Premises.
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X. Xxxx'x represents that it is duly authorized to enter into this
Sublease subject to the terms and conditions of the Master Lease. Xxxxxxx
acknowledges that Landlord has certain rights of access to the Premises as set
forth in the Master Lease, and agrees to allow Landlord to exercise its rights
under the Master Lease, provided that Landlord does not materially, adversely
interfere with the conduct of Xxxxxxx'x business in the Premises and Xxxxxxx is
given advance notice of such access in each event.
XIV. Liens.
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X. Xxxxxxx shall not permit any mechanic's or materialman's liens or any
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other similar lien to attach to the Premises or the Building. If any such lien
is filed, then Xxxxxxx shall indemnify Landlord and Macy's for all costs and
liabilities arising from such lien. In the event that a foreclosure or other
court action is brought to enforce the lien, Maxwell shall promptly cause the
lien to be discharged of record at its expense by payment, bond or court order.
B. All trade fixtures, merchandise, signs and apparatus (as
distinguished from permanent leasehold improvements) owned by Xxxxxxx and
installed in the Premises shall remain the property of Xxxxxxx and shall be
removable at any time during the Term. Xxxxxxx shall repair any damage to the
Premises caused by the removal of said fixtures. Any of Xxxxxxx'x property not
removed by Xxxxxxx within five business days after the end of the Term or
earlier termination of this Sublease will be deemed abandoned by Xxxxxxx, in
which case Macy's may retain the property, order Xxxxxxx to remove the items or
have them removed, all at Xxxxxxx'x expense.
XV. Inspection of Premises. Xxxxxxx shall permit Landlord, Macy's and their
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authorized representatives, to enter the Premises at reasonable times, upon
prior notice (except in the case of emergency), to inspect the Premises and to
exhibit the Premises for the purpose of selling or mortgaging the Building, or
showing the same to any prospective tenant of the Premises.
XVI. Macy's Right to Cure. If Xxxxxxx fails to make any payment or perform
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any other obligation that Xxxxxxx is required to do under this Sublease, then
Macy's may (but shall not be obligated to) make or perform the same on Xxxxxxx'x
behalf, without waiving or releasing Xxxxxxx of its obligations under this
Sublease; so long as Macy's first provides Xxxxxxx written notice and an
opportunity to cure its breach for a period of 20 days. Xxxxxxx shall be liable
for all costs incurred by Macy's, together with interest at the rate of one
percent (1%) over the prime rate charged from time to time by Chase Manhattan,
N.A., New York per annum, which amounts shall be deemed additional rent and
shall be due and payable with the next installment of Rent.
XVII. Indemnification and Insurance.
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A. Unless caused by the negligence of Macy's, or its agents,
contractors, or employees, Xxxxxxx shall indemnify and save Macy's harmless from
all claims, damages, losses, liabilities and expenses in connection with loss of
life, bodily or personal injury or property damage, arising from or out of the
use or occupancy of the Premises by Xxxxxxx, its employees or agents.
B. Unless caused by the negligence of Xxxxxxx, or its agents,
contractors, or employees, Macy's shall indemnify and save Xxxxxxx harmless from
all claims, damages, losses, liabilities and expenses in connection with loss of
life, bodily or personal injury or property damage, arising from or out of
Macy's use of the Building.
X. Xxxxxxx agrees to carry throughout the entire Term, at its expense,
commercial general liability and property damage insurance, in amounts not less
than $3,000,000 combined single limits and an annual aggregate of $3,000,000.
All of Xxxxxxx'x insurance shall be with companies authorized to do business in
Massachusetts and issued by insurance companies reasonably acceptable to
Landlord. Xxxxxxx shall provide Macy's with certificates evidencing the
existence of such insurance prior to the date of Xxxxxxx'x use or occupancy of
the Premises, which policies shall name Macy's and Landlord as additional
insureds Such policies shall bear endorsements to the effect that the insurer
agrees to notify Macy's not less than ten days in advance of any modifications
to the coverage or cancellation thereof.
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XVIII. Quiet Enjoyment. Macy's covenants that, upon paying Rent and observing
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keeping and performing the covenant, agreements and conditions of this Sublease
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on this part to be observed, kept and performed, Xxxxxxx shall lawfully and
quietly hold, occupy and enjoy the Premises during the Term, without hindrance
or molestation of Macy's, subject to the terms and conditions of this Sublease,
and subject to the Master Lease.
XIX. Master Lease.
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X. Xxxx'x represents, to the best of its knowledge, that: (a) the Master
Lease is in full force and effect; (b) no uncured default exists under the
Master Lease; and (c) Macy's has no notice of any condition or event that would
impair or prevent Xxxxxxx'x use of the Premises or the Parking Areas in
accordance with this Sublease. Upon receipt of written request including
invoices or proof of payment from Xxxxxxx, Macy's will reimburse Xxxxxxx for any
reasonable and directly related costs (but not consequential or incidental
damages) that Xxxxxxx incurs as a direct result and solely because of the
termination of this Sublease provided that such is triggered by a default of
Macy's under the Master Lease.
X. Xxxxxxx assumes and agrees to be bound by and perform all of the
terms, covenants and conditions to be kept, observed and performed by Macy's as
tenant under the Master Lease (except with respect to any portion of the
premises leased under the Master Lease which are not part of the Premises)
accruing on and after the Delivery Date, excluding only the obligation to pay to
Landlord directly rent and items constituting Additional Rent under the Master
Lease (rent and Additional Rent as stipulated herein being payable to Macy's,
who shall be responsible for making payments thereof under the Master Lease to
Landlord).
XX. Surrender of Premises. Upon the expiration of the Term or earlier
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termination of this Sublease, Xxxxxxx will quit and surrender the Premises to
Macy's in at least as good a condition as existed upon Xxxxxxx'x acceptance of
possession of the Premises, wear and tear and damage from casualty excepted.
XIX. Default.
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A. The following shall be deemed defaults of this Sublease:
1. If Xxxxxxx fails to pay Rent or any amount due from Xxxxxxx under
this Sublease when due, and such default continues for five days after
receipt of written notice from Macy's of such nonpayment;
2. If Xxxxxxx fails to perform any of its obligations under this
Sublease when due, and such default continues for 30 days after notice
from Macy's of such default;
3. If Xxxxxxx makes an assignment for the benefit of creditors;
4. If a voluntary or involuntary petition is filed by or against Xxxxxxx
under any law having for its purpose the adjudication of Xxxxxxx a
bankrupt, and, if involuntary, a finding is made or an order is entered
by the court, that Xxxxxxx is insolvent or unable to meet the debts and
obligations of Xxxxxxx as they mature; or
5. If a receiver is appointed for the property of Xxxxxxx by reason of
the insolvency or alleged insolvency of Xxxxxxx, and is not discharged
within 60 days.
B. If any default shall occur and continue beyond the cure period as set
forth above, then Macy's may, in addition to exercising any of its legal or
equitable remedies, elect to: (1) terminate this Sublease, in which case Xxxxxxx
will immediately surrender the Premises to Macy's, provided that Xxxxxxx shall
remain liable for all outstanding amounts owed, or (2) reenter the Premises, and
remove all persons and property; either by summary eviction proceedings or by
any other suitable action or proceeding at law, or by self-help repossess the
Premises, without demand or notice, and without being guilty of trespass and
without prejudice to any remedy, without terminating this Sublease. If this
Sublease is terminated, Macy's may, at its option, relet the Premises or any
portion thereof, and receive and collect the rents therefor, applying the same
first to the payment of such expenses as Macy's may have incurred in recovering
possession of the Premises, including attorneys' fees, and for putting the same
into good order or condition, or preparing or altering the same for re-rental,
and all other expenses,
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commissions and charges paid, assumed or incurred by Macy's in or about
reletting the Premises, and Xxxxxxx shall remain liable for any deficiency.
XXI. Miscellaneous.
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A. Limitation of Liability. Unless caused by Macy's negligence or
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willful misconduct, Macy's shall not be liable for, and, to the extent permitted
by law, Xxxxxxx hereby releases Macy's and its agents and employees from, any
loss of or damage to property of Xxxxxxx or its agents, contractors, employees,
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invitees, or licensees for any injury or damage to persons or property resulting
from any cause of whatsoever nature Without limiting the foregoing, unless
caused by Macy's negligence or willful misconduct, Macy's shall not be liable
for any damage caused by other tenants or persons in the Building, or for
damages for Xxxxxxx'x property, that is caused by bursting, stoppages, or
leaking of water, gas, sewage or steam pipes, flooding, or by refrigerators,
sprinkling devices, air conditioning apparatus, water, snow, ice, frost, steam,
excessive heat or cold, broken glass, odor or noise, whether any such loss or
damage is caused by or results from the acts of Macy's or other occupants of the
Budding. All property belonging to Xxxxxxx or any occupant of the Premises shall
be at the risk of Xxxxxxx, and Macy's shall not be liable for loss or damage
thereto by reason of theft or misappropriation.
B. Notices. Any notice, demand, request for approval or consent or other
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communication which may be required or given under this Sublease shall be in
writing and shall be deemed to have been given when received by United States
registered or certified mail, return receipt requested, postage prepaid, or
other delivery service where receipt can be verified addressed to Macy's to:
c/o Federated Department Stores, Inc.
Seven Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn.: Real Estate Department
with a copy to:
Macy's East, Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000-0000
or to such address as Macy's may designate by notice to Xxxxxxx in accordance
with this Section, and if to Xxxxxxx, to:
Xxxxxxx Shoe Company
000 Xxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxxxx 00000
with a copy to:
Xxxxxxx Shoe Company, Inc.
000 Xxxxxxx Xxxxxx
X.X. Xxx 00
Readville, Massachusetts 02137
or to such other address as Xxxxxxx may, from time to time, designate in writing
to Macy's in accordance with this Section.
C. Force Majeure. If either party is delayed, hindered or prevented
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from performing any act required hereunder because of strikes, lockouts,
inability to procure labor or materials, failure of power, restrictive
governmental laws or regulations, riots, insurrection, war, fire or other
casualty or other reason of a similar or dissimilar nature beyond the reasonable
control of that party, then the performance of that act (other than the payment
of Rent or other amounts due) shall be excused for the reasonable period of the
delay and the period for the performance of any such act shall be extended for a
period equivalent to the period of such delay provided that if such delay shall
last more than fifteen (15) days, then either party may terminate this Sublease
by providing written notice to the other. The provisions of this Section shall
not operate to excuse Xxxxxxx from prompt payment of Rent or any other payments
required by the terms of this Sublease and shall not extend the Term. Delays for
failures to perform resulting from lack of funds shall not be deemed delays
beyond the reasonable control of a party.
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D. Brokers. Each party warrants that it has dealt with no broker,
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commission agent, finder or other person or entity with respect to this
Sublease, except that Macy's has retained Xxxxxxxx & Grew, and Xxxxxxx has
retained Whittier Partners. Macy's shall be responsible for paying a commission
due to Xxxxxxxx & Grew pursuant to their separate agreement. Xxxxxxx shall be
responsible for any commission or other compensation due to Whittier Partners
which is not payable by Xxxxxxxx & Grew pursuant to a co-op arrangement between
such brokers. Each party shall indemnify and hold the other party harmless from
any claims, actions, damages, costs, expenses and liability whatsoever,
including reasonable attorneys' fees, that may arise from any claims for
commission or finder's fees in connection with this Sublease or the Premises
which is based on any representations, acts or agreements made by the
indemnifying party.
E. Subordination by Xxxxxxx to Third Parties. Xxxxxxx agrees that this
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Sublease shall be subordinate to the Master Lease, any existing ground leases,
mortgages, conditions, easements, restrictions or encumbrances of record.
Xxxxxxx agrees that, upon the request of Macy's or Landlord, it will subordinate
this Sublease, in writing, to any present or future ground lease or to the lien
of any present or future mortgage to a bank insurance company or similar
financial institution that may become necessary or desirable from time to time
irrespective of the time of execution of said Sublease or the time of recording
of any such mortgage(s). Xxxxxxx shall subordinate this Sublease so long as the
holder of any such mortgage or ground lease, or any other person claiming under
said mortgage or ground lease, agrees to recognize that this Sublease and the
rights of Xxxxxxx, hereunder shall continue in full force and effect and that
such rights shall not be expanded, terminated or disturbed unless Xxxxxxx is in
default under this Sublease.
F. Attornment by Xxxxxxx. Xxxxxxx agrees that if the mortgagee or the
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holder of any ground lease or any person claiming under said mortgage or ground
lease shall succeed to the interest of Macy's in this Sublease, Xxxxxxx shall
recognize and attorn to said mortgagee or person as landlord under this
Sublease, provided that Macy's successor expressly assumes Macy's obligations
under this Sublease and cures any outstanding default. Xxxxxxx agrees that it
will, upon the request of Macy's, execute, acknowledge and deliver any and all
instruments necessary or desirable to give effect or notice of such
subordination. The failure of Xxxxxxx to execute such document or instrument
within ten (10) days after Macy's request shall constitute a default by Xxxxxxx
under the terms of this Sublease. The word "mortgage" as used herein includes
mortgages, deeds of trust or other similar instruments and modifications,
consolidations, extensions, renewals, replacements and substitutes thereof.
G. Accord and Satisfaction. No payment by Xxxxxxx, or receipt by
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Macy's of a lesser amount than any payment of rent or other charges herein
stipulated shall. be deemed to be other than on Xxxxxxx'x account and applied to
the earliest stipulated rent, nor shall any endorsement or statement on any
check or any letter accompanying any check or payment as rent be deemed an
accord and satisfaction, and Macy's may accept such check or payment without
prejudice to Macy's right to recover the balance of such rent or pursue any
other remedy provided for in this Sublease or available at law or in equity.
H. Entire Sublease. This Sublease contains the entire agreement between
-----------------
the parties, and there is no other statement, agreement or representation,
either oral or written. No present or past dealings or custom between the
parties shall. be permitted to contradict or modify the terms hereof. No
modification of this Sublease shall be binding unless in writing, signed by all
parties.
I. Estoppel. Both parties agree at any time, upon not less than twenty
--------
(20) days' prior written request, to execute, acknowledge and deliver a written
statement certifying that this Sublease is unmodified and in full force and
-----------
effect (or, to the modifications if applicable), the dates to which Rent and
other charges have been paid pursuant to this Sublease, and such other
certification concerning the Sublease as may be reasonably requested. Both
parties further agree that said statement may be relied upon by any prospective
purchase mortgagee or purchaser of the Premises.
J. Interpretation; Severability. The laws of the Commonwealth of
----------------------------
Massachusetts shall govern the validity, performance and enforcement of this
Sublease. As used herein, the word "including" is not limiting. If any part of
this Sublease shall, be adjudged by any court of competent jurisdiction to be
invalid, such judgment shall, not affect or impair any other provision.
K. Recording. This Sublease shall not be recorded.
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8
L. Section Headings. The section headings contained herein are for
----------------
convenience only and do not define, limit, construe or amplify the contents of
such sections.
M. Successors and Assigns. The conditions, covenants and agreements
----------------------
contained in this Sublease shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, executors, administrators, successors
and permitted assigns. All covenants and agreements of this Sublease shall run,
with the land.
N. Authority. Each party and the individual(s) executing this Sublease
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on its behalf represent and warrant to the other party that such individual(s)
have full right, power and authority to execute this Sublease on behalf of the
party indicated and, if such party is a corporation, that such corporation has
full corporate power and authority to enter into this Sublease and has taken all
corporate action necessary to carry out the transaction contemplated hereby, so
that when executed this Sublease constitutes a valid and binding obligation
enforceable against such corporation.
IN WITNESS WHEREOF, the parties hereto have caused this Sublease to be duly
executed by their officers thereunto duly authorized, and their corporate seals
to be hereunto affixed, the day and year first above written.
Signed and acknowledged
in the presence of: MACY'S EAST, INC.
By:
------------------------------------ --------------------------------
Print Name: Xxxx Xxx Xxxxxx
------------------------------------
Print Name: Xxxxxxxxx X. Xxxxx
Signed and acknowledge
in the presence of: XXXXXXX SHOE COMPANY, INC.
By:
------------------------------------ ---------------------------------
Print Name: Xxxx Xxxxx Xxxxxxx X. Xxxx
Chairman, Chief Executive Officer
------------------------------------
Print Name: Xxxxxx Xxxxxx
9
STATE OF OHIO
COUNTY OF XXXXXXXX
BE IT REMEMBERED, that on this 10th day of June 1997, before me, the
subscriber, a Notary Public in and for said county, personally came the above
named MACY'S EAST, INC., an Ohio corporation, by Xxxxxx X. Xxxxxxx, its Vice
President, duly authorized by the Board of Directors of the Corporation,
acknowledged the signing of the foregoing sublease to be his/her voluntary act
and deed for and as the act and deed of the Corporation, for the uses and
purposes therein mentioned.
IN TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed my
office seal, on June 10, 1997.
-----------------------------------
Notary Public XXXXXXXXX X. XXXXX
COMMONWEALTH OF )
) SS.
COUNTY OF Suffolk )
BE IT REMEMBERED, that on this 5 day of June, 1997, before me, the
subscriber, a Notary Public in and for said county, personally came the above
named XXXXXXX SHOE COMPANY, INC., by Xxxxxxx X. Xxxx , its Chairman, CEO duly
authorized by the Board of Directors of the Corporation, acknowledged the
signing of the foregoing sublease to be his/her voluntary act and deed for and
as the act and deed of the Corporation, for the uses and purposes therein
mentioned.
IN TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed my
office seal, on June 5, 1997.
---------------------------------
Notary
10
COMMONWEALTH OF MASSACHUSETTS )
)SS.
COUNTY OF _____________________ )
BE IT REMEMBERED, that on this ______ day of _______________, 1997, before
me, the subscriber, a Notary Public in and for said county, personally came the
above named XXXX X. XXXXXX, III, as Trustee for Brockton Oak Real Estate Trust,
duly authorized by the Board of Directors of the Corporation, acknowledged the
signing of the foregoing sublease to be his voluntary act and deed for and as
the act and deed of the Corporation, for the uses and purposes therein
mentioned.
IN TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed my
----
office seal, on _________________, 1997.
------------------------------
Notary Public
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Exhibit C
Macy's Work
1. Erect demising walls for the Premises.
2. Secure elevator openings to adjacent space.
3. Install electricity check meter.
4. Remove Cafeteria fixtures and equipment.
5. Deliver Premises in broom clean condition, with all lighting, heating units
and loading doors in operating condition.
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