SUBLEASE AGREEMENT
WHEREAS on or around the 28th day of February, 1997 a certain Lease
Agreement was entered into by and between Xxxxxx Xxxxxxxxxx, Xxxxxxxx
Xxxxxxxxxx, Xxxxxx Xxxxxxxxxx, and Xxxxxx Xxxxxxxxxx as Trustee of Xxxxxxxxxx
Investment Properties (as Landlord thereunder) further assigned to AMB Property,
L.P. (hereinafter "Master Landlord" hereunder) and ADAP, Inc. (as Tenant)(said
original Lease Agreement hereinafter referred to as the "Master Lease".) ;and
WHEREAS, ADAP, Inc. desires to sublease a certain portion of the leased
premises to Quaker Fabric Corporation of Fall River; and
WHEREAS Quaker Fabric Corporation of Fall River agrees to sublease from
ADAP,Inc. upon the terms and conditions herein stated;
NOW, THEREFORE, THIS SUBLEASE AGREEMENT (hereinafter "Sublease") is
entered into on December 11,1998, by and Between ADAP, INC., (hereinafter
"Landlord") and Quaker Fabric Corporation of Fall River, (hereinafter
"Subtenant"). The Landlord subleases to Subtenant the Demised Premises as herein
after defined, together with all improvements and all rights and appurtenances
thereunto belonging. Subtenant will not violate any of the terms and conditions
of the Master Lease to the extent the same are binding on Subtenant. Landlord
warrants that it is currently the rightful Tenant under the Master Lease.
WITNESSETH
The parties hereto agree that this Sublease sets forth all agreements,
covenants and conditions express or implied between the parties, and supersedes
any prior oral or written agreements between the parties with respect to the
premises hereinafter described.
1. PREMISES: Landlord subleases to Subtenant and Subtenant subleases from
Landlord the premises more particularly described as the approximately 214,851
square feet of warehouse space (hereinafter the "Demised Premises") located in
the approximately 249,851 square foot premises along with the parking indicated
on the attached Exhibit A-1, located at 000 Xxxxxxxxxx Xxxxx, in the City of
Brockton and
State of Massachusetts. The Demised Premises is shown highlighted on the drawing
labeled Exhibit A-1 attached hereto and made a part hereof.
2. MASTER LEASE: (A) The terms, provisions, covenants, and conditions of the
Master Lease are hereby incorporated herein by reference on the following
understandings:
(1) With respect to work, services, repair, repainting and restoration
or the performance of other obligations required of the Master Landlord under
the Master Lease, and the obtaining of consents and approvals from the Master
Landlord, Landlord's sole obligation shall be to request the same, on request in
writing by Subtenant, and to use reasonable good faith efforts to obtain the
same from the Master Landlord under the Master Lease. With respect to the
obtaining of consents and approvals from the Landlord under this Sublease,
Landlord agrees that upon request in writing by Subtenant, such consent or
approvals will not be unreasonably withheld or delayed.
(2) If there is a conflict between the provisions of the Master Lease
and this Sublease, the provisions of this Sublease shall govern . The lack of a
particular section or subsection in this Sublease shall not be deemed to be a
conflict with a term which is set forth in the Master Lease and in such event,
the section or subsection so contained in the Master Lease shall govern.
(3) Landlord hereby represents and warrants that the Master Lease is in
full force and effect. Furthermore Landlord hereby agrees to hold Subtenant
harmless of, from and against any and all liabilities, losses, damages, suits,
penalties, claims and demands of every kind or nature (including without
limitation, reasonable attorney's fees and expense, of defense by reason
thereof) for any default caused or committed by the Landlord under this Master
Lease.
(B)(1) Subtenant agrees to hold Landlord and Master Landlord
harmless of, from and against any and all liabilities, losses, damages, suits,
penalties, claims and demands of every kind or nature (including without
limitation, reasonable attorney's fees and expense, of defense by reason
thereof) arising from or out of the use or occupancy of the Demised Premises or
of any business conducted therein, or from any work or thing whatsoever done or
any condition created by the act or omission of Subtenant, its Assignees,
employees, Agents, contractors, visitors or licensees, in or about the Demised
Premises.
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(2) Except as otherwise set forth in this Sublease Agreement, the
Subtenant shall faithfully observe and timely perform each and every obligation
of Tenant under the Master Lease (Landlord under this Sublease), except that
subject to timely performance by Subtenant of Subtenant's obligations, Landlord
shall timely pay when due all rents and other sums payable under the Master
Lease. In the event the Landlord fails to submit the rental payment to Master
Landlord in a timely fashion, the Master Landlord shall promptly (but in no
event later then ten (10) days from the original due date) notify Subtenant of
said failure and Subtenant may cure said failure and pursue Landlord for all
remedies available herein, at law or otherwise. In the event Landlord fails to
make timely payments of rent as required under the Master Lease on two occasions
and Subtenant cures both defaults as provided within this subsection, then
Subtenant shall be permitted upon written notice to Master Landlord and
Landlord, to make all future base rent payments directly to Master Landlord.
Neither Landlord nor Subtenant shall violate the Master Lease. Landlord shall
use its best efforts to keep the Master Lease in effect during the term of this
Sublease.
3. TERM AND COMMENCEMENT: The term of this Sublease (the "Term") shall
commence on the same date that this Sublease is fully executed by Landlord and
Subtenant and shall end the 31st day of December, 2003 unless extended as
provided herein. Subtenant shall have the right to terminate this Sublease after
four full years. The notice for this termination will be due six (6) months
prior to the end of the fourth year. The fee for this termination right shall be
equal to six (6) months' rent, which shall be in addition to the remaining six
months of the fourth year.
3.1 RENT COMMENCEMENT: The date of Rent commencement shall be December 11, 1998
provided that a fully executed copy of this Sublease Agreement has been received
by Master Landlord and Landlord and the first months rent and security deposit
has been paid as required hereunder.
4. RENEWAL OPTIONS: Landlord grants to Subtenant two separate two year options
to extend the Term, provided that Tenant is not in default in its obligations
under this Sublease at the time of exercising such option:
OPTION RENT
------ ----
Year 1 & 2 $4.25/sq. ft. $913,116.75 NNN
Year 3 & 4 $4.45/sq. ft. $956,086.95 NNN
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During this option period all terms and conditions of this Sublease
shall remain in full force and effect except for the increase in Rent above.
Subtenant shall, pursuant to Section 23 of this Sublease, notify Landlord no
later than July 1, 2003 of its intention to exercise the first two-year option
and shall notify Landlord no later then October 1, 2005 of its intention to
exercise the second two-year option above. If Subtenant fails to notify Landlord
of its intention to exercise said option, the Term shall end on the December 31,
2003, as described herein.
Notwithstanding any other statement contained herein, in the event the
Master Lease is terminated for any reason other than a breach of the Master
Lease by Landlord, the options contained in this Provision shall be null and
void.
5. RENT AND ADDITIONAL RENT: Subtenant agrees to pay to Landlord in advance
and throughout the initial four (4) years of the initial Term, upon and
following Rent commencement, without offset, demand or, except as otherwise
provided herein, abatement, the monthly sum of sixty seven thousand, one hundred
forty dollars and ninety four cents ($67,140.94) (hereinafter called "Rent") on
or before the first day of each calendar month. Beginning on January 1, 2003
until December 31, 2003 the Subtenant agrees to pay to Landlord in advance
without offset, demand or except as otherwise provided herein, abatement, the
monthly sum of seventy four thousand, three hundred two dollars and sixty-four
cents ($74,302.64). If the Commencement Date falls after the first day of the
month, Rent will be prorated to accommodate for partial months occurring during
the beginning or end of this Sublease. Notwithstanding the forgoing, in the
event the parties' reach an agreement and possession is acquired prior to
December 15, the rental payment for the month of December 1998 shall be thirty
four thousand dollars ($34,000.00). Furthermore, in the event that the Landlord
fails to deliver the entire demised premises as required herein, by January 4,
1999 then the monthly rent for January 1999 shall be thirty four thousand
dollars ($34,000.00).
During the option periods, Subtenant agrees to pay to Landlord in
advance without offset, demand or except as otherwise provided herein abatement,
the monthly sum of seventy six thousand, ninety three dollars and six cents
($76,093.06) during the first option term and seventy nine thousand six hundred
seventy three dollars and ninety-one cents ($79,673.91) during the second option
term. All
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payments of rent shall be made payable to ADAP, Inc. and mailed to
AutoZone Excess Property, Dept. 8700, X.X. Xxx 0000, Xxxxxxx, XX 00000-0000,
Attention: Xxxxx Xxxxxx or to such other person or corporation or at such other
place as shall be designated by Landlord, in writing, from time to time.
In addition to the Rent herein specified, Subtenant agrees to pay
Landlord, as additional rent, five (5) percent of the total monthly Rent for
that month for each monthly payment of Rent that is not received by Landlord on
or before the fifth (5th) day of any month during the Term of this Sublease.
Within 15 days after receipt of a billing from Landlord, Subtenant shall
reimburse Landlord, as additional rent (without offset, further demanded or
except as otherwise provided herein, abatement) for its pro rata share of taxes,
assessments, insurance, utilities, operating expenses, landscaping, and other
payments the Landlord is required to make under the Master Lease; provided
however, that in no event shall Subtenant be required to pay for any repair or
replacement which would be classified as a capital expenditure under GAAP.
Within a reasonable time from the effective date of this Sublease,
Landlord agrees to cause a "notice of cancellation provision" to be included in
each insurance policy held by Landlord in connection with the Demised Premises.
Such provision shall provide for notice to be sent to the Subtenant thirty (30)
days prior to the effective date of cancellation of any insurance held by
Landlord in connection with the Demised Premises. Landlord shall provide
certificates of insurance to Subtenant as evidence of compliance with the
foregoing.
Subtenant agrees to pay, prior to delinquency, any and all taxes and
assessments that may be assessed or levied on or against any of Subtenant's
personal property, fixtures, or equipment placed on or in the Demised Premises,
and/or other taxes or expenses incidental to Subtenant's use thereof and the
operation of Subtenant's business therein.
Subtenant further agrees to pay to Landlord as Additional Rent without
offset, further demand or except as otherwise provided herein, abatement an
amount equal to any excise, privilege, sales or other tax (excluding income tax)
levied at any time during the term hereof on the rentals or on any other sums
payable by Subtenant to Landlord under the terms of this Sublease (including,
but not limited to, reimbursement of taxes,
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maintenance costs, insurance premiums, and utility charges) or on Landlord's
receipt of said rental or other sums.
6. SECURITY DEPOSIT: Prior to delivery of the Premises, Subtenant shall deliver
to Landlord a security deposit in the amount of sixty seven thousand one hundred
forty one dollars ($67,141.00) as security for the full and faithful performance
by Subtenant of each and every term, covenant and condition of this Sublease.
In the event that Subtenant defaults in any of the terms, provisions, covenants
or conditions of this Sublease, including but not limited to payment of any
Rent or additional rent, Landlord may use, apply, retain the whole or any of
the security so deposited for payment of any such sum in default, or for any
other sum which Landlord may expend or be required to expend by reason of
Subtenant's default, including any damages or deficiencies incurred in the
reletting of the Demised Premises or in curing default(s) by Subtenant under
this Sublease, whether such damage or deficiency may occur before or after some
repossession proceeding or other reentry by Landlord. In the event that
Subtenant shall, for the full Term of this Sublease, fully and faithfully
comply with all the terms and conditions of this Sublease, the security deposit
or any balance thereof, shall be returned to Subtenant after expiration of the
Term. The Subtenant shall not be entitled to any interest on the aforesaid
security. If Landlord utilizes the security deposit in payment of Subtenant's
obligations hereunder or in otherwise curing default on the part of Subtenant,
Subtenant shall pay Landlord within ten (10) days from the date of demand, the
amount necessary to restore the security deposit.
7. POSSESSION: (A) Landlord agrees that upon Tenant's performing and observing
the terms, conditions and provisions of the Sublease Agreement, Subtenant shall
and may peaceably and quietly have, hold and enjoy the premises during the Term
without any manner of hindrance from Landlord or anyone claiming under Landlord
(hereinafter "right of quiet enjoyment"). Subject to Subtenant's right of quiet
enjoyment, Subtenant shall permit any inspection, at all reasonable times, of
the Demised Premises by Landlord, or Landlord's agents or representatives.
Furthermore, subject to Subtenant's right of quiet enjoyment, Subtenant shall
allow Master Landlord to enter Demised Premises at all times when required under
the Master Lease. During the six (6) months preceding the expiration of the Term
of this Sublease, Landlord shall upon reasonable notice to Subtenant, have the
right to show the Demised Premises to other potential Subtenants and prospective
purchasers at all reasonable times.
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(b) Subtenant agrees to deliver to Landlord physical possession
of the Demised Premises upon expiration or termination of the Term in good
repair and condition excepting, however, ordinary wear and tear occurring due to
normal and reasonable use and casualty to the extent, if any, permitted by the
Master Lease and excepting repairs and replacements which, if made would be
classified as capital expenditures under generally accepted accounting
principles. Subtenant shall leave the Demised Premises broom clean and except as
set forth on Exhibit "C", free of all personal property, trash and debris. In
the event that Subtenant shall retain possession of the Demised Premises or any
part thereof, without Landlord's consent, after the termination of this
Sublease, whether by lapse of time or otherwise, Subtenant shall become a
Subtenant at sufferance only and pay to Landlord one and one half (1 1/2) the
monthly rent in effect immediately before the termination date and shall pay all
items of additional rent then applicable for each month or portion thereof, and
also shall pay any and all damages sustained by Landlord on account thereof. The
foregoing shall not be deemed consent to holding over. Further, in no event may
Subtenant occupy the Demised Premises or any part thereof beyond the expiration
or termination of the Master Lease except by separate written agreement between
the Master Landlord and Subtenant.
8. USE: (A) Subtenant may use the Demised Premises solely for the purpose of
manufacturing, distributing and warehousing fabrics and materials used in
connection with its operations. Provided however, as to manufacturing, the
Subtenant shall not use the Demised Premises for the manufacturing of fabrics
and materials until Master Landlord consents to said use in a separate writing
signed by Master Landlord a copy of said consent shall be provided to Landlord.
Furthermore, in the event Master Landlord consents to said manufacturing use,
Subtenant represents and warrants that the use will comply with all relevant
codes, rules, regulations and laws. Subtenant shall not use or permit the
Demised Premises to be used for any other purpose without first obtaining the
Landlord's prior written consent. Subtenant shall indemnify and hold Landlord
harmless of and from all fines or penalties imposed by law arising by reason of
the violation by Subtenant of any laws, rules, ordinances or regulations or
other governmental requirements relating to the conduct of business in Demised
Premises, or
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the use or occupancy thereof, issued by any governmental authority having
jurisdiction over the Demised Premises.
(B) Subtenant agrees for itself, its partners, successors and
assigns, its officers, its directors, its parent, affiliated and subsidiary
corporations and any party affiliated with it, that none of the foregoing shall
use, suffer, permit or consent to the use or occupancy of the Demised Premises
or any part thereof as an automobile or truck parts store/warehouse or for the
sale of automobile and truck parts, supplies or accessories for as long as this
Sublease is in effect. Additionally, Subtenant shall not use, suffer, permit or
consent to the use of the Premises or Demised Premises for advertising purposes,
including but not limited to billboards or other signs, whether freestanding or
placed on the building located on the Premises, except as permitted herein, for
so long as this Sublease is in effect.
(C) If, due to any act or omission (or alleged act or omission)
of Subtenant, or its agents or contractors, any mechanic's or other lien, charge
or order for payment of money or other encumbrance shall be filed against
Landlord and/or Master Landlord or any portion of the Demised Premises (whether
or not such lien, charge, order, or encumbrance is valid or enforceable as
such), Subtenant, shall at its own cost and expense cause the same to be
discharged of record or bonded around within ten (10) days after notice to
Subtenant; and Subtenant shall indemnify defend, with counsel approved by
Landlord and Master Landlord, and hold harmless Landlord and Master Landlord and
all mortgagees against and from all costs, liabilities, suits, penalties, claims
and demands, including reasonable attorney's fees, resulting therefrom. If
Subtenant fails to comply with the foregoing provisions, Landlord or Master
Landlord shall have the option of discharging or bonding around any such lien,
charge, order, or encumbrance, and Subtenant agrees to reimburse Landlord or
Master Landlord, as the case may be, promptly upon demand, for all actual costs,
expenses and other sums of money in connection therewith (as additional rent)
with interest accruing at the rate of ten percent (10%) per annum from the date
Landlord notifies Subtenant of such discharge or bonding.
9. ASSIGNMENT AND SUBLETTING: Subtenant shall not mortgage or assign this
Sublease or sublet the Demised Premises or any part thereof, directly,
indirectly, by operation of law or in any manner whatsoever or under any
circumstances, without the prior written consent of Landlord. Any attempt to
mortgage, assign or sublet in violation
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of this Section or for purposes not permitted by this Sublease shall be void. No
mortgage, assignment, or subletting shall relieve Subtenant from Subtenant's
primary liability for the full and timely performance of all of Subtenant's
obligations hereunder. No consent by Landlord to any mortgage, assignment or
sublease shall be deemed to imply consent to any other assignment, mortgage or
subletting.
10. SUBTENANT REPAIRS AND ALTERATIONS: Landlord agrees that on or before January
4, 1999 Landlord shall make or cause to be made the repairs set forth on Exhibit
"B". Landlord agrees to make or cause to be made the said repairs in an
expedient manner. . Except for the express repair obligations of the Master
Landlord, if any, and those "repairs" and replacements which would be classified
as capital expenditures under generally accepted accounting principals (said
obligation for such repairs and replacements, to the extent required to be made
under Master Lease by Landlord (as that term is defined herein) shall remain
with Landlord) Subtenant shall maintain, in good order and condition and make
all necessary repairs and replacements, at Subtenant's sole cost and expense,
all aspects of the Demised Premises, all fixtures, equipment, and improvements
whether exterior, interior, structural and non-structural, and any and all
improvements made by Subtenant.Subtenant hereby agrees to make, at Subtenant's
expense, such repairs, alterations, modifications, and improvements to the
Demised Premises as may be required by any governmental authorities with
jurisdiction over the Demised Premises, including but not limited to any
required under the Americans with Disabilities Act ("ADA"), except to the
extent, if any that such repairs fall within the scope of repairs to be made by
Master Landlord and excepting repairs and replacements which, if made would be
classified as capital expenditures under generally accepted accounting
principles.
Upon obtaining Landlord's and Master Landlord's (if applicable) written
approval of plans and specifications, but not sooner, Subtenant may make and
shall pay for any alterations and improvements to Demised Premises so approved.
Subtenant agrees that all such alterations and improvements shall be made in a
good and workmanlike manner and in a fashion so as not to diminish the value or
utility of Demised Premises, and shall not violate the Master Lease or this
Sublease and shall be in compliance with all laws, rules, regulations, building
codes applicable to such alterations and improvements. Subtenant may paint,
erect or authorize the installation of signs which Subtenant deems necessary to
the operation of its business on the Demised Premises,
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but only after securing written approval of sign design from Landlord and Master
Landlord, which approval shall not be unreasonably withheld by Landlord and
Master Landlord unless Landlord deems the names, marks, colors, logos and/or
other symbols found on said design to be similar to those of Landlord's or
unless not permitted by the Master Lease or Master Landlord. Except as expressly
provided to the contrary herein, Landlord shall not be required to perform any
alterations, repairs, replacements or improvements. Landlord shall reasonably
cooperate with Subtenant in requesting that the Master Landlord perform its
repair obligations, if any, under the Master Lease.
Notwithstanding any other provision to the contrary in this section or any
other section of this Sublease Agreement, any repair, replacement, alteration,
modification or improvement which is required because of the nature of
Subtenant's use or occupancy of the Demised Premises shall be made at
Subtenant's sole cost and expense irregardless of its classification as a
capital expenditure or otherwise.
11. SUBTENANT'S FIXTURES: Subject to Section 5.2.3 of the Master Lease,
Subtenant may install in Demised Premises such trade fixtures, equipment and
other personal property as Subtenant deems desirable and subject to Exhibit "C",
all of said items shall remain Subtenant's property whether or not affixed or
attached to Demised Premises and shall be removed from Demised Premises prior to
the expiration or termination of the Term of this Sublease. Subtenant shall,
prior to the expiration of the Term, repair any and all damage to Demised
Premises caused by Subtenant's installation, maintenance, use and/or removal of
all such trade fixtures, equipment or personal property.
12. COMPLIANCE WITH LAWS: Subject to the obligations of the Master Landlord
under the Master Lease, Subtenant shall make and pay for all improvements and
alterations required by order or authority of any governmental entity with
jurisdiction over the Demised Premises. Provided however, Subtenant shall not
be required to make improvements and alterations which, if made would be
classified as capital expenditures under generally accepted accounting
principles. Notwithstanding the previous statement, if alterations and
improvements are .required by any governmental entity with jurisdiction over
the Demised Premises due to the nature of Subtenant's use and occupancy of the
building or are required by any authority as a condition to make Subtenant's
desired alterations and improvements, Subtenant shall, at its sole cost and
expense make all required alterations and improvements. Subtenant shall comply
with
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all statutes, ordinances, laws, rules or regulations of any governmental
authority promulgated after the commencement of the Term applying to the use,
occupancy and physical condition of the Demised Premises, including but not
limited to the American With Disabilities Act ("ADA").
Landlord represents and warrants that, to the best of its knowledge, the
Demised Premises, as of the date of this Sublease, complies with all statutes,
ordinances, laws, rules and regulations.
13. UTILITIES: Landlord shall have no obligation to provide the Demised Premises
with utilities (including, but not limited to sanitary and storm sewer
facilities, water, electric power and gas) nor shall Landlord have obligation or
liability for any interruption or stoppage thereof. Subtenant shall pay any
"tap" fees or other charges for the installation or connection of oil, gas,
electricity, water, telephone, sanitary sewer, storm or drainage sewer or ditch,
and any and all other utilities for the Demised Premises. Subtenant must obtain
Landlord's written approval prior to making additions or material alterations to
existing utilities. Subtenant agrees to reimburse Landlord for a pro rata share
of the utilities consumed in Demised Premises, during the Term, or any
subsequent Renewal Period. The amount to be reimbursed by the Subtenant shall be
calculated by multiplying the monthly utility xxxx by a fraction, the numerator
of which shall be the approximate square footage leased (214,851) and the
denominator of which will be the approximate square footage of the entire
premises (249,851).
14. DELIVERY OF THE DEMISED PREMISES: On the effective date of this Sublease,
Landlord shall deliver 75 % of the Demised Premises. The entire Demised Premises
shall be delivered on January 1, 1999. The Demised Premises shall be in broom
clean condition and subject to Section 21, the Demised Premises shall contain
mechanical and heating systems, roof, electrical, lighting, loading dock doors,
seals, levelers, sprinkler system and plumbing systems in current good working
order.
15. PUBLIC LIABILITY INSURANCE: Throughout the Term, or any extensions thereof,
Subtenant shall maintain insurance against public liability for injury to
persons(s) (including death) or damage to property occurring on, about or within
the Demised Premises or the building and improvements thereto or the adjoining
sidewalks with insurance companies reasonably acceptable to Landlord and
qualified to transact business in the State in which the Demised Premises is
located. Such insurance shall be with minimum single limits of $2,000,000.00 per
occurrence for personal injury, death
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or property damage and destruction, or such greater limits as may be
required by the Master Lease. Subtenant shall deliver to Landlord continuous
certificates of such insurance naming Landlord herein and the Master Landlord as
additional insureds and an agreement by the insurer that said policy may not be
canceled without at least thirty (30) days' prior written notice delivered to
Landlord and Master Landlord. The first of said certificates shall be delivered
to Landlord prior to Subtenant's occupancy of Demised Premises. Said policy
shall provide for a waiver of subrogation and/or indemnity by the insurer and
Subtenant against Landlord and Master Landlord. Subtenant shall, at Subtenant's
cost, maintain continuously throughout the Term, Xxxxxxx Compensation insurance
in the amount required by applicable law.
Upon failure at any time on the part of Subtenant to provide insurance
as required herein, Landlord may (but is not required) from time to time, as
often as such failure shall occur, without advance notice to Subtenant, obtain
such insurance and pay premiums therefor, or pay any premiums due on any policy
obtained by Subtenant, and any and all sums thus paid for insurance by Landlord
shall be additional rent under this Sublease and shall become and due and
payable on the next day when payment of rent is due, or at Landlord's option, on
any succeeding day. Payment of any such premium by the Landlord shall not be
deemed a waiver of the default in payment by the Subtenant and the Landlord,
whether or not the Landlord shall have paid such premiums, shall have recourse
to all remedies herein before or hereinafter provided in the event of default by
the Subtenant in the performance of the terms and conditions of this Sublease.
16. INDEMNIFICATION: Subtenant agrees to defend, with counsel approved by
Landlord and indemnify and hold Landlord and Master Landlord harmless of and
from any and all liability, including but not limited to damages, expenses,
causes of action, suits, claims, or judgments, resulting from injury or death of
persons or damage or destruction of property on or about or within the Demised
Premises or on or about or within the building located on the Demised Premises
(including but not limited to attorney's fees and court costs) or on or about
the adjoining driveways and sidewalks accruing during the Term of this Sublease
or which arise out of Subtenant's use or occupancy of the Demised Premises.
17. AUTOMOBILE INSURANCE: Subtenant shall carry Automobile Liability Insurance
with an aggregate limit of $2,000,000.00 and to include comprehensive and
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collision coverage. Landlord shall be named as an additional insured. Said
policy shall provide for a waiver of subrogation and/or indemnity by the insurer
and Subtenant against Landlord and Master Landlord. Additionally, said insurance
shall contain a "notice of cancellation provision" providing for notice to the
Landlord thirty (30) days prior to the effective date of cancellation.
18. CONDEMNATION & CASUALTY: (A) Termination of this Sublease will be effective
as of the date Landlord and Subtenant mutually agree to terminate or Master
Landlord terminates the Master Lease due to casualty or condemnation under power
of eminent domain (including but not limited to any conveyance in lieu thereof).
(B) Subtenant may terminate this Sublease due to casualty or
condemnation upon the occurrence of any event that would permit Landlord to
terminate the Master Lease provided that Subtenant actually delivers to Landlord
a notice of termination of this Sublease at least five (5) week days, exclusive
of federal holidays prior to the outside date, if any, for termination of the
Master Lease by Landlord. Notwithstanding the foregoing, in the event of a
casualty or taking which results in damage which can not be restored within
three (3) months after the date thereof, Subtenant's election to terminate this
Sublease shall be made within thirty (30) days after the casualty or taking.
(C) Landlord will have no obligation to repair or restore any damage or
destruction due to casualty or condemnation or to pay for or restore any of
Subtenant's personal property or improvements lost as a result of casualty or
condemnation. In cases in which this Sublease is not terminated as provided
above and in which the Master Landlord does not restore, the Subtenant under
this Sublease may restore or have an additional right to terminate this Sublease
if the premises are not reasonably useable for Subtenant's business. If
Subtenant should elect to restore, Subtenant shall promptly restore the Demised
Premises to the same quality and character as existed prior to the casualty, at
Subtenant's cost except to the extent, if any, which proceeds are made available
therefor by Master Landlord.
(D) Subtenant under this Sublease shall have no right to any
condemnation award that would reduce the amount of the reward otherwise payable
to Master Landlord or to Landlord. Landlord shall not be entitled to any portion
of the award made directly to Subtenant for the value of Subtenant's fixtures or
other personal property. Subtenant shall not be entitled to any damages for the
unexpired part of the Term of this Sublease, or injury to its leasehold
interest.
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(E) Subtenant shall have no claim to insurance proceeds of Master
Landlord or Landlord due to casualty. Subtenant is to insure all its property
and improvements against fire and casualty in the amount of the full replacement
value thereof and said policy shall provide for a waiver of subrogation and/or
indemnity by the insurer and Subtenant against Landlord and Master Landlord. In
no event shall Landlord or Master Landlord be obligated to insure any of
Subtenant's property and/or improvements and neither shall have an obligation to
replace or pay for any of the same in any event.
(F) Subtenant releases Landlord, Landlord's officers, directors,
employees, and agents from liability or responsibility for any loss or damage to
the Demised Premises, the improvements thereto, and Subtenant's equipment,
fixtures and any of Subtenant's merchandise or other property or improvements
which may arise as a result of a fire or any other event.
(G) The foregoing releases shall apply not only to the liability and
responsibility of the parties to each other; they shall also extend to the
liability and responsibility of anyone claiming through or under either party as
a result of a right of subrogation.
(H) Subtenant shall cause its insurer to include a waiver of subrogation
in the policies insuring against the loss or damage referred to in this Section.
(I) In the event of casualty or condemnation, Rent and additional rent
under this Sublease will xxxxx but only to the extent, if any, the occurrence of
such casualty or condemnation claim allows for the abatement of Rent and
Additional Rent under the Master Lease.
19. SUBTENANT'S DEFAULT: In the event that Subtenant: (A) allows any default to
occur by some action or inaction on its part; (B) fails to pay, on a timely
basis (which is hereinafter defined as paid prior to the date a late charge
becomes due) any portion of any Rent or any other sum when due hereunder ; (C)
fails to furnish certificates of Subtenant's required insurance to Landlord or
fails to maintain same in full force and effect; (D) becomes bankrupt, insolvent
or files any debtor proceeding, takes action or has action taken against it for
all or a portion of Subtenant's assets, files a petition for corporate
reorganization, makes an assignment for the benefit of creditors or in any other
manner then Subtenant's interest hereunder shall pass to another by operation of
law; (E) commits waste to or abandons the Premises; or (H) is otherwise in
default hereunder, then Subtenant is in default under this Sublease.
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In the event of any default in Subtenant's obligations under this
Sublease, Landlord may, at Landlord's option, with or without court order
re-take possession of the Premises by force or otherwise, terminate this
Sublease or exercise any and all other remedy lawfully available under the
circumstances from time to time and Landlord shall have the right to remove
Subtenant's personal property from the Premises. Except in the instance that the
Master Lease is terminated due to a breach by Landlord thereunder, Subtenant
hereby indemnifies and holds Landlord harmless for any loss or damage that
Landlord may incur as a result of termination of this Sublease, re-entry without
termination of this Sublease and/or removal of Subtenant's property. No re-entry
by Landlord or termination shall terminate Subtenant's obligations under this
Sublease.
Subtenant agrees to pay all costs of collection, including reasonable
attorney's fees, if all or any part of Rent or additional rent or other sums due
hereunder or damages are collected after maturity with the aid of an attorney.
Subtenant also agrees to pay reasonable attorney fees in the event it is
necessary for the Landlord to employ an attorney to force the Subtenant to make
any such payments or comply with the covenants, obligations, or conditions of
this Sublease.
The above rights and remedies are not exclusive and in the event of any
default of Subtenant that is not cured within the notice period aforesaid,
Landlord may pursue and all rights and remedies available at law or in equity.
Upon terminating this Sublease or otherwise re-entering the Demised Premises due
to default of Subtenant, Landlord shall be obligated to use good faith efforts
to re-let Demised Premises and Landlord may re-let to such persons, and for such
lengths of time, and rents and other terms as Landlord deems best, without
relieving Subtenant of Subtenant's obligations under this Sublease. In the event
the Demised Premises are re-let, Subtenant shall be liable to Landlord for all
costs incurred in such re-letting including but not limited to broker fees and
commissions, difference in the rent due hereunder and rent obtained and attorney
fees.
Additionally, if Subtenant fails to pay or perform any of its
obligations under this Sublease, Landlord may cure such defaults at Subtenant's
cost, and Subtenant shall reimburse Landlord's cost of cure upon demand, as
additional rent payable hereunder.
20. NON-WAIVER (A) Neither acceptance of Rent (or any portion thereof) or any
other sums payable by Subtenant hereunder (or any portion thereof) by Landlord
nor
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failure by Landlord to complain of any action, non-action or default of
Subtenant shall constitute a waiver as to any breach of any covenant or
condition of Subtenant contained herein nor a waiver of any of Landlord's rights
hereunder. Waiver by Landlord of any right for any default of Subtenant shall
not constitute a waiver of any right for either a prior or subsequent default of
the same obligation or for any prior or subsequent default or any other
obligation. No right or remedy of Landlord hereunder or covenant, duty or
obligation of Tenant hereunder shall be deemed waived by Landlord unless such
waiver be in writing, signed by Landlord.
(B) Any failure by Subtenant to declare a default against Landlord shall
not constitute a waiver as to any breach of any covenant or condition of
Landlord contained herein nor a waiver of any of Tenant's rights hereunder.
Waiver by Subtenant of any right for any default of Landlord shall not
constitute a waiver of any right for either a prior or subsequent default of the
same obligation or for any prior or subsequent default of any other obligation.
No right or remedy of Subtenant hereunder or covenant, duty or obligation of
Landlord hereunder shall be deemed waived by Subtenant unless such waiver be in
writing, signed by the Subtenant.
21. SUBTENANT'S RIGHT TO INSPECT: Subject to the work to be performed by
Landlord hereunder and as set forth on Exhibit "B" and pursuant to the terms of
this Sublease, Subtenant accepts the Demised Premises in an "AS IS" condition.
Subtenant shall have a period of seven (7) calendar days from the date this
Sublease is fully executed to inspect the Demised Premises (hereinafter
"Inspection Period"). Subtenant shall be responsible for all of its obligations
under this Sublease, during this Inspection Period. During this Inspection
Period, Subtenant may, subject to approval when required by the terms of this
Sublease, alter, modify, and commence any construction of the Demised Premises.
Subtenant may waive any portion of the Inspection Period by furnishing written
notice and thereby fully accepting the Demised Premises "AS IS." In
consideration for such inspection, Landlord hereby disclaims and, to the maximum
extent permitted by law, Subtenant hereby waives all claims for breach of
representation or warranty as to the condition of the Demised Premises, whether
express or implied, including without limitation, any implied warranty of
suitability or fitness for any particular purpose. In the event Subtenant
determines during the Inspection Period that the systems which are represented
to be in good working condition in Section 14 are not, Subtenant shall notify
Landlord in writing and Landlord,
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at its sole cost and expense and within a reasonable period, shall investigate
and rectify the same or, to the extent the Master Landlord is responsible for
repairs, if any, under the Master Lease, Landlord shall use its best efforts to
cause MasterLandlord to rectify the same. If Subtenant fails to provide such
notice to Landlord prior to the expiration of the Inspection Period, Subtenant
shall be deemed to have accepted the Demised Premises in "AS IS" condition and
any claims to the contrary shall be deemed to have been waived and of no further
force or effect.
Notwithstanding the foregoing, the representations made in Section 12
shall survive the Inspection Period.
22. HAZARDOUS SUBSTANCES: Subtenant shall not use in any way, or permit or
suffer the use of Demised Premises or any part thereof, either directly or
indirectly, for the preparation, production, generation, manufacturing,
refining, treatment, transportation, storage, maintenance, handling, disposal
of, transfer, or processing of any Hazardous Substance except for storage and
removal of goods customary to Subtenant's business, which shall in all ways
comply with all the requirements of governmental authorities applicable thereto,
and all of which shall be removed by Subtenant from Demised Premises in
compliance with all requirements of governmental authorities applicable thereto
prior to the expiration or termination of this Sublease and all at Subtenant's
sole cost and expense. "Hazardous Substance" means any pollutant, contaminant,
toxic or hazardous waste, dangerous substance, potentially dangerous substance,
noxious substance, toxic substance, flammable, explosive, radioactive material,
urea formaldehyde foam insulation, asbestos, PCB's, or any other substances the
removal of which is required, or the manufacture, preparation, production,
generation, use, maintenance, treatment, storage, transfer, handling, disposal,
discharge or ownership of which is restricted, prohibited, regulated or
penalized by any federal, state, county or municipal statutes or laws, rules or
regulations now or at any time hereafter in effect, including but not limited
to, the Comprehensive Environmental Response, Compensation, and Liability Act
(42 USC 'SS' 9601 et, seq.); and the Resource Conservation and Recovery Act
(42 USC 'SS' 6901 et seq.) as these laws have been or may be amended or
supplemented.
Subtenant represents and warrants that no Hazardous Substance will be
stored (except as expressly permitted in this Section) on the Demised Premises
and that during the Term of this Sublease, no Hazardous Substance will be
discharged, spilled or
17
leaked on or within Demised Premises or the improvements thereto. Subtenant
agrees that such representations and warranties shall survive any termination of
this Sublease and Subtenant agrees to indemnify and hold harmless the Landlord
and Master Landlord from any and all costs, expenses, claims and damages,
including but not limited to attorney's fees and costs of remediation, arising
from Subtenant's breach of any of the agreements, prohibitions, representations,
and/or warranties of this Section. Landlord acknowledges that Subtenant shall
have no liability for existing environmental conditions on the Demised Premises
as of the date of this Sublease, nor shall Subtenant be responsible for any
environmental conditions hereafter caused by Landlord or any other tenant of the
Property or said tenant's agents, employees, or contractors.
23. NOTICE:All notice or demands required or permitted to be
given or served pursuant to this Sublease shall be deemed to have been given or
served only if in writing, postage and or shipping charges pre-paid and sent by
Federal Express or Certified Mail, Return Receipt Requested:
If via U.S. Mail:
LANDLORD: SUBTENANT:
ADAP, Inc. Quaker Fabric Corporation of Fall River
C/O AutoZone, Inc. 000 Xxxxxxxx Xx.
X.X Xxx 0000 Xxxx Xxxxx, Xxxxxxxxxxxxx 00000
Dept. 9999 Attention: Vice President and General Counsel
Xxxxxxx, XX 00000-0000
Attention: Sr. Vice President, Distribution.
If via Federal Express:
ADAP, Inc.
C/o AutoZone, Inc.
00 Xxxxxxx Xxx.
Xxxxxxx, XX 00000
Attention: Sr. Vice President, Distribution.
Address may be changed by either party by serving notice as above
provided.
24. GENERAL PROVISIONS: (A) If and as long as Subtenant shall pay the
Rent and additional rent and other sums payable hereunder when due and shall
perform and observe all covenants, conditions and obligations herein and in the
Master Lease
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contained on the part of the Subtenant to be performed and observed, the
Landlord covenants that the Subtenant may quietly hold, occupy and enjoy the
Demised Premises for the uses and purposes permitted by this Sublease.
(B) The captions and numbered Sections of this Sublease are inserted for
convenience only and are not a part of this Sublease and do not in any way limit
or amplify the terms and provisions of this Sublease.
(C) All the provisions of this Sublease shall be construed as covenants
and agreements as though the words importing such covenants and agreements were
used in each separate Section hereof, and all of the provisions hereof shall
bind and enure to the benefit of the parties hereto, their respective heirs,
legal representatives, successors and assigns.
(D) No amendment or modification of this Sublease shall be effective
unless in writing executed by two corporate officers of the Landlord and by duly
authorized representative(s) of Subtenant.
(E) Time is of the essence of all Landlord's and Subtenant's obligations
and the exercise of all of rights under this Sublease, including but not limited
to any or all rights to terminate this Sublease.
(F) The Sections of this Sublease are intended to be severable. If any
Section or provision shall be held to be unenforceable by any court of competent
jurisdiction, this Sublease shall be construed as though such Section had not
been included in it. If any Section or provision of this Sublease shall be
subject to two constructions, one of which would render such Section or
provision invalid, then such Section or provision shall be given the
construction which would render it valid.
(H) This Sublease shall be governed by and construed in accordance with
the law of the State of Massachusetts.
(I) In the event of default by Landlord hereunder, the officers,
directors, shareholders, agents, or employees of Landlord shall not be held
personally liable.
25. NO OPTION: The submission of this Sublease for examination does not
constitute a reservation of or option for the Demised Premises and this Sublease
becomes effective as a Lease only upon execution and delivery thereof by
Landlord and Subtenant.
26. BROKERAGE: Landlord shall be responsible for the payment of a brokerage fee
equal to six (6) percent of the first year's annual rent and three (3) percent
of the
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annual rent for the second, third, fourth and one-half of the fifth years annual
rent. In the event Subtenant remains in possession of the Demised Premises for
the entire term (that is Subtenant does not exercise its right to cancel) and
has faithfully performed its obligations hereunder, Landlord shall pay broker a
brokerage fee, upon invoicing, equal to three (3) percent of one-half the fifth
year's annual rent. The fee shall be split between Xxxxxxxxxx Companies as
Landlord's exclusive broker and Xxx Xxxxxx of CB Xxxxxxx Xxxxx as exclusive
broker for Subtenant. Both brokers will be required to sign documentation
required by Landlord evidencing a waiver of claims for nonpayment or for any
other cause upon receipt of payment of the broker fee discussed herein. No
waiver will be required for the potential fee in the fifth year. Subtenant
agrees to indemnify Master Landlord, Landlord, brokers and managers or other
named party from third party brokerage fee claims and lawsuits associated with
this transaction and claimed or asserted to be owing in connection with services
rendered to Subtenant, including, but not limited in any manner to any claim
made by Xxxxxxx & Wakefield for fees claimed owing. Landlord agrees to indemnify
Subtenant, brokers and managers or other named party from third party brokerage
fee claims and lawsuits associated with this transaction and claimed or asserted
to be owing in connection with services rendered to Landlord.
THIS SUBLEASE SHALL NOT BE RECORDED.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
day and year first above written.
LANDLORD: SUBTENANT:
ADAP, Inc.
By:____________________________ By:__________________________
Title:_________________________ Title:_________________________
By:____________________________ By:__________________________
Title__________________________ Title:_________________________
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EXHIBIT B
Landlord shall, at its sole cost and expense, in an expedient manner, perform or
cause to be performed the following:
1. Remove Dumpster from Door 1;
2. Repair existing leaks in roof;
3. Remove all racks and conveyors in building including floor
bolts/ceiling mounts;
4. if required by local code, install a demising wall, isolating the
warehouse from the office space as set forth on Exhibit A-1;
5. Designate on Exhibit A-1 twenty-nine (29) parking spaces to be used
exclusively by Subtenant and its invitees. Provided however, Landlord
is under no obligation to take any steps now or in the future to
ensure that Subtenant and its invitees are in fact the sole user of
said parking areas.
6. Designate on Exhibit A-1 twenty (20) trailer storage bays to be used
exclusively by Subtenant and its invitees with the understanding that
Landlord is under no obligation to take any steps now or in the
future to ensure that Subtenant and its invitees are in fact the sole
user of said parking areas.
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EXHIBIT C
As part of this Sublease, Quaker, at its sole cost and expense and upon
consent when required by the terms of the Sublease, may
1. *Install a business sign on the building in the existing Sign Box;
2. *Mount a business sign on the chain link fence by the road;
3. *Install racking;
4. Remove large room in corner of the building;
5. Remove small room in center of the warehouse;
6. Change the central office area and add a small cafeteria;
7. *Install a battery charging area;
8. *Add local air conditioning/heating;
9. *Add office furniture/cafeteria furniture/office equipment;
10. Remove unused roof heating units and scrap;
11. *Install lighting in offices and warehouse;
12. *Install security cameras;
13. *Install fire extinguishers;
14. Cut concrete, Install manual loading dock levelers at some doors;
15. *Install time clock;
16. *Install phone system and telecommunications equipment;
17. Put a window in the loading dock door in front of the office;
18. Install a ramp to new door at end of the building for drive in access;
19. Paint Walls/ceiling;
20. *Install guard rails/curbs for controlling forktruck activity;
21. Construct a QC Office near front center of Demised Premises;
22. Install trailer pad of concrete if/where applicable;
23. Made modifications to meet code/fire/insurance;
24. *Construct a propane storage area for 1,000 gallon tank outside;
25. *Add intercom system;
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26. Remove and scrap some defective loading dock door seals;
27. Remove and reinstall some of the better seals onto used doors;
28. *Install and emergency spill kit;
29. *Install a first aid kit;
30. *Install a truck battery transfer unit;
31. *Suspend vacuums from the walls; and
32. *Install a radio frequency system for inventory management purposes.
All the aforementioned, excepting those items preceded by an "*" shall become
part of the Demised Premises. Neither Landlord nor Subtenant shall be required
to remove the same. Those items preceded by an "*" are items which Subtenant
reserves the option to remove upon the expiration or termination of the
Sublease. In the event Subtenant elects not to remove these items the Landlord
shall have the option, but in no event be required to remove the same.
24