Dayton Superior Corporation Form 8-K

-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, ThObgohp5kwR8f5KysyeVrJQLE6sSaSdmiOmIWWp65u6wAArPXTU137+M5h7o8+R oltwblVgbckYyKUYM9gLwA== 0000950152-05-008206.txt : 20051018 0000950152-05-008206.hdr.sgml : 20051018 20051018133742 ACCESSION NUMBER: 0000950152-05-008206 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 8 CONFORMED PERIOD OF REPORT: 20051012 ITEM INFORMATION: Entry into a Material Definitive Agreement ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20051018 DATE AS OF CHANGE: 20051018 FILER: COMPANY DATA: COMPANY CONFORMED NAME: DAYTON SUPERIOR CORP CENTRAL INDEX KEY: 0000854709 STANDARD INDUSTRIAL CLASSIFICATION: STEEL PIPE & TUBES [3317] IRS NUMBER: 310676346 STATE OF INCORPORATION: OH FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-11781 FILM NUMBER: 051142592 BUSINESS ADDRESS: STREET 1: 7777 WASHINGTON VILLAGE DRIVE STREET 2: SUITE 130 CITY: DAYTON STATE: OH ZIP: 45459 BUSINESS PHONE: 9374287172 MAIL ADDRESS: STREET 1: 7777 WASHINGTON VILLAGE DRIVE STREET 2: SUITE 130 CITY: DAYTON STATE: OH ZIP: 45459 8-K 1 l16444ae8vk.htm DAYTON SUPERIOR CORPORATION FORM 8-K Dayton Superior Corporation Form 8-K

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities and Exchange Act of 1934

Date of Report (Date of earliest event reported): October 12, 2005

Dayton Superior Corporation

(Exact name of Registrant as specified in its charter)


Ohio (State or other jurisdiction of incorporation or organization)		1-11781 (Commission File Number		31-0676346 (IRS Employer Identification No.)


7777 Washington Village Drive, Dayton, Ohio (Address of principal executive offices)		45459 (Zip code)

937-428-6360
(Registrant’s telephone number including area code)

Not applicable
(Former name and former address, if changed since last report)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Item 1.01 Entry Into A Material Definitive Agreement

On October 12, 2005, we completed the transactions contemplated by a Real Estate Purchase and Sale Agreement dated August 2, 2005, as amended (the “Purchase Agreement”), with STAG Capital Partners, LLC, an unrelated party. Pursuant to the Purchase Agreement, we sold our manufacturing facilities in Aurora, Illinois; Kansas City, Kansas; and Parsons, Kansas and our distribution center in Miamisburg, Ohio to four different affiliates of STAG Capital Partners, LLC. At the same time, we also entered into four separate Leases, each dated October 12, 2005, with those affiliates (the “Leases”) under which we immediately leased the four facilities back. The aggregate sale price of the facilities under the Purchase Agreement was $12,000,000, which was paid at the closing. Our net proceeds after commissions and other normal closing costs were approximately $11.5 million. The principal terms of the Leases are as follows:

•		The terms of the Leases are 10 years (Kansas City, Kansas), 11 years (Aurora, Illinois), 12 years (Miamisburg, Ohio) and 13 years (Parsons, Kansas), respectively. Each Lease also permits us to renew the Lease for up to two five-year renewal terms.

•		The rent we pay under the Leases increases annually during the initial term. The annual rent payable during the initial year of each Lease and during the last year of the initial term of each the Leases is as follows: Kansas City, Kansas ($226,320; $270,472); Aurora, Illinois ($364,000; $443,715); Miamisburg, Ohio ($430,598; $535,394); and Parsons, Kansas ($240,000; $304,380). In addition, we are responsible for all property taxes, operating expenses (including maintenance expenses) and insurance on the leased property. The annual rent we will pay during the renewal terms will be the higher of the rent in the last year of the initial term or the fair market rent, determined as provided in the Lease.

We expect to realize an aggregate gain of approximately $1.5 million on the sale of these facilities, comprised of a.) gains of approximately $4.8 million, which we initially will defer and recognize ratably over the term of the applicable Leases, and b.) a loss of approximately $3.3 million, which will be recognized immediately.

This description is qualified in its entirety by reference to the Purchase Agreement and the Leases, which are filed as exhibits to this Form 8-K.

Item 9.01 Financial Statements and Exhibits


Exhibit No.		Description
10.1		Real Estate Purchase and Sale Agreement between Dayton Superior Corporation and STAG Capital Partners, LLC dated as of August 2, 2005

10.1.1		First Amendment to Real Estate Purchase and Sale Agreement dated as of August 31, 2005.

10.1.2		Second Amendment to Real Estate Purchase and Sale Agreement dated as of September 30, 2005.

10.2		Lease dated October 12, 2005 between STAG II Parsons, LLC and Dayton Superior Corporation

10.3		Lease dated October 12, 2005 between STAG II Kansas City, LLC and Dayton Superior Corporation

10.4		Lease dated October 12, 2005 between STAG II Aurora, LLC and Dayton Superior Corporation

10.5		Lease dated October 12, 2005 between STAG II Miamisburg, LLC and Dayton Superior Corporation

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.


	DAYTON SUPERIOR CORPORATION
Date: October 18, 2005	By:	/s/ Edward J. Puisis
		Edward J. Puisis
		Vice President and Chief Financial Officer

EXHIBIT INDEX


Exhibit No.		Description
10.1		Real Estate Purchase and Sale Agreement between Dayton Superior Corporation and STAG Capital Partners, LLC dated as of August 1, 2005

10.1.1		First Amendment to Real Estate Purchase and Sale Agreement dated as of August 31, 2005.

10.1.2		Second Amendment to Real Estate Purchase and Sale Agreement dated as of September 30, 2005.

10.2		Lease dated October 12, 2005 between STAG II Parsons, LLC and Dayton Superior Corporation

10.3		Lease dated October 12, 2005 between STAG II Kansas City, LLC and Dayton Superior Corporation

10.4		Lease dated October 12, 2005 between STAG II Aurora, LLC and Dayton Superior Corporation

10.5		Lease dated October 12, 2005 between STAG II Miamisburg, LLC and Dayton Superior Corporation

EX-10.1 2 l16444aexv10w1.txt EX-10.1 REAL ESTATE PURCHASE & SALES AGREEMENT EXHIBIT 10.1 REAL ESTATE PURCHASE AND SALE AGREEMENT BETWEEN DAYTON SUPERIOR CORPORATION (AS SELLER) AND STAG CAPITAL PARTNERS, LLC (AS PURCHASER) CONCERNING CERTAIN PROPERTIES LOCATED AT 1900 WILSON, PARSONS, KANSAS, 721 RICHARD STREET, MIAMISBURG, OHIO, 636 SOUTH 66TH TERRACE, KANSAS CITY, KANSAS AND 625 CRANE STREET, AURORA, ILLINOIS TABLE OF CONTENTS

Schedules and Exhibits Schedule 1.1 - Defined Terms Schedule 3.1 - Deposit Escrow Provisions Schedule 5.1 - Seller Deliveries Schedule 6.2 - Lease Terms Exhibit A-1 - Parsons Land Exhibit A-2 Ohio Land Exhibit A-3 Kansas City Land Exhibit A-4 Illinois Land Exhibit B - Form of Tenant Estoppel Exhibit C - [Reserved] Exhibit D - Exceptions to Seller Representations Exhibit E-1 - Form of Kansas Deed Exhibit E-2 Form of Ohio Deed Exhibit E-3 Form of Illinois Deed Exhibit F - Form of Bill of Sale and General Agreement Exhibit G - Form of Assignment and Assumption Exhibit H - Form of Updated Representation Certificate Exhibit I - List of Contracts Exhibit J - (Intentionally Omitted) Exhibit K - List of Warranties 2 REAL ESTATE PURCHASE AND SALE AGREEMENT THIS REAL ESTATE PURCHASE AND SALE AGREEMENT (this "Agreement") is entered into as of the Effective Date (defined below) by and between Dayton Superior Corporation, an Ohio corporation (the "Seller"), and STAG Capital Partners, LLC, a Massachusetts limited liability company (the "Purchaser"), and is joined in by the Title Company (defined below) in accordance with Schedule 3.1. In consideration of the mutual promises hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: ARTICLE 1 DEFINITIONS SECTION 1.1 DEFINITIONS. For purposes of this Agreement, capitalized terms not otherwise defined herein have the meaning set forth in Schedule 1.1. ARTICLE 2 AGREEMENT; PURCHASE PRICE; CLOSING DATE SECTION 2.1. AGREEMENT TO SELL AND PURCHASE. Subject to the terms and provisions hereof, Seller agrees to sell the Property to Purchaser, and Purchaser agrees to purchase the Property from Seller. The Property is located at 1900 Wilson, Parsons, Kansas, 721 Richard Street, Miamisburg, Ohio, 636 South 66th Terrace, Kansas City, Kansas, 625 Crane Street, Aurora, Illinois. SECTION 2.2. PURCHASE PRICE. The Purchase Price for the Property shall be Twelve Million Dollars ($12,000,000). Subject to the adjustments and apportionments as hereinafter set forth, the Purchase Price shall be paid on the Closing Date by wire transfer of immediately available federal funds. SECTION 2.3. CLOSING DATE. The transaction contemplated hereby shall close on September 20, 2005 (the "Closing Date"), subject to extension as provided herein. ARTICLE 3 DEPOSIT SECTION 3.1. DEPOSIT. No later than the third Business Day following the Effective Date, Purchaser shall deposit Seventy-Five Thousand Dollars ($75,000) with the Title Company. No later than the third Business Day immediately following the end of the Study Period, unless this Agreement terminates in accordance with Section 5.2 below, Purchaser shall deposit an additional Seventy-Five Thousand Dollars ($75,000) with the Title Company. All deposits made pursuant to this Section 3.1, together with all interest and earnings thereon, are referred to collectively in this Agreement as the "Deposit." The Deposit shall be held in a segregated account in accordance with the provisions of Schedule 3.1 hereto. The Deposit shall be applied to the Purchase Price if the Closing occurs. If the Closing does not occur or if this Agreement otherwise terminates, the Deposit shall be disbursed as provided herein. Notwithstanding anything in this Agreement to the contrary, One Hundred and No/100 Dollars ($100.00) of the Deposit is delivered to the Title Company as "Independent Contract Consideration", and the Deposit is reduced by the amount of the Independent Contract 1 Consideration so delivered to Seller, which amount has been bargained for and agreed to as consideration for Seller's execution and delivery of this Agreement. ARTICLE 4 TITLE AND SURVEY SECTION 4.1. TITLE AND SURVEY. Promptly upon execution of this Agreement, (a) Seller shall provide Purchaser with a copy of the most recent owner's and lender's title insurance policies issued in connection with the Real Property, legible copies of all documents listed as exception documents in such title insurance policies and all existing surveys of the Real Property, to the extent that the same are in Seller's possession or control; and (b) Purchaser shall order title commitments or pro forma title policies (collectively, the "Title Commitment") and ALTA surveys of the Real Property (collectively, the "Survey"). Purchaser shall have until the Study Period Notice Deadline to give Seller a written notice that sets forth any objections that Purchaser has to title or survey matters affecting the Property and disclosed on the Title Commitment or the Survey (the "Purchaser Title Objections"). Seller shall use reasonable efforts to cure the Purchaser Title Objections before the Closing Date. If, despite such reasonable efforts, Seller is unable to cure the Purchaser Title Objections by the Closing Date, Purchaser shall have the option (in its sole discretion) of either (y) accepting the title as it then is or (z) terminating this Agreement, in which event the Deposit shall immediately be returned to Purchaser, this Agreement shall terminate and Purchaser and Seller shall have no further obligations or liabilities hereunder other than Purchaser's obligations under Section 5.1(b)(iv) and Section 5.3. Notwithstanding anything in this Agreement to the contrary, all Voluntary Liens will be satisfied by Seller on or prior to the Closing Date or, if not so satisfied, shall be satisfied at Closing out of the proceeds otherwise payable to Seller, and Purchaser shall have no obligation to give Seller any notice of objection with respect to any Voluntary Liens. ARTICLE 5 INSPECTION AND AUDIT SECTION 5.1. DUE DILIGENCE MATERIALS; ACCESS. (a) Within three (3) Business Days from the Effective Date, Seller shall provide to Purchaser complete copies of the documents and materials listed on Schedule 5.1. (b) During the term of this Agreement, Purchaser, personally or through its authorized agents or representatives, upon reasonable advance notice to Seller, to enter upon the Property during normal business hours, and shall have the right to make such investigations, including appraisals, engineering studies, soil tests, environmental studies, inquiry of governmental officials, and underwriting analyses, as Purchaser deems necessary or advisable, subject to the following limitations: (i) Purchaser shall give Seller written or telephonic notice at least one (1) Business Day before conducting any inspections on the Property, and a representative of Seller shall have the right to be present when Purchaser or its representatives conducts its or their investigations on the Property; (ii) neither Purchaser nor its representatives shall materially interfere with the use, occupancy or enjoyment of the Property by the Tenant; (iii) neither Purchaser nor its agents shall damage the Property or any portion thereof, except for any immaterial damage caused by environmental or geotechnical tests, all of which shall promptly be repaired by Purchaser; and (iv) Purchaser shall indemnify, hold harmless and defend the Seller against all costs (including reasonable attorneys' fees) and damage to the Property caused by the activities of Purchaser or its agents under this paragraph, provided; however, that such indemnity shall not include any 2 costs or damages caused by (x) the acts of the Seller or its agents or representatives, (y) any claims of diminution in the value of the Property as a consequence of the results revealed by such tests and inspections or (z) any pre-existing condition of the Property. The foregoing indemnification obligation shall survive the Closing or termination of this Agreement for a period of three (3) months. SECTION 5.2. STUDY PERIOD. Purchaser shall have the period ending at 6:00 p.m. (local time in Boston, Massachusetts) on August 31, 2005, (the "Study Period"), to physically inspect the Property, review economic data and market conditions, underwrite the Tenant and review the Lease, conduct appraisals, make inquiry of governmental officials, perform examinations of the physical condition of the Improvements, examine the Real Property for the presence of Hazardous Materials, and to otherwise conduct such due diligence and underwriting as Purchaser, in its sole and absolute discretion, deems appropriate. This Agreement shall terminate unless, before 6:00 p.m. on the first business day following the end of the Study Period (the "Study Period Notice Deadline"), Purchaser gives Seller written notice (the "Study Period Notice") that Purchaser, in its absolute and unreviewable discretion, elects to proceed with the purchase of the Property subject to and in accordance with the terms of this Agreement. In addition, at any time before the Study Period Notice Deadline, Purchaser may, in its absolute and unreviewable discretion, terminate this Agreement by giving written notice thereof to Seller (the "Termination Notice"). In the event that either: (a) Purchaser gives a Termination Notice before the Study Period Notice Deadline, or (b) Purchaser does not give a Termination Notice but fails to give the Study Period Notice before the Study Period Notice Deadline, this Agreement shall automatically terminate, the Deposit promptly shall be returned to Purchaser, and Seller and Purchaser shall have no further obligations or liabilities to each other hereunder other than Purchaser's obligations under Section 5.1(b)(iv) and Section 5.3. SECTION 5.3. CONFIDENTIALITY. Purchaser shall use the Confidential Information only for purposes of evaluating the Property in connection with its potential purchase thereof in accordance with the terms of this Agreement (and, if the Closing occurs, in connection with its ownership of the Property). Notwithstanding the foregoing, Purchaser may disclose the Confidential Information: (a) to its owners, legal counsel, accountants, lenders, potential investors, regulatory authorities and other third parties having a reason to review the Confidential Information in connection with Purchaser's purchase of the Property, (b) in connection with any legal proceeding brought by Purchaser to enforce its rights under this Agreement; and (c) to the extent that such disclosure is required by law or court order or by discovery rules in any legal proceeding, provided that Purchaser first shall provide written notice thereof to Seller. If this Agreement is terminated before the Closing, Purchaser promptly shall return the Confidential Information to Seller and shall not retain copies thereof. Except as otherwise provide in Subsection (b) of this Section 5.3, Neither Seller nor Purchaser shall disclose this Agreement or make any public announcements concerning the sale of the Property pursuant to this Agreement without first obtaining the prior written consent of the other. In addition, and notwithstanding the foregoing restrictions, Seller and Purchaser authorize each other and their respective representatives to disclose to any persons, without limitation of any kind, the tax treatment and tax structure of the transaction contemplated hereby and all materials of any kind, including tax analyses or opinions, relating to such tax treatment and tax structure. The provisions of this paragraph shall survive the Closing or termination of this Agreement. SECTION 5.4. TERMINATION OF CONTRACTS. Prior to the Study Period Notice Deadline, Purchaser shall notify Seller of which Contracts, if any, Purchaser wishes to have assigned to it at the Closing (any such contracts, the "Continuing Contracts"). Any Contract as to which Purchaser does not send such notice shall be terminated by Seller on or prior to the Closing Date at no cost to Purchaser. Notwithstanding the foregoing, in all events, all management and leasing agreements shall be terminated on or before the Closing at no cost or liability to Purchaser. 3 SECTION 5.5. COOPERATION. During the term of this Agreement, the Seller shall direct its property manager, agents and employees to cooperate with the reasonable requests of the Purchaser to obtain information concerning the Property, including information supplementary to the information described in Schedule 5.1. SECTION 5.6. NO ASSUMPTION OF EMPLOYEE CLAIMS. Purchaser and Seller agree that Purchaser has not assumed and shall not assume any obligations to (or regarding the employment of), any individuals previously or currently employed by Seller in the management, ownership or operation of the Property. Purchaser shall not assume, shall not take subject to and shall not be liable for, any liabilities or obligations of any kind or nature, whether absolute, contingent, accrued, known or unknown, to former or current employees of Seller (i) which arise or accrue prior to the Closing including, without limitation, any liabilities or obligations of Seller in connection with any employee benefit plans or collective bargaining agreements, employment agreements or other similar arrangement, any liabilities or obligations with respect to employment arising under any federal, state or municipal statute or common law, or any liabilities or obligations in respect of retiree health benefits, and (ii) with respect to severance payments or other termination payments owing by Seller to any of Seller's former or current employees (collectively, "Employee Claims"). No portion of any liability respecting the Employee Claims listed in clause (ii) immediately above shall be passed through or charged to the Tenant by Seller. The provisions of this paragraph shall survive the Closing. ARTICLE 6 CONDITIONS PRECEDENT, CASUALTY DAMAGE OR CONDEMNATION SECTION 6.1. CONDITIONS PRECEDENT FAVORING PURCHASER. In addition to any other conditions precedent in favor of Purchaser set forth elsewhere in this Agreement, Purchaser's obligations under this Agreement are subject to the timely fulfillment of the conditions set forth in this Section 6.1 on or before the Closing Date, or such earlier date as is set forth below. Each condition may be waived in whole or in part only by written notice of such waiver from Purchaser to Seller. (a) Seller shall have performed and complied in all material respects with all of the terms of this Agreement to be performed and complied with by Seller prior to or at the Closing; (b) On the Closing Date, the Seller Representations shall be true, complete and accurate; (c) Purchaser shall have received four (4) separate estoppel certificates from Tenant dated as of the Closing Date reflecting the terms of each of the Leases and otherwise substantially in the form attached hereto as Exhibit B; (d) Purchaser shall have received four (4) separate subordination, non-disturbance and attornment agreements (collectively, "SNDA"), subordinating each of the Leases to the loan of Purchaser's mortgage lender, in a form that is recordable in the land records of, respectively, the Parsons Land, the Ohio Land, the Kansas City Land and the Illinois Land and is reasonably acceptable to the Purchaser and such lender; (e) On the Closing Date, title to the Property shall be conveyed to Purchaser subject only to the Permitted Exceptions and the Title Company shall issue to Purchaser extended coverage owner's title insurance policies for each of the Properties (on the current ALTA Form B) in the amount of the Purchase Price (which shall be allocated between the Parsons Property, the Ohio Property, the Kansas City Property and the Illinois Property pursuant to Section 8.6), together with the Required Endorsements, 4 insuring good and indefeasible fee simple title to the Real Property in Purchaser, subject only to the Permitted Exceptions and the standard printed exceptions, except that: (i) the exceptions for mechanic's liens, unrecorded easements and sovereign lands shall be deleted; (ii) the survey exception shall be limited to Permitted Exceptions; (iii) the exception relating to ad valorem taxes shall relate only to taxes owing for the year of closing and subsequent years; (iv) the parties-in-possession exception shall be deleted except as to the Tenant, as tenant only, as provided for in the Lease; and (v) the exclusion relating to creditor's rights shall be deleted; (f) On the Closing Date, (i) the Property shall be in the same condition that it is in now, reasonable wear and tear excepted, and free from tenants and occupants, except for the Tenant pursuant to the Lease; (ii) there shall be no judicial or administrative or condemnation proceeding pending or threatened concerning the Property that was not disclosed in writing to Purchaser before the commencement of the Restricted Period; (iii) the Property and the use and operation thereof shall comply in all material respects with all Legal Requirements; (iv) each of the Leases shall be in full force and effect and free from default; (v) there shall be no bankruptcy proceeding pending or threatened in writing with respect to the Tenant; and (vi) the Property shall be free and clear of: (y) any management or leasing agreements and any other Contracts other than any Continuing Contracts; and (z) any collective bargaining or employment agreements (but only to the extent that any of the same would impose any obligation or liability on Purchaser); (g) On the Closing Date, there shall be no Hazardous Materials at the Property that have not been fully remediated in accordance with all applicable laws, and Purchaser shall have received a third party environmental report satisfactory to Purchaser confirming the same (except for those Hazardous Materials received, stored, used produced and/or disposed of by Seller in accordance with applicable law in connection with Seller's manufacturing processes conducted on the Property); (h) Purchaser shall have received an estoppel certificate dated no earlier than thirty (30) days prior to the Closing Date, in form and substance reasonably acceptable to Purchaser, from all parties to any Reciprocal Easement Agreements (the "REA Estoppels"); and (i) Seller shall provide to Purchaser a final, non-appealable certificate of occupancy for all of the Improvements and any certificates or approvals necessary to permit the use of any parking facilities at the Property (collectively, the "Certificate of Occupancy"). SECTION 6.2. CONDITIONS PRECEDENT FAVORING SELLER. In addition to any other condition precedent in favor of Seller set forth elsewhere in this Agreement, Seller's obligations under this Agreement are expressly subject to the timely fulfillment of the conditions set forth in this Section 6.2 on or before the Closing Date, or such earlier date as is set forth below. Each condition may be waived in whole or part only by written notice of such waiver from Seller to Purchaser. (a) Purchaser shall have performed and complied in all material respects with all of the terms of this Agreement to be performed and complied with by Purchaser prior to or at the Closing; and (b) On the Closing Date, the representations of Purchaser set forth in Section 7.2 shall be true, accurate and complete. SECTION 6.2A. CONDITION PRECEDENT FAVORING SELLER AND PURCHASER. Notwithstanding anything herein to the contrary, this Agreement and both Seller's and Purchaser's obligations hereunder are expressly subject to Purchaser and Tenant reaching written agreement, on or before one (1) Business Day before the Study Period Notice Deadline, upon a form of lease with the business terms set forth in 5 Schedule 6.2 for each of the Parsons Property, the Ohio Property, the Kansas City Property and the Illinois Property and otherwise in form and substance mutually agreeable to Purchaser and Seller in each of their sole discretion (such lease for the Parsons Property, the "Parsons Lease", for the Ohio Property, the "Ohio Lease", for the Kansas City Property, the "Kansas City Lease", for the Illinois Property, the "Illinois Lease" and collectively, the "Leases"), which written agreement will be evidenced by an amendment to this Agreement attached to which is the agreed upon form of Lease. Without limitation of the foregoing, the Kansas City Lease shall include language reflecting the following. During the first twenty four (24) months of the term of the Kansas City Lease, Tenant shall be entitled to expand the Kansas City Improvements pursuant to the terms and provisions of the Kansas City Lease. Upon Tenant's obtaining a certificate of occupancy for such expansion premises, such expansion premises shall be added to the premises under the Kansas City Lease (and the rent thereunder shall be increased at the annual base rental rate of $4.00 per square foot of such expansion premises) and shall be purchased by Purchaser at the cost of a single reimbursement payment to Tenant for Tenant's reasonable out-of-pocket third party costs expended in connection with such expansion (and Tenant shall provide Purchaser with invoices and other reasonable backup materials in connection with such reimbursement); provided, however, that the total amount of such reimbursement shall not exceed $40.00 per square foot of such expansion premises. SECTION 6.3. RISK OF LOSS. Unless and until the Closing is completed, the risk of loss to the Property from casualty or condemnation shall be borne by Seller. If all or a portion of the Property is damaged or destroyed by fire or other casualty prior to Closing such that: (1) Purchaser's reasonable estimate of the cost to repair the same exceeds $100,000; (2) the Tenant has the right to terminate the applicable Lease or abate or offset rent under the applicable Lease on account of such casualty; or (3) access to or egress from the Property is materially impaired (any such fire or other casualty, a "Material Casualty"), Purchaser may, at Purchaser's sole option, elect to either: (a) terminate this Agreement and receive back the Deposit ; or (b) purchase the Property subject to and in accordance with the terms of this Agreement. In the event of a fire or other casualty that is not a Material Casualty, and in connection with any Material Casualty as to which Purchaser elects to proceed pursuant to Section 6.3(b), (A) Purchaser shall purchase the Property in accordance with the terms hereof without reduction in the Purchase Price (except for any applicable deductible that will reduce the insurance proceeds assigned to Purchaser at Closing) and (B) Seller shall assign to Purchaser at Closing all insurance proceeds paid or payable on account of such damage (and the amount of any deductible shall be credited against the Purchase Price). Purchaser shall be deemed to have elected to terminate this Agreement under Section 6.3(a) unless, within fifteen (15) Business Days from reasonably detailed written notice to Purchaser of such casualty, Purchaser provides Seller with written notice that Purchaser elects to proceed pursuant to Section 6.3(b). If the Closing Date would otherwise occur sooner, it shall automatically be extended to the date that is twenty (20) Business Days after written notice to Purchaser of the casualty. If any insurance proceeds paid or payable on account of a fire or other casualty are to be assigned to Purchaser in accordance with the provisions of this Agreement, Seller shall cooperate as reasonably requested by Purchaser to effectuate such assignment (including, if necessary, prosecuting claims in Purchaser's name or for Purchaser's benefit), and Seller's obligation to so cooperate shall survive the Closing. Notwithstanding anything to the contrary in this Section 6.3, if Seller fails to maintain full replacement cost insurance as required herein, and if there is a fire or other casualty that is not a Material Casualty, or if there is a Material Casualty as to which Purchaser elects to proceed under Section 6.3(b), Purchaser shall have the right, in lieu of an assignment of insurance proceeds, to receive a credit against the Purchase Price in an amount equal to the cost to repair the damage caused by such fire or other casualty as estimated by a third party 6 consultant selected by Purchaser and the amount of any lost rents that would have been covered by insurance if Purchaser had maintained the insurance required above. SECTION 6.4. CONDEMNATION. If, at any time before completion of the Closing, a taking or condemnation (or proceeding in lieu thereof) is commenced or threatened in writing: (i) of all or substantially all of the Property; or (ii) of less than all or substantially all of the Property that: (1) results in the Tenant having the right to terminate the applicable Lease or abate or offset rent under the applicable Lease; (2) causes the Property to fail to comply with Legal Requirements or any applicable Reciprocal Easement Agreements; (3) materially impairs access to or egress from the Property; (4) causes the loss of any parking that benefits the Property; or (5) otherwise, in Purchaser's reasonable business judgment, results in a loss of value in excess of $100,000 (any of the foregoing, a "Material Taking"), Purchaser may, at Purchaser's sole option, elect either to: (a) terminate this Agreement and receive back the Deposit; or (b) purchase the Property subject to and in accordance with this Agreement. In the event of condemnation or taking that does not constitute a Material Taking, or if there is a Material Taking but Purchaser elects to proceed under Section 6.4(b), (1) Purchaser shall purchase the Property in accordance with the terms hereof (without reduction in the Purchase Price), (2) Seller shall assign to Purchaser at Closing all condemnation proceeds and insurance paid or payable as a result of such condemnation, (3) Purchaser shall have the right to be present with Seller at any hearings or negotiations with respect thereto, and (4) Seller shall not settle or compromise and such matter without Purchaser's prior written consent. Purchaser shall be deemed to have elected to terminate this Agreement under Section 6.4(a) unless, within fifteen (15) Business Days from written notice to Purchaser of the condemnation, Purchaser provides Seller with written notice that Purchaser elects to proceed pursuant to Section 6.4(b). If the Closing Date would otherwise occur sooner, it shall automatically be extended to the date that is twenty (20) Business Days after written notice to Purchaser of the Material Taking. SECTION 6.5. LEASING AND OTHER ACTIVITIES PRIOR TO CLOSING. (a) During the term of this Agreement, Seller shall not enter into any Lease Transaction without Purchaser's prior written consent, which consent may be given or withheld in Purchaser's sole discretion. (b) During the Restricted Period, Seller shall not enter into any new Contracts or material modifications, renewals or terminations of any existing Contracts that would impose any obligations on Purchaser or on the Property after Closing, without the written consent of Purchaser, which consent may be granted or denied in Purchaser's sole discretion. In its request for Purchaser's approval under this Section 6.5(b), Seller shall include the following notice: "NOTE: FAILURE TO RESPOND WITHIN THE TIME PERIOD SET FORTH IN SECTION 6.5(b) WILL RESULT IN A DEEMED APPROVAL". If Seller so requests Purchaser's approval and Purchaser does not notify Seller in writing of its consent or disapproval within ten (10) Business Days after notice thereof from Seller, Purchaser shall be deemed to have consented to such requested action. Without limiting the foregoing approval rights, Seller shall provide Purchaser with prompt notice of any new Contracts or material modifications, renewals or terminations of any such contracts, together with complete copies of the documents relating thereto. (c) During the Restricted Period, Seller shall not, without Purchaser's prior written approval, (i) make any material alterations or additions to the Property, except as may be required by law or any of the Lease or as may reasonably be required for the prudent repair and maintenance of the 7 Property, (ii) change or attempt to change (or consent to any change in) the zoning or other Legal Requirements applicable to the Property, or (iii) cancel, amend or modify in any material respect any Permit. (d) At all times prior to Closing, Seller shall: (i) maintain the Property in good condition and repair; (ii) conduct business with respect to the Property in a commercially reasonable manner; (iii) perform its obligations under the Contracts and the Permitted Exceptions (and, as applicable, enforce the obligations of any other parties to such documents); (iv) insure the Improvements at 100% of replacement cost, and maintain liability and other insurance in accordance with generally prevailing industry standards or as otherwise required by the Lease; (v) not sell or further encumber the Property or any direct or indirect interest therein or enter into any agreement relating thereto, (vi) promptly give Purchaser a reasonably detailed written notice of: (1) any fire, flood or other material adverse change with respect to the Property of which Seller obtains actual knowledge; (2) any actual or proposed condemnation (or proceeding in lieu thereof) of which Seller obtains actual knowledge; (3) any written notice received by Seller claiming that the Property or the use and operation thereof fails to comply with any Legal Requirements; and (4) any written notice received by Seller concerning any pending or threatened litigation or administrative proceeding affecting the Property; and (vii) promptly give Purchaser a reasonably detailed notice of any material adverse change with respect to the financial condition of Tenant. If Seller becomes aware during the term of this Agreement of any matters that render any of its representations or warranties untrue, Seller shall promptly disclose such matters to Purchaser in writing. ARTICLE 7 AS-IS SALE; LIMITED REPRESENTATIONS AND WARRANTIES SECTION 7.1. AS-IS SALE. (a) Purchaser acknowledges that it is an experienced and sophisticated purchaser of commercial real estate projects such as the Property and that, prior to the Closing, it will have a full and complete opportunity to conduct such investigations, examinations, inspections and analysis of the Property and market conditions as Purchaser, in its absolute discretion, may deem appropriate. Purchaser further acknowledges that, except for Seller Representations, Purchaser has not relied upon any statements, representations or warranties by Seller or any agent of Seller. (b) Except for the Seller Representations, Purchaser agrees that the Property shall be sold and that Purchaser shall accept possession of the Property on the Closing Date strictly on an "as is, where is, with all faults" basis, and that, except for the Seller Representations, such sale shall be without representation or warranty of any kind by Seller, express or implied. SECTION 7.2. PURCHASER REPRESENTATIONS. Purchaser hereby represents and warrants to Seller as follows: (a) Purchaser is a limited liability company, duly formed, validly existing and in good standing under the laws of the Commonwealth of Massachusetts. This Agreement constitutes the valid and legally binding obligation of Purchaser, enforceable against Purchaser in accordance with its terms. (b) There are no actions, suits or proceedings pending or, to the knowledge of Purchaser, threatened, against or affecting Purchaser which, if determined adversely to Purchaser, would adversely affect its ability to perform its obligations hereunder. Purchaser has not (a) made a general 8 assignment for the benefit of creditors, (b) filed any voluntary petition in bankruptcy or suffered the filing of an involuntary petition of Purchaser's creditors, (c) suffered the appointment of a receiver to take possession of all, or substantially all, of Purchaser's assets, (d) suffered the attachment or other judicial seizure of all, or substantially all, of Purchaser's assets, (e) admitted in writing it inability to pay its debts as they come due or (f) made an offer of settlement, extension or composition to its creditors generally. Purchaser has full right, power and authority and is duly authorized to enter into this Agreement, to perform each of the covenants on its part to be performed hereunder and to execute and deliver, and to perform its obligations under all documents required to be executed and delivered by it pursuant to this Agreement. (c) Neither the execution, delivery or performance of this Agreement nor compliance herewith (i) conflicts or will conflict with or results or will result in a breach of or constitutes or will constitute a default under (1) the organizational documents of Purchaser, (2) to the best of Purchaser's knowledge, any law or any order, writ, injunction or decree of any court or governmental authority, or (3) any agreement or instrument to which Purchaser is a party or by which it is bound or (ii) results in the creation or imposition of any lien, charge or encumbrance upon its property pursuant to any such agreement or instrument. (d) No authorization, consent, or approval of any governmental authority (including courts) is required for the execution and delivery by Purchaser of this Agreement or the performance of its obligations hereunder. SECTION 7.3. SELLER'S REPRESENTATIONS. Seller warrants and represents to Purchaser as follows: (a) REPRESENTATIONS CONCERNING SELLER. (i) Seller is a corporation, duly formed, validly existing and in good standing under the laws of the State of Ohio. This Agreement constitutes the valid and legally binding obligation of Seller, enforceable against Seller in accordance with its terms; (ii) There are no actions, suits or proceedings pending or, to the knowledge of Seller, threatened, against or affecting Seller which, if determined adversely to Seller, would adversely affect its ability to perform its obligations hereunder. Seller has not (a) made a general assignment for the benefit of creditors, (b) filed any voluntary petition in bankruptcy or suffered the filing of an involuntary petition of Seller's creditors, (c) suffered the appointment of a receiver to take possession of all, or substantially all, of Seller's assets, (d) suffered the attachment or other judicial seizure of all, or substantially all, of Seller's assets, (e) admitted in writing it inability to pay its debts as they come due or (f) made an offer of settlement, extension or composition to its creditors generally. Seller has full right, power and authority and is duly authorized to enter into this Agreement, to perform each of the covenants on its part to be performed hereunder and to execute and deliver, and to perform its obligations under all documents required to be executed and delivered by it pursuant to this Agreement; (iii) Neither the execution, delivery or performance of this Agreement nor compliance herewith (a) conflicts or will conflict with or results or will result in a breach of or constitutes or will constitute a default under (1) the organizational documents of Seller, (2) to the best of Seller's knowledge, any law or any order, writ, injunction or decree of any court or governmental authority, or (3) any agreement or instrument to which Seller is a party or by which it is bound or (b) results in the creation or imposition of any lien, charge or encumbrance upon its property pursuant to any such agreement or instrument; 9 (iv) No authorization, consent, or approval of any governmental authority (including courts) is required for the execution and delivery by Seller of this Agreement or the performance of its obligations hereunder; (v) Seller is not a "foreign person" or "disregarded" entity" as defined in Section 1445 of the Code; Seller's taxpayer identification number is 31-0676346; (b) REPRESENTATIONS CONCERNING THE PROPERTY. (i) The Tenant: (A) Seller has not entered into any leases, licenses or other occupancy agreements affecting all or any portion of the Property, and there are no tenants or other occupants of all or any part of the Property other than the Tenant; (B) Seller has provided Purchaser with true and complete copies of the following financial statements to the extent that the same are in Seller's possession or control (collectively the "Tenant Financial Statements"): (i) audited consolidated and unaudited consolidating balance sheets and statements of income, changes in stockholders' equity, and cash flow as of and for the fiscal year ended 2004 (the "Most Recent Fiscal Year End") for Seller; and (ii) unaudited consolidated and consolidating balance sheets and statements of income, changes in stockholders' equity, and cash flow (the "Most Recent Financial Statements") as of the months ended March 31, 2005 for Seller. The Financial Statements (including the notes thereto) have been prepared in accordance with GAAP applied on a consistent basis throughout the periods covered thereby, present fairly the financial condition of the Tenant as of such dates and the results of operations of the Tenant for such periods, are correct and complete in all material respects, are consistent with the books and records of the Tenant and have been filed publicly with the SEC. Since the Most Recent Fiscal Year End, there has not been any material adverse change in the business, financial condition, operations, results of operations, or future prospects of the Tenant; (ii) Lease Brokerage. There are no lease brokerage agreements, leasing commission agreements or other agreements providing for payments of any amounts for leasing activities or procuring tenants with respect to the Property, whether now or in the future. No brokerage or similar fee is due or unpaid by the Seller with respect to the Lease or the Property. No brokerage or similar fee shall be due or payable on account of the execution and delivery of the Lease or the exercise of any renewal, extension or expansion options arising under the Lease; (iii) Contracts. Exhibit I sets forth a complete and accurate list of the Contracts, to the extent the same are in Seller's possession or control. Seller has given Purchaser true and complete copies of the Contracts. The Contracts are in full force and effect and neither Seller nor, to the best of Seller's knowledge, any other party, is in default in any material respect under any Contract; (iv) Warranties, Permits and Related Matters. (A) Attached hereto as Exhibit K is a true, complete, correct and complete list of all warranties or guaranties issued in connection with the development, construction, operation, maintenance or repair of the Property, and all amendments and modifications thereto (collectively, the "Warranties"). True and correct copies of all of the Warranties have been delivered to Purchaser, to the extent that any of the same are in Seller's possession or control. The Warranties are in full force and effect and shall be duly assigned to Purchaser at Closing at Seller's sole expense; 10 (B) To the best of Seller's knowledge, the Property is in compliance in all material respects with all Legal Requirements, and the Seller has no actual knowledge of any claim of violation of any Legal Requirement. (C) To the best of Seller's knowledge, Seller has obtained all licenses, permits, variances, approvals, and authorizations required from all governmental authorities having jurisdiction over the Property or from private parties for the intended development, construction, use, operation and occupancy of the Property and to insure vehicular and pedestrian ingress to and egress from the Property (collectively, the "Permits"), and all of the Permits are, and will at Closing be, in full force and effect and properly vested in the name of the Seller. All appeal periods with respect to the Permits have expired and no appeals have been filed; (D) Seller has not received any written notice from any insurance company, insurance rating organization or Board of Fire Underwriters requiring any alterations, improvements or changes at the Property, or any portion thereof; (E) To the best of Seller's knowledge, other than general real estate taxes, Seller has no obligations to any governmental authority, adjacent property owner or other Person for the payment (or for any donations in lieu of payment) or performance of any infrastructure, capital improvements or other work in connection with the development or ownership of the Property; (v) Litigation and Other Proceedings. (A) No condemnation or eminent domain proceedings are pending or, to Seller's knowledge, threatened against the Property or any part thereof, and the Seller has not made any commitments to or received any written notice of the desire of any public authority or other entity to take or use the Property or any part thereof whether temporarily or permanently, for easements, rights-of-way, or other public or quasi-public purposes; (B) There are no pending, or to Seller's knowledge, threatened, judicial or administrative proceedings or investigations affecting or relating to the development, construction, use, operation or ownership of the Property; (vi) Taxes. The Seller has delivered true and correct copies of tax bills issued by any applicable federal, state or local governmental authority to the Seller with respect to the Property for the most recent past and current tax years, and any new assessment received with respect to a current or future tax year. No portion of the Property comprises part of a tax parcel which includes property other than property comprising all or a portion of the Property. No application or proceeding is pending with respect to a reduction or an increase of such taxes. There are no tax refund proceedings relating to the Property which are currently pending. There are no special taxes or assessments to be levied against the Property nor is the Seller aware of any change in the tax assessment of the Property; (vii) (Intentionally omitted); (viii) Hazardous Materials. Except as disclosed in writing to Purchaser before the date hereof, the Seller has not received any written notice that Hazardous Material are present at the Property or that the Property is in violation of any Environmental Law. The Seller has not used, manufactured, generated, treated, stored, disposed of, or released any material amounts of Hazardous Material on, under or about the Property (except for those Hazardous Materials used, manufactured, generated, treated, stored and/or disposed of by Seller in accordance with applicable law in connection with Seller's manufacturing processes conducted on the Property) or transported any material amounts of Hazardous 11 Material over the Property or installed, used or removed any storage tank on, from or in connection with the Property. Except as disclosed in writing or in the Reports to Purchaser before the date hereof, to the Seller's knowledge, there are no storage tanks or wells (whether existing or abandoned) located on, under or about the Property; (ix) No Preemptive Rights. The Seller has not granted any option or right of first refusal or first opportunity to any party to acquire any interest in any of the Property; (x) Reports and Other Information. (A) Seller has delivered or made available to Purchaser (without representation or warranty, express or implied, as to the completeness or accuracy thereof) true and complete copies of all Reports; (B) The plans and specifications for the Improvements, Lease, Permits, Warranties, operating statements, income and expense reports, and all other agreements, books and records relating to the Property delivered or made available by Seller to Purchaser in connection with this Agreement are and at the time of Closing will be copies of such documents that are true, complete and correct in all material respects. The operating statements furnished by Seller to Purchaser relative to the Property are true and correct in all material respects and fairly reflect the financial condition, the financial results or other subject matter thereof as of the dates thereof, and there have been no material adverse changes since the date of such statements; (C) To the Seller's knowledge, the Seller has not failed to deliver to Purchaser a true and complete copy of any written report or document in Seller's possession or control that materially affects the development, ownership, leasing, value or use of the Property; (xi) Seller Representative. The Designated Seller Representatives are the Vice President and Vice President and General Counsel of Seller, have occupied such position for, respectively, ten (10) years and three (3) years, and have been actively involved in, and familiar with, the ownership, development, construction, leasing and operation of the Property. SECTION 7.4. SELLER'S KNOWLEDGE. Whenever a representation is qualified by the phrase "to the best of Seller's knowledge", or by words of similar import, the accuracy of such representation shall be based solely on the actual (as opposed to constructive or imputed) knowledge of Mark K. Kaler and Steven C. Huston (collectively, the "Designated Seller Representatives"), without independent investigation or inquiry other than review of Seller's files and reasonable inquiry of Seller's agents (including property managers and leasing agents), officers and employees who are familiar with the development, ownership, operation and leasing of the Property. Purchaser acknowledges that the Designated Seller Representatives shall have no personal liability under this Agreement. ARTICLE 8 CLOSING SECTION 8.1. CLOSING DATE. The Closing shall take place at 1:00 p.m. on the Closing Date. Unless the parties otherwise agree in writing, the Closing shall be conducted through a customary escrow arrangement with the Title Company and, on or before the Closing Date, the Seller shall deliver to the Title Company or Purchaser the documents listed in Section 8.2 and the Purchaser shall deliver to the Title Company the documents and funds described in Section 8.3. 12 SECTION 8.2. SELLER'S DELIVERIES. At the Closing, Seller shall deliver or cause to be delivered to Purchaser (or its nominee), at Seller's sole expense, each of the following items: (a) (i) A deed for each of the Parsons Property, the Ohio Property, the Kansas City Property and the Illinois Property in the form attached hereto, as applicable, as Exhibit E-1, Exhibit E-2 and Exhibit E-3, conveying good and clear record and marketable fee simple title, subject only to the Permitted Exceptions, in proper form for recording, (ii) a Bill of Sale, Blanket Conveyance and Assignment in the form attached hereto as Exhibit F, (iii) an Assignment and Assumption Agreement in the form attached hereto as Exhibit G, in proper form for recording, (iv) the Representation Update Certificate in the form attached hereto as Exhibit H, (v) the Closing Statement, and (vi) a non-foreign person affidavit sworn to by Seller as required by Section 1445 of the Code, all duly executed (and, when required, acknowledged) by Seller; (b) At least four (4) original counterparts of each of the Parsons Lease, the Ohio Lease, the Kansas City Lease and the Illinois Lease, each duly executed and delivered by Tenant; (c) All keys in Seller's possession or control to all locks on the Improvements; (d) Originals of any Continuing Contracts or, if originals are not in Seller's possession or control, certified copies thereof; (e) Such evidence or documents as may be reasonably required by the Title Company or Purchaser relating to: (i) mechanics' or materialmen's liens; (ii) parties in possession; or (iii) the status and capacity of Seller and the authority of the Person or Persons who are executing the various documents on behalf of Seller in connection with the sale of the Property; (f) All books, records and other documents in the possession or control of Seller and material to Purchaser's ownership or operation of the Property, including the Permits, as-built drawings, and the original Plans and Specifications, to the extent the same are in Seller's possession or control; (g) At least two originals of each of the Tenant estoppel certificates; (h) At least two originals of each of the SNDAs; (i) At least two originals of any applicable REA Estoppels ; (j) The Certificate of Occupancy and other Permits; (k) The Warranties, including all related manuals and any consents necessary in order for the Warranties to be duly assigned to Purchaser as of the Closing; (l) Evidence of release and discharge of all mortgages, materialmen's and mechanics' liens and attachments, and other encumbrances on the Property; and (m) Such other documents as are consistent with the terms of this Agreement and reasonably required to close the transaction contemplated hereby. SECTION 8.3. PURCHASER'S DELIVERIES. At the Closing, Purchaser shall deliver the following items: 13 (a) Immediately available federal funds sufficient to pay the Purchase Price (less the Deposit) and Purchaser's share of all escrow costs and closing expenses; (b) At least four (4) duly executed and acknowledged counterpart originals of the Assignment and Assumption Agreement, the Closing Statement, the Parsons Lease, the Ohio Lease, the Kansas City Lease and the Illinois Lease; (c) Such evidence or documents as may reasonably be required by the Title Company evidencing the status and capacity of Purchaser and the authority of the Person or Persons who are executing the various documents on behalf of Purchaser in connection with the purchase of the Property; and (d) Such other documents as are consistent with the terms of this Agreement and reasonably required to close the transaction contemplated hereby. SECTION 8.4. COSTS AND PRORATIONS. (a) GENERAL. Real estate taxes, personal property taxes, if any, and all other items of income and expense with respect to the Property are paid by Seller and shall continue to be paid by Seller, as Tenant, after the Closing Date under the terms of the applicable Lease. Except as otherwise provided in this Section 8.4, income and expenses shall be prorated on the basis of a 30-day month and on the basis of the accrual method of accounting. All such items attributable to the period prior to the Closing Date shall be credited or charged to Seller, and all such items attributable to the period commencing on the Closing Date shall be credited to Purchaser. (b) ASSESSMENT INSTALLMENTS. If as of the Closing Date the Property is encumbered or otherwise affected by any assessment (whether or not a lien) which is or may become payable in installments (which the Tenant has not paid), then for the purposes of this Agreement, all unpaid installments of such assessments shall be deemed to have become due and payable prior to the Closing Date and Purchaser shall be entitled to receive a credit against the Purchase Price in an amount equal to all unpaid installments of such assessments, and in such event Purchaser shall take title to the Property subject to the unpaid installments not yet due and payable. (c) CONTINUING CONTRACTS. Prepaid charges, payments and accrued charges under any Continuing Contracts shall be prorated at Closing in a manner reasonably acceptable to Seller and Purchaser. (d) CLOSING COSTS. Purchaser and Seller shall each pay their own legal fees related to the preparation of this Agreement and all documents required to settle the transaction contemplated hereby. Purchaser shall pay all costs associated with its due diligence, including the cost of appraisals, architectural, engineering, credit and environmental reports. Each party shall pay one-half of the charges for the escrow services of the Title Company. Seller shall pay all recording fees in connection with the release of any encumbrances on the Property, the cost of a current ALTA survey for the Property, the cost of recording the Deed and all transfer taxes and documentary stamp charges of statewide applicability and all title insurance premiums (exclusive of any endorsements). Purchaser shall pay the cost of any endorsements to Purchaser's title policy. All other customary purchase and sale closing costs shall be paid by Seller or Purchaser in accordance with the custom in the jurisdiction where the Property is located. (e) CLOSING STATEMENT. Purchaser and Seller shall cooperate to produce prior to the Closing Date a schedule of prorations to be made as of the Closing Date in accordance with the terms of this 14 Agreement (the "Closing Statement"). Any adjustments to estimated figures on the Closing Statement shall be made by the parties with due diligence and cooperation within ninety (90) days following the Closing Date, or such later time as may be required to obtain necessary information for proration, by prompt cash payment to the party yielding a net credit from such prorations from the other party. SECTION 8.5. POSSESSION. Possession of the Property shall be delivered to Purchaser by Seller at the Closing, subject only to the Leases, rights arising under any Continuing Contracts, and the Permitted Exceptions. SECTION 8.6. PURCHASE PRICE ALLOCATION. The Purchase Price shall be allocated as follows: ~~Parsons Property: $2,300,000 Ohio Property: $3,900,000 Kansas City Property: $2,100,000 Illinois Property: $3,700,000~~

ARTICLE 9 REAL ESTATE COMMISSION SECTION 9.1. COMMISSIONS. (a) If and when, but only if and when, the Closing is completed and the Purchase Price is paid in full, Seller shall be obligated to pay a real estate commission and/or brokerage fee to Seller's Broker in accordance with a separate agreement between Seller and Seller's Broker. Such commissions shall be paid in full at Closing. (b) Seller represents, warrants and covenants to Purchaser that, except for Seller's Broker, Seller has not dealt with any real estate agent or broker in connection with the transaction contemplated hereby. Seller shall indemnify Purchaser against all claims, costs and liability (including reasonable attorneys' fees) arising from or relating to any claims by Seller's Broker and/or any other broker or other Person claiming any commission or similar compensation by, through or under Seller or Seller's Broker. (c) Purchaser represents, warrants and covenants with Seller that, except for Seller's Broker, Purchaser has not dealt with any real estate agent or broker in connection with the transaction contemplated hereby. The provisions of this Section 9.1 shall survive the Closing. ARTICLE 10 TERMINATION AND DEFAULT SECTION 10.1. TERMINATION WITHOUT DEFAULT. If the sale of the Property is not consummated because of the failure of any condition precedent to Purchaser's obligations expressly set forth in this Agreement or for any other reason except a default by Purchaser in its obligation to purchase the Property in accordance with the provisions of this Agreement (which shall be governed by Section 10.2) or any default by Seller of its obligations under this Agreement (which shall be governed by Section 10.3), the Deposit shall promptly be returned to Purchaser and neither Party shall have any further obligations hereunder. 15 SECTION 10.2. PURCHASER'S DEFAULT. If the sale contemplated hereby is not consummated because of a default by Purchaser in its obligation to purchase the Property in accordance with the terms of this Agreement, and if such default is not cured within ten (10) days from written notice thereof from Seller to Purchaser, then: (a) this Agreement shall terminate; (b) the Deposit shall be paid to and retained by Seller as liquidated damages; and (c) Seller and Purchaser shall have no further obligations to each other. PURCHASER AND SELLER ACKNOWLEDGE THAT THE DAMAGES TO SELLER IN THE EVENT OF A BREACH OF THIS AGREEMENT BY PURCHASER WOULD BE DIFFICULT OR IMPOSSIBLE TO DETERMINE, THAT THE AMOUNT OF THE DEPOSIT REPRESENTS THE PARTIES' BEST AND MOST ACCURATE ESTIMATE OF THE DAMAGES THAT WOULD BE SUFFERED BY SELLER IF THE TRANSACTION SHOULD FAIL TO CLOSE AND THAT SUCH ESTIMATE IS REASONABLE UNDER THE CIRCUMSTANCES EXISTING AS OF THE DATE OF THIS AGREEMENT AND UNDER THE CIRCUMSTANCES THAT SELLER AND PURCHASER REASONABLY ANTICIPATE WOULD EXIST AT THE TIME OF SUCH BREACH. PURCHASER AND SELLER AGREE THAT SELLER'S RIGHT TO RETAIN THE DEPOSIT SHALL BE SELLER'S SOLE REMEDY, AT LAW AND IN EQUITY, FOR PURCHASER'S FAILURE TO PURCHASE THE PROPERTY IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT. SECTION 10.3. SELLER'S DEFAULT. If Seller defaults in its obligation to sell the Property to Purchaser in accordance with the terms of this Agreement, and if such default is not cured within ten (10) days from written notice thereof from Purchaser to Seller, then Purchaser may, as its sole and exclusive remedy at law or in equity: (a) terminate this Agreement by giving written notice thereof to Seller, in which event the Deposit will promptly be returned to Purchaser, Seller promptly shall reimburse Purchaser for the third party costs that Purchaser has incurred in connection with this Agreement and the transaction contemplated hereby (provided, however, that the aggregate amount of such costs shall not exceed Fifty Thousand Dollars [$50,000]), and the parties shall have no further obligation to each other; (b) waive such default and consummate the transactions contemplated hereby in accordance with the terms of this Agreement; or (c) specifically enforce this Agreement. Purchaser hereby irrevocably waives any other right or remedy for such default; provided, however, that if, in breach of this Agreement, Seller sells the Property (or any portion thereof) to someone other than Purchaser or otherwise takes action that renders the remedy of specific performance impossible or impractical to obtain, Seller shall be liable for any damages suffered by Purchaser as a result of such breach. If Purchaser brings an action for specific performance, the Deposit shall be returned to Purchaser pending the outcome of such action. SECTION 10.4. BREACH OF REPRESENTATIONS. The representations and warranties of Seller and Purchaser set forth in this Agreement or in any document or certificate delivered by Seller or Purchaser in connection herewith shall survive the Closing for a period of twelve (12) months, and no action or proceeding thereon shall be valid or enforceable, at law or in equity, unless within such time, written notice thereof is given to the other party. SECTION 10.5. MUTUAL INDEMNIFICATIONS. (a) From and after the Closing, Seller shall indemnify Purchaser and defend and hold Purchaser harmless from and against any and all claims, demands, liabilities, costs, expenses, penalties, damages and losses, including reasonable attorneys' fees, resulting from any misrepresentation or breach of warranty by Seller in this Agreement or in any document, certificate, or exhibit given or delivered by Seller pursuant to or in connection with this Agreement. (b) From and after the Closing, Purchaser shall indemnify Seller and defend and hold Seller harmless from and against any and all claims, demands, liabilities, costs, expenses, penalties, damages and losses, including reasonable attorneys' fees, resulting from any misrepresentation or breach 16 of warranty made by Purchaser in this Agreement or in any document, certificate, or exhibit given or delivered by Purchaser pursuant to or in connection with this Agreement. (c) Seller shall indemnify Purchaser and defend and hold Purchaser harmless from and against any and all claims, demands, liabilities, costs, expenses, penalties, damages and losses, including reasonable attorneys' fees, asserted against, incurred or suffered by Purchaser resulting from any personal injury or property damage occurring in, on or about the Property or relating thereto and occurring during any period in which Seller or its affiliates owned the Property, from any cause whatsoever other than as a consequence of the acts or omissions of Purchaser, its agents, employees or contractors. (d) Purchaser shall indemnify Seller and defend and hold Seller harmless from any claims, losses, demands, liabilities, costs, expenses, penalties, damages and losses, including reasonable attorneys' fees, asserted against, incurred or suffered by Seller resulting from any personal injury or property damage occurring in, on or about the Property or relating thereto and occurring during any period in which Purchaser or its affiliates owns the Property, from any cause whatsoever other than as a consequence of the acts or omissions of Seller, its agents, employees or contractors. (e) In the event either party hereto receives notice of a claim or demand which results or may result in indemnification pursuant to Section 10.5, such party shall promptly give notice thereof to the other party to this Agreement. The party receiving such notice shall promptly take such measures as may be reasonably required to properly and effectively defend such claim, and may defend same with counsel of its own choosing. In the event the party receiving such notice fails to properly and effectively defend such claim, and in the event such party is liable therefor, then the party so giving such notice may defend such claim at the expense of the party receiving such notice. The provisions of this Section 10.5 shall survive the Closing. ARTICLE 11 MISCELLANEOUS SECTION 11.1. ENTIRE AGREEMENT; SUCCESSORS AND ASSIGNS; MISCELLANEOUS PROVISIONS. This Agreement constitutes the entire agreement between the parties hereto with respect to the transactions contemplated herein, and it supersedes all prior discussions, understandings or agreements. All Exhibits and Schedules attached hereto are a part of this Agreement and are incorporated herein by reference. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. This Agreement may be executed in any number of counterparts and it shall be sufficient that the signature of each party appear on one or more such counterparts, and all counterparts shall collectively constitute a single agreement. No modification of this Agreement shall be deemed effective unless in writing and signed by both Seller and Purchaser. In the event the time for performance of any obligation hereunder expires on a day that is not a Business Day, the time for performance shall be extended to the next Business Day. The descriptive headings of the paragraphs of this Agreement are inserted for convenience only and shall not control or affect the meaning or construction of any provisions of this Agreement. Words such as "herein", "hereinafter", "hereof" and "hereunder" when used in reference to this Agreement, refer to this Agreement as a whole and not merely to a subdivision in which such words appear, unless the context otherwise requires. The singular shall include the plural and the masculine gender shall include the feminine and neuter, and vice versa, unless the context otherwise requires. The word "including" shall not be restrictive and shall be interpreted as if followed by the words "without limitation." This Agreement shall not be construed more strictly against one party than against the other merely by virtue of the fact that it may have been prepared primarily by counsel for one 17 of the parties, it being recognized that both Purchaser and Seller have contributed substantially and materially to the preparation of this Agreement. SECTION 11.2. WAIVER; GOVERNING LAW. The excuse or waiver of the performance by a party of any obligation of the other party under this Agreement shall only be effective if evidenced by a written statement signed by the party so excusing or waiving. No delay in exercising any right or remedy shall constitute a waiver thereof, and no waiver by Seller or Purchaser of the breach of any covenant of this Agreement shall be construed as a waiver of any preceding or succeeding breach of the same or any other covenant or condition of this Agreement. This Agreement shall be construed and the rights and obligations of Seller and Purchaser hereunder determined in accordance with the internal laws of the Commonwealth of Massachusetts, without regard to the principles of conflict of laws. SECTION 11.3. NOTICES. All notices or other communications required or provided to be sent by either party shall be in writing and shall be sent by: (i) by United States Postal Service, certified mail, return receipt requested, (ii) by any nationally known overnight delivery service for next day delivery, (iii) delivered in person or (iv) sent by telecopier or facsimile machine which automatically generates a transmission report that states the date and time of the transmission, the length of the document transmitted and the telephone number of the recipient's telecopier or facsimile machine (with a copy thereof sent in accordance with clause (i), (ii) or (iii) above). All notices shall be deemed to have been given upon receipt. All notices shall be addressed to the parties at the addresses below: To Seller: Dayton Superior Corporation 2150B So. Rte. 45-52 Kankakee, Illinois 60901 Attention: Mark K. Kaler Fax No. 815-936-3309 With a copy to: Dayton Superior Corporation 200 East Touhy Avenue Des Plaines, Illinois 60018 Attention: Steven C. Huston Fax No. 847-298-8958 To Purchaser: STAG Capital Partners, LLC 93 Summer Street, 3rd Floor Boston, Massachusetts 02110 Attention: Benjamin S. Butcher Fax No.: 617-574-0052 With a copy to: DLA Piper Rudnick Gray Cary US LLP One International Place, 21st Floor Boston, Massachusetts 02110-2613 Attention: John L. Sullivan, Esq. Fax No.: 617-406-6100 Any address or name specified above may be changed by notice given to the addressee by the other party in accordance with this Section 11.3. The inability to deliver notice because of a changed address of which no notice was given as provided above, or because of rejection or other refusal to accept any notice, shall be deemed to be the receipt of the notice as of the date of such inability to deliver or rejection 18 or refusal to accept. Any notice to be given by any party hereto may be given by the counsel for such party. SECTION 11.4. ATTORNEYS' FEES. In the event of a judicial or administrative proceeding or action by one party against the other party with respect to the interpretation or enforcement of this Agreement, the prevailing party shall be entitled to recover reasonable costs and expenses including reasonable attorneys' fees and expenses, whether at the investigative, pretrial, trial or appellate level. The prevailing party shall be determined by the court based upon an assessment of which party's major arguments or position prevailed. SECTION 11.5. IRS REAL ESTATE SALES REPORTING. Purchaser and Seller hereby agree that the Title Company shall act as "the person responsible for closing" the transaction which is the subject of this Agreement pursuant to Section 6045(e) of the Code and shall prepare and file all informational returns, including IRS Form 1099-S, and shall otherwise comply with the provisions of Section 6045(e) of the Code. SECTION 11.6. FURTHER INSTRUMENTS. Each party, promptly upon the request of the other, shall execute and have acknowledged and delivered to the other or to Title Company, as may be appropriate, any and all further instruments reasonably requested or appropriate to evidence or give effect to the provisions of this Agreement and which are consistent with the provisions of this Agreement. SECTION 11.7. SEVERABILITY. The parties hereto intend and believe that each provision in this Agreement comports with all applicable local, state and federal laws and judicial decisions. If, however, any provision in this Agreement is found by a court of law to be in violation of any applicable local, state, or federal law, statute, ordinance, administrative or judicial decision, or public policy, or if in any other respect such a court declares any such provision to be illegal, invalid, unlawful, void or unenforceable as written, then it is the intent of all parties hereto that, consistent with and with a view towards preserving the economic and legal arrangements among the parties hereto as expressed in this Agreement, such provision shall be given force and effect to the fullest possible extent, and that the remainder of this Agreement shall be construed as if such illegal, invalid, unlawful, void, or unenforceable provision were not contained herein, and that the rights, obligations, and interests of the parties under the remainder of this Agreement shall continue in full force and effect. SECTION 11.8. EXCLUSIVITY. In consideration of the significant time and expense to be devoted by Purchaser to its potential acquisition of the Property, Seller agrees that, during the term of this Agreement, it will negotiate exclusively with Purchaser concerning a potential sale of the Property, it will not market the Property for sale or allow other potential purchasers to inspect or tour the Property, and it has not and will not enter into any agreement to sell the Property to any party other than Purchaser. If Seller breaches its obligations under this Section, Purchaser shall have the right to damages and, at Purchaser's election, injunctive or other equitable relief. [The balance of this page has intentionally been left blank. Signature pages follow.] 19 IN WITNESS WHEREOF, Seller and Purchaser hereto have executed this Agreement as of the Effective Date. SELLER: Dayton Superior Corporation By: /s/ Mark K. Kaler -------------------------------------- Name: Mark K. Kaler ------------------------------------ Title: Vice President, Strategic Planning ----------------------------------- Date: ------------------------------------ PURCHASER: STAG Capital Partners, LLC By: /s/ Benjamin S. Butcher -------------------------------------- Name: Benjamin S. Butcher Title: Manager Date: ------------------------------------ 20 SCHEDULE 1.1 DEFINED TERMS "Agreement" has the meaning set forth in the first paragraph of this document. "Business Day" shall mean any day of the week other than (i) Saturday and Sunday, (ii) a day on which banking institutions in any of Boston, Massachusetts; Kansas City, Kansas; Dayton, Ohio and Chicago, Illinois are obligated or authorized by law or executive action to be closed to the transaction of normal banking business, or (iii) a day on which governmental or banking functions in any of the Boston, Massachusetts; Kansas City, Kansas; Dayton, Ohio and Chicago, Illinois areas are interrupted because of extraordinary events such as hurricanes, power outages or acts of terrorism. "Certificate of Occupancy has the meaning set forth in Section 6.1(h). "Closing" shall mean the consummation of the purchase and sale of the Property pursuant to the terms of this Agreement. "Closing Statement" has the meaning set forth in Section 8.4(e). "Code" shall mean the Internal Revenue Code of 1986, and all amendments thereto and all regulations issued thereunder. "Confidential Information" shall mean any proprietary information concerning the Property provided to Purchaser by Seller, excluding information that is available to the general public or from sources other than Seller. "Contracts" shall mean all development, construction, service, management, leasing, operation, maintenance, repair and other contracts affecting the Land or Improvements and all amendments and modifications thereto, except for those contracts connected with or related to the manufacturing processes or other business conducted by Seller on the Property (and provided that Purchaser, as owner of the Property, shall bear no obligation or liability with respect to any of the same). "Deposit" has the meaning set forth in Section 3.1. "Designated Seller Representatives" has the meaning set forth in Section 7.4. "Effective Date" shall mean the later of the date below the signature of Purchaser or Seller on this Agreement or, if such dates are the same, the date below each of such signatures. "Employee Claims" shall have the meaning set forth in Section 5.6. "Environmental Law" shall mean any federal, state, local or administrative agency ordinance, law, rule, regulation, order or requirement relating to environmental conditions, human health or Hazardous Material, including the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C. Section 9601 et seq), the Resource Conservation and Recovery Act of 1976 (42 U.S.C. Section 6901 et seq.), the Federal Water Pollution Control Act (33 U.S.C. Section 1251 et seq.), the Clean Air Act (42 U.S.C. Section 7401 et seq.), the Emergency Planning and Community Right-To-Know Act (42 U.S.C. Section 1101 et seq.), The Endangered Species Act (16 U.S.C. Section 1531 et seq.), the Toxic Substances Control Act (15 U.S.C. Section 2601 et seq.), the Occupational Safety and Health Act (29 U.S.C. Section 651 et seq.) and the Hazardous Materials 21 Transportation Act (49 U.S.C. Section 1801 et seq.), and the regulations promulgated pursuant to such laws, all as amended from time to time. "Hazardous Materials" shall mean any substance or material which is or contains: (i) any substance, waste or material now or hereafter defined in and/or regulated under any Environmental Law; (ii) gasoline, diesel fuel or other petroleum hydrocarbons; (iii) asbestos and asbestos containing materials, in any form, whether friable or nonfriable; (iv) polychlorinated biphenyls; (v) radon gas; or (vi) mold, mildew or other biological agents. "Illinois Improvements" shall mean that certain building containing approximately 103,683 net rentable square feet located at 625 Crane Street, Aurora, Illinois, and all other buildings, structures and other improvements situated upon the Land and any fixtures, systems and facilities owned by Seller and located on the Illinois Land (other than any manufacturing systems of Seller, to the extent the same can be removed without damaging the Illinois Improvements). "Illinois Land" shall mean the land described on Exhibit A-4 attached hereto, together with all privileges, rights, easements and appurtenances belonging to such land and all right, title and interest (if any) of Seller in and to any streets, alleys, passages or other rights-of-way or appurtenances included in, adjacent to or used in connection with such land and all right, title and interest (if any) of Seller in all mineral rights appurtenant to such land. "Illinois Lease" has the meaning set forth in Section 6.2A. "Illinois Property" shall mean, collectively, the Illinois Land, the Illinois Improvements and all Intangible Property associated therewith. "Improvements" shall mean, collectively, the Parsons Improvements, the Ohio Improvements, the Kansas City Improvements and the Illinois Improvements. "Intangible Property" shall mean all of Seller's right, title and interest, if any, in all intangible assets relating to the Land or Improvements, including all of Seller's right, title and interest, if any, in all (a) warranties and guaranties relating to the Land or Improvements, (b) all licenses, permits and approvals relating to the Land or Improvements, (c) all logos and tradenames relating to the Land or Improvements, (d) all contract rights, (e) advertising of the Land or Improvements and (f) all plans and specifications relating to the Land or Improvements, in each case to the extent that Seller may legally transfer the same. "Kansas City Improvements" shall mean that certain building containing approximately 56,580 net rentable square feet located at 636 South 66th Terrace in Kansas City, Kansas, and all other buildings, structures and other improvements situated upon the Land and any fixtures, systems and facilities owned by Seller and located on the Kansas City Land (other than any manufacturing systems of Seller, to the extent the same can be removed without damaging the Kansas City Improvements). "Kansas City Land" shall mean the land described on Exhibit A-3 attached hereto, together with all privileges, rights, easements and appurtenances belonging to such land and all right, title and interest (if any) of Seller in and to any streets, alleys, passages or other rights-of-way or appurtenances included in, adjacent to or used in connection with such land and all right, title and interest (if any) of Seller in all mineral rights appurtenant to such land. "Kansas City Lease" has the meaning set forth in Section 6.2A. 22 "Kansas City Property" shall mean, collectively, the Kansas City Land, the Kansas City Improvements and all Intangible Property associated therewith. "Land" shall mean, collectively, the Parsons Land, the Ohio Land, the Kansas City Land and the Illinois Land. "Leases" has the meaning set forth in Section 6.2A. "Lease Transaction" shall mean the execution of any new lease or other occupancy agreement for any portion of the Property. "Legal Requirements" means all applicable zoning, building, health and safety, environmental and all other laws, legislation, rules, codes, by-laws, ordinances, resolutions, regulations, orders and decrees and all requirements of the Board of Fire Underwriters and any other insurance underwriters relating in any way to the Property or the development, construction, ownership, use and occupancy thereof. "Material Casualty" has the meaning set forth in Section 6.3. "Material Taking" has the meaning set forth in Section 6.4. "Ohio Improvements" shall mean that certain building containing approximately 156,581 net rentable square feet located at 721 Richard Street, Miamisburg, Ohio, and all other buildings, structures and other improvements situated upon the Land and any fixtures, systems and facilities owned by Seller and located on the Ohio Land (other than any manufacturing systems of Seller, to the extent the same can be removed without damaging the Ohio Improvements) . "Ohio Land" shall mean the land described on Exhibit A-2 attached hereto, together with all privileges, rights, easements and appurtenances belonging to such land and all right, title and interest (if any) of Seller in and to any streets, alleys, passages or other rights-of-way or appurtenances included in, adjacent to or used in connection with such land and all right, title and interest (if any) of Seller in all mineral rights appurtenant to such land. "Ohio Lease" has the meaning set forth in Section 6.2A. "Ohio Property" shall mean, collectively, the Ohio Land, the Ohio Improvements and all Intangible Property associated therewith. "Parsons Improvements" shall mean that certain building containing approximately 120,000 net rentable square feet located at 1900 Wilson, Parsons, Kansas, and all other buildings, structures and other improvements situated upon the Land and any fixtures, systems and facilities owned by Seller and located on the Parsons Land (other than any manufacturing systems of Seller, to the extent the same can be removed without damaging the Parsons Improvements). "Parsons Land" shall mean the land described on Exhibit A-1 attached hereto, together with all privileges, rights, easements and appurtenances belonging to such land and all right, title and interest (if any) of Seller in and to any streets, alleys, passages or other rights-of-way or appurtenances included in, adjacent to or used in connection with such land and all right, title and interest (if any) of Seller in all mineral rights appurtenant to such land. "Parsons Lease" has the meaning set forth in Section 6.2A. 23 "Parsons Property" shall mean, collectively, the Parsons Land, the Parsons Improvements and all Intangible Property associated therewith. "Permitted Exceptions" shall mean all matters shown on the Title Commitment (other than Voluntary Liens) or the Survey, except for those matters as to which, in accordance with Section 4.1, Purchaser makes a written objection on or before the Study Period Notice Deadline. In no event shall any Voluntary Lien constitute a Permitted Exception, and all Voluntary Liens shall be paid in full at or before the Closing or out of the proceeds otherwise due to Seller. "Permits" has the meaning set forth in Section 7.3(b)(iv)(C). "Person" shall mean any individual, estate, trust, partnership, limited liability company, limited liability partnership, corporation, governmental agency or other legal entity. "Property" shall mean, collectively, the Real Property and the Intangible Property. "Purchase Price" shall mean the purchase price for the Property as specified in Section 2.2. "Purchaser" means the Person named as the Purchaser in the first paragraph of this Agreement, together with any assignee of the originally named Purchaser. "Purchaser Title Objections" has the meaning set forth in Section 4.1. "REA Estoppels" has the meaning set forth in Section 6.1(g). "Real Property" shall mean the Land and the Improvements. "Reciprocal Easement Agreements" shall mean any and all reciprocal easement agreements, declarations of covenants, conditions, restrictions and easements, party wall agreements, "tie-back" agreements, common area agreements, shared maintenance agreements, common use agreements or similar agreements or understandings which burden or benefit the Real Property and other adjacent real property, and all supplements, amendments, modifications and memoranda thereof, relating to the development, use, operation, management, maintenance or occupancy of the Real Property. "Required Endorsements" shall mean the following ALTA endorsements (to the extent legally available in the jurisdiction in which the Real Property is located): (a) Form 9 - Comprehensive (modified as appropriate for an owner's policy); (b) Form 3.1 Zoning (including parking and loading); (c) survey endorsement; (d) access endorsement; (e) if the land on which the Property is located consists of more than one parcel, a contiguity endorsement; and (f) a tax parcel endorsement. "Reports" has the meaning set forth in Schedule 5.1. "Restricted Period" shall mean the period commencing five (5) Business Days before the end of the Study Period and ending on the earlier of the Closing or the termination of this Agreement. "Seller" has the meaning set forth in the first paragraph of this Agreement. "Seller Representations" shall mean the representations and warranties of Seller expressly set forth in Section 7.3. 24 "Seller's Broker" shall mean the Stan Johnson Company and Marcus & Millichap. "SNDA" has the meaning set forth in Section 6.1(d). "Study Period" has the meaning set forth in Section 5.2. "Study Period Notice" has the meaning set forth in Section 5.2. "Study Period Notice Deadline" has the meaning set forth in Section 5.2. "Survey" has the meaning set forth in Section 4.1. "Tenant" shall mean the Seller. "Termination Notice" has the meaning set forth in Section 5.2. "Title Commitment" has the meaning set forth in Section 4.1. "Title Company" shall mean the Boston, Massachusetts office of Stewart Title Guaranty Company, attention, Terrance Miklas. "Utility Deposits" has the meaning set forth in Section 8.4(g). "Voluntary Liens" shall mean any of the following encumbrances on the Property or any portion thereof: (a) any mortgage or deed of trust granted or assumed by Seller; (b) any mechanic's or materialmen's lien; (c) any lien for unpaid taxes, assessments, utility, water, sewer or other governmental charges; and (d) any other lien or encumbrance granted, assumed or suffered by Seller and securing the repayment of money or other claims made against Seller. 25 SCHEDULE 3.1 DEPOSIT ESCROW PROVISIONS [ATTACHED TO AND A PART OF REAL ESTATE PURCHASE AND SALE AGREEMENT] (a) Title Company shall hold the Deposit in a separate, segregated, interest bearing account approved by Purchaser and Seller. If the Closing occurs, the Deposit shall be credited against the Purchase Price. The Deposit shall be held and disbursed by Title Company in the following manner: (i) to Seller at the upon consummation of the Closing; or (ii) to Seller upon receipt of written demand therefor, stating that Purchaser has defaulted in the performance of Purchaser's obligations under this Agreement and the facts and circumstances underlying such default; provided, however, that Title Company shall not honor such demand until at least ten (10) Business Days after it has sent a copy of such demand to Purchaser, nor thereafter if Title Company shall have received written notice of objection from Purchaser in accordance with paragraph (b) below; or (iii) to Purchaser upon receipt of written demand therefor, stating that either (x) this Agreement has been terminated pursuant to a provision hereof and certifying the basis for such termination, or (y) Seller has defaulted in performance of Seller's obligations under this Agreement and the facts and circumstances underlying such default or that Purchaser is otherwise entitled to the Deposit under the provisions of this Agreement; provided, however, that except for a termination pursuant to Section 5.2, Title Company shall not honor such demand until at least ten (10) Business Days after it has sent a copy of such demand to Seller, nor thereafter if Title Company shall have received written notice of objection from Seller in accordance with paragraph (b) below. Notwithstanding anything to the contrary herein, if at any time before the Study Period Notice Deadline, Purchaser provides Title Company with written demand for the return of the Deposit, Title Company shall immediately return the Deposit to Purchaser. (b) Upon receipt of written demand for the Deposit by Purchaser or Seller pursuant to clause (a)(ii) or (a)(iii) above, Title Company shall promptly send a copy thereof to the other party. Except for a termination under Section 5.2 (as to which Seller shall have no right to object), the other party shall have the right to object to the delivery of the Deposit by sending written notice of such objection to Title Company within ten (10) Business Days after Title Company sends a copy of the written demand to the objecting party. Upon receipt of such notice, Title Company shall promptly send a copy thereof to the party who made the written demand. (c) Except for the return of the Deposit to Purchaser as provided in the last sentence of Section (a)(iii) above, in the event of any dispute between the parties, Title Company shall disregard all instructions received and may hold the Deposit until the dispute is mutually resolved and Title Company is advised of this fact in writing by both Seller and Purchaser, or Title Company is otherwise instructed by a final judgment of a court of competent jurisdiction. (d) In the event Title Company shall be uncertain as to its duties or rights hereunder or shall receive conflicting instructions, claims or demands from the parties hereto, or instructions which conflict with any of the provisions of this Agreement, Title Company shall be entitled to refrain from taking any action other than to keep safely the Deposit until Title Company shall be instructed otherwise in writing signed by both Seller and Purchaser, or by final judgment of a court of competent jurisdiction. 26 (e) Title Company may rely upon, and shall be protected in acting or refraining from acting upon, any written notice, instruction or request furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper party or parties, provided that any modification of this Schedule 3.1 shall be signed by Title Company, Purchaser and Seller. (f) Seller and Purchaser shall jointly and severally hold Title Company harmless against any loss, damage, liability or expense incurred by Title Company not caused by its willful misconduct, gross negligence or breach of these escrow provisions, arising out of or in connection with its entering into this Agreement and the carrying out of its duties hereunder, including the reasonable costs and expenses of defending itself against any claim of liability or participating in any legal proceeding. JOINDER BY THE TITLE COMPANY By its execution hereof, the Title Company hereby (i) covenants and agrees to hold the Deposit in accordance with the above provisions, and (ii) acknowledges receipt of a copy of the Real Estate Purchase and Sale Agreement to which this Schedule 3.1 is attached. By: , ----------------------------------- Name: ---------------------------------- Title: --------------------------------- Date: ---------------------------------- 27 SCHEDULE 5.1 (1) copies of Tenant Financial Statements (as defined in the Agreement); (2) a copy of the Tenant's current insurance certificate; (3) (Intentionally omitted); (4) all Warranties in Seller's possession or control; (5) all Contracts in Seller's possession or control; (6) as-built plans and specifications for the Improvements, to the extent the same are in Seller's possession or control; (7) a certificate of occupancy for the Improvements and all other Permits in Seller's possession or control; (8) to the extent that any of the same are in Seller's possession or control, all engineering, geotechnical, environmental, and other similar studies or reports in the possession or control of the Seller relating to the Property (the "Reports"); it being understood and agreed by the parties hereto that Seller is in no way warranting or representing, express or implied, the accuracy or completeness of anything contained in the Reports; (9) to the extent that any of the same are in Seller's possession or control, copies of all tax bills and statements for the Property for the three (3) calendar years preceding the Effective Date and for the current year, and copies of any notices of actual or proposed reassessments of the Property; (10) to the extent that any of the same are in Seller's possession or control, copies of all utility bills and statements for the Property for the three (3) calendar years preceding the Effective Date and for the current year; (11) (Intentionally omitted); (12) (Intentionally omitted); (13) copies of any notices received in connection with any purported or actual violation at the property of any Legal Requirement; (14) to the extent that any of the same are in Seller's possession or control, copies of any Reciprocal Easement Agreements and agreements with any governmental agencies relating to the development, construction, ownership or operation of the Property. 28 SCHEDULE 6.2 Addresses: 1900 Wilson, Parsons, Kansas 721 Richard Street, Miamisburg, Ohio 636 South 66th Terrace, Kansas City, Kansas 625 Crane Street, Aurora, Illinois Rentable Square Feet: Parsons: 120,000 Ohio: 156,581 Kansas City: 56,580 Illinois: 103,683 Lease Term: Parsons: Thirteen (13) years Ohio: Twelve (12) years Kansas City: Ten (10) years Illinois: Eleven (11) years Extension Options: Two(2) five (5)-year extension terms, exercisable by providing at least nine (9) months written notice prior to expiration of the applicable term. The Annual Base Rental Rate for each extension term shall be the fair market rent as determined under the Lease. Initial Annual Base Rental Parsons: $240,000 NNN Rate: Ohio: $430,598 NNN Kansas City: $226,320 NNN Illinois: $364,000 NNN Annual Increases in Annual 2% annual escalations. Base Rental Rate: Landlord Form: Absolute NNN. Tenant responsible for all costs (operating, utilities and capital). Assignment and Sublease Language to be mutually agreed upon by Landlord and Tenant during Study Period based upon Landlord's form Lease provisions. Security Deposit (cash or Parsons: $92,150 Letter of Credit): Ohio: $164,900 Kansas City: $87,300 Illinois: $140,650

29 EXHIBIT A-1 DESCRIPTION OF PARSONS LAND Lots 4, 5, 6, 7, 8, 9, and 10, Block 2, and Lots 1, 2, 3, 4, 5, 6, 7, 8, 9, and 10, Block 3, Arthur W. Davis Addition, and commencing 50 feet south of the southwest corner of Lot 7, Block 4, Arthur W. Davis Addition, south 197 feet, thence west 80 feet, south 453 feet, west 245.7 feet, south 650 feet, west 150 feet, southerly along MKT Railroad right-of-way to intersection of MKT, thence Northeasterly along MKT Railroad to point east of beginning, thence west to point of beginning, and that portion of vacated South Central Street adjacent thereto, and the south 1/2 of vacated Thornton Avenue adjacent thereto, in Section 19, Township 31 south, Range 20 east of the 6th P.M., except so much thereof as is used for public highway or road, Labette County, Kansas. The South 1/2 of Lot 2 and all of Lot 3, Block 2, A.W. Davis Addition, City of Parsons, Labette County, Kansas. Lot 1 and the North 1/2 of Lot 2, Block 2, A.W. Davis Addition, City of Parsons, Labette County, Kansas, and the South 1/2 of vacated Thornton Avenue adjacent to Lot 1. 30 EXHIBIT A-2 DESCRIPTION OF OHIO LAND PARCEL I: Situated in the City of Miamisburg, County of Montgomery, State of Ohio and being lot numbered One Thousand Eight Hundred Eighty One (1881), One Thousand Eight Hundred Eighty Two (1882), One Thousand Eight Hundred Eighty Four (1884), Five Thousand Four Hundred Seventy Eight (5478), and Five Thousand Four Hundred Seventy Nine (5479) of the Consecutive Numbers of lots on the revised plat of said City of Miamisburg, Ohio. PARCEL II: Located in Section 26, Town 1, Range 6 MRS, City of Miamisburg, Montgomery County, State of Ohio, and being a tract of land described as follows: Beginning at a point on the centerline of Richard Street, said point being located 200.00 feet westwardly from the southward extension of the west line of Eighth Street; Thence with the centerline of Richard Street, north Eighty Seven Degrees Fifteen Minutes No Seconds (87 degrees 15' 00") west for One Hundred Six and 75/100 (106.75) feet; Thence north Two Degrees Forty Five Minutes and No Seconds (2 degrees 45' 00") east for Two Hundred Sixty Three and 12/100 (263.12) feet; Thence south Seventy Nine Degrees Nineteen Minutes and No Seconds (79 degrees 19' 00") east for One Hundred Seven and 78/100 (107.78) feet; Thence South Two Degrees Forty Five Minutes and No Seconds (2 degrees 45' 00") west for Two Hundred Forty Eight and 25/100 (248.25) feet to the point of beginning, containing 0.6266 acres more or less. EXCEPTING THEREFROM THE FOLLOWING DESCRIBED REAL ESTATE: Located in Section 26, Town 1, Range 6 MRS, City of Miamisburg, Montgomery County, State of Ohio, and being a tract of land described as follows: Beginning at a point on the centerline of Richard Street, said point being located 200.00 feet westwardly from the southward extension of the west line of Eighth Street; Thence with the centerline of Richard Street, north Eighty Seven Degrees Fifteen Minutes No Seconds (87 degrees 15' 00") west for One Hundred Six and 75/100 (106.75) feet; Thence north Two Degrees Forty Five Minutes and No Seconds (2 degrees 45' 00") east for Twenty Five and 00/100 (25.00) feet; Thence south Eighty Seven Degrees Fifteen Minutes No Seconds (87 degrees 15' 00") east for approximately One Hundred Six and 75/100 (106.75) feet; Thence South Two Degrees Forty Five Minutes No Seconds (2 degrees 45' 00") west for Twenty Five and 00/100 (25.00) feet to the point of beginning, containing 0.061 acres, more or less. 31 EXHIBIT A-3 DESCRIPTION OF KANSAS CITY LAND The Northerly 113 feet of Lot 2-3, Block 2, Muncie Industrial Park, an addition in Kansas City, Wyandotte County, Kansas, recorded January 29, 1986 as File No. 1001907 in Book 35 at pages 45 (C798) and 46 (C799), of the Office of the Recorder of said County. 32 EXHIBIT A-4 DESCRIPTION OF ILLINOIS LAND That part of the northeast 1/4 of Section 24, Township 38 north, Range 8 east of the third principal meridian, described as follows: beginning at the northwest corner of said northeast 1/4; thence north 88 degrees 44 minutes east along the north line of said quarter section, 465.64 feet; thence south 0 degrees 39 minutes east parallel with the west line of said quarter section, 479.80 feet; thence south 88 degrees 44 minutes west parallel with the north line of said quarter section, 325.64 feet; thence north 0 degrees 39 minutes west parallel with the north line of said quarter section 140 feet to the west line of said quarter section; thence north 0 degrees 39 minutes west along said west line, 439.80 feet to the point of beginning, in the township of Aurora, Kane County, Illinois. 33 EXHIBIT B FORM OF TENANT ESTOPPEL CERTIFICATE Re: Lease dated ________________, by and between ________________, as Landlord, and _______________, as Tenant [as so amended by that certain ________, dated _____, by and between Landlord and Tenant] ([as amended] the "Lease"). To: Landlord and ___________________ and any other purchaser or potential purchaser ("Purchaser") of the property commonly known as _________________________ The undersigned Tenant under the Lease certifies as follows (Capitalized terms used herein and not otherwise defined have the meanings set forth in the Lease): (1) The Lease has been duly authorized, executed and delivered by Tenant to Landlord (or its predecessor-in-interest), has not been amended, modified, superceded or supplemented in any way [except as aforsesaid], and constitutes the entire agreement between Landlord and Tenant with respect to the demised premises identified therein (the "Premises") and the building and other property of which the Premises are a part (the "Property"); (2) The Lease is in full force and effect, and Tenant does not have any defense, credit, offset, claim or counterclaim by or in favor of Tenant against Landlord (or its predecessor-in-interest) under the Lease against the obligation to pay rent or other charges due from Tenant under the Lease or against any other obligations of Tenant thereunder; (3) (a) The Commencement Date of the Lease was __________; the Rent Commencement Date of the Lease was ____________; and the expiration date of the initial term of the Lease is __________; (b) There are no options remaining unexercised on the part of the Tenant to renew the Lease except as follows (if none, so state): ___________________________; (c) Tenant is currently paying minimum base or fixed rent under the Lease in the amount of $____________________ per month; (4) Tenant has unconditionally taken possession of and is occupying all of the Premises and Tenant has commenced the payment of rents for all space subject to the Lease. Landlord has completed all work to be performed by Landlord under the Lease in a good and workmanlike manner and in accordance with the Lease and such work has been accepted by Tenant and all reimbursements and allowances due to Tenant under the Lease in connection with such work have been paid in full. Tenant has no knowledge of any defects in the Premises or the Property or any related improvements or facilities; Tenant has not delivered any notice alleging any defect or deficiency in the work relating to the Premises or the Property or any related improvements or facilities, and Tenant is not aware of any currently existing condition or circumstance which would cause Tenant to give such any such notice. Landlord has satisfied any and all commitments made to induce Tenant to enter in to the Lease; (5) Tenant has no right to cancel or terminate the Lease and no option or right to purchase all or any part of the Premises, the Property or any other property of Landlord; 34 (6) Tenant has not paid any security deposit under the Lease except as follows [if none, so state]: ________________________________________________________. (7) All minimum and additional rent and other sums payable by Tenant under the Lease have been fully paid through ______________, 200_ in accordance with the provisions of the Lease. No rent has been paid more than one month in advance; (8) Tenant has not been granted and is not entitled to any free rental or any concession in or abatement of rent; (9) Neither Tenant nor Landlord is in default of its obligations under the Lease and, to the best of Tenant's knowledge, there is no state of facts that with the giving of notice, the passage of time, or both, could ripen into such a default; (10) Tenant confirms that its address for purposes of notices under the Lease is as follows: ___________________; (11) No leasing commissions or similar fees are outstanding in connection with the Lease or will be due from the then owner of the landlord's interest under the Lease in connection with any renewal, extension or expansion of the Lease; (12) The Premises are adequately served by utilities and Landlord has satisfied all obligation relating thereto under the Lease; (13) Tenant has not assigned the Lease or any of its interests therein or sublet any portion of the Premises; Tenant has no current plans to downsize or eliminate its operations at the Premises; and (14) A true and complete copy of the Lease is attached hereto and made a part hereof. This certificate shall be binding upon Tenant and its successors and assigns (if any). Tenant understands and agrees that this certificate may be relied upon by Purchaser (and/or its assignee and/or successors-in-interest as owners of the Property) and by each lender of Purchaser that finances all or any portion of the purchase price of the Property or otherwise provides debt financing to Purchaser. Tenant By: , ------------------------------------ Name: ----------------------------------- Title: ---------------------------------- Date: ----------------------------------- 35 EXHIBIT C [RESERVED] 36 EXHIBIT D EXCEPTIONS TO SELLER REPRESENTATIONS 37 EXHIBIT E-1 KANSAS DEED 38 EXHIBIT E-2 OHIO DEED 39 EXHIBIT E-3 ILLINOIS DEED 40 EXHIBIT F BILL OF SALE AND GENERAL ASSIGNMENT BILL OF SALE, BLANKET CONVEYANCE AND ASSIGNMENT This Bill of Sale, Blanket Conveyance and Assignment (this "Assignment") is executed by ________________________, a __________________ ("Assignor") to and for the benefit of _______________, a __________________ ("Assignee"). RECITALS WHEREAS, concurrently herewith Assignor is conveying to Assignee by [Special Warranty] Deed of even date herewith that certain real property (the "Property") more particularly described on Exhibit A attached hereto and incorporated herein for all purposes; and WHEREAS, in connection with the conveyance of the Property, Assignor intends to sell, assign and convey unto Assignee the Assigned Properties (defined below). NOW, THEREFORE, in consideration of the foregoing and Ten and No/100 Dollars ($10.00) and other good and valuable consideration in hand paid by Assignee to Assignor, the receipt and sufficiency of which are hereby acknowledged and confessed by Assignor, Assignor and Assignee hereby act and agree as follows: 1. CONVEYANCE. Assignor does hereby ASSIGN, TRANSFER, CONVEY, SET OVER and DELIVER to Assignee, its successors and assigns, the following properties (collectively, the "Assigned Properties"): (a) Any and all personal property, equipment, appliances, furniture, furnishings, building materials, improvements, and other personalty of whatever kind or character owned by Assignor, lying and being situated at, incidental to, appurtenant to, or associated or used in connection with the ownership, use, operation, repair and maintenance of the Property, including all fixtures and other property affixed thereto, including without limitation, all heating, air conditioning, plumbing, lighting, communications, elevators and kitchen, medical, dental or rehabilitation fixtures, all gas and electric fixtures, appliances and wiring, engines, boilers, elevators, escalators, incinerators, motors, dynamos, heating and air conditioning equipment, sinks, water closets, basins, pipes, electrical systems, faucets, fire prevention and extinguishing apparatus, central music and public address systems, burglar alarms, security systems and equipment, and other furnishings and decor equipment, spare parts, materials, and supplies for the ownership, use, operation, maintenance, and repair of the Property or the personal property referred to herein or both, tools, supplies, and all other personal property owned by Assignor which is located on or is used in connection with the ownership, use, operation, maintenance, or repair of the Property or the personal property referred to herein or both whether tangible or intangible, paving, curbing, trees, shrubs, plants and other improvements and landscaping of every kind and nature (collectively, the "Personalty"). 41 (b) Rights in and to trade names and all good will, if any, all certificates, franchises, trademarks, symbols, service marks, books, records, plans, specifications, designs, drawings, licenses, business licenses, state health department licenses, licenses to conduct business, certificates of need and all other permits, licenses, approvals, authorizations and rights obtained from any governmental, quasi-governmental or private person or entity whatsoever concerning ownership, operation, use or occupancy of the Property, if any and to the extent they are assignable, and all leasing records, leasing applications, tenant credit reports and maintenance and operating records, keys and telephone exchange numbers, if any and to the extent they are assignable. (c) To the extent assignable, all of Assignor's rights in and to (i) all licenses, permits, approvals and similar documents relating to the Property, (ii) all plans, drawings, specifications, surveys, engineering reports, and other technical descriptions relating to the Property, (iii) all warranties and guaranties (express or implied) issued in connection with or arising out of (a) the purchase or repair of all fixtures, fittings, appliances, apparatus, equipment, machinery and other personal property owned by Assignor, if any, and affixed or attached to or placed or situated upon, or used or acquired in connection with the Property, or (b) the construction, alteration, maintenance and repair of any of the improvements located on the Property, (iv) all other property (real, personal or mixed), owned or held by Assignor which relate in any way to the design, construction, use, leasing, maintenance, service or operation of the Property or Personalty, and (v) all promotional materials, market studies, tenant data and other materials of any kind in Assignor's possession related to the Property or the Personalty referred to herein or both. TO HAVE AND TO HOLD the Assigned Properties unto Assignee, and Assignee's successors and assigns forever, and Assignor does hereby bind Assignor, and Assignor's successors and assigns, to WARRANT and FOREVER DEFEND, all and singular the Assigned Properties unto Assignee, and Assignee's successors and assigns, against every person whomsoever lawfully claiming or to claim the same, or any part thereof by, through and under Assignor but not otherwise. 2. COUNTERPARTS; GOVERNING LAW; SUCCESSORS AND ASSIGNS; AUTHORITY. This Assignment may be executed in any number of counterparts, and each counterpart hereof shall be deemed to be an original instrument, but all such counterparts shall constitute but one instrument. This Assignment shall be construed and enforced in accordance with and governed by the internal laws of the State of ______________. This Assignment shall bind and inure to the benefit of Assignor and Assignee and their respective successors and assigns. Each of Assignor and Assignee represents and warrants to the other that it is fully empowered and authorized to execute and deliver this Assignment, and the individuals signing this Assignment each represent and warrant that he or she is fully empowered and authorized to do so. 3. FURTHER ASSURANCES. The parties agree to take all such further actions and execute, acknowledge and deliver all such further documents that are reasonably necessary or useful in carrying out the purposes of this Assignment. 4. MUTUAL INDEMNIFICATION. Assignor shall indemnify and hold Assignee, its successors and assigns, harmless from and against any and all unpaid balances owed by Assignor and arising and accruing prior to the date hereof with respect to any and all of the Assigned Properties, and from and against any and all damages, claims, costs (including reasonable attorney's fees), expenses and causes of action which may arise and accrue from or under the Assigned Properties or any of them and that are attributable to periods of time prior to the date hereof, regardless of when same are discovered or asserted. Assignee shall indemnify and hold Assignor harmless from and against any and all unpaid balances owed by Assignee and arising and accruing on or after the date hereof with respect to any and all of the Assigned Properties, and from and against any and all damages, claims, costs (including reasonable attorney's fees), expenses and causes of 42 action which may arise and accrue from or under the Assigned Properties or any of them and that are attributable to periods of time on or after the date hereof, regardless of when same are discovered or asserted. [The balance of this page is intentionally left blank] 43 IN WITNESS WHEREOF, this Assignment is executed as of this ____ day of _______________, 200_. ASSIGNOR: By: , ----------------------------------- Name: ---------------------------------- Title: --------------------------------- Date: ---------------------------------- ASSIGNEE: By: , ----------------------------------- Name: ---------------------------------- Title: --------------------------------- Date: ---------------------------------- 44 EXHIBIT A (to Bill of Sale) Property Description 45 EXHIBIT G ASSIGNMENT AND ASSUMPTION AGREEMENT THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Assignment") is executed as of ________________, 200_ by and between _____________________ ("Assignor"), and _____________ ("Assignee"). BACKGROUND Assignor has this day conveyed to the Assignee the property located in ___________________, and more particularly described in Exhibit A hereto (the "Premises") and, in connection with the conveyance of the Premises, Assignor and Assignee intend that Assignor's right, title, interests, powers, and privileges in and under all leases and security deposits affecting the Premises and other matters stated herein be assigned and transferred to Assignee. AGREEMENT In consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. LEASES. Assignor hereby transfers and assigns to Assignee all of Assignor's right, title and interest as landlord or otherwise in the leases with tenants covering spaces in the Premises listed in Exhibit B attached hereto and made a part hereof and the guaranties of such leases (collectively, the "Leases"). By executing this Assignment, Assignee hereby accepts and agrees to perform all of the terms, covenants and conditions of the Leases on the part of the landlord therein required to be performed, from and after the date hereof, but not prior thereto. Assignor also hereby transfers and assigns to Assignee all security deposits held by the Assignor relative to the Leases (the "Security Deposits"). 2. CONTRACTS. Assignor hereby transfers and assigns to Assignee any and all right, title and interest which Assignor may have in the contracts listed in Exhibit C attached hereto and made a part hereof (collectively, the "Contracts"). By executing this Assignment, Assignee hereby accepts and agrees to perform all of the terms, covenants and conditions of the Contracts on the part of Assignor therein required to be performed, from and after the date hereof, but not prior thereto. 3. MUTUAL INDEMNIFICATION. Assignor shall indemnify and hold Assignee harmless from and against any and all damages, claims, liabilities, costs (including reasonable attorney's fees), expenses and causes of action which may arise and accrue from or under the Leases or Contracts and that are attributable to periods of time prior to the date hereof, regardless of when same are discovered or asserted. Assignee shall indemnify and hold Assignor harmless from and against any and all damages, claims, liabilities, costs (including reasonable attorney's fees), expenses and causes of action which may arise and accrue from or under the Leases or Contracts or any of them and that are attributable to periods of time on or after the date hereof, regardless of when same are discovered or asserted. 4. FURTHER ASSURANCES. Assignor and Assignee agree to take all further actions and execute, acknowledge and deliver all further documents that are reasonably necessary or useful in carrying out the purposes hereof. 5. SUCCESSORS AND ASSIGNS. This Assignment shall inure to the benefit of, and be binding upon, the successors, executors, administrators, legal representatives and assigns of the parties hereto. 46 IN WITNESS WHEREOF, this Assignment has been duly signed and sealed by the parties as of the date set forth above. ASSIGNOR: ---------------------------------------- By: , ----------------------------------- Name: ---------------------------------- Title: --------------------------------- Date: ---------------------------------- ASSIGNEE: ---------------------------------------- By: , ----------------------------------- Name: ---------------------------------- Title: --------------------------------- Date: ---------------------------------- 47 EXHIBIT A (to Assignment and Assumption) Property Description 48 EXHIBIT B (to Assignment and Assumption) 49 EXHIBIT C (to Assignment and Assumption) Assigned Contracts 50 EXHIBIT H UPDATED REPRESENTATION CERTIFICATE The undersigned, as Seller under a Real Estate Purchase and Sale Agreement ("Purchase Agreement") dated as of _________________, 200__ between ______________________ ("Seller") and _____________________ ("Purchaser"), does hereby certify to Purchaser that the representations and warranties set forth in Section 7.3 of the Purchase Agreement are hereby reaffirmed as of the date hereof. Seller's liability hereunder shall be subject to the limitations set forth in the Purchase Agreement. Dated as of this ____ day of ____________, 200__. SELLER [ ] -------------------------------------- By: ------------------------------------ Name: ---------------------------------- Title: --------------------------------- 51 EXHIBIT I LIST OF CONTRACTS None. 52 EXHIBIT J (INTENTIONALLY OMITTED) 53 EXHIBIT K LIST OF WARRANTIES None. 54 EX-10.1.1 3 l16444aexv10w1w1.txt EX-10.1.1 1ST AMENDMENT TO REAL ESTATE PURCHASE & SALES AGREEMENT EXHIBIT 10.1.1 FIRST AMENDMENT TO REAL ESTATE PURCHASE AND SALE AGREEMENT This First Amendment to Real Estate Purchase and Sale Agreement (this "Amendment"') is entered into as of August 31, 2005 by and between Dayton Superior Corporation (the "Seller") and STAG Capital Partners, LLC (the "Purchaser"). BACKGROUND A. Seller and Purchaser entered into a Real Estate Purchase and Sale Agreement with an Effective Date of August 2, 2005 (the "P&S Agreement") concerning certain premises located at 1900 Wilson, Parsons, Kansas, 721 Richard Street, Miamisburg, Ohio, 636 South 66th Terrace, Kansas City, Kansas and 625 Crane Street, Aurora, Illinois. B. Seller and Purchaser wish to ratify and amend the P&S Agreement as provided below. C. Capitalized terms used herein without definition have the meanings given to them in the P&S Agreement. AGREEMENT NOW THEREFORE, for valuable consideration, the Seller and Purchaser agree as follows: 1. The end of the Study Period (as defined in Section 5.2 of the P&S Agreement) is extended to 6:00 P.M. (local time in Boston, Massachusetts) on September 30, 2005. 2. The Closing Date (as defined in Section 2.3 of the P&S Agreement) is extended to October 10, 2005, subject to extension as provided in the P&S Agreement. 3. Except as otherwise provided above, the P&S Agreement is ratified and confirmed and remains in full force and effect. 4. All references in the P&S Agreement to "this Agreement" shall mean the P&S Agreement as amended by this Amendment. 5. This Amendment may be executed by facsimile and in counterparts and it shall be sufficient that the signature of each party appear on one or more of such counterparts. [The remainder of this page is intentionally left blank; signature page follows.] EXECUTED under seal as of the date first above written. SELLER: Dayton Superior Corporation By: /s/ Steven C. Huston ------------------------------------ Name: Steven C. Huston ---------------------------------- Title: Vice President, General Counsel and Secretary --------------------------------- PURCHASER: STAG Capital Partners, LLC By: /s/ Benjamin S. Butcher ------------------------------------ Name: Benjamin S. Butcher Title: Manager EX-10.1.2 4 l16444aexv10w1w2.txt EX-10.1.2 2ND AMENDMENT TO REAL ESTATE PURCHASE & SALES AGREEMENT EXHIBIT 10.1.2 SECOND AMENDMENT TO REAL ESTATE PURCHASE AND SALE AGREEMENT This Second Amendment to Real Estate Purchase and Sale Agreement (this "Amendment") is entered into as of September 30, 2005 by and between Dayton Superior Corporation (the "Seller") and STAG Capital Partners, LLC (the "Purchaser"). BACKGROUND A. Seller and Purchaser entered into a Real Estate Purchase and Sale Agreement with an Effective Date of August 2, 2005 (as amended by that certain First Amendment to Real Estate Purchase Agreement dated as of August 31, 2005, the "P&S Agreement") concerning certain premises located at 1900 Wilson, Parsons, Kansas, 721 Richard Street, Miamisburg, Ohio, 636 South 66th Terrace, Kansas City, Kansas and 625 Crane Street, Aurora, Illinois. B. Seller and Purchaser wish to ratify and amend the P&S Agreement as provided below. C. Capitalized terms used herein without definition have the meanings given to them in the P&S Agreement. AGREEMENT NOW THEREFORE, for valuable consideration, the Seller and Purchaser agree as follows: 1. Section 8.6 of the P&S Agreement is hereby deleted in its entirety and replaced with the following: SECTION 8.6. PURCHASE PRICE ALLOCATION. The Purchase Price shall be allocated as follows: ~~Parsons Property: $2,500,000 Ohio Property: $4,100,000 Kansas City Property: $2,100,000 Illinois Property: $3,300,000~~

2. The Closing Date (as defined in Section 2.3 of the P&S Agreement) is extended to October 11, 2005, subject to extension as provided in the P&S Agreement. 3. Except as otherwise provided above, the P&S Agreement is ratified and confirmed and remains in full force and effect. 4. All references in the P&S Agreement to "this Agreement" shall mean the P&S Agreement as amended by this Amendment. 5. This Amendment may be executed by facsimile and in counterparts and it shall be sufficient that the signature of each party appear on one or more of such counterparts. EXECUTED under seal as of the date first above written. SELLER: Dayton Superior Corporation By: /s/ Mark K. Kaler ------------------------------------ Name: Mark K. Kaler ---------------------------------- Title: Vice President, Strategic Planning --------------------------------- PURCHASER: STAG Capital Partners, LLC By: /s/ Benjamin S. Butcher ------------------------------------ Name: Benjamin S. Butcher Title: Manager EX-10.2 5 l16444aexv10w2.txt EX-10.2 LEASE - STAG II PARSONS AND DAYTON SUPERIOR EXHIBIT 10.2 LEASE STAG II PARSONS, LLC AS LANDLORD, AND DAYTON SUPERIOR CORPORATION AS TENANT TABLE OF CONTENTS
Article Page - ------- ---- I Basic Terms.................................................... 1 II Lease of Premises.............................................. 3 III Initial Construction of Premises............................... 5 IV Annual Fixed Rent.............................................. 5 V Additional Rent................................................ 5 VI Maintenance, Use, and Alterations of the Premises.............. 8 VII Insurance and Indemnification.................................. 14 VIII Assignment and Subletting...................................... 15 IX Default and Remedies........................................... 17 X Casualty and Condemnation...................................... 21 XI Landlord's Financing........................................... 21 XII Miscellaneous.................................................. 23 XIII Special Provisions ............................................ 26
-i- ARTICLE I: BASIC TERMS 1.1 Reference Subjects. The following terms used in this Lease shall have the meanings set forth below. Date of Lease: October __, 2005 Landlord: STAG II Parsons, LLC, a Delaware limited liability company Tenant: Dayton Superior Corporation, an Ohio corporation Property: The land known and numbered as 1900 Wilson, Parsons, Kansas, more particularly described on Exhibit A. Premises: The entire building or buildings at the Property (the "Building"), containing approximately 120,000 rentable square feet, and all other improvements on or above the surface of the Property. Tenant's Percentage Share: 100% Term Commencement Date: The date of this Lease. Rent Commencement Date: The date of this Lease. Term Expiration Date: The last day of the thirteenth (13th) Lease Year. The first Lease Year of the Term shall commence on the Term Commencement Date and end on the last day of the month in which the first (1st) anniversary of the Rent Commencement Date shall occur (unless the Rent Commencement Date shall occur on the first day of a month, in which case the first Lease Year shall end on the day before the first (1st) anniversary of the Rent Commencement Date). Subsequent Lease Years shall commence on the day after the last day of the first Lease Year or an anniversary thereof, and shall end on an anniversary of the last day of the first Lease Year. Permitted Uses: Manufacturing, warehouse and distribution uses, together with office uses ancillary to such uses. Security Deposit: $92,150. Tenant's Guarantor: None.

Annual Fixed Rent: See Exhibit B. Additional Rent: See Article V. Broker(s) None. Exhibits Schedule 9.10 Letter of Credit Requirements A: Property B: Annual Fixed Rent C: Rules and Regulations D. Insurance, Casualty, and Condemnation Provisions E. Subordination, Non-Disturbance and Attornment Agreement

ARTICLE II: LEASE OF PREMISES 2.1 Premises. Landlord hereby leases the Premises to Tenant and Tenant hereby leases the Premises from Landlord for the Term, subject to and with the benefit of the terms, covenants and conditions of this Lease, and of rights, agreements, easements and restrictions of record applicable to the Property, all of which Tenant shall perform and observe insofar as the same are applicable to the Premises. As appurtenant to the Premises, Tenant shall have the right to the exclusive use of the roof for telecommunications equipment and all portions of the Property at and above grade level, but Tenant shall not have any right of access, control over or other ability to use any portion of the Property below grade level. 2.2 Term. (a) The term of this Lease (the "Term") shall begin on the Term Commencement Date and shall end on the Term Expiration Date, subject to extension as set forth below. (b) Tenant shall have the right to extend the Term for two periods of five (5) years, on the terms and conditions set forth below. To exercise the extension option, Tenant shall notify Landlord in writing at least twelve (12) months prior to the then scheduled expiration of the Term. Failure to timely deliver such notice shall be deemed an irrevocable election by Tenant not to extend the Term, and Tenant shall have no further right to extend the Term. If Tenant timely delivers such notice, then all of the terms and conditions of the Lease in effect immediately prior to such extension shall apply during the extension period, except that Tenant shall have no right to extend the Term beyond the end of the second extension period and the Annual Fixed Rent during such extension period shall be the Fair Market Rent therefor, determined as provided below, but not less than the Annual Fixed Rent applicable to the Premises immediately before such extension. If Tenant shall exercise the extension option in accordance with this Section, the provisions of this Section shall be self-operative, but upon request by either party after determination of the Annual Fixed Rent for the extension period the parties shall execute an agreement specifying the Annual Fixed Rent for the extension period and acknowledging the extension of the Term. -2- Notwithstanding the foregoing, Tenant's exercise of any option to extend the Term shall be void, at Landlord's election, if either at the time the option is exercised or at the time the extension period is to commence, (i) Tenant is in default under the Lease, or (ii) there exists a sublease or subleases of more than 25% of the square footage of the Building in the aggregate, or (iii) the originally named Tenant hereunder has assigned or transferred its interest in this Lease (except for an assignment or transfer that does not require Landlord's consent under the terms of this Lease). (c) As used herein, the "Fair Market Rent" shall mean the annual fair market rent for the Premises, ascertained for a term coterminous with the time period for which the Fair Market Rent is to be effective, under the terms of this Lease, determined as though the Premises were in the condition then existing or in such better condition as such space is required to be maintained hereunder. Not later than ten (10) months prior to the commencement of the extension period, Landlord shall notify Tenant in writing of Landlord's determination of the Fair Market Rent. Within thirty (30) days after receipt of such notice, Tenant shall notify Landlord whether Tenant accepts or disputes Landlord's determination of Fair Market Rent, which notice of dispute shall include Tenant's determination of the Fair Market Rent (the failure to timely dispute being deemed Tenant's acceptance of Landlord's determination). (d) If Tenant so disputes Landlord's determination, such dispute shall be resolved in accordance with the following procedure. Within thirty (30) days after receipt of Tenant's notice disputing Landlord's determination, Landlord and Tenant shall mutually appoint as an arbitrator a licensed real estate broker with at least ten years experience as a broker of comparable properties in the area or if they cannot agree upon such arbitrator, either party may apply to the office of the American Arbitration Association ("AAA") for appointment of such an arbitrator. The arbitrator shall be charged to determine the Fair Market Rent in accordance with this Section, within sixty (60) days after the arbitrator is appointed, by selecting either of the final estimates of the Fair Market Rent provided by Landlord and Tenant at the commencement of the hearing. The arbitrator shall have no authority or jurisdiction to make any other determination of such amount. The arbitration shall be conducted in accordance with the commercial arbitration rules of the AAA insofar as such rules are not inconsistent with the provisions of this Lease (in which case the provisions of this Lease shall govern). The cost of the arbitrator shall be borne equally by the parties. If the AAA shall cease to provide arbitration for commercial disputes in Wichita, Kansas or Kansas City, Missouri, the arbitrator shall be appointed by any successor organization providing substantially the same services, and in the absence of such an organization, by a court of competent jurisdiction under the arbitration act of the State of Kansas. For any extension period during which the applicable Fair Market Rent is in dispute hereunder, Tenant shall make payment on account of Annual Fixed Rent at the rate set forth in Landlord's notice above, and the parties shall adjust for over or under-payments within thirty days after the decision of the arbitrator is announced. ARTICLE III: DELIVERY OF PREMISES 3.1 Delivery of Premises. The Premises are demised and leased subject to the existing state of the title as of the Term Commencement Date. 3.2 Existing Conditions. Tenant acknowledges that Tenant or its affiliates owned and occupied the Premises prior to the Term Commencement Date and that it has inspected the -3- Premises and accepts the same in the condition they are in on the Term Commencement Date, it being expressly agreed that neither Landlord nor any person acting under Landlord has made or implied any representations or warranties concerning this Lease, the Premises, or their condition or suitability for Tenant's use. To the extent permitted by applicable law, Tenant waives any right or remedy otherwise accruing to Tenant on account of the condition or suitability of the Premises, or title to the Premises, and Tenant agrees that it takes the Premises "as-is," with all faults and without any such representation or warranty, including any implied warranties. ARTICLE IV: RENT 4.1 Annual Fixed Rent. Commencing on the Rent Commencement Date and on the first day of each subsequent calendar month during the Term, Tenant shall pay to Landlord the Annual Fixed Rent set forth in on Exhibit B hereto in lawful money of the United States, in advance and without offset, deduction, or prior demand. The Annual Fixed Rent shall be payable at Landlord's Address or at such other place or to such other person as Landlord may designate in writing from time to time. ARTICLE V: ADDITIONAL RENT 5.1 Additional Rent. All sums payable by Tenant under this Lease other than Annual Fixed Rent shall be deemed "Additional Rent." The term "rent" shall mean Annual Fixed Rent and Additional Rent. Unless this Lease provides otherwise, Tenant shall pay all Additional Rent then due with the next monthly installment of Annual Fixed Rent. 5.2 Real Estate Taxes. Tenant covenants and agrees to pay when due, directly to the relevant taxing authority, as Additional Rent, all Taxes. "Taxes" shall mean all taxes, assessments, betterments, excises, user fees and all other governmental charges and fees of any kind or nature, or impositions or agreed payments in lieu thereof or voluntary payments made in connection with the provision of governmental services or improvements of benefit to the Building or the Property (including any so-called linkage, impact or voluntary betterment payments), and all penalties and interest thereon (if due to Tenant's failure to make timely payments on account of Taxes), assessed or imposed against the Premises or the property of which the Premises are a part (including without limitation any personal property taxes levied on such property or on fixtures or equipment used in connection therewith), or upon Landlord by virtue of its ownership thereof, other than a federal or state income tax of general application, during the Term of the Lease. If during the Term the present system of ad valorem taxation of property shall be changed so that, in lieu of or in addition to the whole or any part of such ad valorem tax, there shall be assessed, levied or imposed on such property or Premises or on Landlord any kind or nature of federal, state, county, municipal or other governmental capital levy, income, sales, franchise, excise or similar tax, assessment, levy, charge or fee (as distinct from the federal and state income tax in effect on the Term Commencement Date) measured by or based in whole or in part upon Building valuation, mortgage valuation, rents or any other incidents, benefits or measures of real property or real property operations and imposed on owners of real estate generally, then any and all of such taxes, assessments, levies, charges and fees shall be included within the term Taxes, but only to the extent the same are applicable to the Premises. -4- Tenant may seek a reduction in the assessed valuation (for tax purposes) of the Property provided the same is done by and at Tenant's sole cost and expense and after written notice to Landlord, and Landlord agrees that it shall cooperate in good faith with Tenant's reasonable requests in connection with any such proceeding. Tenant may defer payment of any contested Taxes; provided that Tenant's deferral is in compliance with applicable law permitting such deferral. Tenant shall be entitled to all refunds associated with Tenant's successful prosecution of any such proceeding. If required by applicable law, Landlord shall join in any proceeding referred to in this paragraph; provided, however, Tenant shall indemnify and save Landlord harmless from any costs and expenses associated with such proceedings. If Landlord shall receive a refund of any Taxes paid by Tenant, Landlord shall reimburse Tenant the amount of said refund after deducting therefrom the actual reasonable out of pocket costs and expenses incurred in connection therewith. 5.3 INTENTIONALLY OMITTED. 5.4 Utilities. Tenant shall pay all charges and deposits for gas, water, sewer, electricity, telecommunications, and other energy, utilities and services used or consumed on the Premises during the Term. It is understood and agreed that Landlord (i) shall be under no obligation whatsoever to furnish any such services to the Premises and (ii) shall not be liable for (nor suffer any reduction in any rent on account of) any interruption or failure in the supply of the same. 5.5 Personal Property Taxes. Tenant shall pay when due, directly to the relevant taxing authority, all taxes charged against trade fixtures, furnishings, equipment, inventory, or any other personal property belonging to Tenant. Tenant shall use its best efforts to have its personal property taxed separately from the Premises. If any of Tenant's personal property shall be taxed with the Premises, Tenant shall pay Landlord the taxes for such personal property within thirty days after Tenant receives a written statement from Landlord for such personal property taxes. 5.6 Method of Payment. Tenant agrees to pay the Annual Base Rent to Landlord in advance in equal monthly installments by the first day of each calendar month during the Term. Tenant shall make a ratable payment of Annual Base Rent and Additional Rent (to the extent applicable) for any period of less than a month at the beginning or end of the Term. All payments of Annual Base Rent, and all payments of Additional Rent and other sums due and payable to Landlord, shall be paid in current U.S. exchange by check drawn on a Clearinghouse Bank at the address of Landlord set forth in Section 12.1 or such other place as Landlord may from time to time direct (or if requested by Landlord, by electronic fund transfer), without demand, set-off or other deduction. 5.7 Net Lease. This Lease is an absolutely triple net lease to Landlord. It is the intent of the parties hereto that the Annual Fixed Rent payable under this Lease shall be an absolutely net return to Landlord and that Tenant shall pay all costs and expenses relating to the Premises except as otherwise expressly set forth in this Lease. Without limiting the generality of the preceding sentence, Tenant shall at its sole cost and expense (which expense shall be deemed Additional Rent hereunder) be responsible for payment of all Taxes, all electricity, telecommunication service, gas, water, sewer, telephone, refuse disposal, and other charges for utilities and services -5- supplied to the Premises, insurance costs, amounts due under any Title Document (defined below) and all costs of cleaning, maintaining and repairing the Premises in accordance with the terms of this Lease. Any amount or obligation herein relating to the Premises that is not expressly declared to be that of Landlord shall be deemed to be an obligation of Tenant to be performed by Tenant at Tenant's expense and Tenant shall indemnify Landlord against, and hold Landlord harmless from, the same, and Tenant's liability for the payment of any of the same which shall become payable during the Term is hereby expressly provided to survive the Term. Annual Fixed Rent, Additional Rent, and all other sums payable hereunder by Tenant, shall be paid without notice or demand, and without set off, counterclaim, recoupment, abatement, suspension, deduction, or defense (other than payment) whatsoever, so that this Lease shall yield net to Landlord the Annual Fixed Rent under all circumstances and conditions whether now or hereinafter existing and whether or not within the contemplation of the parties. Except as otherwise expressly set forth in this Lease with respect to certain events of casualty or condemnation, Tenant shall in no event have any right to terminate this Lease. It is the intention of the parties hereto that the obligations of Tenant hereunder shall be separate and independent covenants and agreements, that the Annual Fixed Rent, the Additional Rent, and all other sums payable by Tenant hereunder shall continue to be payable in all events, and that the obligations of Tenant hereunder shall continue unaffected, unless the requirement to pay or perform the same shall have been terminated pursuant to an express provision of this Lease. As used herein, the term "Title Documents" means any and all easements, covenants, conditions, and restrictions, industrial park association agreements, and other agreements, encumbrances, and restrictions of record affecting all or part of the Premises, as the same may now exist, or as the same may hereafter be created or amended without materially expanding the obligations of Tenant without Tenant's approval (which approval shall not be unreasonably withheld), but excluding any mortgage. 5.7 True Lease. Landlord and Tenant agree that the parties intend this Lease to constitute a lease and not a financing arrangement. Each party shall reflect the transaction represented hereby in all applicable books, records and reports (including income tax filings) in a manner consistent with "true lease" treatment rather than "financing" treatment, subject to future modifications of accounting or tax rules or guidelines and subject to contrary determinations or positions by governmental agencies or the like. ARTICLE VI: MAINTENANCE, USE, AND ALTERATIONS OF PREMISES 6.1 Landlord's Structural Repair Obligations. Except as set forth in Exhibit D, Section II and Exhibit D, Section V attached hereto, Landlord shall have no obligation to repair or maintain the Building or Premises. Tenant hereby waives the benefit of any present or future law that provides Tenant the right to repair the Premises or Building at Landlord's expense or to terminate this Lease because of the condition of the Building or the Premises. Notwithstanding anything to the contrary in this paragraph, Tenant shall be solely responsible for the cost of (a) any repair or capital replacement arising from an overburdening of any building system or component or any other act or omission of Tenant, its employees, agents, contractors, or invitees or from a failure by Tenant to perform its maintenance and repair obligations under this Lease, and (b) any alterations, additions, improvements, repairs, or replacements that are performed by or on behalf of Tenant. -6- 6.2 Tenant's Repair and Maintenance Obligations. Except as set forth in Exhibit D Section II and Exhibit D, Section V attached hereto, Tenant shall clean, maintain, repair and secure the Premises, all improvements and appurtenances thereto, all access areas thereof, and all utilities, facilities, installations and equipment used in connection therewith, and shall pay all costs and expenses of so doing, keeping the Premises in good order, repair and condition, reasonable wear and tear, and damage by casualty and taking (to the extent provided in Article X only) excepted. Without limiting the generality of the foregoing, Tenant shall keep the foundation of the Building, all exterior walls, structural walls, the roof of the Building, all interior walls, floor surfaces and coverings, glass, windows, doors, and partitions, all fixtures and equipment, all interior utilities, pipes and drains and other above-ground level installations used in connection with the Premises in such good order, repair and condition, shall provide all cleaning, painting and floor covering to the Premises, and shall remove all refuse from and provide its own janitorial services for the Premises. Tenant shall keep in good order, condition and repair all building systems (including the heating, ventilation, air conditioning, plumbing, electrical, utility, and safety systems). Tenant's maintenance obligations shall also include, without limitation, gardening and landscaping; snow removal; maintenance of signs; rental or lease payments paid by Tenant for rented or leased personal property used in the operation or maintenance of the Premises; fees for required licenses and permits required by Tenant; sweeping and striping of pavement; general maintenance; painting; lighting; and similar items. If any portion of the Premises or any system or equipment in the Premises that Tenant shall be obligated to repair cannot be fully repaired or restored, Tenant shall promptly replace such portion of the Premises or system or equipment. 6.3 Use and Compliance with Law. Tenant shall use the Premises only for the Permitted Uses and only as permitted under federal, state, and local laws, regulations and orders applicable from time to time, including without limitation municipal by-laws, land use and zoning laws, environmental laws and regulations (including all laws and regulations regulating the production, use, and disposal of any pollutant or toxic or hazardous material), and occupational health and safety laws. Tenant shall procure all approvals, licenses and permits necessary therefor, in each case giving Landlord true and complete copies of the same and all applications therefor. Except as set forth in Section 6.1, Tenant shall promptly comply with all present and future laws applicable to Tenant's use of the Premises or Tenant's signs thereon, foreseen or unforeseen, and whether or not the same necessitate structural or other extraordinary changes or improvements to the Premises or interfere with its use and enjoyment of the Premises, and shall keep the Premises equipped with adequate safety appliances and comply with all requirements reasonable in light of the use Tenant is making of the Premises of insurance inspection or rating bureaus having jurisdiction. If Tenant's use of the Premises results in any increase in the premium for any insurance carried by Landlord, then upon Landlord's notice to Tenant of such increase Tenant shall pay the same to Landlord upon demand as Additional Rent. Tenant shall, in any event, indemnify and save Landlord harmless from all loss, claim, damage, cost or expense (including reasonable attorneys' fees of counsel of Landlord's choice against whom Tenant makes no reasonable objection) on account of Tenant's failure so to comply with the obligations of this Section (paying the same to Landlord upon demand as Additional Rent). Except as set forth in Section 6.1, Tenant shall bear the sole risk of all present or future laws affecting the Premises or appurtenances thereto, and Landlord shall not be liable for (nor suffer any reduction in any rent on account of) any interruption, impairment or prohibition affecting the Premises or Tenant's use thereof resulting from the enforcement of laws. Tenant shall comply with the rules and regulations for the Premises set forth on Exhibit C hereto, as the same may be reasonably amended from time to time by -7- Landlord (in accordance with standards applicable to comparable properties) for the operation, care and use of the Property and appurtenant improvements and areas in which Tenant is granted rights of use by the terms of this Lease. 6.4 Nuisance; Hazardous Materials. Tenant shall not, either with or without negligence, injure, overload, deface, damage or otherwise harm Landlord's property, the Premises or any part or component thereof; commit any nuisance; permit the emission of any hazardous materials or substances; allow the release or other escape of any biologically or chemically active or other hazardous substances or materials so as to impregnate, impair or in any manner affect, even temporarily, any element or part of Landlord's property or the Premises, or allow the storage or use of such substances or materials in any manner not sanctioned by law or by commercially reasonable and customary standards prevailing in the industry for the storage and use of such substances or materials; nor shall Tenant bring onto the Premises any such materials or substances except to use in the ordinary course of Tenant's business, and then only in strict compliance with applicable law; permit the occurrence of objectionable noise or odors; or make, allow or suffer any waste whatsoever to Landlord's property or the Premises. Without limitation, hazardous materials shall include all substances described or regulated in any federal, state, local or administrative agency ordinance, law, rule, regulation, order or requirement relating to environmental conditions, human health or hazardous substances, including the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C. Section 9601 et seq), the Resource Conservation and Recovery Act of 1976 (42 U.S.C. Section 6901 et seq.), the Federal Water Pollution Control Act (33 U.S.C. Section 1251 et seq.), the Clean Air Act (42 U.S.C. Section 7401 et seq.), the Emergency Planning and Community Right-To-Know Act (42 U.S.C. Section 1101 et seq.), The Endangered Species Act (16 U.S.C. Section 1531 et seq.), the Toxic Substances Control Act (15 U.S.C. Section 2601 et seq.), the Occupational Safety and Health Act (29 U.S.C. Section 651 et seq.) and the Hazardous Materials Transportation Act (49 U.S.C. Section 1801 et seq.), and the regulations promulgated pursuant to such laws, all as amended from time to time, and all other laws governing similar matters as they may be amended from time to time. In addition, Tenant shall execute affidavits, representations and the like from time to time at Landlord's request concerning Tenant's best knowledge and belief regarding the presence or absence of hazardous materials and substances on the Premises. In all events, Tenant shall indemnify, defend, and hold harmless Landlord and its mortgagees as provided in this Lease from any claims resulting from any release of hazardous materials or substances on the Premises first occurring during the Term, except to the extent caused by Landlord or its agents or contractors or caused by a migration onto or under the Property from adjacent property. (At the request of Landlord, Tenant will from time to time confirm such indemnity to mortgagees directly with such mortgagees.) The indemnities under this Section shall survive any termination of the Lease. 6.5 Landlord's Right to Enter. Landlord and its agents or employees may upon reasonable notice enter the Premises during business hours (and in case of emergency at any time) for the purpose of performing repairs or replacements, or exercising any of the rights reserved to Landlord herein, or securing or protecting Landlord's property or the Premises, or removing any alterations or additions not consented to by Landlord, and similarly upon reasonable notice may show the Premises to prospective purchasers and lenders, and during the last twelve months of the Term to prospective tenants, and may keep affixed in suitable places notices for letting (during the last twelve (12) months of the Term) and selling. Except in case of emergency, Landlord shall be -8- subject in entering the Premises to reasonable security conditions, if any, set forth by Tenant in writing to Landlord. If Tenant so desires, a representative of Tenant may accompany Landlord or its agents in any entry onto the Premises under this Lease. 6.6 Parking. Tenant shall be entitled to use all parking areas on the Property and within the Building without charge. Handicapped spaces shall only be used by those legally permitted to use them. 6.7 Alterations, Additions, and Improvements. Tenant shall not make any installations, alterations, additions, or improvements in or to the Premises, including, without limitation, any apertures in the walls, partitions, ceilings or floors, without on each occasion obtaining the prior written consent of Landlord, which consent shall not be unreasonably withheld or delayed, except that only prior notice and a description of and plans for the work (but no approval) shall be required for any interior work costing less than $50,000 in the aggregate during any twelve-month period and that does not require a permit with respect to the building's structure or mechanical, electrical, or other building systems. Any such work so approved by Landlord shall be performed only in accordance with plans and specifications therefor approved by Landlord. Tenant shall not perform any work in or to the Premises that would in Landlord's reasonable judgment (i) in any manner affect any structural component of the Building (including, without limitation, exterior walls, exterior windows, core walls, columns, roofs, or floor slabs), (ii) in any respect be incompatible with the electrical or mechanical components or systems of the Building, (iii) affect space or areas around the Building (including the exterior of the Building), (iv) diminish the value of the Premises for the Permitted Uses, or (v) require any unusual expense to re-adapt the Premises for the Permitted Uses. Tenant shall procure at Tenant's sole expense all necessary permits and licenses before undertaking any work on the Property and shall perform all such work in a good and workmanlike manner employing materials of good quality and so as to conform with all applicable zoning, building, fire, health and other codes, regulations, ordinances and laws and with all applicable insurance requirements. If any notice of contract or lien is placed on the Property arising from work performed by or for Tenant, if requested by Landlord for any work requiring Landlord's approval, Tenant shall thereafter furnish to Landlord prior to commencement of any such work a bond or other security acceptable to Landlord assuring that any work by Tenant will be completed in accordance with the approved plans and specifications and that all subcontractors will be paid. Tenant shall employ for such work only contractors reasonably approved by Landlord and shall require all contractors employed by Tenant to carry insurance in types and amounts reasonably approved by Landlord (including without limitation worker's compensation insurance in accordance with statutory requirements and commercial general liability insurance covering such contractors on or about the Premises with a combined single limit not less than $3,000,000) and shall submit certificates evidencing such coverage to Landlord prior to the commencement of such work, subject to Section II of Exhibit D in the case of casualty. Tenant shall indemnify and hold harmless Landlord from all injury, loss, claims or damage to any person or property occasioned by or arising out of such work. Landlord may inspect the work of Tenant at reasonable times in accordance with Section 6.5 and give notice of observed defects. Upon completion of any such work, Tenant shall provide Landlord with "as built" plans, copies of all construction contracts and proof of payment for all labor and materials. 6.8 Liens and Encumbrances. Tenant shall not create or suffer, shall keep Landlord's property, the Premises and Tenant's leasehold free of, and shall promptly remove and discharge, -9- any lien, notice of contract, charge, security interest, mortgage or other encumbrance which arises for any reason, voluntarily or involuntarily, as a result of any act or omission by Tenant or persons claiming by, through or under Tenant, or any of their agents, employees or independent contractors, including without limitation liens which arise by reason of labor or materials furnished or claimed to have been furnished to Tenant or for the Premises. 6.9 Condition upon Termination. At the expiration or earlier termination of this Lease, Tenant (and all persons claiming by, through or under it) shall, without the necessity of any notice, surrender the Premises (including any tenant work and all replacements thereof, except such additions or alterations constructed after the Term Commencement Date as Landlord may direct to be removed at the time of Landlord's approval thereof, which shall be removed by Tenant and the Premises restored to their pre-existing condition) and all keys to the Premises, remove all of its trade fixtures and personal property not bolted or otherwise attached to the Premises (and such trade fixtures and other property bolted or attached to the Premises as Landlord may direct or, except as set forth below, as Tenant may desire), and all Tenant's signs wherever located, in each case repairing damage to the Premises which results in the course of such removal and restoring the Premises to a fully functional and tenantable condition (including the filling of all floor holes, the removal of all disconnected wiring back to junction boxes and the replacement of all damaged ceiling tiles). Tenant shall yield up the Premises broom-clean and in good order, repair and condition, reasonable wear and tear and damage by casualty and taking (to the extent provided in Article X only) excepted. Any property not so removed within thirty (30) days after the expiration or termination of the Lease shall be deemed abandoned and may be removed and disposed of by Landlord in such manner as Landlord shall determine, and Tenant shall pay to Landlord the reasonable cost and expense incurred by it in effecting such removal and disposition and in making any required repairs to the Premises. In no event, however, shall Tenant remove any of the following materials or equipment (which shall be deemed Landlord's property), without Landlord's prior written consent: any power wiring or wiring panels; lighting or lighting fixtures; doors, windows, or wall coverings; drapes, blinds or other window coverings; installed carpets or other installed floor coverings; any built-in heating or air conditioning equipment; fencing or security gates; or other similar building operating equipment. 6.10 Tenant's Expense. Tenant shall fulfill all of Tenant's obligations under this Article VI at Tenant's sole expense. If Tenant shall fail to maintain, repair or replace the Premises as required by this Article VI, Landlord may, upon thirty (30) days' prior notice to Tenant (except that no notice shall be required in the case of an emergency), enter the Premises in accordance with Section 6.5 and perform such maintenance or repair (including replacement, as needed) on behalf of Tenant. In such case, Tenant shall reimburse Landlord for all costs reasonably incurred in performing such maintenance, repair or replacement, together with an administrative charge of fifteen percent, as Additional Rent, immediately upon demand. 6.11 Interruptions. Landlord shall not be liable to Tenant in damages or by reduction of rent or otherwise by reason of inconvenience or for loss of business arising from Landlord or its agents or employees entering the Premises for any of the purposes authorized in this Lease or for repairing, altering or improving the Building in a manner reasonable in light of the circumstances. In case Landlord is prevented or delayed from making any repairs or replacements or furnishing any services or performing any other covenant or duty to be performed on Landlord's part by reason of any cause reasonably beyond Landlord's control, Landlord shall not be liable to Tenant -10- therefor, nor shall the same give rise to a claim in Tenant's favor that such failure constitutes actual or constructive, total or partial, eviction from the Premises. Landlord reserves the right to stop any service or utility system, when necessary by reason of accident or emergency, or until necessary repairs have been completed; provided, however, that in each instance of stoppage, Landlord shall give Tenant such notice as is practicable under the circumstances of the expected duration of such stoppage and will exercise reasonable diligence to eliminate the cause thereof. Except in case of emergency repairs Landlord will give Tenant reasonable advance notice of any contemplated stoppage and will use reasonable efforts to avoid unnecessary inconvenience to Tenant by reason thereof. ARTICLE VII: INSURANCE AND INDEMNIFICATION 7.1 Insurance. The provisions of this Lease regarding insurance and indemnification are set forth in Exhibit D, which is incorporated herein by reference. ARTICLE VIII: ASSIGNMENT AND SUBLETTING 8.1 Landlord's Consent Required. Tenant shall not assign this Lease, or sublet or license the Premises or any portion thereof, or advertise the Premises for assignment or subletting or permit the occupancy of all or any portion of the Premises by anybody other than Tenant (each of the foregoing actions is referred to as a "transfer") without obtaining, on each occasion, the prior consent of Landlord, subject to and in accordance with this Article VIII. A transfer shall include, without limitation, any transfer of Tenant's interest in this Lease by operation of law, merger or consolidation of Tenant into any other firm or corporation, the transfer or sale of a controlling interest in Tenant whether by sale of its capital stock or otherwise or any liquidation of Tenant or a substantial part of Tenant's assets. Landlord's consent to a proposed sublease shall not be unreasonably withheld, it being understood that the proposed sublease must comply with all other provisions of this Lease (including, without limitation, this Section 8.1), must not alter Landlord's rights under the Lease, and must not impose any additional obligation on Landlord. Notwithstanding the foregoing, the following transactions ("Excluded Transactions") shall not require the consent of Landlord provided that Landlord shall receive prior notice thereof plus reasonable evidence upon closing that the transaction is in fact one of the following (and provided further that the proposed transfer complies with all other provisions of this Lease, including, without limitation, this Article VIII, does not alter Landlord's rights under the Lease, and does not impose any additional obligation on Landlord): (a) Any transfer to an entity succeeding to the business and assets of Tenant, whether by way of merger, consolidation or otherwise; and (b) Any transfer to an entity controlling Tenant, directly or indirectly controlled and beneficially owned by Tenant, or under common control with Tenant. For purposes of this clause (b), control shall mean possession of more than 50 percent ownership of the shares of beneficial interest of the entity in question together with the power to control and manage the affairs thereof either directly or by election of directors and/or officers. -11- 8.2 Terms. Tenant shall not offer to make a transfer to any party which would be of such type, character or condition as to be inappropriate as a tenant for a building comparable to the Building. Tenant shall not offer to make or make an assignment of any portion of the Premises (other than for Excluded Transactions) unless the aggregate rent payable to Tenant under such assignment equals or exceeds the then prevailing market rate rent and other charges payable for space comparable to the Premises. 8.3 Right of Termination or Recapture. If Tenant proposes a transfer of the Premises with an intended duration of more than seven (7) years (other than for Excluded Transactions or a transfer of a division of Tenant that occupies the entire Building which transfer involves the entire Building), Tenant shall offer to Landlord in writing the right to terminate this Lease as to the space and period in question as of the date specified in the offer. If Landlord shall elect in writing to accept the offer to terminate within twenty (20) days after receipt of notice of the offer, this Lease shall so terminate as to the space and period in question as of the date specified in such offer, and all of the terms and provisions of this Lease governing termination shall apply. If Landlord shall not so elect, Tenant shall then comply with the provisions of this Article VIII applicable to such transfer. 8.4 Landlord's Consent. Tenant's request for consent under this Article VIII (and Tenant's notice of any transfer not requiring Landlord's consent under Section 8.1 above) shall set forth the details of the proposed transfer, including: (i) the name, business and financial condition of the prospective transferee, (ii) a true and complete copy of the proposed instrument containing all of the terms and conditions of such transfer, (iii) a written agreement of the assignee, subtenant or licensee, in recordable form reasonably approved by Landlord, agreeing with Landlord to perform and observe all of the terms, covenants, and conditions of this Lease, and (iv) any other information Landlord reasonably requested by Landlord prior to or in response to such notice. Except for any transfer not requiring Landlord's consent under Section 8.1 above, Landlord shall have the right to withhold consent, reasonably exercised as to any proposed sublease, or to grant consent, based on the following factors: (i) the business of the proposed assignee or subtenant and the proposed use of the Premises (if other than the Permitted Use); (ii) the net worth, business reputation, character, and financial condition of the proposed assignee or subtenant; (iii) Tenant's compliance with all of its obligations under this Lease within applicable notice and cure periods; and (iv) such other factors as Landlord may reasonably deem relevant. Tenant shall pay to Landlord, as Additional Rent, Landlord's reasonable attorneys' fees in reviewing any transfer contemplated by this Section, whether or not Landlord consents to the same (provided that the maximum amount of such fees in connection with any single proposed transfer shall be Two Thousand Dollars [$2,000]). 8.5 Profits. If Tenant does transfer with Landlord's consent (other than a transfer of a division of Tenant that occupies the entire Building which transfer involves the entire Building under which Landlord does not release Tenant from its obligations under this Lease pursuant to Section 8.6 below), and if the consideration, rent, or other charges payable to Tenant under such transfer exceed the rent and other charges to be paid hereunder (pro-rated based on floor area in the case of a subletting, license or other occupancy of less than the entire floor area of the Premises in question), then Tenant shall pay to Landlord, as additional rent, after deducting all reasonable out-of-pocket expenses incurred in connection with such transfer (including without limitation, brokerage commissions, tenant improvement costs, and legal fees) fifty percent (50%) -12- of the amount of such excess when and as received. Without limiting the generality of the foregoing, any lump-sum payment or series of payments due (including for the purchase of so-called leasehold improvements) on account of any transfer shall be deemed to be in excess of rent and other charges in its or their entirety. 8.6 No Release. Notwithstanding any transfer of this Lease or any interest therein (other than an Excluded Transaction or, in Landlord's discretion, a transfer of a division of Tenant that occupies the entire Building which transfer involves the entire Building), Tenant's (and any Guarantor's) liability to Landlord shall in all events remain direct and primary. Any transferee of all or a substantial part of Tenant's interest in the Premises shall be deemed to have agreed directly with Landlord to be jointly and severally liable with Tenant for the performance of all of Tenant's covenants under this Lease; and such assignee shall upon request execute and deliver such instruments as Landlord reasonably requests in confirmation thereof (and agrees that its failure to do so shall be subject to the default provisions). Landlord may collect rent and other charges from such transferee (and upon notice such transferee shall pay directly to Landlord) and shall apply the net amount collected to the rent and other charges herein reserved, but no transfer shall be deemed a waiver of the provisions of this Section, or the acceptance of the transferee as a tenant, or a release of Tenant or any guarantor from direct and primary liability for the performance of all of the covenants of this Lease. The consent by Landlord to any transfer shall not relieve Tenant from the obligation of obtaining the express consent of Landlord to any modification of such transfer or a further assignment, subletting, license or occupancy, to the extent required in Section 8.1; nor shall Landlord's consent alter in any manner whatsoever the terms of this Lease, to which any transfer at all times shall be subject and subordinate. The breach by Tenant of any restriction on transfer in this Section shall be a default for which there is no cure period. ARTICLE IX: DEFAULT AND REMEDIES 9.1 Events of Default. (a) If Tenant fails to pay Annual Fixed Rent or any Additional Rent or other sum or charge hereunder within three (3) days after written notice that the same is due; or (b) if more than two notices of separate defaults are properly given in any twelve month period, or (c) (Intentionally omitted), or (d) if any assignment shall be made by Tenant (or any assignee, sublessee or guarantor of Tenant) for the benefit of creditors, or (e) if Tenant's leasehold interest shall be taken on execution or by other process of law, or (f) if a petition is filed by Tenant (or any assignee, sublessee or guarantor of Tenant) for adjudication as a bankrupt, or for reorganization or an arrangement under any provision of any bankruptcy act then in force and effect, or (g) if an involuntary petition under the provisions of any bankruptcy act is filed against Tenant (or any assignee, sublessee or guarantor of Tenant) and such involuntary petition is not dismissed within sixty (60) days thereafter, or (h) if Tenant (or any assignee, sublessee or guarantor of Tenant) shall be declared bankrupt or insolvent according to law, or (i) if a receiver, trustee or assignee shall be petitioned for and not contested by Tenant for the whole or any part of Tenant's (or such assignee's, sublessee's or guarantor's) property, or if a receiver, trustee or assignee shall be appointed over Tenant's (or such other person's) objection and not be removed within sixty (60) days thereafter, or (j) if any representation or warranty made by Tenant shall be untrue in any material respect, or (k) if Tenant fails to perform any other covenant, agreement or condition hereunder and such default continues for thirty (30) days after notice (provided, however, that such thirty (30) day period shall be reasonably extended for up to an additional sixty (60) days in the case of non-monetary default if the matter complained of can be cured, but the -13- cure cannot be completed within such thirty (30) day period and Tenant begins promptly to cure within such period and thereafter diligently completes the cure; if such matters cannot be cured then there shall be no cure period), then, and in any such case, Landlord and its agents and employees lawfully may, in addition to and not in derogation of any remedies for any preceding breach, immediately or at any time thereafter, without demand or notice and with or without process of law, enter into and upon the Premises or any part thereof in the name of the whole, or mail or deliver a notice of termination of the Term addressed to Tenant at the Premises or at any other address herein provided, and thereby terminate this Lease and repossess the same as of Landlord's former estate. Upon such entry or mailing or delivery, as the case may be, the Term shall terminate, all executory rights of Tenant and all obligations of Landlord under this Lease shall immediately cease, and Landlord may expel Tenant and all persons claiming by, through or under Tenant and remove its and their effects (forcibly if necessary) without being deemed guilty of any manner of trespass and without prejudice to any remedies which might otherwise be used for arrears of rent or prior breach of covenants; and Tenant hereby waives all statutory and equitable rights to its leasehold (including without limitation rights in the nature of further cure or of redemption, if any). Landlord may, without notice, store Tenant's effects (and those of any person claiming by, through or under Tenant) at the expense and risk of Tenant and, if Landlord so elects, may sell such effects at public auction or auctions or at private sale or sales after seven (7) days notice to Tenant (which notice Tenant agrees is reasonable) and apply the net proceeds to the payment of all sums due to Landlord from Tenant, if any, and pay over the balance, if any, to Tenant. If any payment of Annual Fixed Rent, additional rent, or other payment due from Tenant to Landlord is not paid when due, then Landlord may, at its option, in addition to all other remedies hereunder, impose a late charge on Tenant equal to 5% of the amount in question, which late charge will be due upon demand as Additional Rent. 9.2 Remedies for Default. (a) Reletting Expenses Damages. If this Lease is terminated for default, then Tenant covenants, as an additional cumulative obligation after such termination, to pay all of Landlord's reasonable costs and expenses related thereto or in collecting amounts due hereunder, including attorneys fees, and all of Landlord's reasonable expenses in connection with such reletting, including without limitation, tenant inducements, brokerage commissions, fees for legal services, expenses of preparing the Premises for reletting and the like ("Reletting Expenses"). It is agreed by Tenant that Landlord may (i) relet the Premises or any part or parts thereof for a term or terms which may at Landlord's option be equal to or less than or exceed the period which would otherwise have constituted the balance of the Term, and may grant such tenant inducements as Landlord in its sole judgment considers advisable, and (ii) make such alterations, repairs and decorations in the Premises as Landlord in its sole discretion considers advisable, and no action of Landlord in accordance with the foregoing nor any failure to relet or to collect rent under any reletting shall operate or be construed to release or reduce Tenant's liability. Any obligation to relet the Premises imposed upon Landlord by law shall be subject to Landlord's reasonable objectives of developing its property in a harmonious manner with appropriate mixes of tenants, uses, floor areas, terms, etc. Landlord's Reletting Expenses together with all sums otherwise provided for in this Lease, whether incurred prior to or after such termination, shall be due and payable immediately from time to time upon notice from Landlord. -14- (b) Termination Damages. If this Lease is terminated for default, then unless and until Landlord elects lump sum liquidated damages described in (c) below Tenant covenants, as an additional cumulative obligation after any such termination, to pay punctually to Landlord all the sums and perform all the obligations which Tenant covenants in this Lease to pay and to perform in the same manner and to the same extent and at the same time as if this Lease had not been terminated. In calculating the amounts to be paid by Tenant pursuant to the preceding sentence Tenant shall be credited with the net proceeds of any rent then actually received by Landlord from a reletting of the Premises after deducting all sums provided for in this Lease to be paid by Tenant and not then paid. In no event shall Tenant be liable for indirect or consequential damages except in the case of holding over when notice of a new tenancy has been provided in advance as set forth in Section 12.12. (c) Lump Sum Liquidated Damages. If this Lease is terminated for default, then Tenant covenants, as an additional cumulative obligation after termination, to pay forthwith to Landlord at Landlord's election made by written notice to Tenant at any time within one year after termination, as liquidated damages a single lump sum payment equal to the sum of (i) all sums provided for in this Lease to be paid by Tenant and not then paid at the time of such election, plus either (ii) the present value (calculated at the Federal Reserve discount rate or equivalent) of the excess of all of the rent reserved for the residue of the Term over all of the fair market rent reasonably projected by Landlord to be received on account of the Premises during such period, which rent from reletting shall be reduced by reasonable projections of vacancies and by Landlord's Reletting Expenses described above to the extent not theretofore paid to Landlord, or (iii) an amount equal to the sum of all of the rent and other sums due hereunder and payable with respect to the twelve (12)-month period next following the date of termination. 9.3 Remedies Cumulative. Any and all rights and remedies Landlord may have under this Lease, and at law and equity, shall be cumulative and shall not be deemed inconsistent with each other, and any two or more of all such rights and remedies may be exercised at the same time insofar as permitted by law. Nothing contained in this Lease shall, however, limit or prejudice the right of Landlord to prove and obtain in proceedings for bankruptcy or insolvency by reason of the termination of this Lease, an amount equal to the maximum allowed by any statute or rule of law in effect at the time when and governing the proceedings in which the damages are to be proved, whether such amount be greater, equal to, or less than the amount of the loss or damages referred to in the preceding Section. 9.4 Effect of Waivers of Default. Any consent or permission by Landlord to any act or omission which otherwise would be a breach of any covenant or condition, or any waiver by Landlord of the breach of any covenant or condition, shall not in any way be held or construed to operate so as to impair the continuing obligation of such covenant or condition, or otherwise operate to permit other similar acts or omissions. No breach shall be deemed to have been waived unless and until such waiver be in writing and signed by Landlord. The failure of Landlord to seek redress for violation of or insist upon the strict performance of any covenant or condition of this Lease, or the receipt by Landlord of rent with knowledge of any violation, shall not be deemed a consent to or waiver of such violation, nor shall it prevent a subsequent act, which would otherwise constitute a violation, from in fact being a violation. -15- 9.5 No Accord and Satisfaction; No Surrender. No acceptance by Landlord of a lesser sum than the Annual Fixed Rent, additional rent or any other sum or charge then due shall be deemed to be other than on account of the earliest installment of such rent, sum or charge due; nor shall any endorsement or statement on any check or in any letter accompanying any check or payment be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such installment or pursue any other right or remedy available to it. The delivery of keys (or any similar act) to Landlord or any agent or employee of Landlord shall not operate as a termination of this Lease or an acceptance of a surrender of the Premises. 9.6 Waiver of Jury. Landlord and Tenant hereby waive trial by jury in any summary proceeding in any emergency or other statutory remedy, or in any action based, in whole or in part, on non-payment of rent or other default under this Lease; and Tenant further agrees that it shall not interpose any counterclaim or set-off in any such proceeding, except to the extent Tenant would have no right to commence an independent proceeding to seek to recover on account of such claim. 9.7 Landlord's Curing and Enforcement. If Tenant shall neglect or fail to perform or observe any covenant or condition of this Lease and shall not cure such default within the applicable cure period, Landlord may, at its option, without waiving any claim for breach, at any time thereafter cure such default for the account of Tenant, and any amount paid or any liability incurred by Landlord in so doing shall be deemed paid or incurred for the account of Tenant, and Tenant shall reimburse Landlord therefor, together with an administrative charge of five (5%) per cent of the amount thereof, on demand as Additional Rent; and Tenant shall further indemnify and save Landlord harmless in the manner elsewhere provided in this Lease in connection with all of Landlord's actions in effecting any such cure. Notwithstanding any other provision herein concerning cure periods, Landlord may cure any default for the account of Tenant after such notice to Tenant, if any, as is reasonable under the circumstances (including telephone notice) if the curing of such default prior to the expiration of the applicable cure period is reasonably necessary to prevent likely damage to the Premises or other improvements or possible injury to persons, or to protect Landlord's interest in its property or the Premises. Tenant shall pay to Landlord on demand as additional rent all of the costs and expenses of Landlord, including such administrative charge and reasonable attorneys' fees, incurred in enforcing any covenant or condition of this Lease. Without limiting any of its other rights or remedies, any sum due hereunder shall, in addition, bear interest from the date due at the greater of (i) one and one-half percent (1 1/2%) for each month (or ratable portion thereof) the same remains unpaid, or (ii) three percent (3%) per annum (or ratable portion thereof) above the so-called prime rate of interest published in the Wall Street Journal from time to time on 90 day loans to its most credit-worthy borrowers; provided that interest shall never exceed the maximum rate permitted under applicable law. In the event Tenant breaches any covenant or fails to observe any condition set forth in Article VII with respect to the insurance required to be maintained by Tenant, then without limiting any other right or remedy, and notwithstanding any other provision herein concerning notice and cure of defaults, Landlord may immediately and without notice to Tenant obtain such insurance, and Tenant shall pay the cost thereof and Landlord's expenses related thereto upon demand as Additional Rent. -16- 9.8 Landlord's Default. In no event shall Landlord be in default unless notice thereof has been given to Landlord (and all mortgagees of which Tenant has notice) and Landlord (or any such mortgagee at its sole discretion) fails to perform within 30 days (provided, however, that such 30 day period shall be reasonably extended if such performance begins within such period and thereafter is diligently pursued, or if such mortgagee notifies Tenant within such period that it intends to cure on behalf of Landlord and thereafter begins curing within such period, or if later within 30 days after acquiring possession of the Property if the cure requires the mortgagee to obtain possession of the Property, and diligently pursues curing with reasonable promptness). Any mortgagee notice and cure periods set forth in any subordination, nondisturbance and attornment agreement then in effect under Section 11.1 shall control to the extent the same differ from the foregoing. 9.9 Vacancy During Last Six Months. If Tenant vacates substantially all of the Premises (or substantially all of major portions of the Premises) at any time within the last six months of the Term, Landlord may enter the Premises (or such portions) and commence demolition work or construction of leasehold improvements for future tenants. The exercise of such right by Landlord will not affect Tenant's obligations to pay Annual Fixed Rent or Additional Rent with respect to the Premises (or such portions), which obligations shall continue without abatement until the end of the Term. 9.10 Security Deposit. On the execution of this Lease, Tenant shall pay to Landlord as a security deposit for the performance of the obligations of Tenant hereunder any amount specified therefor in Section 1.1. Said security deposit may be mingled with other funds of Landlord and no fiduciary relationship shall be created with respect to such deposit, nor shall Landlord be liable to pay Tenant interest thereon. If Tenant shall fail to perform any of its obligations under this Lease, Landlord may, but shall not be obliged to, apply the security deposit to the extent necessary to cure the default, and Tenant shall be obliged to reinstate such security deposit to the original amount thereof upon demand. Within 30 days after the expiration or sooner termination of the Term the security deposit, to the extent not applied, shall be returned to the Tenant, without interest. Tenant may provide the security deposit to Landlord in the form of a clean, irrevocable letter of credit as security for the performance of the obligations of Tenant hereunder, subject to the terms and conditions set forth in this Section 9.10 (together with any renewal or replacement thereof in accordance herewith, the "Letter of Credit"). Tenant shall provide the Letter of Credit, upon Tenant's execution of this Lease, in the amount set forth for the security deposit in Section 1.1 ("Original Amount"). Any Letter of Credit delivered hereunder shall comply with the requirements of Schedule 9.10 attached hereto and incorporated by reference herein. ARTICLE X: CASUALTY AND CONDEMNATION 10.1 Damage to Premises and Takings. The provisions of this Lease regarding casualty and condemnation are set forth in Exhibit D, which is incorporated herein by reference. ARTICLE XI: PROTECTION OF LENDERS 11.1 Subordination and Superiority of Lease. Tenant agrees that this Lease and the rights of Tenant hereunder will be subject and subordinate to the present or future lien of any first -17- mortgage (and at Landlord's election, to the lien of any subordinate mortgage or mortgages) and to the rights of any lessor under any ground or improvements lease of the Premises (collectively referred to in this Lease as a "mortgage" and the holder or lessor thereof from time to time as a "mortgagee"), and to all advances and interest thereunder and all modifications, renewals, extensions and consolidations thereof; and that Tenant shall attorn to any such mortgagee succeeding to Landlord's interest in the Property by foreclosure, deed in lieu of foreclosure, or otherwise, promptly after the giving of notice by such mortgagee requiring such attornment, provided however, that the mortgagee of any mortgage executes and delivers to Tenant an agreement in the form attached hereto as Exhibit E (or otherwise on any commercially reasonable form containing terms not materially less favorable to Tenant than those set forth in Exhibit E) in which the mortgagee agrees that Tenant shall not be disturbed in its possession upon Tenant's attornment to such mortgagee as Landlord and performance of its Lease covenants (both of which conditions Tenant agrees with all mortgagees to perform). Tenant agrees that any mortgagee may at its option unilaterally elect to subordinate, in whole or in part and by instrument in form and substance satisfactory to such mortgagee alone, the lien of its mortgage (or the priority of its ground lease) to some or all provisions of this Lease. Tenant shall cause its current mortgagee to execute and deliver to Tenant a subordination non-disturbance agreement in the form attached hereto as Exhibit F, with such changes as Tenant and such mortgagee may approve. Tenant agrees that this Lease shall survive the merger of estates of any ground (or improvements) lessor and lessee. Until a mortgagee (either superior or subordinate to this Lease) forecloses Landlord's equity of redemption (or terminates in the case of a ground or improvements lease), no mortgagee shall be liable for failure to perform any of Landlord's obligations (and such mortgagee shall thereafter be liable only after it succeeds to and holds Landlord's interest and then only as limited herein). Any mortgagee (or any other successor to Landlord acquiring the Property by foreclosure, deed in lieu of foreclosure, or otherwise) shall not be (i) liable for any previous act or omission of Landlord under the Lease; (ii) subject to any credit, demand, claim, counterclaim, offset or defense which theretofore accrued to Tenant against Landlord; (iii) unless consented to by such mortgagee, bound by any previous amendment or modification of the Lease or by any previous prepayment of more than one month's payment of Annual Fixed Rent or additional rent (except estimated payments of additional rent); (iv) required to account for any security deposit of Tenant other than any security deposit actually delivered to such mortgagee by Landlord; (v) bound by any obligation to make any payment to Tenant or grant any credits, except for services, repairs, maintenance and restoration provided for under the Lease to be performed by Landlord after the date of such attornment; or (vi) responsible for any monies owing by Landlord to Tenant. Tenant shall give notice of any alleged non-performance on the part of Landlord to any mortgagee of which Tenant has notice, simultaneously with the default notice delivered to Landlord; and Tenant agrees that such mortgagee shall have a separate, consecutive reasonable cure period of no less than 30 days (to be reasonably extended in the same manner Landlord's 30 day cure period is to be extended) following Landlord's cure period during which such mortgagee may, but need not, cure any non-performance by Landlord. The foregoing shall not relieve such mortgagee of the obligation to remedy or cure any conditions at the Premises the existence of which constitutes a Landlord default under the Lease and which continue at the time of such mortgagee's taking title to the Property. The agreements in this Lease with respect to the rights and powers of a mortgagee constitute a continuing offer to any person which may be accepted by taking a mortgage (or entering into a ground or improvements lease) of the Premises. -18- 11.2 Rent Assignment. If from time to time Landlord assigns this Lease or the rents payable hereunder to any person, whether such assignment is conditional in nature or otherwise, such assignment shall not be deemed an assumption by the assignee of any obligations of Landlord; but the assignee shall be responsible only for non-performance of Landlord's obligations which occur after it succeeds to and only while it holds Landlord's interest in the Premises. 11.3 Other Instruments. The provisions of this Article shall be self-operative; nevertheless, Tenant agrees to execute, acknowledge and deliver any subordination, attornment or priority agreements or other instruments conforming to the provisions of this Article (and being otherwise commercially reasonable) from time to time requested by Landlord or any mortgagee in furtherance of the foregoing, and further agrees that its failure to do so within ten (10) business days after written demand shall be subject to the monetary default provisions of this Lease. 11.4 Tenant's Financial Condition. Within ten (10) business days after request from Landlord from time to time, Tenant shall deliver to Landlord Tenant's and Guarantor's financial statements, including audited annual financial statements, balance sheets, income statements, and statements of cash flow, certified by Tenant's/Guarantor's Treasurer or Chief Financial Officer, in each case for the latest available two (2) fiscal years (the latest year ending no more than six (6) months prior to Landlord's request). Such financial statements shall be delivered to Landlord's mortgagees and lenders and prospective mortgagees, lenders and purchasers. Notwithstanding the foregoing, during any time that Tenant is filing financial materials with the Securities and Exchange Commission, such financial materials shall be the materials that Tenant is required to deliver to Landlord pursuant to this Section 11.4. ARTICLE XII: MISCELLANEOUS 12.1 Notice from One Party to the Other. All notices, consents, approvals and the like shall be in writing and shall be delivered in hand by any courier service providing receipts, by a nationally recognized overnight courier providing receipts, or mailed by certified mail addressed to Landlord or Tenant as set forth below. If requested, Tenant shall deliver copies of all notices in like manner to Landlord's mortgagees and other persons having a relationship to the Premises at such address as designated from time to time by Landlord or such mortgagee. Any notice so addressed shall be deemed duly given on the second business day following the day of mailing if so mailed by registered or certified mail, return receipt requested, whether or not accepted, or if by hand or by overnight courier upon actual receipt by any person reasonably appearing to be an agent or employee working in the executive offices of the addressee. If to Tenant: Dayton Superior Corporation 2150B So. Rte. 45-52 Kankakee, Illinois 60901 Attention: Mark K. Kaler with a copy to: Dayton Superior Corporation -19- 200 East Touhy Avenue Des Plaines, Illinois 60018 Attention: Steven C. Huston If to Landlord: c/o STAG Capital Partners, LLC 93 Summer Street Boston, Massachusetts 02110 Attention: Benjamin Butcher with a copy to: John L. Sullivan, Esq. DLA Piper Rudnick Gray Cary US LLP One International Place Boston, MA 02110 Any address or name specified above may be changed by notice given to the addressee by the other party in accordance with this Section 12.1. The inability to deliver notice because of a changed address of which no notice was given as provided above, or because of rejection or other refusal to accept any notice, shall be deemed to be the receipt of the notice as of the date of such inability to deliver or rejection or refusal to accept. Any notice to be given by any party hereto may be given by the counsel for such party. 12.2 Quiet Enjoyment. Landlord agrees that upon Tenant's paying all rent and performing and observing all covenants, conditions and other provisions on its part to be performed and observed, Tenant may peaceably and quietly have, hold and enjoy the Premises during the Term without disturbance by Landlord or anyone claiming by, through or under it, subject always to the terms of this Lease, provisions of law, and rights or interests of record to which this Lease may be or become subject and subordinate. 12.3 Limitation of Landlord's Liability. Landlord shall be liable only for breaches of Landlord's obligations occurring while Landlord is owner of the fee of which the Premises are a part (provided, however, that if Landlord shall ever sell and lease-back such fee, or the ground thereof or the improvements thereon, then "fee" shall, in such event, be deemed to mean Landlord's leasehold interest). Tenant (and all persons claiming by, through or under Tenant) agrees to look solely to Landlord's interest from time to time in the Property (including the uncollected rents, issues, profits, and proceeds thereof, subject to the superior rights of mortgagees therein) for satisfaction of any claim or recovery of any judgment from Landlord; it being agreed that neither Landlord nor any trustee, beneficiary, partner, member, manager, shareholder, agent or employee of Landlord shall ever be personally or individually liable for any claim or judgment, or otherwise, to Tenant (or such persons). In no event shall Landlord ever be liable to Tenant (or such persons) for indirect or consequential damages; nor shall Landlord ever be answerable or liable in any equitable judicial proceeding or order beyond the extent of such interest in the Property. -20- 12.4 Applicable Law and Construction. This Lease may be executed in counterpart copies and shall be governed by and construed as a sealed instrument in accordance with the laws of the State of Kansas. If any provision shall to any extent be invalid, the remainder of this Lease shall not be affected. Other than contemporaneous instruments executed and delivered of even date, if any, this Lease contains all of the agreements between Landlord and Tenant with respect to the Premises and supersedes all prior dealings between them with respect thereto. There are no oral agreements between Landlord and Tenant affecting this Lease. This Lease may be amended only by an instrument in writing executed by Landlord and Tenant. The enumeration of specific examples of a general provision shall not be construed as a limitation of the general provision. Unless a party's approval or consent is required by its terms not to be unreasonably withheld, such approval or consent may be withheld in the party's sole discretion. If Tenant is granted any extension or other option, to be effective the exercise (and notice thereof) shall be unconditional, time always being of the essence to any options; and if Tenant purports to condition the exercise of any option or vary its terms in any manner, then the option granted will automatically and immediately become null and void and the purported exercise will be ineffective. This Lease and all consents, notices and other related instruments may be reproduced by any party by photographic, microfilm, microfiche or other reproduction process and the originals thereof may be destroyed; and each party agrees that reproductions will be admissible in evidence to the same extent as the original itself in and judicial or administrative proceeding (whether or not the original is in existence and whether or not reproduction was made in the regular course of business), and further reproduction will likewise be admissible. The titles of the several Articles and Sections are for convenience only, and shall not be considered a part hereof. The submission of a form of this Lease or any summary of its terms shall not constitute an offer by Landlord to Tenant; but a leasehold shall only be created and the parties bound when this Lease is executed and delivered by both Landlord and Tenant. 12.5 Successors and Assigns. Except as herein provided otherwise, the agreements and conditions in this Lease contained on the part of Landlord to be performed and observed shall be binding upon Landlord and its legal representatives, successors and assigns, and shall inure to the benefit of Tenant and its legal representatives, successors and assigns; and the agreements and conditions on the part of Tenant to be performed and observed shall be binding upon Tenant (and any guarantor of Tenant) and Tenant's legal representatives, successors and assigns and shall inure to the benefit of Landlord and its legal representatives, successors and assigns. 12.6 Relationship of the Parties. Nothing herein shall be construed as creating the relationship between Landlord and Tenant of principal and agent, or of partners or joint venturers; it being understood and agreed that neither the manner of fixing rent, nor any other provision of this Lease, nor any act of the parties, shall ever be deemed to create any relationship between them other than the relationship of landlord and tenant. 12.7 Estoppel Certificate. Within ten (10) business days after either party's request, Landlord and Tenant agree, in favor of the other, to execute, acknowledge and deliver a statement in writing certifying that this Lease is unmodified and in full force and effect (or, if there have been any modifications that the same is in full force and effect as modified and stating the modifications), and the amount and dates to which the Annual Fixed Rent (and Additional Rent and all other charges) have been paid and any other information reasonably requested by the requesting party or Landlord's mortgagee. Both parties intend and agree that any such statement -21- may be relied upon by any prospective purchaser, mortgagee, or other person to whom the same is delivered. Tenant acknowledges that prompt execution and delivery of such statements, and all instruments referred to in Article XI, constitute essential requirements of any financings or sales by Landlord, and Tenant will indemnify Landlord in the manner elsewhere provided against all costs and damages resulting from Tenant's failure to comply herewith (notwithstanding any grace period) or Landlord's right to execute the same on Tenant's behalf. 12.8 Notice of Lease. Neither party shall record this Lease, but each party will, upon request of the other, execute a recordable notice of lease in a form reasonably approved by Landlord and, upon termination, a like notice of termination of lease; and Tenant irrevocably appoints Landlord as its attorney-in-fact, with full power of substitution, to execute, acknowledge and deliver such notice of termination of lease in Tenant's name, place and stead if Tenant fails so to do with five (5) days of any request. 12.9 Tenant as Business Entity. Simultaneously with the execution of the Lease, each of Landlord and Tenant shall deliver to the other (i) a certificate of legal existence and good standing and (ii) a certified copy of a resolution of its directors, manager, or general partner authorizing the execution of this Lease or other reasonable evidence of such authority. 12.10 Legal Proceedings. If either party shall be in breach or default under this Lease, such party shall reimburse the other upon demand for any costs or expenses incurred in connection with any breach or default of the defaulting party, as provided in this Section. Such costs shall include all reasonable legal fees and costs incurred for the negotiation of a settlement, enforcement of rights or otherwise. 12.11 Landlord's Consent. Tenant shall pay Landlord's reasonable fees and expenses, including, without limitation, legal, engineering and other consultants' fees and expenses, incurred in connection with Tenant's request for Landlord's consent under this Lease, or in connection with any other act by Tenant which requires Landlord's consent or approval under this Lease. 12.12 Holding Over. If Tenant (or anyone claiming by, through or under Tenant) shall remain in possession of the Premises or any part thereof after the expiration or earlier termination of this Lease with respect to any portion of the Premises without any agreement in writing executed with Landlord, the person remaining in possession shall be deemed a tenant at sufferance, Tenant shall thereafter pay Annual Fixed Rent at 150% of the greater of the amount payable for the twelve month period immediately preceding such expiration or termination or the then prevailing fair market rent for the Premises and with all additional rent payable and covenants of Tenant in force as otherwise herein provided, and Tenant shall be liable to Landlord for all damages directly arising from such breach, and for indirect or consequential damages relating only to any loss of any replacement tenant(s) for the Premises of which Tenant had notice. After acceptance of the full amount of such rent by Landlord the person remaining in possession shall be deemed a tenant from month-to-month at such rent and otherwise subject to and having agreed to perform all of the provisions of this Lease, but Landlord will not be deemed to have relinquished any claims for damages. 12.13 Interpretation. Whenever required by the context of this Lease, the singular shall include the plural and the plural shall include the singular. The masculine, feminine and neuter -22- genders shall each include the other. In any provision relating to the conduct, acts or omissions of Tenant, the term "Tenant" shall include Tenant's agents, employees, contractors, invitees, successors or others using the Premises with Tenant's expressed or implied permission. 12.14 Waivers. All waivers shall be in writing and signed by the waiving party. Landlord's failure to enforce any provision of this Lease or its acceptance of rent shall not be a waiver and shall not prevent Landlord from enforcing that provision or any other provision of this Lease in the future. No statement on a payment check from Tenant or in a letter accompanying a payment check shall be binding on Landlord. Landlord may, with or without notice to Tenant, negotiate such check without being bound by to the conditions of such statement. 12.15 Force Majeure. If either party cannot perform any of its obligations due to events beyond such party's reasonable control, the time provided for performing such obligations shall be extended by a period of time equal to the duration of such events. Events beyond the parties' reasonable control include, but are not limited to, acts of God, war, civil commotion, labor disputes, strikes, fire, flood or other casualty, shortages of labor or material, government regulation or restriction and weather conditions but exclude financial circumstances. Notwithstanding the foregoing, the events listed in this Section 12.15 shall not excuse Tenant's failure to pay any Annual Fixed Rent or Additional Rent due under this Lease. 12.16 Brokers. Each of Tenant and Landlord represents and warrants to the other that it has not dealt with any broker (other than the Broker(s) identified in Article I, if any) in connection with this Lease or the Premises and agrees to indemnify and save the other harmless from all loss, claim, damage, cost or expense (including reasonable attorneys' fees of counsel of the other's choice against whom the indemnifying party makes no reasonable objection) arising from any its breach of this representation and warranty. This warranty and representation shall survive the term or any early termination of this Lease. The fees of any Broker named in Article I will be paid by Landlord. ARTICLE XIII: SPECIAL PROVISIONS -23- Executed as a sealed instrument as of the Date of Lease first set forth above. LANDLORD: STAG II Parsons, LLC By: /s/ BENJAMIN S. BUTCHER ------------------------------------ Name: Benjamin S. Butcher Title: President TENANT: Dayton Superior Corporation By: /s/ MARK K. KALER ------------------------------------ Name: Mark K. Kaler ----------------------------------- Title: Vice President, Strategic Planning ---------------------------------- -24- Schedule 9.10 Letter of Credit Requirements The Letter of Credit (as defined in the Lease) shall be for the Original Amount. The Letter of Credit (i) shall be irrevocable and shall be issued by a commercial bank reasonably acceptable to Landlord that has an office in Boston, Massachusetts or New York City or Chicago, Illinois that accepts requests for draws on the Letter of Credit, (ii) shall require only the presentation to the issuer of a certificate of the holder of the Letter of Credit stating that Landlord is entitled to draw on the Letter of Credit pursuant to the terms of the Lease, (iii) shall be payable to Landlord or its successors in interest as the Landlord and shall be freely transferable without cost to any such successor or any lender holding a collateral assignment of Landlord's interest in the Lease, (iv) shall be for an initial term of not less than one year and contain a provision that such term shall be automatically renewed for successive one-year periods unless the issuer shall, at least forty five (45) days prior to the scheduled expiration date, give Landlord notice of such nonrenewal, and (v) shall otherwise be in form and substance reasonably acceptable to Landlord. Notwithstanding the foregoing, the term of the Letter of Credit for the final period shall be for a term ending not earlier than the date thirty (30) days after the last day of the Term. Landlord shall be entitled to draw upon the Letter of Credit for its full amount or any portion thereof if (a) Tenant shall fail to perform any of its obligations under the Lease after the expiration of any applicable notice and cure period, or fail to perform any of its obligations under the Lease and transmittal of a default notice is barred by applicable law, or fail to perform any of its obligations under the Lease and any applicable notice and cure period would expire prior to the expiration of the Letter of Credit, or (b) not less than thirty (30) days before the scheduled expiration of the Letter of Credit, Tenant has not delivered to Landlord a new Letter of Credit in accordance with this Schedule. Without limiting the generality of the foregoing, Landlord may, but shall not be obligated to, draw on the Letter of Credit from time to time in the event of a bankruptcy filing by or against Tenant and/or to compensate Landlord, in such order as Landlord may determine, for all or any part of any unpaid rent, any damages arising from any termination of the Lease in accordance with the terms of the Lease, and/or any damages arising from any rejection of the Lease in a bankruptcy proceeding commenced by or against Tenant. Landlord may, but shall not be obligated to, apply the amount so drawn to the extent necessary to cure Tenant's failure. Any amount of the Letter of Credit drawn in excess of the amount applied by Landlord to cure any such failure shall be held by Landlord as a cash security deposit for the performance by Tenant of its obligations under the Lease. Any cash security deposit may be mingled with other funds of Landlord and no fiduciary relationship shall be created with respect to such deposit, nor shall Landlord be liable to pay Tenant interest thereon. If Tenant shall fail to perform any of its obligations under this Lease, Landlord may, but shall not be obliged to, apply the cash security deposit to the extent necessary to cure Tenant's failure. After any such application by Landlord of the Letter of Credit or cash security deposit, as the case may be, Tenant shall reinstate the Letter of Credit to the amount originally required to be maintained under the Lease, upon demand. Provided that Tenant is not then in default under the Lease, and no condition exists or event has occurred which after the expiration of any applicable notice or cure period would constitute such a default, within thirty (30) days after the expiration or sooner termination of the Term the Letter of Credit -25- and any cash security deposit, to the extent not applied, shall be returned to the Tenant, without interest. In the event of a sale of the Premises, Building or lease, conveyance or transfer of the Premises or the Building, Landlord shall transfer the Letter of Credit or cash security deposit to the transferee. Upon such transfer, the transferring Landlord shall be released by Tenant from all liability for the return of such security, and Tenant agrees to look to the transferee solely for the return of said security. The provisions hereof shall apply to every transfer or assignment made of the security to such a transferee. Tenant further covenants that it will not assign or encumber or attempt to assign or encumber the Letter of Credit or the monies deposited herein as security, and that neither Landlord nor its successors or assigns shall be bound by any assignment, encumbrance, attempted assignment or attempted encumbrance. -26- Exhibit A The Property Lots 4, 5, 6, 7, 8, 9 and 10, Block 2 and the South 1/2 of vacated Thornton Avenue lying North of Lots 9 and 10 and Lots 1, 2, 3, 4, 5, 6, 7, 8, 9, and 10, Block 3, Arthur W. Davis Addition and Commencing 50 feet South of the Southwest corner of Lot 7, Block 4, Arthur W. Davis Addition, South 197 feet, thence West 80 feet, South 453 feet, West 245.7 feet, South 650 feet, West 150 feet, Southerly along MKT Railroad right of way to intersection of MKT, thence Northeasterly along MKT Railroad to point East of beginning, thence West to point of beginning, and that portion of vacated South Central Street adjacent thereto, and the South 1/2 of vacated Thornton Avenue adjacent thereto, in Section 19, Township 31 South, Range 20 East of the 6th P.M., except so much thereof as is used for public highway or road, Labette County, Kansas. The South 1/2 of Lot 2 and all of Lot 3, Block 2, A. W. Davis Addition, City of Parsons, Labette County, Kansas. Lot 1 and the North 1/2 of Lot 2, Block 2, A. W. Davis Addition, City of Parsons, Labette County, Kansas, and the South 1/2 of vacated Thornton Avenue adjacent to Lot 1. Lots 5, 6, 7, 8 and 9 and the North 1/2 of vacated Thornton Avenue adjacent to Lots 7, 8 and 9, Block 1, A, W. Davis First Addition, City of Parsons, Labette County, Kansas. Commencing at the Southwest corner of Lot 10, Block 4, Arthur W. Davis Addition to the City of Parsons, thence South 200 feet, thence East 436.88 feet to railroad right of way, thence Northeasterly along railroad right of way to a point 450.60 feet East of point of beginning, thence West to point of beginning, Labette County, Kansas, except so much thereof as is used for alleyways or for public highway or road. -27- Exhibit B Annual Fixed Rent
LEASE YEAR ANNUAL AMOUNT MONTHLY PAYMENT - ---------- ------------- --------------- 1 $240,000 $20,000 2 $244,800 $20,400 3 $249,696 $20,808 4 $254,690 $21,224 5 $259,784 $21,649 6 $264,980 $22,082 7 $270,280 $22,523 8 $275,686 $22,974 9 $281,200 $23,433 10 $286,824 $23,902 11 $292,561 $24,380 12 $298,412 $24,868 13 $304,380 $25,365
-28- Exhibit C Rules and Regulations 1. Tenant shall not use any method of heating or air-conditioning other than that supplied by the building systems without the prior written consent of Landlord, which shall not be unreasonably withheld. 2. Except for dock shelters and seals as may be expressly permitted by Landlord, no awnings or other projections shall be attached to the outside walls of the building. 3. Tenant shall not use, keep or permit to be used or kept any flammable or combustible materials without proper governmental permits and approvals. 4. Tenant shall not use, keep or permit to be used or kept food or other edible materials in or around the Premises in such a manner as to attract rodents, vermin or other pests. Tenant shall not permit cooking in or about the Premises other than in microwave ovens. 5. Tenant shall not use or permit the use of the Premises for lodging or sleeping, for public assembly, or for any illegal or immoral purpose. 6. Storage of propane tanks, whether interior or exterior, shall be in secure and protected storage enclosures approved by the local fire department and, if exterior, shall be located in areas specifically designated by Landlord. Safety equipment, including eye wash stations and approved neutralizing agents, shall be provided in areas used for the maintenance and charging of lead-acid batteries. Tenant shall protect electrical panels and building mechanical equipment from damage from forklift trucks. 7. No person shall go on the roof of the Property without Landlord's permission except to perform obligations or to exercise Tenant's rights under its lease. 8. No animals (other than seeing eye dogs) or birds of any kind may be brought into or kept in or about the Premises. 9. Tractor trailers which must be unhooked or parked with dolly wheels beyond the concrete loading areas must use steel plates or wood blocks of sufficient size to prevent damage to the asphalt paving surfaces. No parking or storing of such trailers will be permitted on streets adjacent to the Property. 10. Forklifts which operate on asphalt paving areas shall not have solid rubber tires and shall use only tires that do not damage the asphalt. 11. Tenant shall be responsible for the safe storage and removal of all pallets. Pallets shall be stored in a neat and orderly manner, so as not to have an unkempt appearance from the street or other public areas. If pallets are stored within the Premises, storage shall comply with safe practices as described in Factory Mutual Loss Prevention Data Sheet 8-24. -29- 12. Tenant shall be responsible for the safe storage and removal of all trash and refuse. All such trash and refuse shall be contained in suitable receptacles stored in a neat and orderly manner, so as not to have an unkempt appearance from the street or other public areas. Landlord reserves the right to remove, at Tenant's expense and without further notice, any trash or refuse left elsewhere outside of the Premises or Building. 13. Tenant shall appoint an Emergency Coordinator who shall be responsible for assuring notification of the local fire department in the event of an emergency, assuring that sprinkler valves are kept open and implementing the Factory Mutual "Red Tag Alert" system including weekly visual inspection of all sprinkler system valves on or within the Premises. -30- Exhibit D Insurance, Casualty and Condemnation This Exhibit D shall be incorporated into the Lease, and where terms of this Exhibit conflict with these terms within the Lease, the terms of this Exhibit shall prevail and govern the Lease. I. INSURANCE (a) Coverage. Tenant shall purchase and maintain insurance during the entire Term of the Lease and any period Tenant (or any party claiming by, through or under Tenant) occupies any portion of the Premises, for the benefit of the Tenant and Landlord (as their interest may appear) with terms and coverages reasonably satisfactory to Landlord, and with insurers having a minimum A.M. Best rating of at least A-/X, and with such increases in limits as Landlord may from time to time reasonably request, but initially Tenant shall maintain the following coverages in the following amounts: (i) Commercial General Liability Insurance naming Landlord, Landlord's management, leasing and development agents and Landlord's mortgagee(s) from time to time as additional insureds, with coverage for premises/operations, personal and advertising injury, products/completed operations and contractual liability with combined single limits of liability of not less than $1,000,000 for bodily injury and property damage per occurrence and not less than 2,000,000 in the aggregate and excess liability insurance with a limit not less than $20,000,000 per occurrence and aggregate. (ii) Property insurance covering property damage and business interruption for the entire Property. Covered property shall include the Building, boilers and machinery, all tenant improvements, office furniture, trade fixtures, office equipment, merchandise and all other items Tenant's property on the Premises. Such insurance shall name Landlord and Landlord's mortgagee(s) from time to time as additional loss payees as their interests may appear. Such insurance shall be written on an "all risk" of physical loss or damage basis including but not limited to the perils of fire, extended coverage, windstorm, vandalism, malicious mischief, sprinkler leakage, flood, windstorm and earthquake, for the full replacement cost value of the covered items and other endorsements as Landlord shall reasonably request from time to time and in amounts that meet any co-insurance clause of the policies of insurance with a deductible amount not to exceed $50,000 with respect to property insurance and $500,000 with respect to commercial general liability insurance. (iii) Workers' Compensation Insurance and Employers Liability Insurance with statutory limits and automobile liability insurance (coverage must include owed, leased, hired and non owned vehicles) with a limit of at least $1,000,000. -31- Tenant shall, prior to the commencement of the Term and on each anniversary of the Term Commencement Date and/or renewal date thereof, furnish to Landlord certificate(s) (ACCORD Form 27) evidencing such coverage, which certificate(s) shall state that such insurance coverage may not be changed or canceled without at least thirty (30) days' prior written notice to Landlord and Tenant. The insurance maintained by Tenant shall be deemed to be primary insurance and any insurance maintained by Landlord (acknowledging that Landlord has no obligation to maintain any insurance) shall be deemed secondary thereto. (b) Avoid Action Increasing Rates. Tenant shall comply with all applicable laws and ordinances, all orders and decrees of court and all requirements of other governmental authorities, and shall not, directly or indirectly, make any use of the Premises which may thereby be prohibited or be dangerous to person or property or which may jeopardize any insurance coverage or may increase the cost of insurance or require additional insurance coverage. If Tenant fails to comply with the provisions of this Section I(b) and (i) any insurance coverage is jeopardized and Tenant fails to correct such dangerous or prohibited use following ten (10) days' notice, or (ii) insurance premiums are increased and Tenant fails, following ten (10) days' notice, to cease such use, then in each event such failure shall constitute an Event of Default by Tenant hereunder, without any further notice or cure right, and Landlord shall have all of its remedies as set forth in the Lease. (c) Waiver of Subrogation. Landlord and Tenant each hereby waive any and every claim for recovery from the other for any and all loss of or damage to the Building or Premises or to the contents thereof, which loss or damage is covered by valid and collectible property insurance policies. Landlord waives any and every claim against Tenant for any and all loss of or damage to the Building or the Premises or contents thereof, which would have been covered had the insurance policies required to be maintained by Landlord by this Lease been in force, to the extent that such loss or damage would have been recoverable under such insurance policies. Tenant waives any and every claim against Landlord for any and all loss of, or damage to, the Building or Premises or the contents thereof which would have been covered had Tenant maintained the insurance policies required to be maintained by Tenant under this Lease been in force, to the extent that such loss or damage would have been recoverable under such insurance policies. Inasmuch as this mutual waiver will preclude the assignment of any such claim by subrogation (or otherwise) to an insurance company (or any other person), Landlord and Tenant each agree to give to each insurance company which has issued, or in the future may issue, to it policies of property insurance, written notice of the terms of this mutual waiver, and to have said insurance policies properly endorsed, if necessary, to prevent the invalidation of said insurance coverage by reason of said waiver. II. FIRE OR CASUALTY (a) If the Premises or the Building (including machinery or equipment used in its operation) shall be damaged by fire or other casualty and if such damage does not cause a termination of this Lease as described in the following sentences, then -32- Landlord shall repair and restore the damage with reasonable promptness, subject to reasonable delays for insurance adjustments and delays caused by matters beyond Landlord's reasonable control, but Landlord shall not be obligated to expend for repairing or restoring the damage an amount in excess of the proceeds of insurance actually received by Landlord for application to the repair of such damage. If in Landlord's estimate the Premises cannot be restored within three hundred sixty-five (365) days from the date of such fire or casualty, then Landlord shall give notice to Tenant of such estimate within one hundred twenty (120) days after such fire or casualty. Tenant may elect by written notice given to Landlord within sixty (60) days following the date of such notice from Landlord (time being of the essence) to terminate this Lease effective as of the date of Tenant's notice. If any such damage (i) renders 25% or more of the Building untenantable or (ii) renders general Building systems inoperable and such systems cannot be repaired in Landlord's reasonable estimate within three hundred sixty-five (365) days from the date of such damage or (iii) occurs within the last two (2) Lease Years, Landlord shall have the right to terminate this Lease as of the date of such damage upon written notice given to the Tenant at any time within one hundred twenty (120) days after the date of such damage. Landlord shall have no liability to Tenant, and Tenant shall not be entitled to terminate this Lease, by virtue of any delays in completion of such repairs and restoration provided that Tenant shall have the right to terminate the Lease if such repairs are not completed within such 365-day period, subject to extension for delays caused by reasons outside of Landlord's control, by notice given within thirty (30) days after such repair period expires, which notice shall be deemed withdrawn if the restoration is completed within thirty (30) days after such notice is delivered to Landlord. Annual Fixed Rent and additional rent, however, shall abate on those portions of the Premises as are, from time to time, untenantable and, in fact, unoccupied by Tenant as a result of such damage. (b) Notwithstanding anything to the contrary herein set forth, Landlord shall have no duty pursuant to this Section II to repair or restore any portion of any alterations, additions, installation or improvements in the Premises or the decoration thereto except to the extent that the proceeds of the insurance carried by Tenant are timely received by Landlord for application to such use. If Tenant desires any other additional repairs or restoration, and if Landlord consents thereto, it shall be done at Tenant's sole cost and expense subject to all of the applicable provisions of the Lease. Tenant acknowledges that Landlord shall be entitled to the full proceeds of any insurance coverage whether carried by Landlord or Tenant, for damage to any alterations, addition, installation, improvements or decorations which would become the Landlord's property upon the termination of the Lease. III. WAIVER OF CLAIM - INDEMNIFICATION Without limiting any other provisions hereof, but subject to the provisions of Section I(c) hereof, Tenant agrees to defend, protect, indemnify and save Landlord and its partners, affiliates, officers, agents, servants and employees and Landlord's management, leasing and development agents and Landlord's mortgagee(s) from time to time from and against all liability to third parties arising out of the use of the Premises by, or the acts or omissions of, -33- Tenant or its servants, agents, employees, contractors, suppliers, workers or invitees. To the extent not prohibited by law and subject to the waiver of subrogation contained in Section I(c), Landlord and its partners, affiliates, officers, agents, servants and employees shall not be liable for any damage either to person, property or business resulting from the loss of the use thereof sustained by Tenant or by other persons due to the Building or any part thereof or any appurtenances thereto becoming out of repair, or due to the happening of any accident or event in or about the Building, including the Premises, or due to any act or neglect of any tenant or occupant of the Building or of any other person, unless and then only to the extent caused by the negligence or willful misconduct of Landlord or its agents, employees or contractors. This provision shall apply particularly, but not exclusively, to damage caused by gas, electricity, snow, ice, frost, steam, sewage, sewer gas or odors, fire, water or by the bursting or leaking of pipes, faucets, sprinklers, plumbing fixtures and windows, and except as provided above, shall apply without distinction as to the person whose act or neglect was responsible for the damage and shall apply whether the damage was due to any of the causes specifically enumerated above or to some other cause of an entirely different kind. Tenant further agrees that all personal property upon the Premises, or upon loading docks, recovering and holding areas, or freight elevators of the Building, shall be at the risk of Tenant only, and that Landlord shall not be liable for any loss or damage thereto or theft thereof. The provisions of this Rider shall survive the expiration or earlier termination of the Lease, and shall not derogate from the abatement and termination rights set forth in Section 6.11. IV. NONWAIVER No waiver of any provisions of this Lease shall be implied by any failure of Landlord to enforce any remedy on account of the violation of such provisions, even if such violation is continued or repeated subsequently, and no express waiver shall affect any provision other than the one specified in such waiver and that one only for the time and in the manner specifically stated. No receipt for monies by Landlord from Tenant after the termination of this Lease shall in any way alter the length of the Term or of Tenant's right to possession hereunder or after the finding of any notice shall reinstate, continue or extend the Term or affect any notice given Tenant prior to the receipt of such monies, it being agreed that after the service of notice or the commencement of a suit or after final judgment for possessions of the Premises, Landlord may receive and collect any Annual Fixed Rent and additional rent due, and the payment of said Annual Fixed Rent and additional rent shall not waive or affect said notice, suit or judgment. V. CONDEMNATION If the Land or the Building (or any portion of the Building, the loss of which would require reconfiguration or restoration of the Building which Landlord reasonably estimates will cost in excess of 25% of the current replacement cost of the Building) shall be taken or condemned by any competent authority for any public or quasi-public use or purpose, Landlord shall have the right, exercisable at its sole direction, to cancel the Lease upon not less than sixty (60) days' notice prior to the date of cancellation designated in the notice. No money or other consideration shall be payable by Landlord to Tenant for the right of -34- cancellation and Tenant shall have no right to share in the condemnation award or in any judgment for damages caused by such taking or condemnation. If any such taking (i) renders 25% or more of the Building untenantable or (ii) renders general Building systems inoperable and such systems cannot be repaired in Landlord's reasonable estimate within three hundred sixty-five (365) days from the date of such taking or (iii) occurs within the last two (2) Lease Years, Landlord or Tenant shall have the right to terminate this Lease as of the date of such taking upon written notice given to the other at any time within one hundred twenty (120) days after the date of such taking. Landlord shall have no liability to Tenant, and Tenant shall not be entitled to terminate this Lease, by virtue of any delays in completion of such repairs and restoration unless such repairs are not completed within such 365-day period, in which event Tenant shall have the right to terminate the Lease if such repairs are not completed within such 365-day period, subject to extension under Section 12.15, by notice given within 30 days after such repair period expires, which notice shall be deemed withdrawn if the restoration is completed within 30 days after such notice is delivered to Landlord. Annual Fixed Rent and additional rent, however, shall abate on those portions of the Premises as are, from time to time, untenantable and, in fact, unoccupied by Tenant as a result of such taking. -35- Exhibit E Form of SNDA SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT Tenant Name: ___________________________ Trade Name: ____________________________ Room/Unit No.: _________________________ THIS AGREEMENT is dated the _____ day of ____________________, 20__, and is made by and among CONNECTICUT GENERAL LIFE INSURANCE COMPANY, having an address c/o CIGNA Investments, Inc., 900 Cottage Grove Road, Hartford, Connecticut 06152, Attn: Debt Asset Management, S-319 ("Mortgagee"), ______________________________________________________, d/b/a _____________________________________________________, having an address of ________________________________________________________ ("Tenant"), and _____________________________________________________, having an address of ________________________________________ ("Landlord). RECITALS: A. Tenant has entered into a lease ("Lease") dated ____________________ with ____________________ as lessor ("Landlord"), covering the premises known as ____________________ (the "Premises") within the property known as ____________________, more particularly described as shown on Exhibit A, attached hereto (the "Real Property"). B. Mortgagee has agreed to make or has made a mortgage loan in the amount of ____________________ to Landlord, secured by a mortgage of the Real Property (the "Mortgage"), and the parties desire to set forth their agreement herein. NOW, THEREFORE, in consideration of the premises and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: 1. The Lease and all extensions, renewals, replacements or modifications thereof are and shall be subject and subordinate to the Mortgage and all terms and conditions thereof insofar as it affects the Real Property of which the Premises form a part, and to all renewals, modifications, consolidations, replacements and extensions thereof, to the full extent of amounts secured thereby and interest thereon. -36- 2. Tenant shall attorn to and recognize any purchaser at a foreclosure sale under the Mortgage, any transferee who acquires the Premises by deed in lieu of foreclosure, and the successors and assigns of such purchaser(s), as its landlord for the unexpired balance (and any extensions, if exercised) of the term of the Lease on the same terms and conditions set forth in the Lease. 3. If it becomes necessary to foreclose the Mortgage, Mortgagee shall neither terminate the Lease nor join Tenant in summary or foreclosure proceedings for the purpose of terminating the Lease so long as Tenant is not in default under any of the terms, covenants, or conditions of the Lease beyond any applicable notice and cure periods. 4. If Mortgagee succeeds to the interest of Landlord under the Lease, Mortgagee shall not be: (a) liable for the return of any security deposit unless such deposit has been delivered to Mortgagee by Landlord or is in an escrow fund available to Mortgagee, (b) bound by any rent or additional rent that Tenant might have paid for more than the current month to any prior landlord (including Landlord), (c) bound by any amendment, modification, or termination of the Lease made without Mortgagee's prior written consent (which consent shall not be unreasonably withheld or delayed), or (d) personally liable under the Lease, Mortgagee's liability thereunder being limited to its interest in the Real Property. 5. This Agreement shall be binding on and shall inure to the benefit of the parties hereto and their successors and assigns. 6. Tenant shall give Mortgagee, by commercial overnight delivery service, a copy of any notice of default served on Landlord at the same time such notice is sent to the Landlord, addressed to Mortgagee at Mortgagee's address set forth above or at such other address as to which Tenant has been notified in writing. Mortgagee shall have the right, but not the obligation, to cure such default within the time period specified in the Lease. 7. Landlord has agreed under the Mortgage and other loan documents that rentals payable under the Lease shall be paid directly by Tenant to Mortgagee upon default by Landlord under the Mortgage. After receipt of notice from Mortgagee to Tenant, at the address set forth above or at such other address as to which Mortgagee has been notified in writing, that rentals under the Lease should be paid to Mortgagee, Tenant shall pay to Mortgagee, or at the direction of Mortgagee, all monies due or to become due to Landlord under the Lease. Tenant shall have no responsibility to ascertain whether such demand by Mortgagee is permitted under the Mortgage, or to inquire into the existence of a default. Landlord hereby waives any right, claim, or demand it may now or hereafter have against Tenant by reason of such payment to Mortgagee, and any such payment shall discharge the obligations of Tenant to make such payment to Landlord. -37- IN WITNESS WHEREOF, the parties hereto have executed these presents as of the day and year first above written. WITNESSES: MORTGAGEE: ---------------------------------------- By: - ------------------------------------- ------------------------------------ Name: Its: - ------------------------------------- ----------------------------------- Name: TENANT: ---------------------------------------- By: - ------------------------------------- ------------------------------------ Name: Its: - ------------------------------------- ----------------------------------- Name: LANDLORD: ---------------------------------------- By: - ------------------------------------- ------------------------------------ Name: Its: - ------------------------------------- ----------------------------------- Name: -38- STATE OR COMMONWEALTH OF ________________ : ss. COUNTY OF _______________________________ On this, the _____ day of ________________, 20___, before me, the undersigned officer, personally appeared _______________________, who acknowledged himself/herself to be the ____________________________ of ___________________________, and signed the foregoing instrument for the purposes therein contained as his/her free act and deed and the free act and deed of such entity. IN WITNESS WHEREOF, I hereunto set my hand and official seal the day and year aforesaid. - ------------------------------------- Notary Public My Commission Expires: STATE OR COMMONWEALTH OF ________________ : ss. COUNTY OF _______________________________ On this, the _____ day of ________________, 20___, before me, the undersigned officer, personally appeared _______________________, who acknowledged himself/herself to be the ____________________________ of ___________________________, and signed the foregoing instrument for the purposes therein contained as his/her free act and deed and the free act and deed of such entity. IN WITNESS WHEREOF, I hereunto set my hand and official seal the day and year aforesaid. - ------------------------------------- Notary Public -39- My Commission Expires: STATE OR COMMONWEALTH OF ________________ : ss. COUNTY OF _______________________________ On this, the _____ day of ________________, 20___, before me, the undersigned officer, personally appeared _______________________, who acknowledged himself/herself to be the ____________________________ of ___________________________, and signed the foregoing instrument for the purposes therein contained as his/her free act and deed and the free act and deed of such entity. IN WITNESS WHEREOF, I hereunto set my hand and official seal the day and year aforesaid. - ------------------------------------- Notary Public My Commission Expires: -40- EX-10.3 6 l16444aexv10w3.txt EX-10.3 LEASE - STAG II KANSAS CITY AND DAYTON SUPERIOR EXHIBIT 10.3 LEASE STAG II KANSAS CITY, LLC AS LANDLORD, AND DAYTON SUPERIOR CORPORATION AS TENANT TABLE OF CONTENTS
Article Page - ------- ---- I Basic Terms.................................................... 1 II Lease of Premises.............................................. 3 III Initial Construction of Premises............................... 5 IV Annual Fixed Rent.............................................. 5 V Additional Rent................................................ 5 VI Maintenance, Use, and Alterations of the Premises.............. 8 VII Insurance and Indemnification.................................. 14 VIII Assignment and Subletting...................................... 15 IX Default and Remedies........................................... 17 X Casualty and Condemnation...................................... 21 XI Landlord's Financing........................................... 21 XII Miscellaneous.................................................. 23 XIII Special Provisions............................................. 26
-i- ARTICLE I: BASIC TERMS 1.1 Reference Subjects. The following terms used in this Lease shall have the meanings set forth below. Date of Lease: October __, 2005 Landlord: STAG II Kansas City, LLC, a Delaware limited liability company Tenant: Dayton Superior Corporation, an Ohio corporation Property: The land known and numbered as 636 South 66th Terrace, Kansas City, Kansas, more particularly described on Exhibit A. Premises: The entire building or buildings at the Property (the "Building"), containing approximately 56,580 rentable square feet, and all other improvements on or above the surface of the Property. Tenant's Percentage Share: 100% Term Commencement Date: The date of this Lease. Rent Commencement Date: The date of this Lease. Term Expiration Date: The last day of the tenth (10th) Lease Year. The first Lease Year of the Term shall commence on the Term Commencement Date and end on the last day of the month in which the first (1st) anniversary of the Rent Commencement Date shall occur (unless the Rent Commencement Date shall occur on the first day of a month, in which case the first Lease Year shall end on the day before the first (1st) anniversary of the Rent Commencement Date). Subsequent Lease Years shall commence on the day after the last day of the first Lease Year or an anniversary thereof, and shall end on an anniversary of the last day of the first Lease Year. Permitted Uses: Manufacturing, warehouse and distribution uses, together with office uses ancillary to such uses. Security Deposit: $87,300. Tenant's Guarantor: None.

Annual Fixed Rent: See Exhibit B. Additional Rent: See Article V. Broker(s) None. Exhibits Schedule 9.10 Letter of Credit Requirements A: Property B: Annual Fixed Rent C: Rules and Regulations D. Insurance, Casualty, and Condemnation Provisions E. Subordination, Non-Disturbance and Attornment Agreement

ARTICLE II: LEASE OF PREMISES 2.1 Premises. Landlord hereby leases the Premises to Tenant and Tenant hereby leases the Premises from Landlord for the Term, subject to and with the benefit of the terms, covenants and conditions of this Lease, and of rights, agreements, easements and restrictions of record applicable to the Property, all of which Tenant shall perform and observe insofar as the same are applicable to the Premises. As appurtenant to the Premises, Tenant shall have the right to the exclusive use of the roof for telecommunications equipment and all portions of the Property at and above grade level, but Tenant shall not have any right of access, control over or other ability to use any portion of the Property below grade level. 2.2 Term. (a) The term of this Lease (the "Term") shall begin on the Term Commencement Date and shall end on the Term Expiration Date, subject to extension as set forth below. (b) Tenant shall have the right to extend the Term for two periods of five (5) years, on the terms and conditions set forth below. To exercise the extension option, Tenant shall notify Landlord in writing at least twelve (12) months prior to the then scheduled expiration of the Term. Failure to timely deliver such notice shall be deemed an irrevocable election by Tenant not to extend the Term, and Tenant shall have no further right to extend the Term. If Tenant timely delivers such notice, then all of the terms and conditions of the Lease in effect immediately prior to such extension shall apply during the extension period, except that Tenant shall have no right to extend the Term beyond the end of the second extension period and the Annual Fixed Rent during such extension period shall be the Fair Market Rent therefor, determined as provided below, but not less than the Annual Fixed Rent applicable to the Premises immediately before such extension. If Tenant shall exercise the extension option in accordance with this Section, the provisions of this Section shall be self-operative, but upon request by either party after determination of the Annual Fixed Rent for the extension period the parties shall execute an agreement specifying the Annual Fixed Rent for the extension period and acknowledging the extension of the Term. -2- Notwithstanding the foregoing, Tenant's exercise of any option to extend the Term shall be void, at Landlord's election, if either at the time the option is exercised or at the time the extension period is to commence, (i) Tenant is in default under the Lease, or (ii) there exists a sublease or subleases of more than 25% of the square footage of the Building in the aggregate, or (iii) the originally named Tenant hereunder has assigned or transferred its interest in this Lease (except for an assignment or transfer that does not require Landlord's consent under the terms of this Lease). (c) As used herein, the "Fair Market Rent" shall mean the annual fair market rent for the Premises, ascertained for a term coterminous with the time period for which the Fair Market Rent is to be effective, under the terms of this Lease, determined as though the Premises were in the condition then existing or in such better condition as such space is required to be maintained hereunder. Not later than ten (10) months prior to the commencement of the extension period, Landlord shall notify Tenant in writing of Landlord's determination of the Fair Market Rent. Within thirty (30) days after receipt of such notice, Tenant shall notify Landlord whether Tenant accepts or disputes Landlord's determination of Fair Market Rent, which notice of dispute shall include Tenant's determination of the Fair Market Rent (the failure to timely dispute being deemed Tenant's acceptance of Landlord's determination). (d) If Tenant so disputes Landlord's determination, such dispute shall be resolved in accordance with the following procedure. Within thirty (30) days after receipt of Tenant's notice disputing Landlord's determination, Landlord and Tenant shall mutually appoint as an arbitrator a licensed real estate broker with at least ten years experience as a broker of comparable properties in the area or if they cannot agree upon such arbitrator, either party may apply to the office of the American Arbitration Association ("AAA") for appointment of such an arbitrator. The arbitrator shall be charged to determine the Fair Market Rent in accordance with this Section, within sixty (60) days after the arbitrator is appointed, by selecting either of the final estimates of the Fair Market Rent provided by Landlord and Tenant at the commencement of the hearing. The arbitrator shall have no authority or jurisdiction to make any other determination of such amount. The arbitration shall be conducted in accordance with the commercial arbitration rules of the AAA insofar as such rules are not inconsistent with the provisions of this Lease (in which case the provisions of this Lease shall govern). The cost of the arbitrator shall be borne equally by the parties. If the AAA shall cease to provide arbitration for commercial disputes in Wichita, Kansas or Kansas City, Missouri, the arbitrator shall be appointed by any successor organization providing substantially the same services, and in the absence of such an organization, by a court of competent jurisdiction under the arbitration act of the State of Kansas. For any extension period during which the applicable Fair Market Rent is in dispute hereunder, Tenant shall make payment on account of Annual Fixed Rent at the rate set forth in Landlord's notice above, and the parties shall adjust for over or under-payments within thirty days after the decision of the arbitrator is announced. ARTICLE III: DELIVERY OF PREMISES 3.1 Delivery of Premises. The Premises are demised and leased subject to the existing state of the title as of the Term Commencement Date. 3.2 Existing Conditions. Tenant acknowledges that Tenant or its affiliates owned and occupied the Premises prior to the Term Commencement Date and that it has inspected the -3- Premises and accepts the same in the condition they are in on the Term Commencement Date, it being expressly agreed that neither Landlord nor any person acting under Landlord has made or implied any representations or warranties concerning this Lease, the Premises, or their condition or suitability for Tenant's use. To the extent permitted by applicable law, Tenant waives any right or remedy otherwise accruing to Tenant on account of the condition or suitability of the Premises, or title to the Premises, and Tenant agrees that it takes the Premises "as-is," with all faults and without any such representation or warranty, including any implied warranties. ARTICLE IV: RENT 4.1 Annual Fixed Rent. Commencing on the Rent Commencement Date and on the first day of each subsequent calendar month during the Term, Tenant shall pay to Landlord the Annual Fixed Rent set forth in on Exhibit B hereto in lawful money of the United States, in advance and without offset, deduction, or prior demand. The Annual Fixed Rent shall be payable at Landlord's Address or at such other place or to such other person as Landlord may designate in writing from time to time. ARTICLE V: ADDITIONAL RENT 5.1 Additional Rent. All sums payable by Tenant under this Lease other than Annual Fixed Rent shall be deemed "Additional Rent." The term "rent" shall mean Annual Fixed Rent and Additional Rent. Unless this Lease provides otherwise, Tenant shall pay all Additional Rent then due with the next monthly installment of Annual Fixed Rent. 5.2 Real Estate Taxes. Tenant covenants and agrees to pay when due, directly to the relevant taxing authority, as Additional Rent, all Taxes. "Taxes" shall mean all taxes, assessments, betterments, excises, user fees and all other governmental charges and fees of any kind or nature, or impositions or agreed payments in lieu thereof or voluntary payments made in connection with the provision of governmental services or improvements of benefit to the Building or the Property (including any so-called linkage, impact or voluntary betterment payments), and all penalties and interest thereon (if due to Tenant's failure to make timely payments on account of Taxes), assessed or imposed against the Premises or the property of which the Premises are a part (including without limitation any personal property taxes levied on such property or on fixtures or equipment used in connection therewith), or upon Landlord by virtue of its ownership thereof, other than a federal or state income tax of general application, during the Term of the Lease. If during the Term the present system of ad valorem taxation of property shall be changed so that, in lieu of or in addition to the whole or any part of such ad valorem tax, there shall be assessed, levied or imposed on such property or Premises or on Landlord any kind or nature of federal, state, county, municipal or other governmental capital levy, income, sales, franchise, excise or similar tax, assessment, levy, charge or fee (as distinct from the federal and state income tax in effect on the Term Commencement Date) measured by or based in whole or in part upon Building valuation, mortgage valuation, rents or any other incidents, benefits or measures of real property or real property operations and imposed on owners of real estate generally, then any and all of such taxes, assessments, levies, charges and fees shall be included within the term Taxes, but only to the extent the same are applicable to the Premises. -4- Tenant may seek a reduction in the assessed valuation (for tax purposes) of the Property provided the same is done by and at Tenant's sole cost and expense and after written notice to Landlord, and Landlord agrees that it shall cooperate in good faith with Tenant's reasonable requests in connection with any such proceeding. Tenant may defer payment of any contested Taxes; provided that Tenant's deferral is in compliance with applicable law permitting such deferral. Tenant shall be entitled to all refunds associated with Tenant's successful prosecution of any such proceeding. If required by applicable law, Landlord shall join in any proceeding referred to in this paragraph; provided, however, Tenant shall indemnify and save Landlord harmless from any costs and expenses associated with such proceedings. If Landlord shall receive a refund of any Taxes paid by Tenant, Landlord shall reimburse Tenant the amount of said refund after deducting therefrom the actual reasonable out of pocket costs and expenses incurred in connection therewith. 5.3 INTENTIONALLY OMITTED. 5.4 Utilities. Tenant shall pay all charges and deposits for gas, water, sewer, electricity, telecommunications, and other energy, utilities and services used or consumed on the Premises during the Term. It is understood and agreed that Landlord (i) shall be under no obligation whatsoever to furnish any such services to the Premises and (ii) shall not be liable for (nor suffer any reduction in any rent on account of) any interruption or failure in the supply of the same. 5.5 Personal Property Taxes. Tenant shall pay when due, directly to the relevant taxing authority, all taxes charged against trade fixtures, furnishings, equipment, inventory, or any other personal property belonging to Tenant. Tenant shall use its best efforts to have its personal property taxed separately from the Premises. If any of Tenant's personal property shall be taxed with the Premises, Tenant shall pay Landlord the taxes for such personal property within thirty days after Tenant receives a written statement from Landlord for such personal property taxes. 5.6 Method of Payment. Tenant agrees to pay the Annual Base Rent to Landlord in advance in equal monthly installments by the first day of each calendar month during the Term. Tenant shall make a ratable payment of Annual Base Rent and Additional Rent (to the extent applicable) for any period of less than a month at the beginning or end of the Term. All payments of Annual Base Rent, and all payments of Additional Rent and other sums due and payable to Landlord, shall be paid in current U.S. exchange by check drawn on a Clearinghouse Bank at the address of Landlord set forth in Section 12.1 or such other place as Landlord may from time to time direct (or if requested by Landlord, by electronic fund transfer), without demand, set-off or other deduction. 5.7 Net Lease. This Lease is an absolutely triple net lease to Landlord. It is the intent of the parties hereto that the Annual Fixed Rent payable under this Lease shall be an absolutely net return to Landlord and that Tenant shall pay all costs and expenses relating to the Premises except as otherwise expressly set forth in this Lease. Without limiting the generality of the preceding sentence, Tenant shall at its sole cost and expense (which expense shall be deemed Additional Rent hereunder) be responsible for payment of all Taxes, all electricity, telecommunication service, gas, water, sewer, telephone, refuse disposal, and other charges for utilities and services -5- supplied to the Premises, insurance costs, amounts due under any Title Document (defined below) and all costs of cleaning, maintaining and repairing the Premises in accordance with the terms of this Lease. Any amount or obligation herein relating to the Premises that is not expressly declared to be that of Landlord shall be deemed to be an obligation of Tenant to be performed by Tenant at Tenant's expense and Tenant shall indemnify Landlord against, and hold Landlord harmless from, the same, and Tenant's liability for the payment of any of the same which shall become payable during the Term is hereby expressly provided to survive the Term. Annual Fixed Rent, Additional Rent, and all other sums payable hereunder by Tenant, shall be paid without notice or demand, and without set off, counterclaim, recoupment, abatement, suspension, deduction, or defense (other than payment) whatsoever, so that this Lease shall yield net to Landlord the Annual Fixed Rent under all circumstances and conditions whether now or hereinafter existing and whether or not within the contemplation of the parties. Except as otherwise expressly set forth in this Lease with respect to certain events of casualty or condemnation, Tenant shall in no event have any right to terminate this Lease. It is the intention of the parties hereto that the obligations of Tenant hereunder shall be separate and independent covenants and agreements, that the Annual Fixed Rent, the Additional Rent, and all other sums payable by Tenant hereunder shall continue to be payable in all events, and that the obligations of Tenant hereunder shall continue unaffected, unless the requirement to pay or perform the same shall have been terminated pursuant to an express provision of this Lease. As used herein, the term "Title Documents" means any and all easements, covenants, conditions, and restrictions, industrial park association agreements, and other agreements, encumbrances, and restrictions of record affecting all or part of the Premises, as the same may now exist, or as the same may hereafter be created or amended without materially expanding the obligations of Tenant without Tenant's approval (which approval shall not be unreasonably withheld), but excluding any mortgage. 5.7 True Lease. Landlord and Tenant agree that the parties intend this Lease to constitute a lease and not a financing arrangement. Each party shall reflect the transaction represented hereby in all applicable books, records and reports (including income tax filings) in a manner consistent with "true lease" treatment rather than "financing" treatment, subject to future modifications of accounting or tax rules or guidelines and subject to contrary determinations or positions by governmental agencies or the like. ARTICLE VI: MAINTENANCE, USE, AND ALTERATIONS OF PREMISES 6.1 Landlord's Structural Repair Obligations. Except as set forth in Exhibit D, Section II and Exhibit D, Section V attached hereto, Landlord shall have no obligation to repair or maintain the Building or Premises. Tenant hereby waives the benefit of any present or future law that provides Tenant the right to repair the Premises or Building at Landlord's expense or to terminate this Lease because of the condition of the Building or the Premises. Notwithstanding anything to the contrary in this paragraph, Tenant shall be solely responsible for the cost of (a) any repair or capital replacement arising from an overburdening of any building system or component or any other act or omission of Tenant, its employees, agents, contractors, or invitees or from a failure by Tenant to perform its maintenance and repair obligations under this Lease, and (b) any alterations, additions, improvements, repairs, or replacements that are performed by or on behalf of Tenant. -6- 6.2 Tenant's Repair and Maintenance Obligations. Except as set forth in Exhibit D Section II and Exhibit D, Section V attached hereto, Tenant shall clean, maintain, repair and secure the Premises, all improvements and appurtenances thereto, all access areas thereof, and all utilities, facilities, installations and equipment used in connection therewith, and shall pay all costs and expenses of so doing, keeping the Premises in good order, repair and condition, reasonable wear and tear, and damage by casualty and taking (to the extent provided in Article X only) excepted. Without limiting the generality of the foregoing, Tenant shall keep the foundation of the Building, all exterior walls, structural walls, the roof of the Building, all interior walls, floor surfaces and coverings, glass, windows, doors, and partitions, all fixtures and equipment, all interior utilities, pipes and drains and other above-ground level installations used in connection with the Premises in such good order, repair and condition, shall provide all cleaning, painting and floor covering to the Premises, and shall remove all refuse from and provide its own janitorial services for the Premises. Tenant shall keep in good order, condition and repair all building systems (including the heating, ventilation, air conditioning, plumbing, electrical, utility, and safety systems). Tenant's maintenance obligations shall also include, without limitation, gardening and landscaping; snow removal; maintenance of signs; rental or lease payments paid by Tenant for rented or leased personal property used in the operation or maintenance of the Premises; fees for required licenses and permits required by Tenant; sweeping and striping of pavement; general maintenance; painting; lighting; and similar items. If any portion of the Premises or any system or equipment in the Premises that Tenant shall be obligated to repair cannot be fully repaired or restored, Tenant shall promptly replace such portion of the Premises or system or equipment. 6.3 Use and Compliance with Law. Tenant shall use the Premises only for the Permitted Uses and only as permitted under federal, state, and local laws, regulations and orders applicable from time to time, including without limitation municipal by-laws, land use and zoning laws, environmental laws and regulations (including all laws and regulations regulating the production, use, and disposal of any pollutant or toxic or hazardous material), and occupational health and safety laws. Tenant shall procure all approvals, licenses and permits necessary therefor, in each case giving Landlord true and complete copies of the same and all applications therefor. Except as set forth in Section 6.1, Tenant shall promptly comply with all present and future laws applicable to Tenant's use of the Premises or Tenant's signs thereon, foreseen or unforeseen, and whether or not the same necessitate structural or other extraordinary changes or improvements to the Premises or interfere with its use and enjoyment of the Premises, and shall keep the Premises equipped with adequate safety appliances and comply with all requirements reasonable in light of the use Tenant is making of the Premises of insurance inspection or rating bureaus having jurisdiction. If Tenant's use of the Premises results in any increase in the premium for any insurance carried by Landlord, then upon Landlord's notice to Tenant of such increase Tenant shall pay the same to Landlord upon demand as Additional Rent. Tenant shall, in any event, indemnify and save Landlord harmless from all loss, claim, damage, cost or expense (including reasonable attorneys' fees of counsel of Landlord's choice against whom Tenant makes no reasonable objection) on account of Tenant's failure so to comply with the obligations of this Section (paying the same to Landlord upon demand as Additional Rent). Except as set forth in Section 6.1, Tenant shall bear the sole risk of all present or future laws affecting the Premises or appurtenances thereto, and Landlord shall not be liable for (nor suffer any reduction in any rent on account of) any interruption, impairment or prohibition affecting the Premises or Tenant's use thereof resulting from the enforcement of laws. Tenant shall comply with the rules and regulations for the Premises set forth on Exhibit C hereto, as the same may be reasonably amended from time to time by -7- Landlord (in accordance with standards applicable to comparable properties) for the operation, care and use of the Property and appurtenant improvements and areas in which Tenant is granted rights of use by the terms of this Lease. 6.4 Nuisance; Hazardous Materials. Tenant shall not, either with or without negligence, injure, overload, deface, damage or otherwise harm Landlord's property, the Premises or any part or component thereof; commit any nuisance; permit the emission of any hazardous materials or substances; allow the release or other escape of any biologically or chemically active or other hazardous substances or materials so as to impregnate, impair or in any manner affect, even temporarily, any element or part of Landlord's property or the Premises, or allow the storage or use of such substances or materials in any manner not sanctioned by law or by commercially reasonable and customary standards prevailing in the industry for the storage and use of such substances or materials; nor shall Tenant bring onto the Premises any such materials or substances except to use in the ordinary course of Tenant's business, and then only in strict compliance with applicable law; permit the occurrence of objectionable noise or odors; or make, allow or suffer any waste whatsoever to Landlord's property or the Premises. Without limitation, hazardous materials shall include all substances described or regulated in any federal, state, local or administrative agency ordinance, law, rule, regulation, order or requirement relating to environmental conditions, human health or hazardous substances, including the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C. Section 9601 et seq), the Resource Conservation and Recovery Act of 1976 (42 U.S.C. Section 6901 et seq.), the Federal Water Pollution Control Act (33 U.S.C. Section 1251 et seq.), the Clean Air Act (42 U.S.C. Section 7401 et seq.), the Emergency Planning and Community Right-To-Know Act (42 U.S.C. Section 1101 et seq.), The Endangered Species Act (16 U.S.C. Section 1531 et seq.), the Toxic Substances Control Act (15 U.S.C. Section 2601 et seq.), the Occupational Safety and Health Act (29 U.S.C. Section 651 et seq.) and the Hazardous Materials Transportation Act (49 U.S.C. Section 1801 et seq.), and the regulations promulgated pursuant to such laws, all as amended from time to time, and all other laws governing similar matters as they may be amended from time to time. In addition, Tenant shall execute affidavits, representations and the like from time to time at Landlord's request concerning Tenant's best knowledge and belief regarding the presence or absence of hazardous materials and substances on the Premises. In all events, Tenant shall indemnify, defend, and hold harmless Landlord and its mortgagees as provided in this Lease from any claims resulting from any release of hazardous materials or substances on the Premises first occurring during the Term, except to the extent caused by Landlord or its agents or contractors or caused by a migration onto or under the Property from adjacent property. (At the request of Landlord, Tenant will from time to time confirm such indemnity to mortgagees directly with such mortgagees.) The indemnities under this Section shall survive any termination of the Lease. 6.5 Landlord's Right to Enter. Landlord and its agents or employees may upon reasonable notice enter the Premises during business hours (and in case of emergency at any time) for the purpose of performing repairs or replacements, or exercising any of the rights reserved to Landlord herein, or securing or protecting Landlord's property or the Premises, or removing any alterations or additions not consented to by Landlord, and similarly upon reasonable notice may show the Premises to prospective purchasers and lenders, and during the last twelve months of the Term to prospective tenants, and may keep affixed in suitable places notices for letting (during the last twelve (12) months of the Term) and selling. Except in case of emergency, Landlord shall be -8- subject in entering the Premises to reasonable security conditions, if any, set forth by Tenant in writing to Landlord. If Tenant so desires, a representative of Tenant may accompany Landlord or its agents in any entry onto the Premises under this Lease. 6.6 Parking. Tenant shall be entitled to use all parking areas on the Property and within the Building without charge. Handicapped spaces shall only be used by those legally permitted to use them. 6.7 Alterations, Additions, and Improvements. Tenant shall not make any installations, alterations, additions, or improvements in or to the Premises, including, without limitation, any apertures in the walls, partitions, ceilings or floors, without on each occasion obtaining the prior written consent of Landlord, which consent shall not be unreasonably withheld or delayed, except that only prior notice and a description of and plans for the work (but no approval) shall be required for any interior work costing less than $50,000 in the aggregate during any twelve-month period and that does not require a permit with respect to the building's structure or mechanical, electrical, or other building systems. Any such work so approved by Landlord shall be performed only in accordance with plans and specifications therefor approved by Landlord. Tenant shall not perform any work in or to the Premises that would in Landlord's reasonable judgment (i) in any manner affect any structural component of the Building (including, without limitation, exterior walls, exterior windows, core walls, columns, roofs, or floor slabs), (ii) in any respect be incompatible with the electrical or mechanical components or systems of the Building, (iii) affect space or areas around the Building (including the exterior of the Building), (iv) diminish the value of the Premises for the Permitted Uses, or (v) require any unusual expense to re-adapt the Premises for the Permitted Uses. Tenant shall procure at Tenant's sole expense all necessary permits and licenses before undertaking any work on the Property and shall perform all such work in a good and workmanlike manner employing materials of good quality and so as to conform with all applicable zoning, building, fire, health and other codes, regulations, ordinances and laws and with all applicable insurance requirements. If any notice of contract or lien is placed on the Property arising from work performed by or for Tenant, if requested by Landlord for any work requiring Landlord's approval, Tenant shall thereafter furnish to Landlord prior to commencement of any such work a bond or other security acceptable to Landlord assuring that any work by Tenant will be completed in accordance with the approved plans and specifications and that all subcontractors will be paid. Tenant shall employ for such work only contractors reasonably approved by Landlord and shall require all contractors employed by Tenant to carry insurance in types and amounts reasonably approved by Landlord (including without limitation worker's compensation insurance in accordance with statutory requirements and commercial general liability insurance covering such contractors on or about the Premises with a combined single limit not less than $3,000,000) and shall submit certificates evidencing such coverage to Landlord prior to the commencement of such work, subject to Section II of Exhibit D in the case of casualty. Tenant shall indemnify and hold harmless Landlord from all injury, loss, claims or damage to any person or property occasioned by or arising out of such work. Landlord may inspect the work of Tenant at reasonable times in accordance with Section 6.5 and give notice of observed defects. Upon completion of any such work, Tenant shall provide Landlord with "as built" plans, copies of all construction contracts and proof of payment for all labor and materials. During the first twenty four (24) months of the Term, Tenant shall be entitled to expand the Building pursuant to the terms and provisions of this Lease, including, but not limited to, this -9- Section 6.7. Upon the date Tenant obtains a certificate of occupancy for such expanded portion of the Premises (the "Occupancy Date"), such expanded Premises shall be added to the Premises under this Lease (and Annual Fixed Rent hereunder be increased at the annual base rental rate of $4.00 per square foot of such expansion Premises effective as of the Occupancy Date). Landlord shall reimburse Tenant's reasonable out-of-pocket third party costs expended in connection with such expansion (the foregoing being "Expansion Costs"); provided, however, that the total amount of such reimbursement for Expansion Costs shall not exceed $40.00 per square foot of such expanded portion of the Premises. For such single reimbursement payment, Tenant shall submit a requisition package to the Landlord on or before the tenth (10th) day of a month, with an itemization of the costs being requisitioned, a certificate by an employee of Tenant that all such costs are Expansion Costs and have been incurred and paid by Tenant, a final non-appealable certificate of occupancy, appropriate back-up documentation including paid invoices and bills and, if applicable, lien releases (in a form approved by Landlord, in Landlord's reasonable discretion), and an estoppel certificate executed by an officer of Tenant. Landlord will disburse the amount so requisitioned and approved by Landlord on the first day of the calendar month after timely and complete submission of such requisition. 6.8 Liens and Encumbrances. Tenant shall not create or suffer, shall keep Landlord's property, the Premises and Tenant's leasehold free of, and shall promptly remove and discharge, any lien, notice of contract, charge, security interest, mortgage or other encumbrance which arises for any reason, voluntarily or involuntarily, as a result of any act or omission by Tenant or persons claiming by, through or under Tenant, or any of their agents, employees or independent contractors, including without limitation liens which arise by reason of labor or materials furnished or claimed to have been furnished to Tenant or for the Premises. 6.9 Condition upon Termination. At the expiration or earlier termination of this Lease, Tenant (and all persons claiming by, through or under it) shall, without the necessity of any notice, surrender the Premises (including any tenant work and all replacements thereof, except such additions or alterations constructed after the Term Commencement Date as Landlord may direct to be removed at the time of Landlord's approval thereof, which shall be removed by Tenant and the Premises restored to their pre-existing condition) and all keys to the Premises, remove all of its trade fixtures and personal property not bolted or otherwise attached to the Premises (and such trade fixtures and other property bolted or attached to the Premises as Landlord may direct or, except as set forth below, as Tenant may desire), and all Tenant's signs wherever located, in each case repairing damage to the Premises which results in the course of such removal and restoring the Premises to a fully functional and tenantable condition (including the filling of all floor holes, the removal of all disconnected wiring back to junction boxes and the replacement of all damaged ceiling tiles). Tenant shall yield up the Premises broom-clean and in good order, repair and condition, reasonable wear and tear and damage by casualty and taking (to the extent provided in Article X only) excepted. Any property not so removed within thirty (30) days after the expiration or termination of the Lease shall be deemed abandoned and may be removed and disposed of by Landlord in such manner as Landlord shall determine, and Tenant shall pay to Landlord the reasonable cost and expense incurred by it in effecting such removal and disposition and in making any required repairs to the Premises. In no event, however, shall Tenant remove any of the following materials or equipment (which shall be deemed Landlord's property), without Landlord's prior written consent: any power wiring or wiring panels; lighting or lighting fixtures; doors, windows, or wall coverings; drapes, blinds or other window coverings; installed carpets or other -10- installed floor coverings; any built-in heating or air conditioning equipment; fencing or security gates; or other similar building operating equipment. 6.10 Tenant's Expense. Tenant shall fulfill all of Tenant's obligations under this Article VI at Tenant's sole expense. If Tenant shall fail to maintain, repair or replace the Premises as required by this Article VI, Landlord may, upon thirty (30) days' prior notice to Tenant (except that no notice shall be required in the case of an emergency), enter the Premises in accordance with Section 6.5 and perform such maintenance or repair (including replacement, as needed) on behalf of Tenant. In such case, Tenant shall reimburse Landlord for all costs reasonably incurred in performing such maintenance, repair or replacement, together with an administrative charge of fifteen percent, as Additional Rent, immediately upon demand. 6.11 Interruptions. Landlord shall not be liable to Tenant in damages or by reduction of rent or otherwise by reason of inconvenience or for loss of business arising from Landlord or its agents or employees entering the Premises for any of the purposes authorized in this Lease or for repairing, altering or improving the Building in a manner reasonable in light of the circumstances. In case Landlord is prevented or delayed from making any repairs or replacements or furnishing any services or performing any other covenant or duty to be performed on Landlord's part by reason of any cause reasonably beyond Landlord's control, Landlord shall not be liable to Tenant therefor, nor shall the same give rise to a claim in Tenant's favor that such failure constitutes actual or constructive, total or partial, eviction from the Premises. Landlord reserves the right to stop any service or utility system, when necessary by reason of accident or emergency, or until necessary repairs have been completed; provided, however, that in each instance of stoppage, Landlord shall give Tenant such notice as is practicable under the circumstances of the expected duration of such stoppage and will exercise reasonable diligence to eliminate the cause thereof. Except in case of emergency repairs Landlord will give Tenant reasonable advance notice of any contemplated stoppage and will use reasonable efforts to avoid unnecessary inconvenience to Tenant by reason thereof. ARTICLE VII: INSURANCE AND INDEMNIFICATION 7.1 Insurance. The provisions of this Lease regarding insurance and indemnification are set forth in Exhibit D, which is incorporated herein by reference. ARTICLE VIII: ASSIGNMENT AND SUBLETTING 8.1 Landlord's Consent Required. Tenant shall not assign this Lease, or sublet or license the Premises or any portion thereof, or advertise the Premises for assignment or subletting or permit the occupancy of all or any portion of the Premises by anybody other than Tenant (each of the foregoing actions is referred to as a "transfer") without obtaining, on each occasion, the prior consent of Landlord, subject to and in accordance with this Article VIII. A transfer shall include, without limitation, any transfer of Tenant's interest in this Lease by operation of law, merger or consolidation of Tenant into any other firm or corporation, the transfer or sale of a controlling interest in Tenant whether by sale of its capital stock or otherwise or any liquidation of Tenant or a substantial part of Tenant's assets. Landlord's consent to a proposed sublease shall not be unreasonably withheld, it being understood that the proposed sublease must comply with all -11- other provisions of this Lease (including, without limitation, this Section 8.1), must not alter Landlord's rights under the Lease, and must not impose any additional obligation on Landlord. Notwithstanding the foregoing, the following transactions ("Excluded Transactions") shall not require the consent of Landlord provided that Landlord shall receive prior notice thereof plus reasonable evidence upon closing that the transaction is in fact one of the following (and provided further that the proposed transfer complies with all other provisions of this Lease, including, without limitation, this Article VIII, does not alter Landlord's rights under the Lease, and does not impose any additional obligation on Landlord): (a) Any transfer to an entity succeeding to the business and assets of Tenant, whether by way of merger, consolidation or otherwise; and (b) Any transfer to an entity controlling Tenant, directly or indirectly controlled and beneficially owned by Tenant, or under common control with Tenant. For purposes of this clause (b), control shall mean possession of more than 50 percent ownership of the shares of beneficial interest of the entity in question together with the power to control and manage the affairs thereof either directly or by election of directors and/or officers. 8.2 Terms. Tenant shall not offer to make a transfer to any party which would be of such type, character or condition as to be inappropriate as a tenant for a building comparable to the Building. Tenant shall not offer to make or make an assignment of any portion of the Premises (other than for Excluded Transactions) unless the aggregate rent payable to Tenant under such assignment equals or exceeds the then prevailing market rate rent and other charges payable for space comparable to the Premises. 8.3 Right of Termination or Recapture. If Tenant proposes a transfer of the Premises with an intended duration of more than seven (7) years (other than for Excluded Transactions or a transfer of a division of Tenant that occupies the entire Building which transfer involves the entire Building), Tenant shall offer to Landlord in writing the right to terminate this Lease as to the space and period in question as of the date specified in the offer. If Landlord shall elect in writing to accept the offer to terminate within twenty (20) days after receipt of notice of the offer, this Lease shall so terminate as to the space and period in question as of the date specified in such offer, and all of the terms and provisions of this Lease governing termination shall apply. If Landlord shall not so elect, Tenant shall then comply with the provisions of this Article VIII applicable to such transfer. 8.4 Landlord's Consent. Tenant's request for consent under this Article VIII (and Tenant's notice of any transfer not requiring Landlord's consent under Section 8.1 above) shall set forth the details of the proposed transfer, including: (i) the name, business and financial condition of the prospective transferee, (ii) a true and complete copy of the proposed instrument containing all of the terms and conditions of such transfer, (iii) a written agreement of the assignee, subtenant or licensee, in recordable form reasonably approved by Landlord, agreeing with Landlord to perform and observe all of the terms, covenants, and conditions of this Lease, and (iv) any other information Landlord reasonably requested by Landlord prior to or in response to such notice. Except for any transfer not requiring Landlord's consent under Section 8.1 above, Landlord shall have the right to withhold consent, reasonably exercised as to any proposed sublease, or to grant -12- consent, based on the following factors: (i) the business of the proposed assignee or subtenant and the proposed use of the Premises (if other than the Permitted Use); (ii) the net worth, business reputation, character, and financial condition of the proposed assignee or subtenant; (iii) Tenant's compliance with all of its obligations under this Lease within applicable notice and cure periods; and (iv) such other factors as Landlord may reasonably deem relevant. Tenant shall pay to Landlord, as Additional Rent, Landlord's reasonable attorneys' fees in reviewing any transfer contemplated by this Section, whether or not Landlord consents to the same (provided that the maximum amount of such fees in connection with any single proposed transfer shall be Two Thousand Dollars [$2,000]). 8.5 Profits. If Tenant does transfer with Landlord's consent (other than a transfer of a division of Tenant that occupies the entire Building which transfer involves the entire Building under which Landlord does not release Tenant from its obligations under this Lease pursuant to Section 8.6 below), and if the consideration, rent, or other charges payable to Tenant under such transfer exceed the rent and other charges to be paid hereunder (pro-rated based on floor area in the case of a subletting, license or other occupancy of less than the entire floor area of the Premises in question), then Tenant shall pay to Landlord, as additional rent, after deducting all reasonable out-of-pocket expenses incurred in connection with such transfer (including without limitation, brokerage commissions, tenant improvement costs, and legal fees) fifty percent (50%) of the amount of such excess when and as received. Without limiting the generality of the foregoing, any lump-sum payment or series of payments due (including for the purchase of so-called leasehold improvements) on account of any transfer shall be deemed to be in excess of rent and other charges in its or their entirety. 8.6 No Release. Notwithstanding any transfer of this Lease or any interest therein (other than an Excluded Transaction or, in Landlord's discretion, a transfer of a division of Tenant that occupies the entire Building which transfer involves the entire Building), Tenant's (and any Guarantor's) liability to Landlord shall in all events remain direct and primary. Any transferee of all or a substantial part of Tenant's interest in the Premises shall be deemed to have agreed directly with Landlord to be jointly and severally liable with Tenant for the performance of all of Tenant's covenants under this Lease; and such assignee shall upon request execute and deliver such instruments as Landlord reasonably requests in confirmation thereof (and agrees that its failure to do so shall be subject to the default provisions). Landlord may collect rent and other charges from such transferee (and upon notice such transferee shall pay directly to Landlord) and shall apply the net amount collected to the rent and other charges herein reserved, but no transfer shall be deemed a waiver of the provisions of this Section, or the acceptance of the transferee as a tenant, or a release of Tenant or any guarantor from direct and primary liability for the performance of all of the covenants of this Lease. The consent by Landlord to any transfer shall not relieve Tenant from the obligation of obtaining the express consent of Landlord to any modification of such transfer or a further assignment, subletting, license or occupancy, to the extent required in Section 8.1; nor shall Landlord's consent alter in any manner whatsoever the terms of this Lease, to which any transfer at all times shall be subject and subordinate. The breach by Tenant of any restriction on transfer in this Section shall be a default for which there is no cure period. -13- ARTICLE IX: DEFAULT AND REMEDIES 9.1 Events of Default. (a) If Tenant fails to pay Annual Fixed Rent or any Additional Rent or other sum or charge hereunder within three (3) days after written notice that the same is due; or (b) if more than two notices of separate defaults are properly given in any twelve month period, or (c) (Intentionally omitted), or (d) if any assignment shall be made by Tenant (or any assignee, sublessee or guarantor of Tenant) for the benefit of creditors, or (e) if Tenant's leasehold interest shall be taken on execution or by other process of law, or (f) if a petition is filed by Tenant (or any assignee, sublessee or guarantor of Tenant) for adjudication as a bankrupt, or for reorganization or an arrangement under any provision of any bankruptcy act then in force and effect, or (g) if an involuntary petition under the provisions of any bankruptcy act is filed against Tenant (or any assignee, sublessee or guarantor of Tenant) and such involuntary petition is not dismissed within sixty (60) days thereafter, or (h) if Tenant (or any assignee, sublessee or guarantor of Tenant) shall be declared bankrupt or insolvent according to law, or (i) if a receiver, trustee or assignee shall be petitioned for and not contested by Tenant for the whole or any part of Tenant's (or such assignee's, sublessee's or guarantor's) property, or if a receiver, trustee or assignee shall be appointed over Tenant's (or such other person's) objection and not be removed within sixty (60) days thereafter, or (j) if any representation or warranty made by Tenant shall be untrue in any material respect, or (k) if Tenant fails to perform any other covenant, agreement or condition hereunder and such default continues for thirty (30) days after notice (provided, however, that such thirty (30) day period shall be reasonably extended for up to an additional sixty (60) days in the case of non-monetary default if the matter complained of can be cured, but the cure cannot be completed within such thirty (30) day period and Tenant begins promptly to cure within such period and thereafter diligently completes the cure; if such matters cannot be cured then there shall be no cure period), then, and in any such case, Landlord and its agents and employees lawfully may, in addition to and not in derogation of any remedies for any preceding breach, immediately or at any time thereafter, without demand or notice and with or without process of law, enter into and upon the Premises or any part thereof in the name of the whole, or mail or deliver a notice of termination of the Term addressed to Tenant at the Premises or at any other address herein provided, and thereby terminate this Lease and repossess the same as of Landlord's former estate. Upon such entry or mailing or delivery, as the case may be, the Term shall terminate, all executory rights of Tenant and all obligations of Landlord under this Lease shall immediately cease, and Landlord may expel Tenant and all persons claiming by, through or under Tenant and remove its and their effects (forcibly if necessary) without being deemed guilty of any manner of trespass and without prejudice to any remedies which might otherwise be used for arrears of rent or prior breach of covenants; and Tenant hereby waives all statutory and equitable rights to its leasehold (including without limitation rights in the nature of further cure or of redemption, if any). Landlord may, without notice, store Tenant's effects (and those of any person claiming by, through or under Tenant) at the expense and risk of Tenant and, if Landlord so elects, may sell such effects at public auction or auctions or at private sale or sales after seven (7) days notice to Tenant (which notice Tenant agrees is reasonable) and apply the net proceeds to the payment of all sums due to Landlord from Tenant, if any, and pay over the balance, if any, to Tenant. If any payment of Annual Fixed Rent, additional rent, or other payment due from Tenant to Landlord is not paid when due, then Landlord may, at its option, in addition to all other remedies hereunder, impose a late charge on Tenant equal to 5% of the amount in question, which late charge will be due upon demand as Additional Rent. -14- 9.2 Remedies for Default. (a) Reletting Expenses Damages. If this Lease is terminated for default, then Tenant covenants, as an additional cumulative obligation after such termination, to pay all of Landlord's reasonable costs and expenses related thereto or in collecting amounts due hereunder, including attorneys fees, and all of Landlord's reasonable expenses in connection with such reletting, including without limitation, tenant inducements, brokerage commissions, fees for legal services, expenses of preparing the Premises for reletting and the like ("Reletting Expenses"). It is agreed by Tenant that Landlord may (i) relet the Premises or any part or parts thereof for a term or terms which may at Landlord's option be equal to or less than or exceed the period which would otherwise have constituted the balance of the Term, and may grant such tenant inducements as Landlord in its sole judgment considers advisable, and (ii) make such alterations, repairs and decorations in the Premises as Landlord in its sole discretion considers advisable, and no action of Landlord in accordance with the foregoing nor any failure to relet or to collect rent under any reletting shall operate or be construed to release or reduce Tenant's liability. Any obligation to relet the Premises imposed upon Landlord by law shall be subject to Landlord's reasonable objectives of developing its property in a harmonious manner with appropriate mixes of tenants, uses, floor areas, terms, etc. Landlord's Reletting Expenses together with all sums otherwise provided for in this Lease, whether incurred prior to or after such termination, shall be due and payable immediately from time to time upon notice from Landlord. (b) Termination Damages. If this Lease is terminated for default, then unless and until Landlord elects lump sum liquidated damages described in (c) below Tenant covenants, as an additional cumulative obligation after any such termination, to pay punctually to Landlord all the sums and perform all the obligations which Tenant covenants in this Lease to pay and to perform in the same manner and to the same extent and at the same time as if this Lease had not been terminated. In calculating the amounts to be paid by Tenant pursuant to the preceding sentence Tenant shall be credited with the net proceeds of any rent then actually received by Landlord from a reletting of the Premises after deducting all sums provided for in this Lease to be paid by Tenant and not then paid. In no event shall Tenant be liable for indirect or consequential damages except in the case of holding over when notice of a new tenancy has been provided in advance as set forth in Section 12.12. (c) Lump Sum Liquidated Damages. If this Lease is terminated for default, then Tenant covenants, as an additional cumulative obligation after termination, to pay forthwith to Landlord at Landlord's election made by written notice to Tenant at any time within one year after termination, as liquidated damages a single lump sum payment equal to the sum of (i) all sums provided for in this Lease to be paid by Tenant and not then paid at the time of such election, plus either (ii) the present value (calculated at the Federal Reserve discount rate or equivalent) of the excess of all of the rent reserved for the residue of the Term over all of the fair market rent reasonably projected by Landlord to be received on account of the Premises during such period, which rent from reletting shall be reduced by reasonable projections of vacancies and by Landlord's Reletting Expenses described above to the extent not theretofore paid to Landlord, or (iii) an amount equal to the sum of all of the rent and other sums due hereunder and payable with respect to the twelve (12)-month period next following the date of termination. -15- 9.3 Remedies Cumulative. Any and all rights and remedies Landlord may have under this Lease, and at law and equity, shall be cumulative and shall not be deemed inconsistent with each other, and any two or more of all such rights and remedies may be exercised at the same time insofar as permitted by law. Nothing contained in this Lease shall, however, limit or prejudice the right of Landlord to prove and obtain in proceedings for bankruptcy or insolvency by reason of the termination of this Lease, an amount equal to the maximum allowed by any statute or rule of law in effect at the time when and governing the proceedings in which the damages are to be proved, whether such amount be greater, equal to, or less than the amount of the loss or damages referred to in the preceding Section. 9.4 Effect of Waivers of Default. Any consent or permission by Landlord to any act or omission which otherwise would be a breach of any covenant or condition, or any waiver by Landlord of the breach of any covenant or condition, shall not in any way be held or construed to operate so as to impair the continuing obligation of such covenant or condition, or otherwise operate to permit other similar acts or omissions. No breach shall be deemed to have been waived unless and until such waiver be in writing and signed by Landlord. The failure of Landlord to seek redress for violation of or insist upon the strict performance of any covenant or condition of this Lease, or the receipt by Landlord of rent with knowledge of any violation, shall not be deemed a consent to or waiver of such violation, nor shall it prevent a subsequent act, which would otherwise constitute a violation, from in fact being a violation. 9.5 No Accord and Satisfaction; No Surrender. No acceptance by Landlord of a lesser sum than the Annual Fixed Rent, additional rent or any other sum or charge then due shall be deemed to be other than on account of the earliest installment of such rent, sum or charge due; nor shall any endorsement or statement on any check or in any letter accompanying any check or payment be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such installment or pursue any other right or remedy available to it. The delivery of keys (or any similar act) to Landlord or any agent or employee of Landlord shall not operate as a termination of this Lease or an acceptance of a surrender of the Premises. 9.6 Waiver of Jury. Landlord and Tenant hereby waive trial by jury in any summary proceeding in any emergency or other statutory remedy, or in any action based, in whole or in part, on non-payment of rent or other default under this Lease; and Tenant further agrees that it shall not interpose any counterclaim or set-off in any such proceeding, except to the extent Tenant would have no right to commence an independent proceeding to seek to recover on account of such claim. 9.7 Landlord's Curing and Enforcement. If Tenant shall neglect or fail to perform or observe any covenant or condition of this Lease and shall not cure such default within the applicable cure period, Landlord may, at its option, without waiving any claim for breach, at any time thereafter cure such default for the account of Tenant, and any amount paid or any liability incurred by Landlord in so doing shall be deemed paid or incurred for the account of Tenant, and Tenant shall reimburse Landlord therefor, together with an administrative charge of five (5%) per cent of the amount thereof, on demand as Additional Rent; and Tenant shall further indemnify and save Landlord harmless in the manner elsewhere provided in this Lease in connection with all of Landlord's actions in effecting any such cure. Notwithstanding any other provision herein concerning cure periods, Landlord may cure any default for the account of Tenant after such notice -16- to Tenant, if any, as is reasonable under the circumstances (including telephone notice) if the curing of such default prior to the expiration of the applicable cure period is reasonably necessary to prevent likely damage to the Premises or other improvements or possible injury to persons, or to protect Landlord's interest in its property or the Premises. Tenant shall pay to Landlord on demand as additional rent all of the costs and expenses of Landlord, including such administrative charge and reasonable attorneys' fees, incurred in enforcing any covenant or condition of this Lease. Without limiting any of its other rights or remedies, any sum due hereunder shall, in addition, bear interest from the date due at the greater of (i) one and one-half percent (1 1/2%) for each month (or ratable portion thereof) the same remains unpaid, or (ii) three percent (3%) per annum (or ratable portion thereof) above the so-called prime rate of interest published in the Wall Street Journal from time to time on 90 day loans to its most credit-worthy borrowers; provided that interest shall never exceed the maximum rate permitted under applicable law. In the event Tenant breaches any covenant or fails to observe any condition set forth in Article VII with respect to the insurance required to be maintained by Tenant, then without limiting any other right or remedy, and notwithstanding any other provision herein concerning notice and cure of defaults, Landlord may immediately and without notice to Tenant obtain such insurance, and Tenant shall pay the cost thereof and Landlord's expenses related thereto upon demand as Additional Rent. 9.8 Landlord's Default. In no event shall Landlord be in default unless notice thereof has been given to Landlord (and all mortgagees of which Tenant has notice) and Landlord (or any such mortgagee at its sole discretion) fails to perform within 30 days (provided, however, that such 30 day period shall be reasonably extended if such performance begins within such period and thereafter is diligently pursued, or if such mortgagee notifies Tenant within such period that it intends to cure on behalf of Landlord and thereafter begins curing within such period, or if later within 30 days after acquiring possession of the Property if the cure requires the mortgagee to obtain possession of the Property, and diligently pursues curing with reasonable promptness). Any mortgagee notice and cure periods set forth in any subordination, nondisturbance and attornment agreement then in effect under Section 11.1 shall control to the extent the same differ from the foregoing. 9.9 Vacancy During Last Six Months. If Tenant vacates substantially all of the Premises (or substantially all of major portions of the Premises) at any time within the last six months of the Term, Landlord may enter the Premises (or such portions) and commence demolition work or construction of leasehold improvements for future tenants. The exercise of such right by Landlord will not affect Tenant's obligations to pay Annual Fixed Rent or Additional Rent with respect to the Premises (or such portions), which obligations shall continue without abatement until the end of the Term. 9.10 Security Deposit. On the execution of this Lease, Tenant shall pay to Landlord as a security deposit for the performance of the obligations of Tenant hereunder any amount specified therefor in Section 1.1. Said security deposit may be mingled with other funds of Landlord and no fiduciary relationship shall be created with respect to such deposit, nor shall Landlord be liable to pay Tenant interest thereon. If Tenant shall fail to perform any of its obligations under this Lease, Landlord may, but shall not be obliged to, apply the security deposit to the extent necessary to cure the default, and Tenant shall be obliged to reinstate such security deposit to the original amount -17- thereof upon demand. Within 30 days after the expiration or sooner termination of the Term the security deposit, to the extent not applied, shall be returned to the Tenant, without interest. Tenant may provide the security deposit to Landlord in the form of a clean, irrevocable letter of credit as security for the performance of the obligations of Tenant hereunder, subject to the terms and conditions set forth in this Section 9.10 (together with any renewal or replacement thereof in accordance herewith, the "Letter of Credit"). Tenant shall provide the Letter of Credit, upon Tenant's execution of this Lease, in the amount set forth for the security deposit in Section 1.1 ("Original Amount"). Any Letter of Credit delivered hereunder shall comply with the requirements of Schedule 9.10 attached hereto and incorporated by reference herein. ARTICLE X: CASUALTY AND CONDEMNATION 10.1 Damage to Premises and Takings. The provisions of this Lease regarding casualty and condemnation are set forth in Exhibit D, which is incorporated herein by reference. ARTICLE XI: PROTECTION OF LENDERS 11.1 Subordination and Superiority of Lease. Tenant agrees that this Lease and the rights of Tenant hereunder will be subject and subordinate to the present or future lien of any first mortgage (and at Landlord's election, to the lien of any subordinate mortgage or mortgages) and to the rights of any lessor under any ground or improvements lease of the Premises (collectively referred to in this Lease as a "mortgage" and the holder or lessor thereof from time to time as a "mortgagee"), and to all advances and interest thereunder and all modifications, renewals, extensions and consolidations thereof; and that Tenant shall attorn to any such mortgagee succeeding to Landlord's interest in the Property by foreclosure, deed in lieu of foreclosure, or otherwise, promptly after the giving of notice by such mortgagee requiring such attornment, provided however, that the mortgagee of any mortgage executes and delivers to Tenant an agreement in the form attached hereto as Exhibit E (or otherwise on any commercially reasonable form containing terms not materially less favorable to Tenant than those set forth in Exhibit E) in which the mortgagee agrees that Tenant shall not be disturbed in its possession upon Tenant's attornment to such mortgagee as Landlord and performance of its Lease covenants (both of which conditions Tenant agrees with all mortgagees to perform). Tenant agrees that any mortgagee may at its option unilaterally elect to subordinate, in whole or in part and by instrument in form and substance satisfactory to such mortgagee alone, the lien of its mortgage (or the priority of its ground lease) to some or all provisions of this Lease. Tenant shall cause its current mortgagee to execute and deliver to Tenant a subordination non-disturbance agreement in the form attached hereto as Exhibit F, with such changes as Tenant and such mortgagee may approve. Tenant agrees that this Lease shall survive the merger of estates of any ground (or improvements) lessor and lessee. Until a mortgagee (either superior or subordinate to this Lease) forecloses Landlord's equity of redemption (or terminates in the case of a ground or improvements lease), no mortgagee shall be liable for failure to perform any of Landlord's obligations (and such mortgagee shall thereafter be liable only after it succeeds to and holds Landlord's interest and then only as limited herein). Any mortgagee (or any other successor to Landlord acquiring the Property by foreclosure, deed in lieu of foreclosure, or otherwise) shall not be (i) liable for any previous act or omission of Landlord under the Lease; (ii) subject to any credit, demand, claim, counterclaim, offset or defense which theretofore accrued to Tenant against Landlord; (iii) unless consented to -18- by such mortgagee, bound by any previous amendment or modification of the Lease or by any previous prepayment of more than one month's payment of Annual Fixed Rent or additional rent (except estimated payments of additional rent); (iv) required to account for any security deposit of Tenant other than any security deposit actually delivered to such mortgagee by Landlord; (v) bound by any obligation to make any payment to Tenant or grant any credits, except for services, repairs, maintenance and restoration provided for under the Lease to be performed by Landlord after the date of such attornment; or (vi) responsible for any monies owing by Landlord to Tenant. Tenant shall give notice of any alleged non-performance on the part of Landlord to any mortgagee of which Tenant has notice, simultaneously with the default notice delivered to Landlord; and Tenant agrees that such mortgagee shall have a separate, consecutive reasonable cure period of no less than 30 days (to be reasonably extended in the same manner Landlord's 30 day cure period is to be extended) following Landlord's cure period during which such mortgagee may, but need not, cure any non-performance by Landlord. The foregoing shall not relieve such mortgagee of the obligation to remedy or cure any conditions at the Premises the existence of which constitutes a Landlord default under the Lease and which continue at the time of such mortgagee's taking title to the Property. The agreements in this Lease with respect to the rights and powers of a mortgagee constitute a continuing offer to any person which may be accepted by taking a mortgage (or entering into a ground or improvements lease) of the Premises. 11.2 Rent Assignment. If from time to time Landlord assigns this Lease or the rents payable hereunder to any person, whether such assignment is conditional in nature or otherwise, such assignment shall not be deemed an assumption by the assignee of any obligations of Landlord; but the assignee shall be responsible only for non-performance of Landlord's obligations which occur after it succeeds to and only while it holds Landlord's interest in the Premises. 11.3 Other Instruments. The provisions of this Article shall be self-operative; nevertheless, Tenant agrees to execute, acknowledge and deliver any subordination, attornment or priority agreements or other instruments conforming to the provisions of this Article (and being otherwise commercially reasonable) from time to time requested by Landlord or any mortgagee in furtherance of the foregoing, and further agrees that its failure to do so within ten (10) business days after written demand shall be subject to the monetary default provisions of this Lease. 11.4 Tenant's Financial Condition. Within ten (10) business days after request from Landlord from time to time, Tenant shall deliver to Landlord Tenant's and Guarantor's financial statements, including audited annual financial statements, balance sheets, income statements, and statements of cash flow, certified by Tenant's/Guarantor's Treasurer or Chief Financial Officer, in each case for the latest available two (2) fiscal years (the latest year ending no more than six (6) months prior to Landlord's request). Such financial statements shall be delivered to Landlord's mortgagees and lenders and prospective mortgagees, lenders and purchasers. Notwithstanding the foregoing, during any time that Tenant is filing financial materials with the Securities and Exchange Commission, such financial materials shall be the materials that Tenant is required to deliver to Landlord pursuant to this Section 11.4. ARTICLE XII: MISCELLANEOUS 12.1 Notice from One Party to the Other. All notices, consents, approvals and the like shall be in writing and shall be delivered in hand by any courier service providing receipts, by a -19- nationally recognized overnight courier providing receipts, or mailed by certified mail addressed to Landlord or Tenant as set forth below. If requested, Tenant shall deliver copies of all notices in like manner to Landlord's mortgagees and other persons having a relationship to the Premises at such address as designated from time to time by Landlord or such mortgagee. Any notice so addressed shall be deemed duly given on the second business day following the day of mailing if so mailed by registered or certified mail, return receipt requested, whether or not accepted, or if by hand or by overnight courier upon actual receipt by any person reasonably appearing to be an agent or employee working in the executive offices of the addressee. If to Tenant: Dayton Superior Corporation 2150B So. Rte. 45-52 Kankakee, Illinois 60901 Attention: Mark K. Kaler with a copy to: Dayton Superior Corporation 200 East Touhy Avenue Des Plaines, Illinois 60018 Attention: Steven C. Huston If to Landlord: c/o STAG Capital Partners, LLC 93 Summer Street Boston, Massachusetts 02110 Attention: Benjamin Butcher with a copy to: John L. Sullivan, Esq. DLA Piper Rudnick Gray Cary US LLP One International Place Boston, MA 02110 Any address or name specified above may be changed by notice given to the addressee by the other party in accordance with this Section 12.1. The inability to deliver notice because of a changed address of which no notice was given as provided above, or because of rejection or other refusal to accept any notice, shall be deemed to be the receipt of the notice as of the date of such inability to deliver or rejection or refusal to accept. Any notice to be given by any party hereto may be given by the counsel for such party. 12.2 Quiet Enjoyment. Landlord agrees that upon Tenant's paying all rent and performing and observing all covenants, conditions and other provisions on its part to be performed and observed, Tenant may peaceably and quietly have, hold and enjoy the Premises -20- during the Term without disturbance by Landlord or anyone claiming by, through or under it, subject always to the terms of this Lease, provisions of law, and rights or interests of record to which this Lease may be or become subject and subordinate. 12.3 Limitation of Landlord's Liability. Landlord shall be liable only for breaches of Landlord's obligations occurring while Landlord is owner of the fee of which the Premises are a part (provided, however, that if Landlord shall ever sell and lease-back such fee, or the ground thereof or the improvements thereon, then "fee" shall, in such event, be deemed to mean Landlord's leasehold interest). Tenant (and all persons claiming by, through or under Tenant) agrees to look solely to Landlord's interest from time to time in the Property (including the uncollected rents, issues, profits, and proceeds thereof, subject to the superior rights of mortgagees therein) for satisfaction of any claim or recovery of any judgment from Landlord; it being agreed that neither Landlord nor any trustee, beneficiary, partner, member, manager, shareholder, agent or employee of Landlord shall ever be personally or individually liable for any claim or judgment, or otherwise, to Tenant (or such persons). In no event shall Landlord ever be liable to Tenant (or such persons) for indirect or consequential damages; nor shall Landlord ever be answerable or liable in any equitable judicial proceeding or order beyond the extent of such interest in the Property. 12.4 Applicable Law and Construction. This Lease may be executed in counterpart copies and shall be governed by and construed as a sealed instrument in accordance with the laws of the State of Kansas. If any provision shall to any extent be invalid, the remainder of this Lease shall not be affected. Other than contemporaneous instruments executed and delivered of even date, if any, this Lease contains all of the agreements between Landlord and Tenant with respect to the Premises and supersedes all prior dealings between them with respect thereto. There are no oral agreements between Landlord and Tenant affecting this Lease. This Lease may be amended only by an instrument in writing executed by Landlord and Tenant. The enumeration of specific examples of a general provision shall not be construed as a limitation of the general provision. Unless a party's approval or consent is required by its terms not to be unreasonably withheld, such approval or consent may be withheld in the party's sole discretion. If Tenant is granted any extension or other option, to be effective the exercise (and notice thereof) shall be unconditional, time always being of the essence to any options; and if Tenant purports to condition the exercise of any option or vary its terms in any manner, then the option granted will automatically and immediately become null and void and the purported exercise will be ineffective. This Lease and all consents, notices and other related instruments may be reproduced by any party by photographic, microfilm, microfiche or other reproduction process and the originals thereof may be destroyed; and each party agrees that reproductions will be admissible in evidence to the same extent as the original itself in and judicial or administrative proceeding (whether or not the original is in existence and whether or not reproduction was made in the regular course of business), and further reproduction will likewise be admissible. The titles of the several Articles and Sections are for convenience only, and shall not be considered a part hereof. The submission of a form of this Lease or any summary of its terms shall not constitute an offer by Landlord to Tenant; but a leasehold shall only be created and the parties bound when this Lease is executed and delivered by both Landlord and Tenant. 12.5 Successors and Assigns. Except as herein provided otherwise, the agreements and conditions in this Lease contained on the part of Landlord to be performed and observed shall be -21- binding upon Landlord and its legal representatives, successors and assigns, and shall inure to the benefit of Tenant and its legal representatives, successors and assigns; and the agreements and conditions on the part of Tenant to be performed and observed shall be binding upon Tenant (and any guarantor of Tenant) and Tenant's legal representatives, successors and assigns and shall inure to the benefit of Landlord and its legal representatives, successors and assigns. 12.6 Relationship of the Parties. Nothing herein shall be construed as creating the relationship between Landlord and Tenant of principal and agent, or of partners or joint venturers; it being understood and agreed that neither the manner of fixing rent, nor any other provision of this Lease, nor any act of the parties, shall ever be deemed to create any relationship between them other than the relationship of landlord and tenant. 12.7 Estoppel Certificate. Within ten (10) business days after either party's request, Landlord and Tenant agree, in favor of the other, to execute, acknowledge and deliver a statement in writing certifying that this Lease is unmodified and in full force and effect (or, if there have been any modifications that the same is in full force and effect as modified and stating the modifications), and the amount and dates to which the Annual Fixed Rent (and Additional Rent and all other charges) have been paid and any other information reasonably requested by the requesting party or Landlord's mortgagee. Both parties intend and agree that any such statement may be relied upon by any prospective purchaser, mortgagee, or other person to whom the same is delivered. Tenant acknowledges that prompt execution and delivery of such statements, and all instruments referred to in Article XI, constitute essential requirements of any financings or sales by Landlord, and Tenant will indemnify Landlord in the manner elsewhere provided against all costs and damages resulting from Tenant's failure to comply herewith (notwithstanding any grace period) or Landlord's right to execute the same on Tenant's behalf. 12.8 Notice of Lease. Neither party shall record this Lease, but each party will, upon request of the other, execute a recordable notice of lease in a form reasonably approved by Landlord and, upon termination, a like notice of termination of lease; and Tenant irrevocably appoints Landlord as its attorney-in-fact, with full power of substitution, to execute, acknowledge and deliver such notice of termination of lease in Tenant's name, place and stead if Tenant fails so to do with five (5) days of any request. 12.9 Tenant as Business Entity. Simultaneously with the execution of the Lease, each of Landlord and Tenant shall deliver to the other (i) a certificate of legal existence and good standing and (ii) a certified copy of a resolution of its directors, manager, or general partner authorizing the execution of this Lease or other reasonable evidence of such authority. 12.10 Legal Proceedings. If either party shall be in breach or default under this Lease, such party shall reimburse the other upon demand for any costs or expenses incurred in connection with any breach or default of the defaulting party, as provided in this Section. Such costs shall include all reasonable legal fees and costs incurred for the negotiation of a settlement, enforcement of rights or otherwise. 12.11 Landlord's Consent. Tenant shall pay Landlord's reasonable fees and expenses, including, without limitation, legal, engineering and other consultants' fees and expenses, incurred -22- in connection with Tenant's request for Landlord's consent under this Lease, or in connection with any other act by Tenant which requires Landlord's consent or approval under this Lease. 12.12 Holding Over. If Tenant (or anyone claiming by, through or under Tenant) shall remain in possession of the Premises or any part thereof after the expiration or earlier termination of this Lease with respect to any portion of the Premises without any agreement in writing executed with Landlord, the person remaining in possession shall be deemed a tenant at sufferance, Tenant shall thereafter pay Annual Fixed Rent at 150% of the greater of the amount payable for the twelve month period immediately preceding such expiration or termination or the then prevailing fair market rent for the Premises and with all additional rent payable and covenants of Tenant in force as otherwise herein provided, and Tenant shall be liable to Landlord for all damages directly arising from such breach, and for indirect or consequential damages relating only to any loss of any replacement tenant(s) for the Premises of which Tenant had notice. After acceptance of the full amount of such rent by Landlord the person remaining in possession shall be deemed a tenant from month-to-month at such rent and otherwise subject to and having agreed to perform all of the provisions of this Lease, but Landlord will not be deemed to have relinquished any claims for damages. 12.13 Interpretation. Whenever required by the context of this Lease, the singular shall include the plural and the plural shall include the singular. The masculine, feminine and neuter genders shall each include the other. In any provision relating to the conduct, acts or omissions of Tenant, the term "Tenant" shall include Tenant's agents, employees, contractors, invitees, successors or others using the Premises with Tenant's expressed or implied permission. 12.14 Waivers. All waivers shall be in writing and signed by the waiving party. Landlord's failure to enforce any provision of this Lease or its acceptance of rent shall not be a waiver and shall not prevent Landlord from enforcing that provision or any other provision of this Lease in the future. No statement on a payment check from Tenant or in a letter accompanying a payment check shall be binding on Landlord. Landlord may, with or without notice to Tenant, negotiate such check without being bound by to the conditions of such statement. 12.15 Force Majeure. If either party cannot perform any of its obligations due to events beyond such party's reasonable control, the time provided for performing such obligations shall be extended by a period of time equal to the duration of such events. Events beyond the parties' reasonable control include, but are not limited to, acts of God, war, civil commotion, labor disputes, strikes, fire, flood or other casualty, shortages of labor or material, government regulation or restriction and weather conditions but exclude financial circumstances. Notwithstanding the foregoing, the events listed in this Section 12.15 shall not excuse Tenant's failure to pay any Annual Fixed Rent or Additional Rent due under this Lease. 12.16 Brokers. Each of Tenant and Landlord represents and warrants to the other that it has not dealt with any broker (other than the Broker(s) identified in Article I, if any) in connection with this Lease or the Premises and agrees to indemnify and save the other harmless from all loss, claim, damage, cost or expense (including reasonable attorneys' fees of counsel of the other's choice against whom the indemnifying party makes no reasonable objection) arising from any its breach of this representation and warranty. This warranty and representation shall survive the -23- term or any early termination of this Lease. The fees of any Broker named in Article I will be paid by Landlord. ARTICLE XIII: SPECIAL PROVISIONS -24- Executed as a sealed instrument as of the Date of Lease first set forth above. LANDLORD: STAG II Kansas City, LLC By: /s/ BENJAMIN S. BUTCHER ------------------------------------- Name: Benjamin S. Butcher Title: President TENANT: Dayton Superior Corporation By /s/ MARK K. KALER -------------------------------------- Name: Mark K. Kaler ----------------------------------- Title: Vice President, Strategic Planning ---------------------------------- -25- Schedule 9.10 Letter of Credit Requirements The Letter of Credit (as defined in the Lease) shall be for the Original Amount. The Letter of Credit (i) shall be irrevocable and shall be issued by a commercial bank reasonably acceptable to Landlord that has an office in Boston, Massachusetts or New York City or Chicago, Illinois that accepts requests for draws on the Letter of Credit, (ii) shall require only the presentation to the issuer of a certificate of the holder of the Letter of Credit stating that Landlord is entitled to draw on the Letter of Credit pursuant to the terms of the Lease, (iii) shall be payable to Landlord or its successors in interest as the Landlord and shall be freely transferable without cost to any such successor or any lender holding a collateral assignment of Landlord's interest in the Lease, (iv) shall be for an initial term of not less than one year and contain a provision that such term shall be automatically renewed for successive one-year periods unless the issuer shall, at least forty five (45) days prior to the scheduled expiration date, give Landlord notice of such nonrenewal, and (v) shall otherwise be in form and substance reasonably acceptable to Landlord. Notwithstanding the foregoing, the term of the Letter of Credit for the final period shall be for a term ending not earlier than the date thirty (30) days after the last day of the Term. Landlord shall be entitled to draw upon the Letter of Credit for its full amount or any portion thereof if (a) Tenant shall fail to perform any of its obligations under the Lease after the expiration of any applicable notice and cure period, or fail to perform any of its obligations under the Lease and transmittal of a default notice is barred by applicable law, or fail to perform any of its obligations under the Lease and any applicable notice and cure period would expire prior to the expiration of the Letter of Credit, or (b) not less than thirty (30) days before the scheduled expiration of the Letter of Credit, Tenant has not delivered to Landlord a new Letter of Credit in accordance with this Schedule. Without limiting the generality of the foregoing, Landlord may, but shall not be obligated to, draw on the Letter of Credit from time to time in the event of a bankruptcy filing by or against Tenant and/or to compensate Landlord, in such order as Landlord may determine, for all or any part of any unpaid rent, any damages arising from any termination of the Lease in accordance with the terms of the Lease, and/or any damages arising from any rejection of the Lease in a bankruptcy proceeding commenced by or against Tenant. Landlord may, but shall not be obligated to, apply the amount so drawn to the extent necessary to cure Tenant's failure. Any amount of the Letter of Credit drawn in excess of the amount applied by Landlord to cure any such failure shall be held by Landlord as a cash security deposit for the performance by Tenant of its obligations under the Lease. Any cash security deposit may be mingled with other funds of Landlord and no fiduciary relationship shall be created with respect to such deposit, nor shall Landlord be liable to pay Tenant interest thereon. If Tenant shall fail to perform any of its obligations under this Lease, Landlord may, but shall not be obliged to, apply the cash security deposit to the extent necessary to cure Tenant's failure. After any such application by Landlord of the Letter of Credit or cash security deposit, as the case may be, Tenant shall reinstate the Letter of Credit to the amount originally required to be maintained under the Lease, upon demand. Provided that Tenant is not then in default under the Lease, and no condition exists or event has occurred which after the expiration of any applicable notice or cure period would constitute such a default, within thirty (30) days after the expiration or sooner termination of the Term the Letter of Credit -26- and any cash security deposit, to the extent not applied, shall be returned to the Tenant, without interest. In the event of a sale of the Premises, Building or lease, conveyance or transfer of the Premises or the Building, Landlord shall transfer the Letter of Credit or cash security deposit to the transferee. Upon such transfer, the transferring Landlord shall be released by Tenant from all liability for the return of such security, and Tenant agrees to look to the transferee solely for the return of said security. The provisions hereof shall apply to every transfer or assignment made of the security to such a transferee. Tenant further covenants that it will not assign or encumber or attempt to assign or encumber the Letter of Credit or the monies deposited herein as security, and that neither Landlord nor its successors or assigns shall be bound by any assignment, encumbrance, attempted assignment or attempted encumbrance. -27- Exhibit A The Property Tract I: The Northerly 113 feet of Lot 2-3, Block 2, MUNCIE INDUSTRIAL PARK, an addition in Kansas City, Wyandotte County, Kansas, Tract II: The South 157.00 feet of Lot 2-3 and the North 169.70 feet of Lot 2-4, Block 2, MUNCIE INDUSTRIAL PARK, a subdivision of land in Kansas City, Wyandotte County, Kansas. Tract III: All of Lot 2-2, in Block 2, MUNCIE INDUSTRIAL PARK, a subdivision in Kansas City, Wyandotte County, Kansas. -28- Exhibit B Annual Fixed Rent
LEASE YEAR ANNUAL AMOUNT MONTHLY PAYMENT - ---------- ------------- --------------- 1 $226,320 $18,860 2 $230,846 $19,237 3 $235,463 $19,622 4 $240,172 $20,014 5 $244,975 $20,415 6 $249,875 $20,823 7 $254,873 $21,239 8 $259,970 $21,664 9 $265,169 $22,097 10 $270,472 $22,539
-29- Exhibit C Rules and Regulations 1. Tenant shall not use any method of heating or air-conditioning other than that supplied by the building systems without the prior written consent of Landlord, which shall not be unreasonably withheld. 2. Except for dock shelters and seals as may be expressly permitted by Landlord, no awnings or other projections shall be attached to the outside walls of the building. 3. Tenant shall not use, keep or permit to be used or kept any flammable or combustible materials without proper governmental permits and approvals. 4. Tenant shall not use, keep or permit to be used or kept food or other edible materials in or around the Premises in such a manner as to attract rodents, vermin or other pests. Tenant shall not permit cooking in or about the Premises other than in microwave ovens. 5. Tenant shall not use or permit the use of the Premises for lodging or sleeping, for public assembly, or for any illegal or immoral purpose. 6. Storage of propane tanks, whether interior or exterior, shall be in secure and protected storage enclosures approved by the local fire department and, if exterior, shall be located in areas specifically designated by Landlord. Safety equipment, including eye wash stations and approved neutralizing agents, shall be provided in areas used for the maintenance and charging of lead-acid batteries. Tenant shall protect electrical panels and building mechanical equipment from damage from forklift trucks. 7. No person shall go on the roof of the Property without Landlord's permission except to perform obligations or to exercise Tenant's rights under its lease. 8. No animals (other than seeing eye dogs) or birds of any kind may be brought into or kept in or about the Premises. 9. Tractor trailers which must be unhooked or parked with dolly wheels beyond the concrete loading areas must use steel plates or wood blocks of sufficient size to prevent damage to the asphalt paving surfaces. No parking or storing of such trailers will be permitted on streets adjacent to the Property. 10. Forklifts which operate on asphalt paving areas shall not have solid rubber tires and shall use only tires that do not damage the asphalt. 11. Tenant shall be responsible for the safe storage and removal of all pallets. Pallets shall be stored in a neat and orderly manner, so as not to have an unkempt appearance from the street or other public areas. If pallets are stored within the Premises, storage shall comply with safe practices as described in Factory Mutual Loss Prevention Data Sheet 8-24. -30- 12. Tenant shall be responsible for the safe storage and removal of all trash and refuse. All such trash and refuse shall be contained in suitable receptacles stored in a neat and orderly manner, so as not to have an unkempt appearance from the street or other public areas. Landlord reserves the right to remove, at Tenant's expense and without further notice, any trash or refuse left elsewhere outside of the Premises or Building. 13. Tenant shall appoint an Emergency Coordinator who shall be responsible for assuring notification of the local fire department in the event of an emergency, assuring that sprinkler valves are kept open and implementing the Factory Mutual "Red Tag Alert" system including weekly visual inspection of all sprinkler system valves on or within the Premises. -31- Exhibit D Insurance, Casualty and Condemnation This Exhibit D shall be incorporated into the Lease, and where terms of this Exhibit conflict with these terms within the Lease, the terms of this Exhibit shall prevail and govern the Lease. I. INSURANCE (a) Coverage. Tenant shall purchase and maintain insurance during the entire Term of the Lease and any period Tenant (or any party claiming by, through or under Tenant) occupies any portion of the Premises, for the benefit of the Tenant and Landlord (as their interest may appear) with terms and coverages reasonably satisfactory to Landlord, and with insurers having a minimum A.M. Best rating of at least A-/X, and with such increases in limits as Landlord may from time to time reasonably request, but initially Tenant shall maintain the following coverages in the following amounts: (i) Commercial General Liability Insurance naming Landlord, Landlord's management, leasing and development agents and Landlord's mortgagee(s) from time to time as additional insureds, with coverage for premises/operations, personal and advertising injury, products/completed operations and contractual liability with combined single limits of liability of not less than $1,000,000 for bodily injury and property damage per occurrence and not less than 2,000,000 in the aggregate and excess liability insurance with a limit not less than $20,000,000 per occurrence and aggregate. (ii) Property insurance covering property damage and business interruption for the entire Property. Covered property shall include the Building, boilers and machinery, all tenant improvements, office furniture, trade fixtures, office equipment, merchandise and all other items Tenant's property on the Premises. Such insurance shall name Landlord and Landlord's mortgagee(s) from time to time as additional loss payees as their interests may appear. Such insurance shall be written on an "all risk" of physical loss or damage basis including but not limited to the perils of fire, extended coverage, windstorm, vandalism, malicious mischief, sprinkler leakage, flood, windstorm and earthquake, for the full replacement cost value of the covered items and other endorsements as Landlord shall reasonably request from time to time and in amounts that meet any co-insurance clause of the policies of insurance with a deductible amount not to exceed $50,000 with respect to property insurance and $500,000 with respect to commercial general liability insurance. (iii) Workers' Compensation Insurance and Employers Liability Insurance with statutory limits and automobile liability insurance (coverage must include owed, leased, hired and non owned vehicles) with a limit of at least $1,000,000. -32- Tenant shall, prior to the commencement of the Term and on each anniversary of the Term Commencement Date and/or renewal date thereof, furnish to Landlord certificate(s) (ACCORD Form 27) evidencing such coverage, which certificate(s) shall state that such insurance coverage may not be changed or canceled without at least thirty (30) days' prior written notice to Landlord and Tenant. The insurance maintained by Tenant shall be deemed to be primary insurance and any insurance maintained by Landlord (acknowledging that Landlord has no obligation to maintain any insurance) shall be deemed secondary thereto. (b) Avoid Action Increasing Rates. Tenant shall comply with all applicable laws and ordinances, all orders and decrees of court and all requirements of other governmental authorities, and shall not, directly or indirectly, make any use of the Premises which may thereby be prohibited or be dangerous to person or property or which may jeopardize any insurance coverage or may increase the cost of insurance or require additional insurance coverage. If Tenant fails to comply with the provisions of this Section I(b) and (i) any insurance coverage is jeopardized and Tenant fails to correct such dangerous or prohibited use following ten (10) days' notice, or (ii) insurance premiums are increased and Tenant fails, following ten (10) days' notice, to cease such use, then in each event such failure shall constitute an Event of Default by Tenant hereunder, without any further notice or cure right, and Landlord shall have all of its remedies as set forth in the Lease. (c) Waiver of Subrogation. Landlord and Tenant each hereby waive any and every claim for recovery from the other for any and all loss of or damage to the Building or Premises or to the contents thereof, which loss or damage is covered by valid and collectible property insurance policies. Landlord waives any and every claim against Tenant for any and all loss of or damage to the Building or the Premises or contents thereof, which would have been covered had the insurance policies required to be maintained by Landlord by this Lease been in force, to the extent that such loss or damage would have been recoverable under such insurance policies. Tenant waives any and every claim against Landlord for any and all loss of, or damage to, the Building or Premises or the contents thereof which would have been covered had Tenant maintained the insurance policies required to be maintained by Tenant under this Lease been in force, to the extent that such loss or damage would have been recoverable under such insurance policies. Inasmuch as this mutual waiver will preclude the assignment of any such claim by subrogation (or otherwise) to an insurance company (or any other person), Landlord and Tenant each agree to give to each insurance company which has issued, or in the future may issue, to it policies of property insurance, written notice of the terms of this mutual waiver, and to have said insurance policies properly endorsed, if necessary, to prevent the invalidation of said insurance coverage by reason of said waiver. II. FIRE OR CASUALTY (a) If the Premises or the Building (including machinery or equipment used in its operation) shall be damaged by fire or other casualty and if such damage does not cause a termination of this Lease as described in the following sentences, then -33- Landlord shall repair and restore the damage with reasonable promptness, subject to reasonable delays for insurance adjustments and delays caused by matters beyond Landlord's reasonable control, but Landlord shall not be obligated to expend for repairing or restoring the damage an amount in excess of the proceeds of insurance actually received by Landlord for application to the repair of such damage. If in Landlord's estimate the Premises cannot be restored within three hundred sixty-five (365) days from the date of such fire or casualty, then Landlord shall give notice to Tenant of such estimate within one hundred twenty (120) days after such fire or casualty. Tenant may elect by written notice given to Landlord within sixty (60) days following the date of such notice from Landlord (time being of the essence) to terminate this Lease effective as of the date of Tenant's notice. If any such damage (i) renders 25% or more of the Building untenantable or (ii) renders general Building systems inoperable and such systems cannot be repaired in Landlord's reasonable estimate within three hundred sixty-five (365) days from the date of such damage or (iii) occurs within the last two (2) Lease Years, Landlord shall have the right to terminate this Lease as of the date of such damage upon written notice given to the Tenant at any time within one hundred twenty (120) days after the date of such damage. Landlord shall have no liability to Tenant, and Tenant shall not be entitled to terminate this Lease, by virtue of any delays in completion of such repairs and restoration provided that Tenant shall have the right to terminate the Lease if such repairs are not completed within such 365-day period, subject to extension for delays caused by reasons outside of Landlord's control, by notice given within thirty (30) days after such repair period expires, which notice shall be deemed withdrawn if the restoration is completed within thirty (30) days after such notice is delivered to Landlord. Annual Fixed Rent and additional rent, however, shall abate on those portions of the Premises as are, from time to time, untenantable and, in fact, unoccupied by Tenant as a result of such damage. (b) Notwithstanding anything to the contrary herein set forth, Landlord shall have no duty pursuant to this Section II to repair or restore any portion of any alterations, additions, installation or improvements in the Premises or the decoration thereto except to the extent that the proceeds of the insurance carried by Tenant are timely received by Landlord for application to such use. If Tenant desires any other additional repairs or restoration, and if Landlord consents thereto, it shall be done at Tenant's sole cost and expense subject to all of the applicable provisions of the Lease. Tenant acknowledges that Landlord shall be entitled to the full proceeds of any insurance coverage whether carried by Landlord or Tenant, for damage to any alterations, addition, installation, improvements or decorations which would become the Landlord's property upon the termination of the Lease. III. WAIVER OF CLAIM - INDEMNIFICATION Without limiting any other provisions hereof, but subject to the provisions of Section I(c) hereof, Tenant agrees to defend, protect, indemnify and save Landlord and its partners, affiliates, officers, agents, servants and employees and Landlord's management, leasing and development agents and Landlord's mortgagee(s) from time to time from and against all liability to third parties arising out of the use of the Premises by, or the acts or omissions of, -34- Tenant or its servants, agents, employees, contractors, suppliers, workers or invitees. To the extent not prohibited by law and subject to the waiver of subrogation contained in Section I(c), Landlord and its partners, affiliates, officers, agents, servants and employees shall not be liable for any damage either to person, property or business resulting from the loss of the use thereof sustained by Tenant or by other persons due to the Building or any part thereof or any appurtenances thereto becoming out of repair, or due to the happening of any accident or event in or about the Building, including the Premises, or due to any act or neglect of any tenant or occupant of the Building or of any other person, unless and then only to the extent caused by the negligence or willful misconduct of Landlord or its agents, employees or contractors. This provision shall apply particularly, but not exclusively, to damage caused by gas, electricity, snow, ice, frost, steam, sewage, sewer gas or odors, fire, water or by the bursting or leaking of pipes, faucets, sprinklers, plumbing fixtures and windows, and except as provided above, shall apply without distinction as to the person whose act or neglect was responsible for the damage and shall apply whether the damage was due to any of the causes specifically enumerated above or to some other cause of an entirely different kind. Tenant further agrees that all personal property upon the Premises, or upon loading docks, recovering and holding areas, or freight elevators of the Building, shall be at the risk of Tenant only, and that Landlord shall not be liable for any loss or damage thereto or theft thereof. The provisions of this Rider shall survive the expiration or earlier termination of the Lease, and shall not derogate from the abatement and termination rights set forth in Section 6.11. IV. NONWAIVER No waiver of any provisions of this Lease shall be implied by any failure of Landlord to enforce any remedy on account of the violation of such provisions, even if such violation is continued or repeated subsequently, and no express waiver shall affect any provision other than the one specified in such waiver and that one only for the time and in the manner specifically stated. No receipt for monies by Landlord from Tenant after the termination of this Lease shall in any way alter the length of the Term or of Tenant's right to possession hereunder or after the finding of any notice shall reinstate, continue or extend the Term or affect any notice given Tenant prior to the receipt of such monies, it being agreed that after the service of notice or the commencement of a suit or after final judgment for possessions of the Premises, Landlord may receive and collect any Annual Fixed Rent and additional rent due, and the payment of said Annual Fixed Rent and additional rent shall not waive or affect said notice, suit or judgment. V. CONDEMNATION If the Land or the Building (or any portion of the Building, the loss of which would require reconfiguration or restoration of the Building which Landlord reasonably estimates will cost in excess of 25% of the current replacement cost of the Building) shall be taken or condemned by any competent authority for any public or quasi-public use or purpose, Landlord shall have the right, exercisable at its sole direction, to cancel the Lease upon not less than sixty (60) days' notice prior to the date of cancellation designated in the notice. No money or other consideration shall be payable by Landlord to Tenant for the right of -35- cancellation and Tenant shall have no right to share in the condemnation award or in any judgment for damages caused by such taking or condemnation. If any such taking (i) renders 25% or more of the Building untenantable or (ii) renders general Building systems inoperable and such systems cannot be repaired in Landlord's reasonable estimate within three hundred sixty-five (365) days from the date of such taking or (iii) occurs within the last two (2) Lease Years, Landlord or Tenant shall have the right to terminate this Lease as of the date of such taking upon written notice given to the other at any time within one hundred twenty (120) days after the date of such taking. Landlord shall have no liability to Tenant, and Tenant shall not be entitled to terminate this Lease, by virtue of any delays in completion of such repairs and restoration unless such repairs are not completed within such 365-day period, in which event Tenant shall have the right to terminate the Lease if such repairs are not completed within such 365-day period, subject to extension under Section 12.15, by notice given within 30 days after such repair period expires, which notice shall be deemed withdrawn if the restoration is completed within 30 days after such notice is delivered to Landlord. Annual Fixed Rent and additional rent, however, shall abate on those portions of the Premises as are, from time to time, untenantable and, in fact, unoccupied by Tenant as a result of such taking. -36- Exhibit E Form of SNDA SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT Tenant Name: ___________________________ Trade Name: ____________________________ Room/Unit No.: _________________________ THIS AGREEMENT is dated the _____ day of ____________________, 20__, and is made by and among CONNECTICUT GENERAL LIFE INSURANCE COMPANY, having an address c/o CIGNA Investments, Inc., 900 Cottage Grove Road, Hartford, Connecticut 06152, Attn: Debt Asset Management, S-319 ("Mortgagee"), _____________________________________________________________, d/b/a _____________________________________________________, having an address of ________________________________________________________ ("Tenant"), and _____________________________________________________, having an address of ________________________________________ ("Landlord). RECITALS: A. Tenant has entered into a lease ("Lease") dated ____________________ with ____________________ as lessor ("Landlord"), covering the premises known as ____________________ (the "Premises") within the property known as ____________________, more particularly described as shown on Exhibit A, attached hereto (the "Real Property"). B. Mortgagee has agreed to make or has made a mortgage loan in the amount of ____________________ to Landlord, secured by a mortgage of the Real Property (the "Mortgage"), and the parties desire to set forth their agreement herein. NOW, THEREFORE, in consideration of the premises and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: 1. The Lease and all extensions, renewals, replacements or modifications thereof are and shall be subject and subordinate to the Mortgage and all terms and conditions thereof insofar as it affects the Real Property of which the Premises form a part, and to all renewals, modifications, consolidations, replacements and extensions thereof, to the full extent of amounts secured thereby and interest thereon. -37- 2. Tenant shall attorn to and recognize any purchaser at a foreclosure sale under the Mortgage, any transferee who acquires the Premises by deed in lieu of foreclosure, and the successors and assigns of such purchaser(s), as its landlord for the unexpired balance (and any extensions, if exercised) of the term of the Lease on the same terms and conditions set forth in the Lease. 3. If it becomes necessary to foreclose the Mortgage, Mortgagee shall neither terminate the Lease nor join Tenant in summary or foreclosure proceedings for the purpose of terminating the Lease so long as Tenant is not in default under any of the terms, covenants, or conditions of the Lease beyond any applicable notice and cure periods. 4. If Mortgagee succeeds to the interest of Landlord under the Lease, Mortgagee shall not be: (a) liable for the return of any security deposit unless such deposit has been delivered to Mortgagee by Landlord or is in an escrow fund available to Mortgagee, (b) bound by any rent or additional rent that Tenant might have paid for more than the current month to any prior landlord (including Landlord), (c) bound by any amendment, modification, or termination of the Lease made without Mortgagee's prior written consent (which consent shall not be unreasonably withheld or delayed), or (d) personally liable under the Lease, Mortgagee's liability thereunder being limited to its interest in the Real Property. 5. This Agreement shall be binding on and shall inure to the benefit of the parties hereto and their successors and assigns. 6. Tenant shall give Mortgagee, by commercial overnight delivery service, a copy of any notice of default served on Landlord at the same time such notice is sent to the Landlord, addressed to Mortgagee at Mortgagee's address set forth above or at such other address as to which Tenant has been notified in writing. Mortgagee shall have the right, but not the obligation, to cure such default within the time period specified in the Lease. 7. Landlord has agreed under the Mortgage and other loan documents that rentals payable under the Lease shall be paid directly by Tenant to Mortgagee upon default by Landlord under the Mortgage. After receipt of notice from Mortgagee to Tenant, at the address set forth above or at such other address as to which Mortgagee has been notified in writing, that rentals under the Lease should be paid to Mortgagee, Tenant shall pay to Mortgagee, or at the direction of Mortgagee, all monies due or to become due to Landlord under the Lease. Tenant shall have no responsibility to ascertain whether such demand by Mortgagee is permitted under the Mortgage, or to inquire into the existence of a default. Landlord hereby waives any right, claim, or demand it may now or hereafter have against Tenant by reason of such payment to Mortgagee, and any such payment shall discharge the obligations of Tenant to make such payment to Landlord. -38- IN WITNESS WHEREOF, the parties hereto have executed these presents as of the day and year first above written. WITNESSES: MORTGAGEE: ---------------------------------------- By: - ------------------------------------- ------------------------------------ Name: Its: - ------------------------------------- ----------------------------------- Name: TENANT: ---------------------------------------- By: - ------------------------------------- ------------------------------------ Name: Its: - ------------------------------------- ----------------------------------- Name: LANDLORD: ---------------------------------------- By: - ------------------------------------- ------------------------------------ Name: Its: - ------------------------------------- ----------------------------------- Name: -39- STATE OR COMMONWEALTH OF ________________ : ss. COUNTY OF _______________________________ On this, the _____ day of ________________, 20___, before me, the undersigned officer, personally appeared _______________________, who acknowledged himself/herself to be the ____________________________ of ___________________________, and signed the foregoing instrument for the purposes therein contained as his/her free act and deed and the free act and deed of such entity. IN WITNESS WHEREOF, I hereunto set my hand and official seal the day and year aforesaid. - ------------------------------------- Notary Public My Commission Expires: STATE OR COMMONWEALTH OF ________________ : ss. COUNTY OF _______________________________ On this, the _____ day of ________________, 20___, before me, the undersigned officer, personally appeared _______________________, who acknowledged himself/herself to be the ____________________________ of ___________________________, and signed the foregoing instrument for the purposes therein contained as his/her free act and deed and the free act and deed of such entity. IN WITNESS WHEREOF, I hereunto set my hand and official seal the day and year aforesaid. - ------------------------------------- Notary Public -40- My Commission Expires: STATE OR COMMONWEALTH OF ________________ : ss. COUNTY OF _______________________________ On this, the _____ day of ________________, 20___, before me, the undersigned officer, personally appeared _______________________, who acknowledged himself/herself to be the ____________________________ of ___________________________, and signed the foregoing instrument for the purposes therein contained as his/her free act and deed and the free act and deed of such entity. IN WITNESS WHEREOF, I hereunto set my hand and official seal the day and year aforesaid. - ------------------------------------- Notary Public My Commission Expires: -41- EX-10.4 7 l16444aexv10w4.txt EX-10.4 LEASE - STAG II AURORA AND DAYTON SUPERIOR EXHIBIT 10.4 LEASE STAG II AURORA, LLC AS LANDLORD, AND DAYTON SUPERIOR CORPORATION AS TENANT TABLE OF CONTENTS
Article Page - ------- ---- I Basic Terms.................................................... 1 II Lease of Premises.............................................. 3 III Initial Construction of Premises............................... 5 IV Annual Fixed Rent.............................................. 5 V Additional Rent................................................ 5 VI Maintenance, Use, and Alterations of the Premises.............. 8 VII Insurance and Indemnification.................................. 14 VIII Assignment and Subletting...................................... 15 IX Default and Remedies........................................... 17 X Casualty and Condemnation...................................... 21 XI Landlord's Financing........................................... 21 XII Miscellaneous.................................................. 23 XIII Special Provisions ............................................ 26
-i- ARTICLE I: BASIC TERMS 1.1 Reference Subjects. The following terms used in this Lease shall have the meanings set forth below. Date of Lease: October __, 2005 Landlord: STAG II Aurora, LLC, a Delaware limited liability company Tenant: Dayton Superior Corporation, an Ohio corporation Property: The land known and numbered as 625 Crane Street, Aurora, Illinois, more particularly described on Exhibit A. Premises: The entire building or buildings at the Property (the "Building"), containing approximately 103,683 rentable square feet, and all other improvements on or above the surface of the Property. Tenant's Percentage Share: 100% Term Commencement Date: The date of this Lease. Rent Commencement Date: The date of this Lease. Term Expiration Date: The last day of the eleventh (11th) Lease Year. The first Lease Year of the Term shall commence on the Term Commencement Date and end on the last day of the month in which the first (1st) anniversary of the Rent Commencement Date shall occur (unless the Rent Commencement Date shall occur on the first day of a month, in which case the first Lease Year shall end on the day before the first (1st) anniversary of the Rent Commencement Date). Subsequent Lease Years shall commence on the day after the last day of the first Lease Year or an anniversary thereof, and shall end on an anniversary of the last day of the first Lease Year. Permitted Uses: Manufacturing, warehouse and distribution uses, together with office uses ancillary to such uses. Security Deposit: $140,650. Tenant's Guarantor: None.

Annual Fixed Rent: See Exhibit B. Additional Rent: See Article V. Broker(s) None. Exhibits Schedule 9.10 Letter of Credit Requirements A: Property B: Annual Fixed Rent C: Rules and Regulations D. Insurance, Casualty, and Condemnation Provisions E. Subordination, Non-Disturbance and Attornment Agreement

ARTICLE II: LEASE OF PREMISES 2.1 Premises. Landlord hereby leases the Premises to Tenant and Tenant hereby leases the Premises from Landlord for the Term, subject to and with the benefit of the terms, covenants and conditions of this Lease, and of rights, agreements, easements and restrictions of record applicable to the Property, all of which Tenant shall perform and observe insofar as the same are applicable to the Premises. As appurtenant to the Premises, Tenant shall have the right to the exclusive use of the roof for telecommunications equipment and all portions of the Property at and above grade level, but Tenant shall not have any right of access, control over or other ability to use any portion of the Property below grade level. 2.2 Term. (a) The term of this Lease (the "Term") shall begin on the Term Commencement Date and shall end on the Term Expiration Date, subject to extension as set forth below. (b) Tenant shall have the right to extend the Term for two periods of five (5) years, on the terms and conditions set forth below. To exercise the extension option, Tenant shall notify Landlord in writing at least twelve (12) months prior to the then scheduled expiration of the Term. Failure to timely deliver such notice shall be deemed an irrevocable election by Tenant not to extend the Term, and Tenant shall have no further right to extend the Term. If Tenant timely delivers such notice, then all of the terms and conditions of the Lease in effect immediately prior to such extension shall apply during the extension period, except that Tenant shall have no right to extend the Term beyond the end of the second extension period and the Annual Fixed Rent during such extension period shall be the Fair Market Rent therefor, determined as provided below, but not less than the Annual Fixed Rent applicable to the Premises immediately before such extension. If Tenant shall exercise the extension option in accordance with this Section, the provisions of this Section shall be self-operative, but upon request by either party after determination of the Annual Fixed Rent for the extension period the parties shall execute an agreement specifying the Annual Fixed Rent for the extension period and acknowledging the extension of the Term. -2- Notwithstanding the foregoing, Tenant's exercise of any option to extend the Term shall be void, at Landlord's election, if either at the time the option is exercised or at the time the extension period is to commence, (i) Tenant is in default under the Lease, or (ii) there exists a sublease or subleases of more than 25% of the square footage of the Building in the aggregate, or (iii) the originally named Tenant hereunder has assigned or transferred its interest in this Lease (except for an assignment or transfer that does not require Landlord's consent under the terms of this Lease). (c) As used herein, the "Fair Market Rent" shall mean the annual fair market rent for the Premises, ascertained for a term coterminous with the time period for which the Fair Market Rent is to be effective, under the terms of this Lease, determined as though the Premises were in the condition then existing or in such better condition as such space is required to be maintained hereunder. Not later than ten (10) months prior to the commencement of the extension period, Landlord shall notify Tenant in writing of Landlord's determination of the Fair Market Rent. Within thirty (30) days after receipt of such notice, Tenant shall notify Landlord whether Tenant accepts or disputes Landlord's determination of Fair Market Rent, which notice of dispute shall include Tenant's determination of the Fair Market Rent (the failure to timely dispute being deemed Tenant's acceptance of Landlord's determination). (d) If Tenant so disputes Landlord's determination, such dispute shall be resolved in accordance with the following procedure. Within thirty (30) days after receipt of Tenant's notice disputing Landlord's determination, Landlord and Tenant shall mutually appoint as an arbitrator a licensed real estate broker with at least ten years experience as a broker of comparable properties in the area or if they cannot agree upon such arbitrator, either party may apply to the office of the American Arbitration Association ("AAA") for appointment of such an arbitrator. The arbitrator shall be charged to determine the Fair Market Rent in accordance with this Section, within sixty (60) days after the arbitrator is appointed, by selecting either of the final estimates of the Fair Market Rent provided by Landlord and Tenant at the commencement of the hearing. The arbitrator shall have no authority or jurisdiction to make any other determination of such amount. The arbitration shall be conducted in accordance with the commercial arbitration rules of the AAA insofar as such rules are not inconsistent with the provisions of this Lease (in which case the provisions of this Lease shall govern). The cost of the arbitrator shall be borne equally by the parties. If the AAA shall cease to provide arbitration for commercial disputes in Chicago, Illinois, the arbitrator shall be appointed by any successor organization providing substantially the same services, and in the absence of such an organization, by a court of competent jurisdiction under the arbitration act of the State of Illinois. For any extension period during which the applicable Fair Market Rent is in dispute hereunder, Tenant shall make payment on account of Annual Fixed Rent at the rate set forth in Landlord's notice above, and the parties shall adjust for over or under-payments within thirty days after the decision of the arbitrator is announced. ARTICLE III: DELIVERY OF PREMISES 3.1 Delivery of Premises. The Premises are demised and leased subject to the existing state of the title as of the Term Commencement Date. 3.2 Existing Conditions. Tenant acknowledges that Tenant or its affiliates owned and occupied the Premises prior to the Term Commencement Date and that it has inspected the Premises and accepts the same in the condition they are in on the Term Commencement Date, it -3- being expressly agreed that neither Landlord nor any person acting under Landlord has made or implied any representations or warranties concerning this Lease, the Premises, or their condition or suitability for Tenant's use. To the extent permitted by applicable law, Tenant waives any right or remedy otherwise accruing to Tenant on account of the condition or suitability of the Premises, or title to the Premises, and Tenant agrees that it takes the Premises "as-is," with all faults and without any such representation or warranty, including any implied warranties. ARTICLE IV: RENT 4.1 Annual Fixed Rent. Commencing on the Rent Commencement Date and on the first day of each subsequent calendar month during the Term, Tenant shall pay to Landlord the Annual Fixed Rent set forth in on Exhibit B hereto in lawful money of the United States, in advance and without offset, deduction, or prior demand. The Annual Fixed Rent shall be payable at Landlord's Address or at such other place or to such other person as Landlord may designate in writing from time to time. ARTICLE V: ADDITIONAL RENT 5.1 Additional Rent. All sums payable by Tenant under this Lease other than Annual Fixed Rent shall be deemed "Additional Rent." The term "rent" shall mean Annual Fixed Rent and Additional Rent. Unless this Lease provides otherwise, Tenant shall pay all Additional Rent then due with the next monthly installment of Annual Fixed Rent. 5.2 Real Estate Taxes. Tenant covenants and agrees to pay when due, directly to the relevant taxing authority, as Additional Rent, all Taxes. "Taxes" shall mean all taxes, assessments, betterments, excises, user fees and all other governmental charges and fees of any kind or nature, or impositions or agreed payments in lieu thereof or voluntary payments made in connection with the provision of governmental services or improvements of benefit to the Building or the Property (including any so-called linkage, impact or voluntary betterment payments), and all penalties and interest thereon (if due to Tenant's failure to make timely payments on account of Taxes), assessed or imposed against the Premises or the property of which the Premises are a part (including without limitation any personal property taxes levied on such property or on fixtures or equipment used in connection therewith), or upon Landlord by virtue of its ownership thereof, other than a federal or state income tax of general application, during the Term of the Lease. If during the Term the present system of ad valorem taxation of property shall be changed so that, in lieu of or in addition to the whole or any part of such ad valorem tax, there shall be assessed, levied or imposed on such property or Premises or on Landlord any kind or nature of federal, state, county, municipal or other governmental capital levy, income, sales, franchise, excise or similar tax, assessment, levy, charge or fee (as distinct from the federal and state income tax in effect on the Term Commencement Date) measured by or based in whole or in part upon Building valuation, mortgage valuation, rents or any other incidents, benefits or measures of real property or real property operations and imposed on owners of real estate generally, then any and all of such taxes, assessments, levies, charges and fees shall be included within the term Taxes, but only to the extent the same are applicable to the Premises. -4- Tenant may seek a reduction in the assessed valuation (for tax purposes) of the Property provided the same is done by and at Tenant's sole cost and expense and after written notice to Landlord, and Landlord agrees that it shall cooperate in good faith with Tenant's reasonable requests in connection with any such proceeding. Tenant may defer payment of any contested Taxes; provided that Tenant's deferral is in compliance with applicable law permitting such deferral. Tenant shall be entitled to all refunds associated with Tenant's successful prosecution of any such proceeding. If required by applicable law, Landlord shall join in any proceeding referred to in this paragraph; provided, however, Tenant shall indemnify and save Landlord harmless from any costs and expenses associated with such proceedings. If Landlord shall receive a refund of any Taxes paid by Tenant, Landlord shall reimburse Tenant the amount of said refund after deducting therefrom the actual reasonable out of pocket costs and expenses incurred in connection therewith. 5.3 INTENTIONALLY OMITTED. 5.4 Utilities. Tenant shall pay all charges and deposits for gas, water, sewer, electricity, telecommunications, and other energy, utilities and services used or consumed on the Premises during the Term. It is understood and agreed that Landlord (i) shall be under no obligation whatsoever to furnish any such services to the Premises and (ii) shall not be liable for (nor suffer any reduction in any rent on account of) any interruption or failure in the supply of the same. 5.5 Personal Property Taxes. Tenant shall pay when due, directly to the relevant taxing authority, all taxes charged against trade fixtures, furnishings, equipment, inventory, or any other personal property belonging to Tenant. Tenant shall use its best efforts to have its personal property taxed separately from the Premises. If any of Tenant's personal property shall be taxed with the Premises, Tenant shall pay Landlord the taxes for such personal property within thirty days after Tenant receives a written statement from Landlord for such personal property taxes. 5.6 Method of Payment. Tenant agrees to pay the Annual Base Rent to Landlord in advance in equal monthly installments by the first day of each calendar month during the Term. Tenant shall make a ratable payment of Annual Base Rent and Additional Rent (to the extent applicable) for any period of less than a month at the beginning or end of the Term. All payments of Annual Base Rent, and all payments of Additional Rent and other sums due and payable to Landlord, shall be paid in current U.S. exchange by check drawn on a Clearinghouse Bank at the address of Landlord set forth in Section 12.1 or such other place as Landlord may from time to time direct (or if requested by Landlord, by electronic fund transfer), without demand, set-off or other deduction. 5.7 Net Lease. This Lease is an absolutely triple net lease to Landlord. It is the intent of the parties hereto that the Annual Fixed Rent payable under this Lease shall be an absolutely net return to Landlord and that Tenant shall pay all costs and expenses relating to the Premises except as otherwise expressly set forth in this Lease. Without limiting the generality of the preceding sentence, Tenant shall at its sole cost and expense (which expense shall be deemed Additional Rent hereunder) be responsible for payment of all Taxes, all electricity, telecommunication service, gas, water, sewer, telephone, refuse disposal, and other charges for utilities and services -5- supplied to the Premises, insurance costs, amounts due under any Title Document (defined below) and all costs of cleaning, maintaining and repairing the Premises in accordance with the terms of this Lease. Any amount or obligation herein relating to the Premises that is not expressly declared to be that of Landlord shall be deemed to be an obligation of Tenant to be performed by Tenant at Tenant's expense and Tenant shall indemnify Landlord against, and hold Landlord harmless from, the same, and Tenant's liability for the payment of any of the same which shall become payable during the Term is hereby expressly provided to survive the Term. Annual Fixed Rent, Additional Rent, and all other sums payable hereunder by Tenant, shall be paid without notice or demand, and without set off, counterclaim, recoupment, abatement, suspension, deduction, or defense (other than payment) whatsoever, so that this Lease shall yield net to Landlord the Annual Fixed Rent under all circumstances and conditions whether now or hereinafter existing and whether or not within the contemplation of the parties. Except as otherwise expressly set forth in this Lease with respect to certain events of casualty or condemnation, Tenant shall in no event have any right to terminate this Lease. It is the intention of the parties hereto that the obligations of Tenant hereunder shall be separate and independent covenants and agreements, that the Annual Fixed Rent, the Additional Rent, and all other sums payable by Tenant hereunder shall continue to be payable in all events, and that the obligations of Tenant hereunder shall continue unaffected, unless the requirement to pay or perform the same shall have been terminated pursuant to an express provision of this Lease. As used herein, the term "Title Documents" means any and all easements, covenants, conditions, and restrictions, industrial park association agreements, and other agreements, encumbrances, and restrictions of record affecting all or part of the Premises, as the same may now exist, or as the same may hereafter be created or amended without materially expanding the obligations of Tenant without Tenant's approval (which approval shall not be unreasonably withheld), but excluding any mortgage. 5.7 True Lease. Landlord and Tenant agree that the parties intend this Lease to constitute a lease and not a financing arrangement. Each party shall reflect the transaction represented hereby in all applicable books, records and reports (including income tax filings) in a manner consistent with "true lease" treatment rather than "financing" treatment, subject to future modifications of accounting or tax rules or guidelines and subject to contrary determinations or positions by governmental agencies or the like. ARTICLE VI: MAINTENANCE, USE, AND ALTERATIONS OF PREMISES 6.1 Landlord's Structural Repair Obligations. Except as set forth in Exhibit D, Section II and Exhibit D, Section V attached hereto, Landlord shall have no obligation to repair or maintain the Building or Premises. Tenant hereby waives the benefit of any present or future law that provides Tenant the right to repair the Premises or Building at Landlord's expense or to terminate this Lease because of the condition of the Building or the Premises. Notwithstanding anything to the contrary in this paragraph, Tenant shall be solely responsible for the cost of (a) any repair or capital replacement arising from an overburdening of any building system or component or any other act or omission of Tenant, its employees, agents, contractors, or invitees or from a failure by Tenant to perform its maintenance and repair obligations under this Lease, and (b) any alterations, additions, improvements, repairs, or replacements that are performed by or on behalf of Tenant. -6- 6.2 Tenant's Repair and Maintenance Obligations. Except as set forth in Exhibit D Section II and Exhibit D, Section V attached hereto, Tenant shall clean, maintain, repair and secure the Premises, all improvements and appurtenances thereto, all access areas thereof, and all utilities, facilities, installations and equipment used in connection therewith, and shall pay all costs and expenses of so doing, keeping the Premises in good order, repair and condition, reasonable wear and tear, and damage by casualty and taking (to the extent provided in Article X only) excepted. Without limiting the generality of the foregoing, Tenant shall keep the foundation of the Building, all exterior walls, structural walls, the roof of the Building, all interior walls, floor surfaces and coverings, glass, windows, doors, and partitions, all fixtures and equipment, all interior utilities, pipes and drains and other above-ground level installations used in connection with the Premises in such good order, repair and condition, shall provide all cleaning, painting and floor covering to the Premises, and shall remove all refuse from and provide its own janitorial services for the Premises. Tenant shall keep in good order, condition and repair all building systems (including the heating, ventilation, air conditioning, plumbing, electrical, utility, and safety systems). Tenant's maintenance obligations shall also include, without limitation, gardening and landscaping; snow removal; maintenance of signs; rental or lease payments paid by Tenant for rented or leased personal property used in the operation or maintenance of the Premises; fees for required licenses and permits required by Tenant; sweeping and striping of pavement; general maintenance; painting; lighting; and similar items. If any portion of the Premises or any system or equipment in the Premises that Tenant shall be obligated to repair cannot be fully repaired or restored, Tenant shall promptly replace such portion of the Premises or system or equipment. 6.3 Use and Compliance with Law. Tenant shall use the Premises only for the Permitted Uses and only as permitted under federal, state, and local laws, regulations and orders applicable from time to time, including without limitation municipal by-laws, land use and zoning laws, environmental laws and regulations (including all laws and regulations regulating the production, use, and disposal of any pollutant or toxic or hazardous material), and occupational health and safety laws. Tenant shall procure all approvals, licenses and permits necessary therefor, in each case giving Landlord true and complete copies of the same and all applications therefor. Except as set forth in Section 6.1, Tenant shall promptly comply with all present and future laws applicable to Tenant's use of the Premises or Tenant's signs thereon, foreseen or unforeseen, and whether or not the same necessitate structural or other extraordinary changes or improvements to the Premises or interfere with its use and enjoyment of the Premises, and shall keep the Premises equipped with adequate safety appliances and comply with all requirements reasonable in light of the use Tenant is making of the Premises of insurance inspection or rating bureaus having jurisdiction. If Tenant's use of the Premises results in any increase in the premium for any insurance carried by Landlord, then upon Landlord's notice to Tenant of such increase Tenant shall pay the same to Landlord upon demand as Additional Rent. Tenant shall, in any event, indemnify and save Landlord harmless from all loss, claim, damage, cost or expense (including reasonable attorneys' fees of counsel of Landlord's choice against whom Tenant makes no reasonable objection) on account of Tenant's failure so to comply with the obligations of this Section (paying the same to Landlord upon demand as Additional Rent). Except as set forth in Section 6.1, Tenant shall bear the sole risk of all present or future laws affecting the Premises or appurtenances thereto, and Landlord shall not be liable for (nor suffer any reduction in any rent on account of) any interruption, impairment or prohibition affecting the Premises or Tenant's use thereof resulting from the enforcement of laws. Tenant shall comply with the rules and regulations for the Premises set forth on Exhibit C hereto, as the same may be reasonably amended from time to time by -7- Landlord (in accordance with standards applicable to comparable properties) for the operation, care and use of the Property and appurtenant improvements and areas in which Tenant is granted rights of use by the terms of this Lease. 6.4 Nuisance; Hazardous Materials. Tenant shall not, either with or without negligence, injure, overload, deface, damage or otherwise harm Landlord's property, the Premises or any part or component thereof; commit any nuisance; permit the emission of any hazardous materials or substances; allow the release or other escape of any biologically or chemically active or other hazardous substances or materials so as to impregnate, impair or in any manner affect, even temporarily, any element or part of Landlord's property or the Premises, or allow the storage or use of such substances or materials in any manner not sanctioned by law or by commercially reasonable and customary standards prevailing in the industry for the storage and use of such substances or materials; nor shall Tenant bring onto the Premises any such materials or substances except to use in the ordinary course of Tenant's business, and then only in strict compliance with applicable law; permit the occurrence of objectionable noise or odors; or make, allow or suffer any waste whatsoever to Landlord's property or the Premises. Without limitation, hazardous materials shall include all substances described or regulated in any federal, state, local or administrative agency ordinance, law, rule, regulation, order or requirement relating to environmental conditions, human health or hazardous substances, including the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C. Section 9601 et seq), the Resource Conservation and Recovery Act of 1976 (42 U.S.C. Section 6901 et seq.), the Federal Water Pollution Control Act (33 U.S.C. Section 1251 et seq.), the Clean Air Act (42 U.S.C. Section 7401 et seq.), the Emergency Planning and Community Right-To-Know Act (42 U.S.C. Section 1101 et seq.), The Endangered Species Act (16 U.S.C. Section 1531 et seq.), the Toxic Substances Control Act (15 U.S.C. Section 2601 et seq.), the Occupational Safety and Health Act (29 U.S.C. Section 651 et seq.) and the Hazardous Materials Transportation Act (49 U.S.C. Section 1801 et seq.), and the regulations promulgated pursuant to such laws, all as amended from time to time, and all other laws governing similar matters as they may be amended from time to time. In addition, Tenant shall execute affidavits, representations and the like from time to time at Landlord's request concerning Tenant's best knowledge and belief regarding the presence or absence of hazardous materials and substances on the Premises. In all events, Tenant shall indemnify, defend, and hold harmless Landlord and its mortgagees as provided in this Lease from any claims resulting from any release of hazardous materials or substances on the Premises first occurring during the Term, except to the extent caused by Landlord or its agents or contractors or caused by a migration onto or under the Property from adjacent property. (At the request of Landlord, Tenant will from time to time confirm such indemnity to mortgagees directly with such mortgagees.) The indemnities under this Section shall survive any termination of the Lease. 6.5 Landlord's Right to Enter. Landlord and its agents or employees may upon reasonable notice enter the Premises during business hours (and in case of emergency at any time) for the purpose of performing repairs or replacements, or exercising any of the rights reserved to Landlord herein, or securing or protecting Landlord's property or the Premises, or removing any alterations or additions not consented to by Landlord, and similarly upon reasonable notice may show the Premises to prospective purchasers and lenders, and during the last twelve months of the Term to prospective tenants, and may keep affixed in suitable places notices for letting (during the last twelve (12) months of the Term) and selling. Except in case of emergency, Landlord shall be -8- subject in entering the Premises to reasonable security conditions, if any, set forth by Tenant in writing to Landlord. If Tenant so desires, a representative of Tenant may accompany Landlord or its agents in any entry onto the Premises under this Lease. 6.6 Parking. Tenant shall be entitled to use all parking areas on the Property and within the Building without charge. Handicapped spaces shall only be used by those legally permitted to use them. 6.7 Alterations, Additions, and Improvements. Tenant shall not make any installations, alterations, additions, or improvements in or to the Premises, including, without limitation, any apertures in the walls, partitions, ceilings or floors, without on each occasion obtaining the prior written consent of Landlord, which consent shall not be unreasonably withheld or delayed, except that only prior notice and a description of and plans for the work (but no approval) shall be required for any interior work costing less than $50,000 in the aggregate during any twelve-month period and that does not require a permit with respect to the building's structure or mechanical, electrical, or other building systems. Any such work so approved by Landlord shall be performed only in accordance with plans and specifications therefor approved by Landlord. Tenant shall not perform any work in or to the Premises that would in Landlord's reasonable judgment (i) in any manner affect any structural component of the Building (including, without limitation, exterior walls, exterior windows, core walls, columns, roofs, or floor slabs), (ii) in any respect be incompatible with the electrical or mechanical components or systems of the Building, (iii) affect space or areas around the Building (including the exterior of the Building), (iv) diminish the value of the Premises for the Permitted Uses, or (v) require any unusual expense to re-adapt the Premises for the Permitted Uses. Tenant shall procure at Tenant's sole expense all necessary permits and licenses before undertaking any work on the Property and shall perform all such work in a good and workmanlike manner employing materials of good quality and so as to conform with all applicable zoning, building, fire, health and other codes, regulations, ordinances and laws and with all applicable insurance requirements. If any notice of contract or lien is placed on the Property arising from work performed by or for Tenant, if requested by Landlord for any work requiring Landlord's approval, Tenant shall thereafter furnish to Landlord prior to commencement of any such work a bond or other security acceptable to Landlord assuring that any work by Tenant will be completed in accordance with the approved plans and specifications and that all subcontractors will be paid. Tenant shall employ for such work only contractors reasonably approved by Landlord and shall require all contractors employed by Tenant to carry insurance in types and amounts reasonably approved by Landlord (including without limitation worker's compensation insurance in accordance with statutory requirements and commercial general liability insurance covering such contractors on or about the Premises with a combined single limit not less than $3,000,000) and shall submit certificates evidencing such coverage to Landlord prior to the commencement of such work, subject to Section II of Exhibit D in the case of casualty. Tenant shall indemnify and hold harmless Landlord from all injury, loss, claims or damage to any person or property occasioned by or arising out of such work. Landlord may inspect the work of Tenant at reasonable times in accordance with Section 6.5 and give notice of observed defects. Upon completion of any such work, Tenant shall provide Landlord with "as built" plans, copies of all construction contracts and proof of payment for all labor and materials. 6.8 Liens and Encumbrances. Tenant shall not create or suffer, shall keep Landlord's property, the Premises and Tenant's leasehold free of, and shall promptly remove and discharge, -9- any lien, notice of contract, charge, security interest, mortgage or other encumbrance which arises for any reason, voluntarily or involuntarily, as a result of any act or omission by Tenant or persons claiming by, through or under Tenant, or any of their agents, employees or independent contractors, including without limitation liens which arise by reason of labor or materials furnished or claimed to have been furnished to Tenant or for the Premises. 6.9 Condition upon Termination. At the expiration or earlier termination of this Lease, Tenant (and all persons claiming by, through or under it) shall, without the necessity of any notice, surrender the Premises (including any tenant work and all replacements thereof, except such additions or alterations constructed after the Term Commencement Date as Landlord may direct to be removed at the time of Landlord's approval thereof, which shall be removed by Tenant and the Premises restored to their pre-existing condition) and all keys to the Premises, remove all of its trade fixtures and personal property not bolted or otherwise attached to the Premises (and such trade fixtures and other property bolted or attached to the Premises as Landlord may direct or, except as set forth below, as Tenant may desire), and all Tenant's signs wherever located, in each case repairing damage to the Premises which results in the course of such removal and restoring the Premises to a fully functional and tenantable condition (including the filling of all floor holes, the removal of all disconnected wiring back to junction boxes and the replacement of all damaged ceiling tiles). Tenant shall yield up the Premises broom-clean and in good order, repair and condition, reasonable wear and tear and damage by casualty and taking (to the extent provided in Article X only) excepted. Any property not so removed within thirty (30) days after the expiration or termination of the Lease shall be deemed abandoned and may be removed and disposed of by Landlord in such manner as Landlord shall determine, and Tenant shall pay to Landlord the reasonable cost and expense incurred by it in effecting such removal and disposition and in making any required repairs to the Premises. In no event, however, shall Tenant remove any of the following materials or equipment (which shall be deemed Landlord's property), without Landlord's prior written consent: any power wiring or wiring panels; lighting or lighting fixtures; doors, windows, or wall coverings; drapes, blinds or other window coverings; installed carpets or other installed floor coverings; any built-in heating or air conditioning equipment; fencing or security gates; or other similar building operating equipment. 6.10 Tenant's Expense. Tenant shall fulfill all of Tenant's obligations under this Article VI at Tenant's sole expense. If Tenant shall fail to maintain, repair or replace the Premises as required by this Article VI, Landlord may, upon thirty (30) days' prior notice to Tenant (except that no notice shall be required in the case of an emergency), enter the Premises in accordance with Section 6.5 and perform such maintenance or repair (including replacement, as needed) on behalf of Tenant. In such case, Tenant shall reimburse Landlord for all costs reasonably incurred in performing such maintenance, repair or replacement, together with an administrative charge of fifteen percent, as Additional Rent, immediately upon demand. 6.11 Interruptions. Landlord shall not be liable to Tenant in damages or by reduction of rent or otherwise by reason of inconvenience or for loss of business arising from Landlord or its agents or employees entering the Premises for any of the purposes authorized in this Lease or for repairing, altering or improving the Building in a manner reasonable in light of the circumstances. In case Landlord is prevented or delayed from making any repairs or replacements or furnishing any services or performing any other covenant or duty to be performed on Landlord's part by reason of any cause reasonably beyond Landlord's control, Landlord shall not be liable to Tenant -10- therefor, nor shall the same give rise to a claim in Tenant's favor that such failure constitutes actual or constructive, total or partial, eviction from the Premises. Landlord reserves the right to stop any service or utility system, when necessary by reason of accident or emergency, or until necessary repairs have been completed; provided, however, that in each instance of stoppage, Landlord shall give Tenant such notice as is practicable under the circumstances of the expected duration of such stoppage and will exercise reasonable diligence to eliminate the cause thereof. Except in case of emergency repairs Landlord will give Tenant reasonable advance notice of any contemplated stoppage and will use reasonable efforts to avoid unnecessary inconvenience to Tenant by reason thereof. ARTICLE VII: INSURANCE AND INDEMNIFICATION 7.1 Insurance. The provisions of this Lease regarding insurance and indemnification are set forth in Exhibit D, which is incorporated herein by reference. ARTICLE VIII: ASSIGNMENT AND SUBLETTING 8.1 Landlord's Consent Required. Tenant shall not assign this Lease, or sublet or license the Premises or any portion thereof, or advertise the Premises for assignment or subletting or permit the occupancy of all or any portion of the Premises by anybody other than Tenant (each of the foregoing actions is referred to as a "transfer") without obtaining, on each occasion, the prior consent of Landlord, subject to and in accordance with this Article VIII. A transfer shall include, without limitation, any transfer of Tenant's interest in this Lease by operation of law, merger or consolidation of Tenant into any other firm or corporation, the transfer or sale of a controlling interest in Tenant whether by sale of its capital stock or otherwise or any liquidation of Tenant or a substantial part of Tenant's assets. Landlord's consent to a proposed sublease shall not be unreasonably withheld, it being understood that the proposed sublease must comply with all other provisions of this Lease (including, without limitation, this Section 8.1), must not alter Landlord's rights under the Lease, and must not impose any additional obligation on Landlord. Notwithstanding the foregoing, the following transactions ("Excluded Transactions") shall not require the consent of Landlord provided that Landlord shall receive prior notice thereof plus reasonable evidence upon closing that the transaction is in fact one of the following (and provided further that the proposed transfer complies with all other provisions of this Lease, including, without limitation, this Article VIII, does not alter Landlord's rights under the Lease, and does not impose any additional obligation on Landlord): (a) Any transfer to an entity succeeding to the business and assets of Tenant, whether by way of merger, consolidation or otherwise; and (b) Any transfer to an entity controlling Tenant, directly or indirectly controlled and beneficially owned by Tenant, or under common control with Tenant. For purposes of this clause (b), control shall mean possession of more than 50 percent ownership of the shares of beneficial interest of the entity in question together with the power to control and manage the affairs thereof either directly or by election of directors and/or officers. -11- 8.2 Terms. Tenant shall not offer to make a transfer to any party which would be of such type, character or condition as to be inappropriate as a tenant for a building comparable to the Building. Tenant shall not offer to make or make an assignment of any portion of the Premises (other than for Excluded Transactions) unless the aggregate rent payable to Tenant under such assignment equals or exceeds the then prevailing market rate rent and other charges payable for space comparable to the Premises. 8.3 Right of Termination or Recapture. If Tenant proposes a transfer of the Premises with an intended duration of more than seven (7) years (other than for Excluded Transactions or a transfer of a division of Tenant that occupies the entire Building which transfer involves the entire Building), Tenant shall offer to Landlord in writing the right to terminate this Lease as to the space and period in question as of the date specified in the offer. If Landlord shall elect in writing to accept the offer to terminate within twenty (20) days after receipt of notice of the offer, this Lease shall so terminate as to the space and period in question as of the date specified in such offer, and all of the terms and provisions of this Lease governing termination shall apply. If Landlord shall not so elect, Tenant shall then comply with the provisions of this Article VIII applicable to such transfer. 8.4 Landlord's Consent. Tenant's request for consent under this Article VIII (and Tenant's notice of any transfer not requiring Landlord's consent under Section 8.1 above) shall set forth the details of the proposed transfer, including: (i) the name, business and financial condition of the prospective transferee, (ii) a true and complete copy of the proposed instrument containing all of the terms and conditions of such transfer, (iii) a written agreement of the assignee, subtenant or licensee, in recordable form reasonably approved by Landlord, agreeing with Landlord to perform and observe all of the terms, covenants, and conditions of this Lease, and (iv) any other information Landlord reasonably requested by Landlord prior to or in response to such notice. Except for any transfer not requiring Landlord's consent under Section 8.1 above, Landlord shall have the right to withhold consent, reasonably exercised as to any proposed sublease, or to grant consent, based on the following factors: (i) the business of the proposed assignee or subtenant and the proposed use of the Premises (if other than the Permitted Use); (ii) the net worth, business reputation, character, and financial condition of the proposed assignee or subtenant; (iii) Tenant's compliance with all of its obligations under this Lease within applicable notice and cure periods; and (iv) such other factors as Landlord may reasonably deem relevant. Tenant shall pay to Landlord, as Additional Rent, Landlord's reasonable attorneys' fees in reviewing any transfer contemplated by this Section, whether or not Landlord consents to the same (provided that the maximum amount of such fees in connection with any single proposed transfer shall be Two Thousand Dollars [$2,000]). 8.5 Profits. If Tenant does transfer with Landlord's consent (other than a transfer of a division of Tenant that occupies the entire Building which transfer involves the entire Building under which Landlord does not release Tenant from its obligations under this Lease pursuant to Section 8.6 below), and if the consideration, rent, or other charges payable to Tenant under such transfer exceed the rent and other charges to be paid hereunder (pro-rated based on floor area in the case of a subletting, license or other occupancy of less than the entire floor area of the Premises in question), then Tenant shall pay to Landlord, as additional rent, after deducting all reasonable out-of-pocket expenses incurred in connection with such transfer (including without limitation, brokerage commissions, tenant improvement costs, and legal fees) fifty percent (50%) -12- of the amount of such excess when and as received. Without limiting the generality of the foregoing, any lump-sum payment or series of payments due (including for the purchase of so-called leasehold improvements) on account of any transfer shall be deemed to be in excess of rent and other charges in its or their entirety. 8.6 No Release. Notwithstanding any transfer of this Lease or any interest therein (other than an Excluded Transaction or, in Landlord's discretion, a transfer of a division of Tenant that occupies the entire Building which transfer involves the entire Building), Tenant's (and any Guarantor's) liability to Landlord shall in all events remain direct and primary. Any transferee of all or a substantial part of Tenant's interest in the Premises shall be deemed to have agreed directly with Landlord to be jointly and severally liable with Tenant for the performance of all of Tenant's covenants under this Lease; and such assignee shall upon request execute and deliver such instruments as Landlord reasonably requests in confirmation thereof (and agrees that its failure to do so shall be subject to the default provisions). Landlord may collect rent and other charges from such transferee (and upon notice such transferee shall pay directly to Landlord) and shall apply the net amount collected to the rent and other charges herein reserved, but no transfer shall be deemed a waiver of the provisions of this Section, or the acceptance of the transferee as a tenant, or a release of Tenant or any guarantor from direct and primary liability for the performance of all of the covenants of this Lease. The consent by Landlord to any transfer shall not relieve Tenant from the obligation of obtaining the express consent of Landlord to any modification of such transfer or a further assignment, subletting, license or occupancy, to the extent required in Section 8.1; nor shall Landlord's consent alter in any manner whatsoever the terms of this Lease, to which any transfer at all times shall be subject and subordinate. The breach by Tenant of any restriction on transfer in this Section shall be a default for which there is no cure period. ARTICLE IX: DEFAULT AND REMEDIES 9.1 Events of Default. (a) If Tenant fails to pay Annual Fixed Rent or any Additional Rent or other sum or charge hereunder within three (3) days after written notice that the same is due; or (b) if more than two notices of separate defaults are properly given in any twelve month period, or (c) (Intentionally omitted), or (d) if any assignment shall be made by Tenant (or any assignee, sublessee or guarantor of Tenant) for the benefit of creditors, or (e) if Tenant's leasehold interest shall be taken on execution or by other process of law, or (f) if a petition is filed by Tenant (or any assignee, sublessee or guarantor of Tenant) for adjudication as a bankrupt, or for reorganization or an arrangement under any provision of any bankruptcy act then in force and effect, or (g) if an involuntary petition under the provisions of any bankruptcy act is filed against Tenant (or any assignee, sublessee or guarantor of Tenant) and such involuntary petition is not dismissed within sixty (60) days thereafter, or (h) if Tenant (or any assignee, sublessee or guarantor of Tenant) shall be declared bankrupt or insolvent according to law, or (i) if a receiver, trustee or assignee shall be petitioned for and not contested by Tenant for the whole or any part of Tenant's (or such assignee's, sublessee's or guarantor's) property, or if a receiver, trustee or assignee shall be appointed over Tenant's (or such other person's) objection and not be removed within sixty (60) days thereafter, or (j) if any representation or warranty made by Tenant shall be untrue in any material respect, or (k) if Tenant fails to perform any other covenant, agreement or condition hereunder and such default continues for thirty (30) days after notice (provided, however, that such thirty (30) day period shall be reasonably extended for up to an additional sixty (60) days in the case of non-monetary default if the matter complained of can be cured, but the -13- cure cannot be completed within such thirty (30) day period and Tenant begins promptly to cure within such period and thereafter diligently completes the cure; if such matters cannot be cured then there shall be no cure period), then, and in any such case, Landlord and its agents and employees lawfully may, in addition to and not in derogation of any remedies for any preceding breach, immediately or at any time thereafter, without demand or notice and with or without process of law, enter into and upon the Premises or any part thereof in the name of the whole, or mail or deliver a notice of termination of the Term addressed to Tenant at the Premises or at any other address herein provided, and thereby terminate this Lease and repossess the same as of Landlord's former estate. Upon such entry or mailing or delivery, as the case may be, the Term shall terminate, all executory rights of Tenant and all obligations of Landlord under this Lease shall immediately cease, and Landlord may expel Tenant and all persons claiming by, through or under Tenant and remove its and their effects (forcibly if necessary) without being deemed guilty of any manner of trespass and without prejudice to any remedies which might otherwise be used for arrears of rent or prior breach of covenants; and Tenant hereby waives all statutory and equitable rights to its leasehold (including without limitation rights in the nature of further cure or of redemption, if any). Landlord may, without notice, store Tenant's effects (and those of any person claiming by, through or under Tenant) at the expense and risk of Tenant and, if Landlord so elects, may sell such effects at public auction or auctions or at private sale or sales after seven (7) days notice to Tenant (which notice Tenant agrees is reasonable) and apply the net proceeds to the payment of all sums due to Landlord from Tenant, if any, and pay over the balance, if any, to Tenant. If any payment of Annual Fixed Rent, additional rent, or other payment due from Tenant to Landlord is not paid when due, then Landlord may, at its option, in addition to all other remedies hereunder, impose a late charge on Tenant equal to 5% of the amount in question, which late charge will be due upon demand as Additional Rent. 9.2 Remedies for Default. (a) Reletting Expenses Damages. If this Lease is terminated for default, then Tenant covenants, as an additional cumulative obligation after such termination, to pay all of Landlord's reasonable costs and expenses related thereto or in collecting amounts due hereunder, including attorneys fees, and all of Landlord's reasonable expenses in connection with such reletting, including without limitation, tenant inducements, brokerage commissions, fees for legal services, expenses of preparing the Premises for reletting and the like ("Reletting Expenses"). It is agreed by Tenant that Landlord may (i) relet the Premises or any part or parts thereof for a term or terms which may at Landlord's option be equal to or less than or exceed the period which would otherwise have constituted the balance of the Term, and may grant such tenant inducements as Landlord in its sole judgment considers advisable, and (ii) make such alterations, repairs and decorations in the Premises as Landlord in its sole discretion considers advisable, and no action of Landlord in accordance with the foregoing nor any failure to relet or to collect rent under any reletting shall operate or be construed to release or reduce Tenant's liability. Any obligation to relet the Premises imposed upon Landlord by law shall be subject to Landlord's reasonable objectives of developing its property in a harmonious manner with appropriate mixes of tenants, uses, floor areas, terms, etc. Landlord's Reletting Expenses together with all sums otherwise provided for in this Lease, whether incurred prior to or after such termination, shall be due and payable immediately from time to time upon notice from Landlord. -14- (b) Termination Damages. If this Lease is terminated for default, then unless and until Landlord elects lump sum liquidated damages described in (c) below Tenant covenants, as an additional cumulative obligation after any such termination, to pay punctually to Landlord all the sums and perform all the obligations which Tenant covenants in this Lease to pay and to perform in the same manner and to the same extent and at the same time as if this Lease had not been terminated. In calculating the amounts to be paid by Tenant pursuant to the preceding sentence Tenant shall be credited with the net proceeds of any rent then actually received by Landlord from a reletting of the Premises after deducting all sums provided for in this Lease to be paid by Tenant and not then paid. In no event shall Tenant be liable for indirect or consequential damages except in the case of holding over when notice of a new tenancy has been provided in advance as set forth in Section 12.12. (c) Lump Sum Liquidated Damages. If this Lease is terminated for default, then Tenant covenants, as an additional cumulative obligation after termination, to pay forthwith to Landlord at Landlord's election made by written notice to Tenant at any time within one year after termination, as liquidated damages a single lump sum payment equal to the sum of (i) all sums provided for in this Lease to be paid by Tenant and not then paid at the time of such election, plus either (ii) the present value (calculated at the Federal Reserve discount rate or equivalent) of the excess of all of the rent reserved for the residue of the Term over all of the fair market rent reasonably projected by Landlord to be received on account of the Premises during such period, which rent from reletting shall be reduced by reasonable projections of vacancies and by Landlord's Reletting Expenses described above to the extent not theretofore paid to Landlord, or (iii) an amount equal to the sum of all of the rent and other sums due hereunder and payable with respect to the twelve (12)-month period next following the date of termination. 9.3 Remedies Cumulative. Any and all rights and remedies Landlord may have under this Lease, and at law and equity, shall be cumulative and shall not be deemed inconsistent with each other, and any two or more of all such rights and remedies may be exercised at the same time insofar as permitted by law. Nothing contained in this Lease shall, however, limit or prejudice the right of Landlord to prove and obtain in proceedings for bankruptcy or insolvency by reason of the termination of this Lease, an amount equal to the maximum allowed by any statute or rule of law in effect at the time when and governing the proceedings in which the damages are to be proved, whether such amount be greater, equal to, or less than the amount of the loss or damages referred to in the preceding Section. 9.4 Effect of Waivers of Default. Any consent or permission by Landlord to any act or omission which otherwise would be a breach of any covenant or condition, or any waiver by Landlord of the breach of any covenant or condition, shall not in any way be held or construed to operate so as to impair the continuing obligation of such covenant or condition, or otherwise operate to permit other similar acts or omissions. No breach shall be deemed to have been waived unless and until such waiver be in writing and signed by Landlord. The failure of Landlord to seek redress for violation of or insist upon the strict performance of any covenant or condition of this Lease, or the receipt by Landlord of rent with knowledge of any violation, shall not be deemed a consent to or waiver of such violation, nor shall it prevent a subsequent act, which would otherwise constitute a violation, from in fact being a violation. -15- 9.5 No Accord and Satisfaction; No Surrender. No acceptance by Landlord of a lesser sum than the Annual Fixed Rent, additional rent or any other sum or charge then due shall be deemed to be other than on account of the earliest installment of such rent, sum or charge due; nor shall any endorsement or statement on any check or in any letter accompanying any check or payment be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such installment or pursue any other right or remedy available to it. The delivery of keys (or any similar act) to Landlord or any agent or employee of Landlord shall not operate as a termination of this Lease or an acceptance of a surrender of the Premises. 9.6 Waiver of Jury. Landlord and Tenant hereby waive trial by jury in any summary proceeding in any emergency or other statutory remedy, or in any action based, in whole or in part, on non-payment of rent or other default under this Lease; and Tenant further agrees that it shall not interpose any counterclaim or set-off in any such proceeding, except to the extent Tenant would have no right to commence an independent proceeding to seek to recover on account of such claim. 9.7 Landlord's Curing and Enforcement. If Tenant shall neglect or fail to perform or observe any covenant or condition of this Lease and shall not cure such default within the applicable cure period, Landlord may, at its option, without waiving any claim for breach, at any time thereafter cure such default for the account of Tenant, and any amount paid or any liability incurred by Landlord in so doing shall be deemed paid or incurred for the account of Tenant, and Tenant shall reimburse Landlord therefor, together with an administrative charge of five (5%) per cent of the amount thereof, on demand as Additional Rent; and Tenant shall further indemnify and save Landlord harmless in the manner elsewhere provided in this Lease in connection with all of Landlord's actions in effecting any such cure. Notwithstanding any other provision herein concerning cure periods, Landlord may cure any default for the account of Tenant after such notice to Tenant, if any, as is reasonable under the circumstances (including telephone notice) if the curing of such default prior to the expiration of the applicable cure period is reasonably necessary to prevent likely damage to the Premises or other improvements or possible injury to persons, or to protect Landlord's interest in its property or the Premises. Tenant shall pay to Landlord on demand as additional rent all of the costs and expenses of Landlord, including such administrative charge and reasonable attorneys' fees, incurred in enforcing any covenant or condition of this Lease. Without limiting any of its other rights or remedies, any sum due hereunder shall, in addition, bear interest from the date due at the greater of (i) one and one-half percent (1 1/2%) for each month (or ratable portion thereof) the same remains unpaid, or (ii) three percent (3%) per annum (or ratable portion thereof) above the so-called prime rate of interest published in the Wall Street Journal from time to time on 90 day loans to its most credit-worthy borrowers; provided that interest shall never exceed the maximum rate permitted under applicable law. In the event Tenant breaches any covenant or fails to observe any condition set forth in Article VII with respect to the insurance required to be maintained by Tenant, then without limiting any other right or remedy, and notwithstanding any other provision herein concerning notice and cure of defaults, Landlord may immediately and without notice to Tenant obtain such insurance, and Tenant shall pay the cost thereof and Landlord's expenses related thereto upon demand as Additional Rent. -16- 9.8 Landlord's Default. In no event shall Landlord be in default unless notice thereof has been given to Landlord (and all mortgagees of which Tenant has notice) and Landlord (or any such mortgagee at its sole discretion) fails to perform within 30 days (provided, however, that such 30 day period shall be reasonably extended if such performance begins within such period and thereafter is diligently pursued, or if such mortgagee notifies Tenant within such period that it intends to cure on behalf of Landlord and thereafter begins curing within such period, or if later within 30 days after acquiring possession of the Property if the cure requires the mortgagee to obtain possession of the Property, and diligently pursues curing with reasonable promptness). Any mortgagee notice and cure periods set forth in any subordination, nondisturbance and attornment agreement then in effect under Section 11.1 shall control to the extent the same differ from the foregoing. 9.9 Vacancy During Last Six Months. If Tenant vacates substantially all of the Premises (or substantially all of major portions of the Premises) at any time within the last six months of the Term, Landlord may enter the Premises (or such portions) and commence demolition work or construction of leasehold improvements for future tenants. The exercise of such right by Landlord will not affect Tenant's obligations to pay Annual Fixed Rent or Additional Rent with respect to the Premises (or such portions), which obligations shall continue without abatement until the end of the Term. 9.10 Security Deposit. On the execution of this Lease, Tenant shall pay to Landlord as a security deposit for the performance of the obligations of Tenant hereunder any amount specified therefor in Section 1.1. Said security deposit may be mingled with other funds of Landlord and no fiduciary relationship shall be created with respect to such deposit, nor shall Landlord be liable to pay Tenant interest thereon. If Tenant shall fail to perform any of its obligations under this Lease, Landlord may, but shall not be obliged to, apply the security deposit to the extent necessary to cure the default, and Tenant shall be obliged to reinstate such security deposit to the original amount thereof upon demand. Within 30 days after the expiration or sooner termination of the Term the security deposit, to the extent not applied, shall be returned to the Tenant, without interest. Tenant may provide the security deposit to Landlord in the form of a clean, irrevocable letter of credit as security for the performance of the obligations of Tenant hereunder, subject to the terms and conditions set forth in this Section 9.10 (together with any renewal or replacement thereof in accordance herewith, the "Letter of Credit"). Tenant shall provide the Letter of Credit, upon Tenant's execution of this Lease, in the amount set forth for the security deposit in Section 1.1 ("Original Amount"). Any Letter of Credit delivered hereunder shall comply with the requirements of Schedule 9.10 attached hereto and incorporated by reference herein. ARTICLE X: CASUALTY AND CONDEMNATION 10.1 Damage to Premises and Takings. The provisions of this Lease regarding casualty and condemnation are set forth in Exhibit D, which is incorporated herein by reference. ARTICLE XI: PROTECTION OF LENDERS 11.1 Subordination and Superiority of Lease. Tenant agrees that this Lease and the rights of Tenant hereunder will be subject and subordinate to the present or future lien of any first mortgage (and at Landlord's election, to the lien of any subordinate mortgage or mortgages) and to -17- the rights of any lessor under any ground or improvements lease of the Premises (collectively referred to in this Lease as a "mortgage" and the holder or lessor thereof from time to time as a "mortgagee"), and to all advances and interest thereunder and all modifications, renewals, extensions and consolidations thereof; and that Tenant shall attorn to any such mortgagee succeeding to Landlord's interest in the Property by foreclosure, deed in lieu of foreclosure, or otherwise, promptly after the giving of notice by such mortgagee requiring such attornment, provided however, that the mortgagee of any mortgage executes and delivers to Tenant an agreement in the form attached hereto as Exhibit E (or otherwise on any commercially reasonable form containing terms not materially less favorable to Tenant than those set forth in Exhibit E) in which the mortgagee agrees that Tenant shall not be disturbed in its possession upon Tenant's attornment to such mortgagee as Landlord and performance of its Lease covenants (both of which conditions Tenant agrees with all mortgagees to perform). Tenant agrees that any mortgagee may at its option unilaterally elect to subordinate, in whole or in part and by instrument in form and substance satisfactory to such mortgagee alone, the lien of its mortgage (or the priority of its ground lease) to some or all provisions of this Lease. Tenant shall cause its current mortgagee to execute and deliver to Tenant a subordination non-disturbance agreement in the form attached hereto as Exhibit F, with such changes as Tenant and such mortgagee may approve. Tenant agrees that this Lease shall survive the merger of estates of any ground (or improvements) lessor and lessee. Until a mortgagee (either superior or subordinate to this Lease) forecloses Landlord's equity of redemption (or terminates in the case of a ground or improvements lease), no mortgagee shall be liable for failure to perform any of Landlord's obligations (and such mortgagee shall thereafter be liable only after it succeeds to and holds Landlord's interest and then only as limited herein). Any mortgagee (or any other successor to Landlord acquiring the Property by foreclosure, deed in lieu of foreclosure, or otherwise) shall not be (i) liable for any previous act or omission of Landlord under the Lease; (ii) subject to any credit, demand, claim, counterclaim, offset or defense which theretofore accrued to Tenant against Landlord; (iii) unless consented to by such mortgagee, bound by any previous amendment or modification of the Lease or by any previous prepayment of more than one month's payment of Annual Fixed Rent or additional rent (except estimated payments of additional rent); (iv) required to account for any security deposit of Tenant other than any security deposit actually delivered to such mortgagee by Landlord; (v) bound by any obligation to make any payment to Tenant or grant any credits, except for services, repairs, maintenance and restoration provided for under the Lease to be performed by Landlord after the date of such attornment; or (vi) responsible for any monies owing by Landlord to Tenant. Tenant shall give notice of any alleged non-performance on the part of Landlord to any mortgagee of which Tenant has notice, simultaneously with the default notice delivered to Landlord; and Tenant agrees that such mortgagee shall have a separate, consecutive reasonable cure period of no less than 30 days (to be reasonably extended in the same manner Landlord's 30 day cure period is to be extended) following Landlord's cure period during which such mortgagee may, but need not, cure any non-performance by Landlord. The foregoing shall not relieve such mortgagee of the obligation to remedy or cure any conditions at the Premises the existence of which constitutes a Landlord default under the Lease and which continue at the time of such mortgagee's taking title to the Property. The agreements in this Lease with respect to the rights and powers of a mortgagee constitute a continuing offer to any person which may be accepted by taking a mortgage (or entering into a ground or improvements lease) of the Premises. -18- 11.2 Rent Assignment. If from time to time Landlord assigns this Lease or the rents payable hereunder to any person, whether such assignment is conditional in nature or otherwise, such assignment shall not be deemed an assumption by the assignee of any obligations of Landlord; but the assignee shall be responsible only for non-performance of Landlord's obligations which occur after it succeeds to and only while it holds Landlord's interest in the Premises. 11.3 Other Instruments. The provisions of this Article shall be self-operative; nevertheless, Tenant agrees to execute, acknowledge and deliver any subordination, attornment or priority agreements or other instruments conforming to the provisions of this Article (and being otherwise commercially reasonable) from time to time requested by Landlord or any mortgagee in furtherance of the foregoing, and further agrees that its failure to do so within ten (10) business days after written demand shall be subject to the monetary default provisions of this Lease. 11.4 Tenant's Financial Condition. Within ten (10) business days after request from Landlord from time to time, Tenant shall deliver to Landlord Tenant's and Guarantor's financial statements, including audited annual financial statements, balance sheets, income statements, and statements of cash flow, certified by Tenant's/Guarantor's Treasurer or Chief Financial Officer, in each case for the latest available two (2) fiscal years (the latest year ending no more than six (6) months prior to Landlord's request). Such financial statements shall be delivered to Landlord's mortgagees and lenders and prospective mortgagees, lenders and purchasers. Notwithstanding the foregoing, during any time that Tenant is filing financial materials with the Securities and Exchange Commission, such financial materials shall be the materials that Tenant is required to deliver to Landlord pursuant to this Section 11.4. ARTICLE XII: MISCELLANEOUS 12.1 Notice from One Party to the Other. All notices, consents, approvals and the like shall be in writing and shall be delivered in hand by any courier service providing receipts, by a nationally recognized overnight courier providing receipts, or mailed by certified mail addressed to Landlord or Tenant as set forth below. If requested, Tenant shall deliver copies of all notices in like manner to Landlord's mortgagees and other persons having a relationship to the Premises at such address as designated from time to time by Landlord or such mortgagee. Any notice so addressed shall be deemed duly given on the second business day following the day of mailing if so mailed by registered or certified mail, return receipt requested, whether or not accepted, or if by hand or by overnight courier upon actual receipt by any person reasonably appearing to be an agent or employee working in the executive offices of the addressee. If to Tenant: Dayton Superior Corporation 2150B So. Rte. 45-52 Kankakee, Illinois 60901 Attention: Mark K. Kaler with a copy to: Dayton Superior Corporation -19- 200 East Touhy Avenue Des Plaines, Illinois 60018 Attention: Steven C. Huston If to Landlord: c/o STAG Capital Partners, LLC 93 Summer Street Boston, Massachusetts 02110 Attention: Benjamin Butcher with a copy to: John L. Sullivan, Esq. DLA Piper Rudnick Gray Cary US LLP One International Place Boston, MA 02110 Any address or name specified above may be changed by notice given to the addressee by the other party in accordance with this Section 12.1. The inability to deliver notice because of a changed address of which no notice was given as provided above, or because of rejection or other refusal to accept any notice, shall be deemed to be the receipt of the notice as of the date of such inability to deliver or rejection or refusal to accept. Any notice to be given by any party hereto may be given by the counsel for such party. 12.2 Quiet Enjoyment. Landlord agrees that upon Tenant's paying all rent and performing and observing all covenants, conditions and other provisions on its part to be performed and observed, Tenant may peaceably and quietly have, hold and enjoy the Premises during the Term without disturbance by Landlord or anyone claiming by, through or under it, subject always to the terms of this Lease, provisions of law, and rights or interests of record to which this Lease may be or become subject and subordinate. 12.3 Limitation of Landlord's Liability. Landlord shall be liable only for breaches of Landlord's obligations occurring while Landlord is owner of the fee of which the Premises are a part (provided, however, that if Landlord shall ever sell and lease-back such fee, or the ground thereof or the improvements thereon, then "fee" shall, in such event, be deemed to mean Landlord's leasehold interest). Tenant (and all persons claiming by, through or under Tenant) agrees to look solely to Landlord's interest from time to time in the Property (including the uncollected rents, issues, profits, and proceeds thereof, subject to the superior rights of mortgagees therein) for satisfaction of any claim or recovery of any judgment from Landlord; it being agreed that neither Landlord nor any trustee, beneficiary, partner, member, manager, shareholder, agent or employee of Landlord shall ever be personally or individually liable for any claim or judgment, or otherwise, to Tenant (or such persons). In no event shall Landlord ever be liable to Tenant (or such persons) for indirect or consequential damages; nor shall Landlord ever be answerable or liable in any equitable judicial proceeding or order beyond the extent of such interest in the Property. -20- 12.4 Applicable Law and Construction. This Lease may be executed in counterpart copies and shall be governed by and construed as a sealed instrument in accordance with the laws of the State of Illinois. If any provision shall to any extent be invalid, the remainder of this Lease shall not be affected. Other than contemporaneous instruments executed and delivered of even date, if any, this Lease contains all of the agreements between Landlord and Tenant with respect to the Premises and supersedes all prior dealings between them with respect thereto. There are no oral agreements between Landlord and Tenant affecting this Lease. This Lease may be amended only by an instrument in writing executed by Landlord and Tenant. The enumeration of specific examples of a general provision shall not be construed as a limitation of the general provision. Unless a party's approval or consent is required by its terms not to be unreasonably withheld, such approval or consent may be withheld in the party's sole discretion. If Tenant is granted any extension or other option, to be effective the exercise (and notice thereof) shall be unconditional, time always being of the essence to any options; and if Tenant purports to condition the exercise of any option or vary its terms in any manner, then the option granted will automatically and immediately become null and void and the purported exercise will be ineffective. This Lease and all consents, notices and other related instruments may be reproduced by any party by photographic, microfilm, microfiche or other reproduction process and the originals thereof may be destroyed; and each party agrees that reproductions will be admissible in evidence to the same extent as the original itself in and judicial or administrative proceeding (whether or not the original is in existence and whether or not reproduction was made in the regular course of business), and further reproduction will likewise be admissible. The titles of the several Articles and Sections are for convenience only, and shall not be considered a part hereof. The submission of a form of this Lease or any summary of its terms shall not constitute an offer by Landlord to Tenant; but a leasehold shall only be created and the parties bound when this Lease is executed and delivered by both Landlord and Tenant. 12.5 Successors and Assigns. Except as herein provided otherwise, the agreements and conditions in this Lease contained on the part of Landlord to be performed and observed shall be binding upon Landlord and its legal representatives, successors and assigns, and shall inure to the benefit of Tenant and its legal representatives, successors and assigns; and the agreements and conditions on the part of Tenant to be performed and observed shall be binding upon Tenant (and any guarantor of Tenant) and Tenant's legal representatives, successors and assigns and shall inure to the benefit of Landlord and its legal representatives, successors and assigns. 12.6 Relationship of the Parties. Nothing herein shall be construed as creating the relationship between Landlord and Tenant of principal and agent, or of partners or joint venturers; it being understood and agreed that neither the manner of fixing rent, nor any other provision of this Lease, nor any act of the parties, shall ever be deemed to create any relationship between them other than the relationship of landlord and tenant. 12.7 Estoppel Certificate. Within ten (10) business days after either party's request, Landlord and Tenant agree, in favor of the other, to execute, acknowledge and deliver a statement in writing certifying that this Lease is unmodified and in full force and effect (or, if there have been any modifications that the same is in full force and effect as modified and stating the modifications), and the amount and dates to which the Annual Fixed Rent (and Additional Rent and all other charges) have been paid and any other information reasonably requested by the requesting party or Landlord's mortgagee. Both parties intend and agree that any such statement -21- may be relied upon by any prospective purchaser, mortgagee, or other person to whom the same is delivered. Tenant acknowledges that prompt execution and delivery of such statements, and all instruments referred to in Article XI, constitute essential requirements of any financings or sales by Landlord, and Tenant will indemnify Landlord in the manner elsewhere provided against all costs and damages resulting from Tenant's failure to comply herewith (notwithstanding any grace period) or Landlord's right to execute the same on Tenant's behalf. 12.8 Notice of Lease. Neither party shall record this Lease, but each party will, upon request of the other, execute a recordable notice of lease in a form reasonably approved by Landlord and, upon termination, a like notice of termination of lease; and Tenant irrevocably appoints Landlord as its attorney-in-fact, with full power of substitution, to execute, acknowledge and deliver such notice of termination of lease in Tenant's name, place and stead if Tenant fails so to do with five (5) days of any request. 12.9 Tenant as Business Entity. Simultaneously with the execution of the Lease, each of Landlord and Tenant shall deliver to the other (i) a certificate of legal existence and good standing and (ii) a certified copy of a resolution of its directors, manager, or general partner authorizing the execution of this Lease or other reasonable evidence of such authority. 12.10 Legal Proceedings. If either party shall be in breach or default under this Lease, such party shall reimburse the other upon demand for any costs or expenses incurred in connection with any breach or default of the defaulting party, as provided in this Section. Such costs shall include all reasonable legal fees and costs incurred for the negotiation of a settlement, enforcement of rights or otherwise. 12.11 Landlord's Consent. Tenant shall pay Landlord's reasonable fees and expenses, including, without limitation, legal, engineering and other consultants' fees and expenses, incurred in connection with Tenant's request for Landlord's consent under this Lease, or in connection with any other act by Tenant which requires Landlord's consent or approval under this Lease. 12.12 Holding Over. If Tenant (or anyone claiming by, through or under Tenant) shall remain in possession of the Premises or any part thereof after the expiration or earlier termination of this Lease with respect to any portion of the Premises without any agreement in writing executed with Landlord, the person remaining in possession shall be deemed a tenant at sufferance, Tenant shall thereafter pay Annual Fixed Rent at 150% of the greater of the amount payable for the twelve month period immediately preceding such expiration or termination or the then prevailing fair market rent for the Premises and with all additional rent payable and covenants of Tenant in force as otherwise herein provided, and Tenant shall be liable to Landlord for all damages directly arising from such breach, and for indirect or consequential damages relating only to any loss of any replacement tenant(s) for the Premises of which Tenant had notice. After acceptance of the full amount of such rent by Landlord the person remaining in possession shall be deemed a tenant from month-to-month at such rent and otherwise subject to and having agreed to perform all of the provisions of this Lease, but Landlord will not be deemed to have relinquished any claims for damages. 12.13 Interpretation. Whenever required by the context of this Lease, the singular shall include the plural and the plural shall include the singular. The masculine, feminine and neuter -22- genders shall each include the other. In any provision relating to the conduct, acts or omissions of Tenant, the term "Tenant" shall include Tenant's agents, employees, contractors, invitees, successors or others using the Premises with Tenant's expressed or implied permission. 12.14 Waivers. All waivers shall be in writing and signed by the waiving party. Landlord's failure to enforce any provision of this Lease or its acceptance of rent shall not be a waiver and shall not prevent Landlord from enforcing that provision or any other provision of this Lease in the future. No statement on a payment check from Tenant or in a letter accompanying a payment check shall be binding on Landlord. Landlord may, with or without notice to Tenant, negotiate such check without being bound by to the conditions of such statement. 12.15 Force Majeure. If either party cannot perform any of its obligations due to events beyond such party's reasonable control, the time provided for performing such obligations shall be extended by a period of time equal to the duration of such events. Events beyond the parties' reasonable control include, but are not limited to, acts of God, war, civil commotion, labor disputes, strikes, fire, flood or other casualty, shortages of labor or material, government regulation or restriction and weather conditions but exclude financial circumstances. Notwithstanding the foregoing, the events listed in this Section 12.15 shall not excuse Tenant's failure to pay any Annual Fixed Rent or Additional Rent due under this Lease. 12.16 Brokers. Each of Tenant and Landlord represents and warrants to the other that it has not dealt with any broker (other than the Broker(s) identified in Article I, if any) in connection with this Lease or the Premises and agrees to indemnify and save the other harmless from all loss, claim, damage, cost or expense (including reasonable attorneys' fees of counsel of the other's choice against whom the indemnifying party makes no reasonable objection) arising from any its breach of this representation and warranty. This warranty and representation shall survive the term or any early termination of this Lease. The fees of any Broker named in Article I will be paid by Landlord. ARTICLE XIII: SPECIAL PROVISIONS -23- Executed as a sealed instrument as of the Date of Lease first set forth above. LANDLORD: STAG II Aurora, LLC By: /s/ Benjamin S. Butcher ------------------------------------ Name: Benjamin S. Butcher Title: President TENANT: Dayton Superior Corporation By: /s/ Mark K. Kaler ------------------------------------ Name: Nark K. Kaler ---------------------------------- Title: Vice President, Strategic Planning --------------------------------- -24- Schedule 9.10 Letter of Credit Requirements The Letter of Credit (as defined in the Lease) shall be for the Original Amount. The Letter of Credit (i) shall be irrevocable and shall be issued by a commercial bank reasonably acceptable to Landlord that has an office in Boston, Massachusetts or New York City or Chicago, Illinois that accepts requests for draws on the Letter of Credit, (ii) shall require only the presentation to the issuer of a certificate of the holder of the Letter of Credit stating that Landlord is entitled to draw on the Letter of Credit pursuant to the terms of the Lease, (iii) shall be payable to Landlord or its successors in interest as the Landlord and shall be freely transferable without cost to any such successor or any lender holding a collateral assignment of Landlord's interest in the Lease, (iv) shall be for an initial term of not less than one year and contain a provision that such term shall be automatically renewed for successive one-year periods unless the issuer shall, at least forty five (45) days prior to the scheduled expiration date, give Landlord notice of such nonrenewal, and (v) shall otherwise be in form and substance reasonably acceptable to Landlord. Notwithstanding the foregoing, the term of the Letter of Credit for the final period shall be for a term ending not earlier than the date thirty (30) days after the last day of the Term. Landlord shall be entitled to draw upon the Letter of Credit for its full amount or any portion thereof if (a) Tenant shall fail to perform any of its obligations under the Lease after the expiration of any applicable notice and cure period, or fail to perform any of its obligations under the Lease and transmittal of a default notice is barred by applicable law, or fail to perform any of its obligations under the Lease and any applicable notice and cure period would expire prior to the expiration of the Letter of Credit, or (b) not less than thirty (30) days before the scheduled expiration of the Letter of Credit, Tenant has not delivered to Landlord a new Letter of Credit in accordance with this Schedule. Without limiting the generality of the foregoing, Landlord may, but shall not be obligated to, draw on the Letter of Credit from time to time in the event of a bankruptcy filing by or against Tenant and/or to compensate Landlord, in such order as Landlord may determine, for all or any part of any unpaid rent, any damages arising from any termination of the Lease in accordance with the terms of the Lease, and/or any damages arising from any rejection of the Lease in a bankruptcy proceeding commenced by or against Tenant. Landlord may, but shall not be obligated to, apply the amount so drawn to the extent necessary to cure Tenant's failure. Any amount of the Letter of Credit drawn in excess of the amount applied by Landlord to cure any such failure shall be held by Landlord as a cash security deposit for the performance by Tenant of its obligations under the Lease. Any cash security deposit may be mingled with other funds of Landlord and no fiduciary relationship shall be created with respect to such deposit, nor shall Landlord be liable to pay Tenant interest thereon. If Tenant shall fail to perform any of its obligations under this Lease, Landlord may, but shall not be obliged to, apply the cash security deposit to the extent necessary to cure Tenant's failure. After any such application by Landlord of the Letter of Credit or cash security deposit, as the case may be, Tenant shall reinstate the Letter of Credit to the amount originally required to be maintained under the Lease, upon demand. Provided that Tenant is not then in default under the Lease, and no condition exists or event has occurred which after the expiration of any applicable notice or cure period would constitute such a default, within thirty (30) days after the expiration or sooner termination of the Term the Letter of Credit -25- and any cash security deposit, to the extent not applied, shall be returned to the Tenant, without interest. In the event of a sale of the Premises, Building or lease, conveyance or transfer of the Premises or the Building, Landlord shall transfer the Letter of Credit or cash security deposit to the transferee. Upon such transfer, the transferring Landlord shall be released by Tenant from all liability for the return of such security, and Tenant agrees to look to the transferee solely for the return of said security. The provisions hereof shall apply to every transfer or assignment made of the security to such a transferee. Tenant further covenants that it will not assign or encumber or attempt to assign or encumber the Letter of Credit or the monies deposited herein as security, and that neither Landlord nor its successors or assigns shall be bound by any assignment, encumbrance, attempted assignment or attempted encumbrance. -26- Exhibit A The Property -27- Exhibit B Annual Fixed Rent
LEASE YEAR ANNUAL AMOUNT MONTHLY PAYMENT - ---------- ------------- --------------- 1 $364,000 $30,333 2 $371,280 $30,940 3 $378,706 $31,559 4 $386,280 $32,190 5 $394,006 $32,834 6 $401,886 $33,491 7 $409,924 $34,160 8 $418,123 $34,844 9 $426,485 $35,540 10 $435,015 $36,251 11 $443,715 $36,976
-28- Exhibit C Rules and Regulations 1. Tenant shall not use any method of heating or air-conditioning other than that supplied by the building systems without the prior written consent of Landlord, which shall not be unreasonably withheld. 2. Except for dock shelters and seals as may be expressly permitted by Landlord, no awnings or other projections shall be attached to the outside walls of the building. 3. Tenant shall not use, keep or permit to be used or kept any flammable or combustible materials without proper governmental permits and approvals. 4. Tenant shall not use, keep or permit to be used or kept food or other edible materials in or around the Premises in such a manner as to attract rodents, vermin or other pests. Tenant shall not permit cooking in or about the Premises other than in microwave ovens. 5. Tenant shall not use or permit the use of the Premises for lodging or sleeping, for public assembly, or for any illegal or immoral purpose. 6. Storage of propane tanks, whether interior or exterior, shall be in secure and protected storage enclosures approved by the local fire department and, if exterior, shall be located in areas specifically designated by Landlord. Safety equipment, including eye wash stations and approved neutralizing agents, shall be provided in areas used for the maintenance and charging of lead-acid batteries. Tenant shall protect electrical panels and building mechanical equipment from damage from forklift trucks. 7. No person shall go on the roof of the Property without Landlord's permission except to perform obligations or to exercise Tenant's rights under its lease. 8. No animals (other than seeing eye dogs) or birds of any kind may be brought into or kept in or about the Premises. 9. Tractor trailers which must be unhooked or parked with dolly wheels beyond the concrete loading areas must use steel plates or wood blocks of sufficient size to prevent damage to the asphalt paving surfaces. No parking or storing of such trailers will be permitted on streets adjacent to the Property. 10. Forklifts which operate on asphalt paving areas shall not have solid rubber tires and shall use only tires that do not damage the asphalt. 11. Tenant shall be responsible for the safe storage and removal of all pallets. Pallets shall be stored in a neat and orderly manner, so as not to have an unkempt appearance from the street or other public areas. If pallets are stored within the Premises, storage shall comply with safe practices as described in Factory Mutual Loss Prevention Data Sheet 8-24. -29- 12. Tenant shall be responsible for the safe storage and removal of all trash and refuse. All such trash and refuse shall be contained in suitable receptacles stored in a neat and orderly manner, so as not to have an unkempt appearance from the street or other public areas. Landlord reserves the right to remove, at Tenant's expense and without further notice, any trash or refuse left elsewhere outside of the Premises or Building. 13. Tenant shall appoint an Emergency Coordinator who shall be responsible for assuring notification of the local fire department in the event of an emergency, assuring that sprinkler valves are kept open and implementing the Factory Mutual "Red Tag Alert" system including weekly visual inspection of all sprinkler system valves on or within the Premises. -30- Exhibit D Insurance, Casualty and Condemnation This Exhibit D shall be incorporated into the Lease, and where terms of this Exhibit conflict with these terms within the Lease, the terms of this Exhibit shall prevail and govern the Lease. I. INSURANCE (a) Coverage. Tenant shall purchase and maintain insurance during the entire Term of the Lease and any period Tenant (or any party claiming by, through or under Tenant) occupies any portion of the Premises, for the benefit of the Tenant and Landlord (as their interest may appear) with terms and coverages reasonably satisfactory to Landlord, and with insurers having a minimum A.M. Best rating of at least A-/X, and with such increases in limits as Landlord may from time to time reasonably request, but initially Tenant shall maintain the following coverages in the following amounts: (i) Commercial General Liability Insurance naming Landlord, Landlord's management, leasing and development agents and Landlord's mortgagee(s) from time to time as additional insureds, with coverage for premises/operations, personal and advertising injury, products/completed operations and contractual liability with combined single limits of liability of not less than $1,000,000 for bodily injury and property damage per occurrence and not less than 2,000,000 in the aggregate and excess liability insurance with a limit not less than $20,000,000 per occurrence and aggregate. (ii) Property insurance covering property damage and business interruption for the entire Property. Covered property shall include the Building, boilers and machinery, all tenant improvements, office furniture, trade fixtures, office equipment, merchandise and all other items Tenant's property on the Premises. Such insurance shall name Landlord and Landlord's mortgagee(s) from time to time as additional loss payees as their interests may appear. Such insurance shall be written on an "all risk" of physical loss or damage basis including but not limited to the perils of fire, extended coverage, windstorm, vandalism, malicious mischief, sprinkler leakage, flood, windstorm and earthquake, for the full replacement cost value of the covered items and other endorsements as Landlord shall reasonably request from time to time and in amounts that meet any co-insurance clause of the policies of insurance with a deductible amount not to exceed $50,000 with respect to property insurance and $500,000 with respect to commercial general liability insurance. (iii) Workers' Compensation Insurance and Employers Liability Insurance with statutory limits and automobile liability insurance (coverage must include owed, leased, hired and non owned vehicles) with a limit of at least $1,000,000. -31- Tenant shall, prior to the commencement of the Term and on each anniversary of the Term Commencement Date and/or renewal date thereof, furnish to Landlord certificate(s) (ACCORD Form 27) evidencing such coverage, which certificate(s) shall state that such insurance coverage may not be changed or canceled without at least thirty (30) days' prior written notice to Landlord and Tenant. The insurance maintained by Tenant shall be deemed to be primary insurance and any insurance maintained by Landlord (acknowledging that Landlord has no obligation to maintain any insurance) shall be deemed secondary thereto. (b) Avoid Action Increasing Rates. Tenant shall comply with all applicable laws and ordinances, all orders and decrees of court and all requirements of other governmental authorities, and shall not, directly or indirectly, make any use of the Premises which may thereby be prohibited or be dangerous to person or property or which may jeopardize any insurance coverage or may increase the cost of insurance or require additional insurance coverage. If Tenant fails to comply with the provisions of this Section I(b) and (i) any insurance coverage is jeopardized and Tenant fails to correct such dangerous or prohibited use following ten (10) days' notice, or (ii) insurance premiums are increased and Tenant fails, following ten (10) days' notice, to cease such use, then in each event such failure shall constitute an Event of Default by Tenant hereunder, without any further notice or cure right, and Landlord shall have all of its remedies as set forth in the Lease. (c) Waiver of Subrogation. Landlord and Tenant each hereby waive any and every claim for recovery from the other for any and all loss of or damage to the Building or Premises or to the contents thereof, which loss or damage is covered by valid and collectible property insurance policies. Landlord waives any and every claim against Tenant for any and all loss of or damage to the Building or the Premises or contents thereof, which would have been covered had the insurance policies required to be maintained by Landlord by this Lease been in force, to the extent that such loss or damage would have been recoverable under such insurance policies. Tenant waives any and every claim against Landlord for any and all loss of, or damage to, the Building or Premises or the contents thereof which would have been covered had Tenant maintained the insurance policies required to be maintained by Tenant under this Lease been in force, to the extent that such loss or damage would have been recoverable under such insurance policies. Inasmuch as this mutual waiver will preclude the assignment of any such claim by subrogation (or otherwise) to an insurance company (or any other person), Landlord and Tenant each agree to give to each insurance company which has issued, or in the future may issue, to it policies of property insurance, written notice of the terms of this mutual waiver, and to have said insurance policies properly endorsed, if necessary, to prevent the invalidation of said insurance coverage by reason of said waiver. II. FIRE OR CASUALTY (a) If the Premises or the Building (including machinery or equipment used in its operation) shall be damaged by fire or other casualty and if such damage does not cause a termination of this Lease as described in the following sentences, then -32- Landlord shall repair and restore the damage with reasonable promptness, subject to reasonable delays for insurance adjustments and delays caused by matters beyond Landlord's reasonable control, but Landlord shall not be obligated to expend for repairing or restoring the damage an amount in excess of the proceeds of insurance actually received by Landlord for application to the repair of such damage. If in Landlord's estimate the Premises cannot be restored within three hundred sixty-five (365) days from the date of such fire or casualty, then Landlord shall give notice to Tenant of such estimate within one hundred twenty (120) days after such fire or casualty. Tenant may elect by written notice given to Landlord within sixty (60) days following the date of such notice from Landlord (time being of the essence) to terminate this Lease effective as of the date of Tenant's notice. If any such damage (i) renders 25% or more of the Building untenantable or (ii) renders general Building systems inoperable and such systems cannot be repaired in Landlord's reasonable estimate within three hundred sixty-five (365) days from the date of such damage or (iii) occurs within the last two (2) Lease Years, Landlord shall have the right to terminate this Lease as of the date of such damage upon written notice given to the Tenant at any time within one hundred twenty (120) days after the date of such damage. Landlord shall have no liability to Tenant, and Tenant shall not be entitled to terminate this Lease, by virtue of any delays in completion of such repairs and restoration provided that Tenant shall have the right to terminate the Lease if such repairs are not completed within such 365-day period, subject to extension for delays caused by reasons outside of Landlord's control, by notice given within thirty (30) days after such repair period expires, which notice shall be deemed withdrawn if the restoration is completed within thirty (30) days after such notice is delivered to Landlord. Annual Fixed Rent and additional rent, however, shall abate on those portions of the Premises as are, from time to time, untenantable and, in fact, unoccupied by Tenant as a result of such damage. (b) Notwithstanding anything to the contrary herein set forth, Landlord shall have no duty pursuant to this Section II to repair or restore any portion of any alterations, additions, installation or improvements in the Premises or the decoration thereto except to the extent that the proceeds of the insurance carried by Tenant are timely received by Landlord for application to such use. If Tenant desires any other additional repairs or restoration, and if Landlord consents thereto, it shall be done at Tenant's sole cost and expense subject to all of the applicable provisions of the Lease. Tenant acknowledges that Landlord shall be entitled to the full proceeds of any insurance coverage whether carried by Landlord or Tenant, for damage to any alterations, addition, installation, improvements or decorations which would become the Landlord's property upon the termination of the Lease. III. WAIVER OF CLAIM - INDEMNIFICATION Without limiting any other provisions hereof, but subject to the provisions of Section I(c) hereof, Tenant agrees to defend, protect, indemnify and save Landlord and its partners, affiliates, officers, agents, servants and employees and Landlord's management, leasing and development agents and Landlord's mortgagee(s) from time to time from and against all liability to third parties arising out of the use of the Premises by, or the acts or omissions of, -33- Tenant or its servants, agents, employees, contractors, suppliers, workers or invitees. To the extent not prohibited by law and subject to the waiver of subrogation contained in Section I(c), Landlord and its partners, affiliates, officers, agents, servants and employees shall not be liable for any damage either to person, property or business resulting from the loss of the use thereof sustained by Tenant or by other persons due to the Building or any part thereof or any appurtenances thereto becoming out of repair, or due to the happening of any accident or event in or about the Building, including the Premises, or due to any act or neglect of any tenant or occupant of the Building or of any other person, unless and then only to the extent caused by the negligence or willful misconduct of Landlord or its agents, employees or contractors. This provision shall apply particularly, but not exclusively, to damage caused by gas, electricity, snow, ice, frost, steam, sewage, sewer gas or odors, fire, water or by the bursting or leaking of pipes, faucets, sprinklers, plumbing fixtures and windows, and except as provided above, shall apply without distinction as to the person whose act or neglect was responsible for the damage and shall apply whether the damage was due to any of the causes specifically enumerated above or to some other cause of an entirely different kind. Tenant further agrees that all personal property upon the Premises, or upon loading docks, recovering and holding areas, or freight elevators of the Building, shall be at the risk of Tenant only, and that Landlord shall not be liable for any loss or damage thereto or theft thereof. The provisions of this Rider shall survive the expiration or earlier termination of the Lease, and shall not derogate from the abatement and termination rights set forth in Section 6.11. IV. NONWAIVER No waiver of any provisions of this Lease shall be implied by any failure of Landlord to enforce any remedy on account of the violation of such provisions, even if such violation is continued or repeated subsequently, and no express waiver shall affect any provision other than the one specified in such waiver and that one only for the time and in the manner specifically stated. No receipt for monies by Landlord from Tenant after the termination of this Lease shall in any way alter the length of the Term or of Tenant's right to possession hereunder or after the finding of any notice shall reinstate, continue or extend the Term or affect any notice given Tenant prior to the receipt of such monies, it being agreed that after the service of notice or the commencement of a suit or after final judgment for possessions of the Premises, Landlord may receive and collect any Annual Fixed Rent and additional rent due, and the payment of said Annual Fixed Rent and additional rent shall not waive or affect said notice, suit or judgment. V. CONDEMNATION If the Land or the Building (or any portion of the Building, the loss of which would require reconfiguration or restoration of the Building which Landlord reasonably estimates will cost in excess of 25% of the current replacement cost of the Building) shall be taken or condemned by any competent authority for any public or quasi-public use or purpose, Landlord shall have the right, exercisable at its sole direction, to cancel the Lease upon not less than sixty (60) days' notice prior to the date of cancellation designated in the notice. No money or other consideration shall be payable by Landlord to Tenant for the right of -34- cancellation and Tenant shall have no right to share in the condemnation award or in any judgment for damages caused by such taking or condemnation. If any such taking (i) renders 25% or more of the Building untenantable or (ii) renders general Building systems inoperable and such systems cannot be repaired in Landlord's reasonable estimate within three hundred sixty-five (365) days from the date of such taking or (iii) occurs within the last two (2) Lease Years, Landlord or Tenant shall have the right to terminate this Lease as of the date of such taking upon written notice given to the other at any time within one hundred twenty (120) days after the date of such taking. Landlord shall have no liability to Tenant, and Tenant shall not be entitled to terminate this Lease, by virtue of any delays in completion of such repairs and restoration unless such repairs are not completed within such 365-day period, in which event Tenant shall have the right to terminate the Lease if such repairs are not completed within such 365-day period, subject to extension under Section 12.15, by notice given within 30 days after such repair period expires, which notice shall be deemed withdrawn if the restoration is completed within 30 days after such notice is delivered to Landlord. Annual Fixed Rent and additional rent, however, shall abate on those portions of the Premises as are, from time to time, untenantable and, in fact, unoccupied by Tenant as a result of such taking. -35- Exhibit E Form of SNDA SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT Tenant Name: ___________________________ Trade Name: ____________________________ Room/Unit No.: _________________________ THIS AGREEMENT is dated the _____ day of ____________________, 20__, and is made by and among CONNECTICUT GENERAL LIFE INSURANCE COMPANY, having an address c/o CIGNA Investments, Inc., 900 Cottage Grove Road, Hartford, Connecticut 06152, Attn: Debt Asset Management, S-319 ("Mortgagee"), ________________________________________________________, d/b/a _____________________________________________________, having an address of ________________________________________________________ ("Tenant"), and _____________________________________________________, having an address of ________________________________________ ("Landlord). RECITALS: A. Tenant has entered into a lease ("Lease") dated ____________________ with ____________________ as lessor ("Landlord"), covering the premises known as ____________________ (the "Premises") within the property known as ____________________, more particularly described as shown on Exhibit A, attached hereto (the "Real Property"). B. Mortgagee has agreed to make or has made a mortgage loan in the amount of ____________________ to Landlord, secured by a mortgage of the Real Property (the "Mortgage"), and the parties desire to set forth their agreement herein. NOW, THEREFORE, in consideration of the premises and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: 1. The Lease and all extensions, renewals, replacements or modifications thereof are and shall be subject and subordinate to the Mortgage and all terms and conditions thereof insofar as it affects the Real Property of which the Premises form a part, and to all renewals, modifications, consolidations, replacements and extensions thereof, to the full extent of amounts secured thereby and interest thereon. -36- 2. Tenant shall attorn to and recognize any purchaser at a foreclosure sale under the Mortgage, any transferee who acquires the Premises by deed in lieu of foreclosure, and the successors and assigns of such purchaser(s), as its landlord for the unexpired balance (and any extensions, if exercised) of the term of the Lease on the same terms and conditions set forth in the Lease. 3. If it becomes necessary to foreclose the Mortgage, Mortgagee shall neither terminate the Lease nor join Tenant in summary or foreclosure proceedings for the purpose of terminating the Lease so long as Tenant is not in default under any of the terms, covenants, or conditions of the Lease beyond any applicable notice and cure periods. 4. If Mortgagee succeeds to the interest of Landlord under the Lease, Mortgagee shall not be: (a) liable for the return of any security deposit unless such deposit has been delivered to Mortgagee by Landlord or is in an escrow fund available to Mortgagee, (b) bound by any rent or additional rent that Tenant might have paid for more than the current month to any prior landlord (including Landlord), (c) bound by any amendment, modification, or termination of the Lease made without Mortgagee's prior written consent (which consent shall not be unreasonably withheld or delayed), or (d) personally liable under the Lease, Mortgagee's liability thereunder being limited to its interest in the Real Property. 5. This Agreement shall be binding on and shall inure to the benefit of the parties hereto and their successors and assigns. 6. Tenant shall give Mortgagee, by commercial overnight delivery service, a copy of any notice of default served on Landlord at the same time such notice is sent to the Landlord, addressed to Mortgagee at Mortgagee's address set forth above or at such other address as to which Tenant has been notified in writing. Mortgagee shall have the right, but not the obligation, to cure such default within the time period specified in the Lease. 7. Landlord has agreed under the Mortgage and other loan documents that rentals payable under the Lease shall be paid directly by Tenant to Mortgagee upon default by Landlord under the Mortgage. After receipt of notice from Mortgagee to Tenant, at the address set forth above or at such other address as to which Mortgagee has been notified in writing, that rentals under the Lease should be paid to Mortgagee, Tenant shall pay to Mortgagee, or at the direction of Mortgagee, all monies due or to become due to Landlord under the Lease. Tenant shall have no responsibility to ascertain whether such demand by Mortgagee is permitted under the Mortgage, or to inquire into the existence of a default. Landlord hereby waives any right, claim, or demand it may now or hereafter have against Tenant by reason of such payment to Mortgagee, and any such payment shall discharge the obligations of Tenant to make such payment to Landlord. -37- IN WITNESS WHEREOF, the parties hereto have executed these presents as of the day and year first above written. WITNESSES: MORTGAGEE: ---------------------------------------- By: - ------------------------------------- ------------------------------------ Name: Its: - ------------------------------------- ----------------------------------- Name: TENANT: ---------------------------------------- By: - ------------------------------------- ------------------------------------ Name: Its: - ------------------------------------- ----------------------------------- Name: LANDLORD: ---------------------------------------- By: - ------------------------------------- ------------------------------------ Name: - ------------------------------------- Its: Name: ----------------------------------- -38- STATE OR COMMONWEALTH OF ________________ : ss. COUNTY OF _______________________________ On this, the _____ day of ________________, 20___, before me, the undersigned officer, personally appeared _______________________, who acknowledged himself/herself to be the ____________________________ of ___________________________, and signed the foregoing instrument for the purposes therein contained as his/her free act and deed and the free act and deed of such entity. IN WITNESS WHEREOF, I hereunto set my hand and official seal the day and year aforesaid. - ------------------------------------- Notary Public My Commission Expires: STATE OR COMMONWEALTH OF ________________ : ss. COUNTY OF _______________________________ On this, the _____ day of ________________, 20___, before me, the undersigned officer, personally appeared _______________________, who acknowledged himself/herself to be the ____________________________ of ___________________________, and signed the foregoing instrument for the purposes therein contained as his/her free act and deed and the free act and deed of such entity. IN WITNESS WHEREOF, I hereunto set my hand and official seal the day and year aforesaid. - ------------------------------------- Notary Public -39- My Commission Expires: STATE OR COMMONWEALTH OF ________________ : ss. COUNTY OF _______________________________ On this, the _____ day of ________________, 20___, before me, the undersigned officer, personally appeared _______________________, who acknowledged himself/herself to be the ____________________________ of ___________________________, and signed the foregoing instrument for the purposes therein contained as his/her free act and deed and the free act and deed of such entity. IN WITNESS WHEREOF, I hereunto set my hand and official seal the day and year aforesaid. - ------------------------------------- Notary Public My Commission Expires: -40- EX-10.5 8 l16444aexv10w5.txt EX-10.5 LEASE STAG II MIAMISBURG AND DAYTON SUPERIOR EXHIBIT 10.5 LEASE STAG II MIAMISBURG, LLC AS LANDLORD, AND DAYTON SUPERIOR CORPORATION AS TENANT TABLE OF CONTENTS
Article Page - ------- ---- I Basic Terms.................................................... 1 II Lease of Premises.............................................. 3 III Initial Construction of Premises............................... 5 IV Annual Fixed Rent.............................................. 5 V Additional Rent................................................ 5 VI Maintenance, Use, and Alterations of the Premises.............. 8 VII Insurance and Indemnification.................................. 14 VIII Assignment and Subletting...................................... 15 IX Default and Remedies........................................... 17 X Casualty and Condemnation...................................... 21 XI Landlord's Financing........................................... 21 XII Miscellaneous.................................................. 23 XIII Special Provisions ............................................ 26
- i - ARTICLE I: BASIC TERMS 1.1 Reference Subjects. The following terms used in this Lease shall have the meanings set forth below. Date of Lease: October __, 2005 Landlord: STAG II Miamisburg, LLC, a Delaware limited liability company Tenant: Dayton Superior Corporation, an Ohio corporation Property: The land known and numbered as 721 Richard Street, Miamisburg, Ohio, more particularly described on Exhibit A. Premises: The entire building or buildings at the Property (the "Building"), containing approximately 156,581 rentable square feet, and all other improvements on or above the surface of the Property. Tenant's Percentage Share: 100% Term Commencement Date: The date of this Lease. Rent Commencement Date: The date of this Lease. Term Expiration Date: The last day of the twelfth (12th) Lease Year. The first Lease Year of the Term shall commence on the Term Commencement Date and end on the last day of the month in which the first (1st) anniversary of the Rent Commencement Date shall occur (unless the Rent Commencement Date shall occur on the first day of a month, in which case the first Lease Year shall end on the day before the first (1st) anniversary of the Rent Commencement Date). Subsequent Lease Years shall commence on the day after the last day of the first Lease Year or an anniversary thereof, and shall end on an anniversary of the last day of the first Lease Year. Permitted Uses: Manufacturing, warehouse and distribution uses, together with office uses ancillary to such uses. Security Deposit: $164,900. Tenant's Guarantor: None.

Annual Fixed Rent: See Exhibit B. Additional Rent: See Article V. Broker(s) None. Exhibits Schedule 9.10 Letter of Credit Requirements A: Property B: Annual Fixed Rent C: Rules and Regulations D. Insurance, Casualty, and Condemnation Provisions E. Subordination, Non-Disturbance and Attornment Agreement

ARTICLE II: LEASE OF PREMISES 2.1 Premises. Landlord hereby leases the Premises to Tenant and Tenant hereby leases the Premises from Landlord for the Term, subject to and with the benefit of the terms, covenants and conditions of this Lease, and of rights, agreements, easements and restrictions of record applicable to the Property, all of which Tenant shall perform and observe insofar as the same are applicable to the Premises. As appurtenant to the Premises, Tenant shall have the right to the exclusive use of the roof for telecommunications equipment and all portions of the Property at and above grade level, but Tenant shall not have any right of access, control over or other ability to use any portion of the Property below grade level. 2.2 Term. (a) The term of this Lease (the "Term") shall begin on the Term Commencement Date and shall end on the Term Expiration Date, subject to extension as set forth below. (b) Tenant shall have the right to extend the Term for two periods of five (5) years, on the terms and conditions set forth below. To exercise the extension option, Tenant shall notify Landlord in writing at least twelve (12) months prior to the then scheduled expiration of the Term. Failure to timely deliver such notice shall be deemed an irrevocable election by Tenant not to extend the Term, and Tenant shall have no further right to extend the Term. If Tenant timely delivers such notice, then all of the terms and conditions of the Lease in effect immediately prior to such extension shall apply during the extension period, except that Tenant shall have no right to extend the Term beyond the end of the second extension period and the Annual Fixed Rent during such extension period shall be the Fair Market Rent therefor, determined as provided below, but not less than the Annual Fixed Rent applicable to the Premises immediately before such extension. If Tenant shall exercise the extension option in accordance with this Section, the provisions of this Section shall be self-operative, but upon request by either party after determination of the Annual Fixed Rent for the extension period the parties shall execute an agreement specifying the Annual Fixed Rent for the extension period and acknowledging the extension of the Term. -2- Notwithstanding the foregoing, Tenant's exercise of any option to extend the Term shall be void, at Landlord's election, if either at the time the option is exercised or at the time the extension period is to commence, (i) Tenant is in default under the Lease, or (ii) there exists a sublease or subleases of more than 25% of the square footage of the Building in the aggregate, or (iii) the originally named Tenant hereunder has assigned or transferred its interest in this Lease (except for an assignment or transfer that does not require Landlord's consent under the terms of this Lease). (c) As used herein, the "Fair Market Rent" shall mean the annual fair market rent for the Premises, ascertained for a term coterminous with the time period for which the Fair Market Rent is to be effective, under the terms of this Lease, determined as though the Premises were in the condition then existing or in such better condition as such space is required to be maintained hereunder. Not later than ten (10) months prior to the commencement of the extension period, Landlord shall notify Tenant in writing of Landlord's determination of the Fair Market Rent. Within thirty (30) days after receipt of such notice, Tenant shall notify Landlord whether Tenant accepts or disputes Landlord's determination of Fair Market Rent, which notice of dispute shall include Tenant's determination of the Fair Market Rent (the failure to timely dispute being deemed Tenant's acceptance of Landlord's determination). (d) If Tenant so disputes Landlord's determination, such dispute shall be resolved in accordance with the following procedure. Within thirty (30) days after receipt of Tenant's notice disputing Landlord's determination, Landlord and Tenant shall mutually appoint as an arbitrator a licensed real estate broker with at least ten years experience as a broker of comparable properties in the area or if they cannot agree upon such arbitrator, either party may apply to the office of the American Arbitration Association ("AAA") for appointment of such an arbitrator. The arbitrator shall be charged to determine the Fair Market Rent in accordance with this Section, within sixty (60) days after the arbitrator is appointed, by selecting either of the final estimates of the Fair Market Rent provided by Landlord and Tenant at the commencement of the hearing. The arbitrator shall have no authority or jurisdiction to make any other determination of such amount. The arbitration shall be conducted in accordance with the commercial arbitration rules of the AAA insofar as such rules are not inconsistent with the provisions of this Lease (in which case the provisions of this Lease shall govern). The cost of the arbitrator shall be borne equally by the parties. If the AAA shall cease to provide arbitration for commercial disputes in Cleveland, Ohio or Cincinnati, Ohio, the arbitrator shall be appointed by any successor organization providing substantially the same services, and in the absence of such an organization, by a court of competent jurisdiction under the arbitration act of the State of Ohio. For any extension period during which the applicable Fair Market Rent is in dispute hereunder, Tenant shall make payment on account of Annual Fixed Rent at the rate set forth in Landlord's notice above, and the parties shall adjust for over or under-payments within thirty days after the decision of the arbitrator is announced. ARTICLE III: DELIVERY OF PREMISES 3.1 Delivery of Premises. The Premises are demised and leased subject to the existing state of the title as of the Term Commencement Date. 3.2 Existing Conditions. Tenant acknowledges that Tenant or its affiliates owned and occupied the Premises prior to the Term Commencement Date and that it has inspected the -3- Premises and accepts the same in the condition they are in on the Term Commencement Date, it being expressly agreed that neither Landlord nor any person acting under Landlord has made or implied any representations or warranties concerning this Lease, the Premises, or their condition or suitability for Tenant's use. To the extent permitted by applicable law, Tenant waives any right or remedy otherwise accruing to Tenant on account of the condition or suitability of the Premises, or title to the Premises, and Tenant agrees that it takes the Premises "as-is," with all faults and without any such representation or warranty, including any implied warranties. ARTICLE IV: RENT 4.1 Annual Fixed Rent. Commencing on the Rent Commencement Date and on the first day of each subsequent calendar month during the Term, Tenant shall pay to Landlord the Annual Fixed Rent set forth in on Exhibit B hereto in lawful money of the United States, in advance and without offset, deduction, or prior demand. The Annual Fixed Rent shall be payable at Landlord's Address or at such other place or to such other person as Landlord may designate in writing from time to time. ARTICLE V: ADDITIONAL RENT 5.1 Additional Rent. All sums payable by Tenant under this Lease other than Annual Fixed Rent shall be deemed "Additional Rent." The term "rent" shall mean Annual Fixed Rent and Additional Rent. Unless this Lease provides otherwise, Tenant shall pay all Additional Rent then due with the next monthly installment of Annual Fixed Rent. 5.2 Real Estate Taxes. Tenant covenants and agrees to pay when due, directly to the relevant taxing authority, as Additional Rent, all Taxes. "Taxes" shall mean all taxes, assessments, betterments, excises, user fees and all other governmental charges and fees of any kind or nature, or impositions or agreed payments in lieu thereof or voluntary payments made in connection with the provision of governmental services or improvements of benefit to the Building or the Property (including any so-called linkage, impact or voluntary betterment payments), and all penalties and interest thereon (if due to Tenant's failure to make timely payments on account of Taxes), assessed or imposed against the Premises or the property of which the Premises are a part (including without limitation any personal property taxes levied on such property or on fixtures or equipment used in connection therewith), or upon Landlord by virtue of its ownership thereof, other than a federal or state income tax of general application, during the Term of the Lease. If during the Term the present system of ad valorem taxation of property shall be changed so that, in lieu of or in addition to the whole or any part of such ad valorem tax, there shall be assessed, levied or imposed on such property or Premises or on Landlord any kind or nature of federal, state, county, municipal or other governmental capital levy, income, sales, franchise, excise or similar tax, assessment, levy, charge or fee (as distinct from the federal and state income tax in effect on the Term Commencement Date) measured by or based in whole or in part upon Building valuation, mortgage valuation, rents or any other incidents, benefits or measures of real property or real property operations and imposed on owners of real estate generally, then any and all of such taxes, assessments, levies, charges and fees shall be included within the term Taxes, but only to the extent the same are applicable to the Premises. -4- Tenant may seek a reduction in the assessed valuation (for tax purposes) of the Property provided the same is done by and at Tenant's sole cost and expense and after written notice to Landlord, and Landlord agrees that it shall cooperate in good faith with Tenant's reasonable requests in connection with any such proceeding. Tenant may defer payment of any contested Taxes; provided that Tenant's deferral is in compliance with applicable law permitting such deferral. Tenant shall be entitled to all refunds associated with Tenant's successful prosecution of any such proceeding. If required by applicable law, Landlord shall join in any proceeding referred to in this paragraph; provided, however, Tenant shall indemnify and save Landlord harmless from any costs and expenses associated with such proceedings. If Landlord shall receive a refund of any Taxes paid by Tenant, Landlord shall reimburse Tenant the amount of said refund after deducting therefrom the actual reasonable out of pocket costs and expenses incurred in connection therewith. 5.3 INTENTIONALLY OMITTED. 5.4 Utilities. Tenant shall pay all charges and deposits for gas, water, sewer, electricity, telecommunications, and other energy, utilities and services used or consumed on the Premises during the Term. It is understood and agreed that Landlord (i) shall be under no obligation whatsoever to furnish any such services to the Premises and (ii) shall not be liable for (nor suffer any reduction in any rent on account of) any interruption or failure in the supply of the same. 5.5 Personal Property Taxes. Tenant shall pay when due, directly to the relevant taxing authority, all taxes charged against trade fixtures, furnishings, equipment, inventory, or any other personal property belonging to Tenant. Tenant shall use its best efforts to have its personal property taxed separately from the Premises. If any of Tenant's personal property shall be taxed with the Premises, Tenant shall pay Landlord the taxes for such personal property within thirty days after Tenant receives a written statement from Landlord for such personal property taxes. 5.6 Method of Payment. Tenant agrees to pay the Annual Base Rent to Landlord in advance in equal monthly installments by the first day of each calendar month during the Term. Tenant shall make a ratable payment of Annual Base Rent and Additional Rent (to the extent applicable) for any period of less than a month at the beginning or end of the Term. All payments of Annual Base Rent, and all payments of Additional Rent and other sums due and payable to Landlord, shall be paid in current U.S. exchange by check drawn on a Clearinghouse Bank at the address of Landlord set forth in Section 12.1 or such other place as Landlord may from time to time direct (or if requested by Landlord, by electronic fund transfer), without demand, set-off or other deduction. 5.7 Net Lease. This Lease is an absolutely triple net lease to Landlord. It is the intent of the parties hereto that the Annual Fixed Rent payable under this Lease shall be an absolutely net return to Landlord and that Tenant shall pay all costs and expenses relating to the Premises except as otherwise expressly set forth in this Lease. Without limiting the generality of the preceding sentence, Tenant shall at its sole cost and expense (which expense shall be deemed Additional Rent hereunder) be responsible for payment of all Taxes, all electricity, telecommunication service, gas, water, sewer, telephone, refuse disposal, and other charges for utilities and services -5- supplied to the Premises, insurance costs, amounts due under any Title Document (defined below) and all costs of cleaning, maintaining and repairing the Premises in accordance with the terms of this Lease. Any amount or obligation herein relating to the Premises that is not expressly declared to be that of Landlord shall be deemed to be an obligation of Tenant to be performed by Tenant at Tenant's expense and Tenant shall indemnify Landlord against, and hold Landlord harmless from, the same, and Tenant's liability for the payment of any of the same which shall become payable during the Term is hereby expressly provided to survive the Term. Annual Fixed Rent, Additional Rent, and all other sums payable hereunder by Tenant, shall be paid without notice or demand, and without set off, counterclaim, recoupment, abatement, suspension, deduction, or defense (other than payment) whatsoever, so that this Lease shall yield net to Landlord the Annual Fixed Rent under all circumstances and conditions whether now or hereinafter existing and whether or not within the contemplation of the parties. Except as otherwise expressly set forth in this Lease with respect to certain events of casualty or condemnation, Tenant shall in no event have any right to terminate this Lease. It is the intention of the parties hereto that the obligations of Tenant hereunder shall be separate and independent covenants and agreements, that the Annual Fixed Rent, the Additional Rent, and all other sums payable by Tenant hereunder shall continue to be payable in all events, and that the obligations of Tenant hereunder shall continue unaffected, unless the requirement to pay or perform the same shall have been terminated pursuant to an express provision of this Lease. As used herein, the term "Title Documents" means any and all easements, covenants, conditions, and restrictions, industrial park association agreements, and other agreements, encumbrances, and restrictions of record affecting all or part of the Premises, as the same may now exist, or as the same may hereafter be created or amended without materially expanding the obligations of Tenant without Tenant's approval (which approval shall not be unreasonably withheld), but excluding any mortgage. 5.7 True Lease. Landlord and Tenant agree that the parties intend this Lease to constitute a lease and not a financing arrangement. Each party shall reflect the transaction represented hereby in all applicable books, records and reports (including income tax filings) in a manner consistent with "true lease" treatment rather than "financing" treatment, subject to future modifications of accounting or tax rules or guidelines and subject to contrary determinations or positions by governmental agencies or the like. ARTICLE VI: MAINTENANCE, USE, AND ALTERATIONS OF PREMISES 6.1 Landlord's Structural Repair Obligations. Except as set forth in Exhibit D, Section II and Exhibit D, Section V attached hereto, Landlord shall have no obligation to repair or maintain the Building or Premises. Tenant hereby waives the benefit of any present or future law that provides Tenant the right to repair the Premises or Building at Landlord's expense or to terminate this Lease because of the condition of the Building or the Premises. Notwithstanding anything to the contrary in this paragraph, Tenant shall be solely responsible for the cost of (a) any repair or capital replacement arising from an overburdening of any building system or component or any other act or omission of Tenant, its employees, agents, contractors, or invitees or from a failure by Tenant to perform its maintenance and repair obligations under this Lease, and (b) any alterations, additions, improvements, repairs, or replacements that are performed by or on behalf of Tenant. -6- 6.2 Tenant's Repair and Maintenance Obligations. Except as set forth in Exhibit D Section II and Exhibit D, Section V attached hereto, Tenant shall clean, maintain, repair and secure the Premises, all improvements and appurtenances thereto, all access areas thereof, and all utilities, facilities, installations and equipment used in connection therewith, and shall pay all costs and expenses of so doing, keeping the Premises in good order, repair and condition, reasonable wear and tear, and damage by casualty and taking (to the extent provided in Article X only) excepted. Without limiting the generality of the foregoing, Tenant shall keep the foundation of the Building, all exterior walls, structural walls, the roof of the Building, all interior walls, floor surfaces and coverings, glass, windows, doors, and partitions, all fixtures and equipment, all interior utilities, pipes and drains and other above-ground level installations used in connection with the Premises in such good order, repair and condition, shall provide all cleaning, painting and floor covering to the Premises, and shall remove all refuse from and provide its own janitorial services for the Premises. Tenant shall keep in good order, condition and repair all building systems (including the heating, ventilation, air conditioning, plumbing, electrical, utility, and safety systems). Tenant's maintenance obligations shall also include, without limitation, gardening and landscaping; snow removal; maintenance of signs; rental or lease payments paid by Tenant for rented or leased personal property used in the operation or maintenance of the Premises; fees for required licenses and permits required by Tenant; sweeping and striping of pavement; general maintenance; painting; lighting; and similar items. If any portion of the Premises or any system or equipment in the Premises that Tenant shall be obligated to repair cannot be fully repaired or restored, Tenant shall promptly replace such portion of the Premises or system or equipment. 6.3 Use and Compliance with Law. Tenant shall use the Premises only for the Permitted Uses and only as permitted under federal, state, and local laws, regulations and orders applicable from time to time, including without limitation municipal by-laws, land use and zoning laws, environmental laws and regulations (including all laws and regulations regulating the production, use, and disposal of any pollutant or toxic or hazardous material), and occupational health and safety laws. Tenant shall procure all approvals, licenses and permits necessary therefor, in each case giving Landlord true and complete copies of the same and all applications therefor. Except as set forth in Section 6.1, Tenant shall promptly comply with all present and future laws applicable to Tenant's use of the Premises or Tenant's signs thereon, foreseen or unforeseen, and whether or not the same necessitate structural or other extraordinary changes or improvements to the Premises or interfere with its use and enjoyment of the Premises, and shall keep the Premises equipped with adequate safety appliances and comply with all requirements reasonable in light of the use Tenant is making of the Premises of insurance inspection or rating bureaus having jurisdiction. If Tenant's use of the Premises results in any increase in the premium for any insurance carried by Landlord, then upon Landlord's notice to Tenant of such increase Tenant shall pay the same to Landlord upon demand as Additional Rent. Tenant shall, in any event, indemnify and save Landlord harmless from all loss, claim, damage, cost or expense (including reasonable attorneys' fees of counsel of Landlord's choice against whom Tenant makes no reasonable objection) on account of Tenant's failure so to comply with the obligations of this Section (paying the same to Landlord upon demand as Additional Rent). Except as set forth in Section 6.1, Tenant shall bear the sole risk of all present or future laws affecting the Premises or appurtenances thereto, and Landlord shall not be liable for (nor suffer any reduction in any rent on account of) any interruption, impairment or prohibition affecting the Premises or Tenant's use thereof resulting from the enforcement of laws. Tenant shall comply with the rules and regulations for the Premises set forth on Exhibit C hereto, as the same may be reasonably amended from time to time by -7- Landlord (in accordance with standards applicable to comparable properties) for the operation, care and use of the Property and appurtenant improvements and areas in which Tenant is granted rights of use by the terms of this Lease. 6.4 Nuisance; Hazardous Materials. Tenant shall not, either with or without negligence, injure, overload, deface, damage or otherwise harm Landlord's property, the Premises or any part or component thereof; commit any nuisance; permit the emission of any hazardous materials or substances; allow the release or other escape of any biologically or chemically active or other hazardous substances or materials so as to impregnate, impair or in any manner affect, even temporarily, any element or part of Landlord's property or the Premises, or allow the storage or use of such substances or materials in any manner not sanctioned by law or by commercially reasonable and customary standards prevailing in the industry for the storage and use of such substances or materials; nor shall Tenant bring onto the Premises any such materials or substances except to use in the ordinary course of Tenant's business, and then only in strict compliance with applicable law; permit the occurrence of objectionable noise or odors; or make, allow or suffer any waste whatsoever to Landlord's property or the Premises. Without limitation, hazardous materials shall include all substances described or regulated in any federal, state, local or administrative agency ordinance, law, rule, regulation, order or requirement relating to environmental conditions, human health or hazardous substances, including the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C. Section 9601 et seq), the Resource Conservation and Recovery Act of 1976 (42 U.S.C. Section 6901 et seq.), the Federal Water Pollution Control Act (33 U.S.C. Section 1251 et seq.), the Clean Air Act (42 U.S.C. Section 7401 et seq.), the Emergency Planning and Community Right-To-Know Act (42 U.S.C. Section 1101 et seq.), The Endangered Species Act (16 U.S.C. Section 1531 et seq.), the Toxic Substances Control Act (15 U.S.C. Section 2601 et seq.), the Occupational Safety and Health Act (29 U.S.C. Section 651 et seq.) and the Hazardous Materials Transportation Act (49 U.S.C. Section 1801 et seq.), and the regulations promulgated pursuant to such laws, all as amended from time to time, and all other laws governing similar matters as they may be amended from time to time. In addition, Tenant shall execute affidavits, representations and the like from time to time at Landlord's request concerning Tenant's best knowledge and belief regarding the presence or absence of hazardous materials and substances on the Premises. In all events, Tenant shall indemnify, defend, and hold harmless Landlord and its mortgagees as provided in this Lease from any claims resulting from any release of hazardous materials or substances on the Premises first occurring during the Term, except to the extent caused by Landlord or its agents or contractors or caused by a migration onto or under the Property from adjacent property. (At the request of Landlord, Tenant will from time to time confirm such indemnity to mortgagees directly with such mortgagees.) The indemnities under this Section shall survive any termination of the Lease. 6.5 Landlord's Right to Enter. Landlord and its agents or employees may upon reasonable notice enter the Premises during business hours (and in case of emergency at any time) for the purpose of performing repairs or replacements, or exercising any of the rights reserved to Landlord herein, or securing or protecting Landlord's property or the Premises, or removing any alterations or additions not consented to by Landlord, and similarly upon reasonable notice may show the Premises to prospective purchasers and lenders, and during the last twelve months of the Term to prospective tenants, and may keep affixed in suitable places notices for letting (during the last twelve (12) months of the Term) and selling. Except in case of emergency, Landlord shall be -8- subject in entering the Premises to reasonable security conditions, if any, set forth by Tenant in writing to Landlord. If Tenant so desires, a representative of Tenant may accompany Landlord or its agents in any entry onto the Premises under this Lease. 6.6 Parking. Tenant shall be entitled to use all parking areas on the Property and within the Building without charge. Handicapped spaces shall only be used by those legally permitted to use them. 6.7 Alterations, Additions, and Improvements. Tenant shall not make any installations, alterations, additions, or improvements in or to the Premises, including, without limitation, any apertures in the walls, partitions, ceilings or floors, without on each occasion obtaining the prior written consent of Landlord, which consent shall not be unreasonably withheld or delayed, except that only prior notice and a description of and plans for the work (but no approval) shall be required for any interior work costing less than $50,000 in the aggregate during any twelve-month period and that does not require a permit with respect to the building's structure or mechanical, electrical, or other building systems. Any such work so approved by Landlord shall be performed only in accordance with plans and specifications therefor approved by Landlord. Tenant shall not perform any work in or to the Premises that would in Landlord's reasonable judgment (i) in any manner affect any structural component of the Building (including, without limitation, exterior walls, exterior windows, core walls, columns, roofs, or floor slabs), (ii) in any respect be incompatible with the electrical or mechanical components or systems of the Building, (iii) affect space or areas around the Building (including the exterior of the Building), (iv) diminish the value of the Premises for the Permitted Uses, or (v) require any unusual expense to re-adapt the Premises for the Permitted Uses. Tenant shall procure at Tenant's sole expense all necessary permits and licenses before undertaking any work on the Property and shall perform all such work in a good and workmanlike manner employing materials of good quality and so as to conform with all applicable zoning, building, fire, health and other codes, regulations, ordinances and laws and with all applicable insurance requirements. If any notice of contract or lien is placed on the Property arising from work performed by or for Tenant, if requested by Landlord for any work requiring Landlord's approval, Tenant shall thereafter furnish to Landlord prior to commencement of any such work a bond or other security acceptable to Landlord assuring that any work by Tenant will be completed in accordance with the approved plans and specifications and that all subcontractors will be paid. Tenant shall employ for such work only contractors reasonably approved by Landlord and shall require all contractors employed by Tenant to carry insurance in types and amounts reasonably approved by Landlord (including without limitation worker's compensation insurance in accordance with statutory requirements and commercial general liability insurance covering such contractors on or about the Premises with a combined single limit not less than $3,000,000) and shall submit certificates evidencing such coverage to Landlord prior to the commencement of such work, subject to Section II of Exhibit D in the case of casualty. Tenant shall indemnify and hold harmless Landlord from all injury, loss, claims or damage to any person or property occasioned by or arising out of such work. Landlord may inspect the work of Tenant at reasonable times in accordance with Section 6.5 and give notice of observed defects. Upon completion of any such work, Tenant shall provide Landlord with "as built" plans, copies of all construction contracts and proof of payment for all labor and materials. 6.8 Liens and Encumbrances. Tenant shall not create or suffer, shall keep Landlord's property, the Premises and Tenant's leasehold free of, and shall promptly remove and discharge, -9- any lien, notice of contract, charge, security interest, mortgage or other encumbrance which arises for any reason, voluntarily or involuntarily, as a result of any act or omission by Tenant or persons claiming by, through or under Tenant, or any of their agents, employees or independent contractors, including without limitation liens which arise by reason of labor or materials furnished or claimed to have been furnished to Tenant or for the Premises. 6.9 Condition upon Termination. At the expiration or earlier termination of this Lease, Tenant (and all persons claiming by, through or under it) shall, without the necessity of any notice, surrender the Premises (including any tenant work and all replacements thereof, except such additions or alterations constructed after the Term Commencement Date as Landlord may direct to be removed at the time of Landlord's approval thereof, which shall be removed by Tenant and the Premises restored to their pre-existing condition) and all keys to the Premises, remove all of its trade fixtures and personal property not bolted or otherwise attached to the Premises (and such trade fixtures and other property bolted or attached to the Premises as Landlord may direct or, except as set forth below, as Tenant may desire), and all Tenant's signs wherever located, in each case repairing damage to the Premises which results in the course of such removal and restoring the Premises to a fully functional and tenantable condition (including the filling of all floor holes, the removal of all disconnected wiring back to junction boxes and the replacement of all damaged ceiling tiles). Tenant shall yield up the Premises broom-clean and in good order, repair and condition, reasonable wear and tear and damage by casualty and taking (to the extent provided in Article X only) excepted. Any property not so removed within thirty (30) days after the expiration or termination of the Lease shall be deemed abandoned and may be removed and disposed of by Landlord in such manner as Landlord shall determine, and Tenant shall pay to Landlord the reasonable cost and expense incurred by it in effecting such removal and disposition and in making any required repairs to the Premises. In no event, however, shall Tenant remove any of the following materials or equipment (which shall be deemed Landlord's property), without Landlord's prior written consent: any power wiring or wiring panels; lighting or lighting fixtures; doors, windows, or wall coverings; drapes, blinds or other window coverings; installed carpets or other installed floor coverings; any built-in heating or air conditioning equipment; fencing or security gates; or other similar building operating equipment. 6.10 Tenant's Expense. Tenant shall fulfill all of Tenant's obligations under this Article VI at Tenant's sole expense. If Tenant shall fail to maintain, repair or replace the Premises as required by this Article VI, Landlord may, upon thirty (30) days' prior notice to Tenant (except that no notice shall be required in the case of an emergency), enter the Premises in accordance with Section 6.5 and perform such maintenance or repair (including replacement, as needed) on behalf of Tenant. In such case, Tenant shall reimburse Landlord for all costs reasonably incurred in performing such maintenance, repair or replacement, together with an administrative charge of fifteen percent, as Additional Rent, immediately upon demand. 6.11 Interruptions. Landlord shall not be liable to Tenant in damages or by reduction of rent or otherwise by reason of inconvenience or for loss of business arising from Landlord or its agents or employees entering the Premises for any of the purposes authorized in this Lease or for repairing, altering or improving the Building in a manner reasonable in light of the circumstances. In case Landlord is prevented or delayed from making any repairs or replacements or furnishing any services or performing any other covenant or duty to be performed on Landlord's part by reason of any cause reasonably beyond Landlord's control, Landlord shall not be liable to Tenant -10- therefor, nor shall the same give rise to a claim in Tenant's favor that such failure constitutes actual or constructive, total or partial, eviction from the Premises. Landlord reserves the right to stop any service or utility system, when necessary by reason of accident or emergency, or until necessary repairs have been completed; provided, however, that in each instance of stoppage, Landlord shall give Tenant such notice as is practicable under the circumstances of the expected duration of such stoppage and will exercise reasonable diligence to eliminate the cause thereof. Except in case of emergency repairs Landlord will give Tenant reasonable advance notice of any contemplated stoppage and will use reasonable efforts to avoid unnecessary inconvenience to Tenant by reason thereof. ARTICLE VII: INSURANCE AND INDEMNIFICATION 7.1 Insurance. The provisions of this Lease regarding insurance and indemnification are set forth in Exhibit D, which is incorporated herein by reference. ARTICLE VIII: ASSIGNMENT AND SUBLETTING 8.1 Landlord's Consent Required. Tenant shall not assign this Lease, or sublet or license the Premises or any portion thereof, or advertise the Premises for assignment or subletting or permit the occupancy of all or any portion of the Premises by anybody other than Tenant (each of the foregoing actions is referred to as a "transfer") without obtaining, on each occasion, the prior consent of Landlord, subject to and in accordance with this Article VIII. A transfer shall include, without limitation, any transfer of Tenant's interest in this Lease by operation of law, merger or consolidation of Tenant into any other firm or corporation, the transfer or sale of a controlling interest in Tenant whether by sale of its capital stock or otherwise or any liquidation of Tenant or a substantial part of Tenant's assets. Landlord's consent to a proposed sublease shall not be unreasonably withheld, it being understood that the proposed sublease must comply with all other provisions of this Lease (including, without limitation, this Section 8.1), must not alter Landlord's rights under the Lease, and must not impose any additional obligation on Landlord. Notwithstanding the foregoing, the following transactions ("Excluded Transactions") shall not require the consent of Landlord provided that Landlord shall receive prior notice thereof plus reasonable evidence upon closing that the transaction is in fact one of the following (and provided further that the proposed transfer complies with all other provisions of this Lease, including, without limitation, this Article VIII, does not alter Landlord's rights under the Lease, and does not impose any additional obligation on Landlord): (a) Any transfer to an entity succeeding to the business and assets of Tenant, whether by way of merger, consolidation or otherwise; and (b) Any transfer to an entity controlling Tenant, directly or indirectly controlled and beneficially owned by Tenant, or under common control with Tenant. For purposes of this clause (b), control shall mean possession of more than 50 percent ownership of the shares of beneficial interest of the entity in question together with the power to control and manage the affairs thereof either directly or by election of directors and/or officers. -11- 8.2 Terms. Tenant shall not offer to make a transfer to any party which would be of such type, character or condition as to be inappropriate as a tenant for a building comparable to the Building. Tenant shall not offer to make or make an assignment of any portion of the Premises (other than for Excluded Transactions) unless the aggregate rent payable to Tenant under such assignment equals or exceeds the then prevailing market rate rent and other charges payable for space comparable to the Premises. 8.3 Right of Termination or Recapture. If Tenant proposes a transfer of the Premises with an intended duration of more than seven (7) years (other than for Excluded Transactions or a transfer of a division of Tenant that occupies the entire Building which transfer involves the entire Building), Tenant shall offer to Landlord in writing the right to terminate this Lease as to the space and period in question as of the date specified in the offer. If Landlord shall elect in writing to accept the offer to terminate within twenty (20) days after receipt of notice of the offer, this Lease shall so terminate as to the space and period in question as of the date specified in such offer, and all of the terms and provisions of this Lease governing termination shall apply. If Landlord shall not so elect, Tenant shall then comply with the provisions of this Article VIII applicable to such transfer. 8.4 Landlord's Consent. Tenant's request for consent under this Article VIII (and Tenant's notice of any transfer not requiring Landlord's consent under Section 8.1 above) shall set forth the details of the proposed transfer, including: (i) the name, business and financial condition of the prospective transferee, (ii) a true and complete copy of the proposed instrument containing all of the terms and conditions of such transfer, (iii) a written agreement of the assignee, subtenant or licensee, in recordable form reasonably approved by Landlord, agreeing with Landlord to perform and observe all of the terms, covenants, and conditions of this Lease, and (iv) any other information Landlord reasonably requested by Landlord prior to or in response to such notice. Except for any transfer not requiring Landlord's consent under Section 8.1 above, Landlord shall have the right to withhold consent, reasonably exercised as to any proposed sublease, or to grant consent, based on the following factors: (i) the business of the proposed assignee or subtenant and the proposed use of the Premises (if other than the Permitted Use); (ii) the net worth, business reputation, character, and financial condition of the proposed assignee or subtenant; (iii) Tenant's compliance with all of its obligations under this Lease within applicable notice and cure periods; and (iv) such other factors as Landlord may reasonably deem relevant. Tenant shall pay to Landlord, as Additional Rent, Landlord's reasonable attorneys' fees in reviewing any transfer contemplated by this Section, whether or not Landlord consents to the same (provided that the maximum amount of such fees in connection with any single proposed transfer shall be Two Thousand Dollars [$2,000]). 8.5 Profits. If Tenant does transfer with Landlord's consent (other than a transfer of a division of Tenant that occupies the entire Building which transfer involves the entire Building under which Landlord does not release Tenant from its obligations under this Lease pursuant to Section 8.6 below), and if the consideration, rent, or other charges payable to Tenant under such transfer exceed the rent and other charges to be paid hereunder (pro-rated based on floor area in the case of a subletting, license or other occupancy of less than the entire floor area of the Premises in question), then Tenant shall pay to Landlord, as additional rent, after deducting all reasonable out-of-pocket expenses incurred in connection with such transfer (including without limitation, brokerage commissions, tenant improvement costs, and legal fees) fifty percent (50%) -12- of the amount of such excess when and as received. Without limiting the generality of the foregoing, any lump-sum payment or series of payments due (including for the purchase of so-called leasehold improvements) on account of any transfer shall be deemed to be in excess of rent and other charges in its or their entirety. 8.6 No Release. Notwithstanding any transfer of this Lease or any interest therein (other than an Excluded Transaction or, in Landlord's discretion, a transfer of a division of Tenant that occupies the entire Building which transfer involves the entire Building), Tenant's (and any Guarantor's) liability to Landlord shall in all events remain direct and primary. Any transferee of all or a substantial part of Tenant's interest in the Premises shall be deemed to have agreed directly with Landlord to be jointly and severally liable with Tenant for the performance of all of Tenant's covenants under this Lease; and such assignee shall upon request execute and deliver such instruments as Landlord reasonably requests in confirmation thereof (and agrees that its failure to do so shall be subject to the default provisions). Landlord may collect rent and other charges from such transferee (and upon notice such transferee shall pay directly to Landlord) and shall apply the net amount collected to the rent and other charges herein reserved, but no transfer shall be deemed a waiver of the provisions of this Section, or the acceptance of the transferee as a tenant, or a release of Tenant or any guarantor from direct and primary liability for the performance of all of the covenants of this Lease. The consent by Landlord to any transfer shall not relieve Tenant from the obligation of obtaining the express consent of Landlord to any modification of such transfer or a further assignment, subletting, license or occupancy, to the extent required in Section 8.1; nor shall Landlord's consent alter in any manner whatsoever the terms of this Lease, to which any transfer at all times shall be subject and subordinate. The breach by Tenant of any restriction on transfer in this Section shall be a default for which there is no cure period. ARTICLE IX: DEFAULT AND REMEDIES 9.1 Events of Default. (a) If Tenant fails to pay Annual Fixed Rent or any Additional Rent or other sum or charge hereunder within three (3) days after written notice that the same is due; or (b) if more than two notices of separate defaults are properly given in any twelve month period, or (c) (Intentionally omitted), or (d) if any assignment shall be made by Tenant (or any assignee, sublessee or guarantor of Tenant) for the benefit of creditors, or (e) if Tenant's leasehold interest shall be taken on execution or by other process of law, or (f) if a petition is filed by Tenant (or any assignee, sublessee or guarantor of Tenant) for adjudication as a bankrupt, or for reorganization or an arrangement under any provision of any bankruptcy act then in force and effect, or (g) if an involuntary petition under the provisions of any bankruptcy act is filed against Tenant (or any assignee, sublessee or guarantor of Tenant) and such involuntary petition is not dismissed within sixty (60) days thereafter, or (h) if Tenant (or any assignee, sublessee or guarantor of Tenant) shall be declared bankrupt or insolvent according to law, or (i) if a receiver, trustee or assignee shall be petitioned for and not contested by Tenant for the whole or any part of Tenant's (or such assignee's, sublessee's or guarantor's) property, or if a receiver, trustee or assignee shall be appointed over Tenant's (or such other person's) objection and not be removed within sixty (60) days thereafter, or (j) if any representation or warranty made by Tenant shall be untrue in any material respect, or (k) if Tenant fails to perform any other covenant, agreement or condition hereunder and such default continues for thirty (30) days after notice (provided, however, that such thirty (30) day period shall be reasonably extended for up to an additional sixty (60) days in the case of non-monetary default if the matter complained of can be cured, but the -13- cure cannot be completed within such thirty (30) day period and Tenant begins promptly to cure within such period and thereafter diligently completes the cure; if such matters cannot be cured then there shall be no cure period), then, and in any such case, Landlord and its agents and employees lawfully may, in addition to and not in derogation of any remedies for any preceding breach, immediately or at any time thereafter, without demand or notice and with or without process of law, enter into and upon the Premises or any part thereof in the name of the whole, or mail or deliver a notice of termination of the Term addressed to Tenant at the Premises or at any other address herein provided, and thereby terminate this Lease and repossess the same as of Landlord's former estate. Upon such entry or mailing or delivery, as the case may be, the Term shall terminate, all executory rights of Tenant and all obligations of Landlord under this Lease shall immediately cease, and Landlord may expel Tenant and all persons claiming by, through or under Tenant and remove its and their effects (forcibly if necessary) without being deemed guilty of any manner of trespass and without prejudice to any remedies which might otherwise be used for arrears of rent or prior breach of covenants; and Tenant hereby waives all statutory and equitable rights to its leasehold (including without limitation rights in the nature of further cure or of redemption, if any). Landlord may, without notice, store Tenant's effects (and those of any person claiming by, through or under Tenant) at the expense and risk of Tenant and, if Landlord so elects, may sell such effects at public auction or auctions or at private sale or sales after seven (7) days notice to Tenant (which notice Tenant agrees is reasonable) and apply the net proceeds to the payment of all sums due to Landlord from Tenant, if any, and pay over the balance, if any, to Tenant. If any payment of Annual Fixed Rent, additional rent, or other payment due from Tenant to Landlord is not paid when due, then Landlord may, at its option, in addition to all other remedies hereunder, impose a late charge on Tenant equal to 5% of the amount in question, which late charge will be due upon demand as Additional Rent. 9.2 Remedies for Default. (a) Reletting Expenses Damages. If this Lease is terminated for default, then Tenant covenants, as an additional cumulative obligation after such termination, to pay all of Landlord's reasonable costs and expenses related thereto or in collecting amounts due hereunder, including attorneys fees, and all of Landlord's reasonable expenses in connection with such reletting, including without limitation, tenant inducements, brokerage commissions, fees for legal services, expenses of preparing the Premises for reletting and the like ("Reletting Expenses"). It is agreed by Tenant that Landlord may (i) relet the Premises or any part or parts thereof for a term or terms which may at Landlord's option be equal to or less than or exceed the period which would otherwise have constituted the balance of the Term, and may grant such tenant inducements as Landlord in its sole judgment considers advisable, and (ii) make such alterations, repairs and decorations in the Premises as Landlord in its sole discretion considers advisable, and no action of Landlord in accordance with the foregoing nor any failure to relet or to collect rent under any reletting shall operate or be construed to release or reduce Tenant's liability. Any obligation to relet the Premises imposed upon Landlord by law shall be subject to Landlord's reasonable objectives of developing its property in a harmonious manner with appropriate mixes of tenants, uses, floor areas, terms, etc. Landlord's Reletting Expenses together with all sums otherwise provided for in this Lease, whether incurred prior to or after such termination, shall be due and payable immediately from time to time upon notice from Landlord. -14- (b) Termination Damages. If this Lease is terminated for default, then unless and until Landlord elects lump sum liquidated damages described in (c) below Tenant covenants, as an additional cumulative obligation after any such termination, to pay punctually to Landlord all the sums and perform all the obligations which Tenant covenants in this Lease to pay and to perform in the same manner and to the same extent and at the same time as if this Lease had not been terminated. In calculating the amounts to be paid by Tenant pursuant to the preceding sentence Tenant shall be credited with the net proceeds of any rent then actually received by Landlord from a reletting of the Premises after deducting all sums provided for in this Lease to be paid by Tenant and not then paid. In no event shall Tenant be liable for indirect or consequential damages except in the case of holding over when notice of a new tenancy has been provided in advance as set forth in Section 12.12. (c) Lump Sum Liquidated Damages. If this Lease is terminated for default, then Tenant covenants, as an additional cumulative obligation after termination, to pay forthwith to Landlord at Landlord's election made by written notice to Tenant at any time within one year after termination, as liquidated damages a single lump sum payment equal to the sum of (i) all sums provided for in this Lease to be paid by Tenant and not then paid at the time of such election, plus either (ii) the present value (calculated at the Federal Reserve discount rate or equivalent) of the excess of all of the rent reserved for the residue of the Term over all of the fair market rent reasonably projected by Landlord to be received on account of the Premises during such period, which rent from reletting shall be reduced by reasonable projections of vacancies and by Landlord's Reletting Expenses described above to the extent not theretofore paid to Landlord, or (iii) an amount equal to the sum of all of the rent and other sums due hereunder and payable with respect to the twelve (12)-month period next following the date of termination. 9.3 Remedies Cumulative. Any and all rights and remedies Landlord may have under this Lease, and at law and equity, shall be cumulative and shall not be deemed inconsistent with each other, and any two or more of all such rights and remedies may be exercised at the same time insofar as permitted by law. Nothing contained in this Lease shall, however, limit or prejudice the right of Landlord to prove and obtain in proceedings for bankruptcy or insolvency by reason of the termination of this Lease, an amount equal to the maximum allowed by any statute or rule of law in effect at the time when and governing the proceedings in which the damages are to be proved, whether such amount be greater, equal to, or less than the amount of the loss or damages referred to in the preceding Section. 9.4 Effect of Waivers of Default. Any consent or permission by Landlord to any act or omission which otherwise would be a breach of any covenant or condition, or any waiver by Landlord of the breach of any covenant or condition, shall not in any way be held or construed to operate so as to impair the continuing obligation of such covenant or condition, or otherwise operate to permit other similar acts or omissions. No breach shall be deemed to have been waived unless and until such waiver be in writing and signed by Landlord. The failure of Landlord to seek redress for violation of or insist upon the strict performance of any covenant or condition of this Lease, or the receipt by Landlord of rent with knowledge of any violation, shall not be deemed a consent to or waiver of such violation, nor shall it prevent a subsequent act, which would otherwise constitute a violation, from in fact being a violation. -15- 9.5 No Accord and Satisfaction; No Surrender. No acceptance by Landlord of a lesser sum than the Annual Fixed Rent, additional rent or any other sum or charge then due shall be deemed to be other than on account of the earliest installment of such rent, sum or charge due; nor shall any endorsement or statement on any check or in any letter accompanying any check or payment be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such installment or pursue any other right or remedy available to it. The delivery of keys (or any similar act) to Landlord or any agent or employee of Landlord shall not operate as a termination of this Lease or an acceptance of a surrender of the Premises. 9.6 Waiver of Jury. Landlord and Tenant hereby waive trial by jury in any summary proceeding in any emergency or other statutory remedy, or in any action based, in whole or in part, on non-payment of rent or other default under this Lease; and Tenant further agrees that it shall not interpose any counterclaim or set-off in any such proceeding, except to the extent Tenant would have no right to commence an independent proceeding to seek to recover on account of such claim. 9.7 Landlord's Curing and Enforcement. If Tenant shall neglect or fail to perform or observe any covenant or condition of this Lease and shall not cure such default within the applicable cure period, Landlord may, at its option, without waiving any claim for breach, at any time thereafter cure such default for the account of Tenant, and any amount paid or any liability incurred by Landlord in so doing shall be deemed paid or incurred for the account of Tenant, and Tenant shall reimburse Landlord therefor, together with an administrative charge of five (5%) per cent of the amount thereof, on demand as Additional Rent; and Tenant shall further indemnify and save Landlord harmless in the manner elsewhere provided in this Lease in connection with all of Landlord's actions in effecting any such cure. Notwithstanding any other provision herein concerning cure periods, Landlord may cure any default for the account of Tenant after such notice to Tenant, if any, as is reasonable under the circumstances (including telephone notice) if the curing of such default prior to the expiration of the applicable cure period is reasonably necessary to prevent likely damage to the Premises or other improvements or possible injury to persons, or to protect Landlord's interest in its property or the Premises. Tenant shall pay to Landlord on demand as additional rent all of the costs and expenses of Landlord, including such administrative charge and reasonable attorneys' fees, incurred in enforcing any covenant or condition of this Lease. Without limiting any of its other rights or remedies, any sum due hereunder shall, in addition, bear interest from the date due at the greater of (i) one and one-half percent (1 1/2%) for each month (or ratable portion thereof) the same remains unpaid, or (ii) three percent (3%) per annum (or ratable portion thereof) above the so-called prime rate of interest published in the Wall Street Journal from time to time on 90 day loans to its most credit-worthy borrowers; provided that interest shall never exceed the maximum rate permitted under applicable law. In the event Tenant breaches any covenant or fails to observe any condition set forth in Article VII with respect to the insurance required to be maintained by Tenant, then without limiting any other right or remedy, and notwithstanding any other provision herein concerning notice and cure of defaults, Landlord may immediately and without notice to Tenant obtain such insurance, and Tenant shall pay the cost thereof and Landlord's expenses related thereto upon demand as Additional Rent. -16- 9.8 Landlord's Default. In no event shall Landlord be in default unless notice thereof has been given to Landlord (and all mortgagees of which Tenant has notice) and Landlord (or any such mortgagee at its sole discretion) fails to perform within 30 days (provided, however, that such 30 day period shall be reasonably extended if such performance begins within such period and thereafter is diligently pursued, or if such mortgagee notifies Tenant within such period that it intends to cure on behalf of Landlord and thereafter begins curing within such period, or if later within 30 days after acquiring possession of the Property if the cure requires the mortgagee to obtain possession of the Property, and diligently pursues curing with reasonable promptness). Any mortgagee notice and cure periods set forth in any subordination, nondisturbance and attornment agreement then in effect under Section 11.1 shall control to the extent the same differ from the foregoing. 9.9 Vacancy During Last Six Months. If Tenant vacates substantially all of the Premises (or substantially all of major portions of the Premises) at any time within the last six months of the Term, Landlord may enter the Premises (or such portions) and commence demolition work or construction of leasehold improvements for future tenants. The exercise of such right by Landlord will not affect Tenant's obligations to pay Annual Fixed Rent or Additional Rent with respect to the Premises (or such portions), which obligations shall continue without abatement until the end of the Term. 9.10 Security Deposit. On the execution of this Lease, Tenant shall pay to Landlord as a security deposit for the performance of the obligations of Tenant hereunder any amount specified therefor in Section 1.1. Said security deposit may be mingled with other funds of Landlord and no fiduciary relationship shall be created with respect to such deposit, nor shall Landlord be liable to pay Tenant interest thereon. If Tenant shall fail to perform any of its obligations under this Lease, Landlord may, but shall not be obliged to, apply the security deposit to the extent necessary to cure the default, and Tenant shall be obliged to reinstate such security deposit to the original amount thereof upon demand. Within 30 days after the expiration or sooner termination of the Term the security deposit, to the extent not applied, shall be returned to the Tenant, without interest. Tenant may provide the security deposit to Landlord in the form of a clean, irrevocable letter of credit as security for the performance of the obligations of Tenant hereunder, subject to the terms and conditions set forth in this Section 9.10 (together with any renewal or replacement thereof in accordance herewith, the "Letter of Credit"). Tenant shall provide the Letter of Credit, upon Tenant's execution of this Lease, in the amount set forth for the security deposit in Section 1.1 ("Original Amount"). Any Letter of Credit delivered hereunder shall comply with the requirements of Schedule 9.10 attached hereto and incorporated by reference herein. ARTICLE X: CASUALTY AND CONDEMNATION 10.1 Damage to Premises and Takings. The provisions of this Lease regarding casualty and condemnation are set forth in Exhibit D, which is incorporated herein by reference. ARTICLE XI: PROTECTION OF LENDERS 11.1 Subordination and Superiority of Lease. Tenant agrees that this Lease and the rights of Tenant hereunder will be subject and subordinate to the present or future lien of any first mortgage (and at Landlord's election, to the lien of any subordinate mortgage or mortgages) and to -17- the rights of any lessor under any ground or improvements lease of the Premises (collectively referred to in this Lease as a "mortgage" and the holder or lessor thereof from time to time as a "mortgagee"), and to all advances and interest thereunder and all modifications, renewals, extensions and consolidations thereof; and that Tenant shall attorn to any such mortgagee succeeding to Landlord's interest in the Property by foreclosure, deed in lieu of foreclosure, or otherwise, promptly after the giving of notice by such mortgagee requiring such attornment, provided however, that the mortgagee of any mortgage executes and delivers to Tenant an agreement in the form attached hereto as Exhibit E (or otherwise on any commercially reasonable form containing terms not materially less favorable to Tenant than those set forth in Exhibit E) in which the mortgagee agrees that Tenant shall not be disturbed in its possession upon Tenant's attornment to such mortgagee as Landlord and performance of its Lease covenants (both of which conditions Tenant agrees with all mortgagees to perform). Tenant agrees that any mortgagee may at its option unilaterally elect to subordinate, in whole or in part and by instrument in form and substance satisfactory to such mortgagee alone, the lien of its mortgage (or the priority of its ground lease) to some or all provisions of this Lease. Tenant shall cause its current mortgagee to execute and deliver to Tenant a subordination non-disturbance agreement in the form attached hereto as Exhibit F, with such changes as Tenant and such mortgagee may approve. Tenant agrees that this Lease shall survive the merger of estates of any ground (or improvements) lessor and lessee. Until a mortgagee (either superior or subordinate to this Lease) forecloses Landlord's equity of redemption (or terminates in the case of a ground or improvements lease), no mortgagee shall be liable for failure to perform any of Landlord's obligations (and such mortgagee shall thereafter be liable only after it succeeds to and holds Landlord's interest and then only as limited herein). Any mortgagee (or any other successor to Landlord acquiring the Property by foreclosure, deed in lieu of foreclosure, or otherwise) shall not be (i) liable for any previous act or omission of Landlord under the Lease; (ii) subject to any credit, demand, claim, counterclaim, offset or defense which theretofore accrued to Tenant against Landlord; (iii) unless consented to by such mortgagee, bound by any previous amendment or modification of the Lease or by any previous prepayment of more than one month's payment of Annual Fixed Rent or additional rent (except estimated payments of additional rent); (iv) required to account for any security deposit of Tenant other than any security deposit actually delivered to such mortgagee by Landlord; (v) bound by any obligation to make any payment to Tenant or grant any credits, except for services, repairs, maintenance and restoration provided for under the Lease to be performed by Landlord after the date of such attornment; or (vi) responsible for any monies owing by Landlord to Tenant. Tenant shall give notice of any alleged non-performance on the part of Landlord to any mortgagee of which Tenant has notice, simultaneously with the default notice delivered to Landlord; and Tenant agrees that such mortgagee shall have a separate, consecutive reasonable cure period of no less than 30 days (to be reasonably extended in the same manner Landlord's 30 day cure period is to be extended) following Landlord's cure period during which such mortgagee may, but need not, cure any non-performance by Landlord. The foregoing shall not relieve such mortgagee of the obligation to remedy or cure any conditions at the Premises the existence of which constitutes a Landlord default under the Lease and which continue at the time of such mortgagee's taking title to the Property. The agreements in this Lease with respect to the rights and powers of a mortgagee constitute a continuing offer to any person which may be accepted by taking a mortgage (or entering into a ground or improvements lease) of the Premises. -18- 11.2 Rent Assignment. If from time to time Landlord assigns this Lease or the rents payable hereunder to any person, whether such assignment is conditional in nature or otherwise, such assignment shall not be deemed an assumption by the assignee of any obligations of Landlord; but the assignee shall be responsible only for non-performance of Landlord's obligations which occur after it succeeds to and only while it holds Landlord's interest in the Premises. 11.3 Other Instruments. The provisions of this Article shall be self-operative; nevertheless, Tenant agrees to execute, acknowledge and deliver any subordination, attornment or priority agreements or other instruments conforming to the provisions of this Article (and being otherwise commercially reasonable) from time to time requested by Landlord or any mortgagee in furtherance of the foregoing, and further agrees that its failure to do so within ten (10) business days after written demand shall be subject to the monetary default provisions of this Lease. 11.4 Tenant's Financial Condition. Within ten (10) business days after request from Landlord from time to time, Tenant shall deliver to Landlord Tenant's and Guarantor's financial statements, including audited annual financial statements, balance sheets, income statements, and statements of cash flow, certified by Tenant's/Guarantor's Treasurer or Chief Financial Officer, in each case for the latest available two (2) fiscal years (the latest year ending no more than six (6) months prior to Landlord's request). Such financial statements shall be delivered to Landlord's mortgagees and lenders and prospective mortgagees, lenders and purchasers. Notwithstanding the foregoing, during any time that Tenant is filing financial materials with the Securities and Exchange Commission, such financial materials shall be the materials that Tenant is required to deliver to Landlord pursuant to this Section 11.4. ARTICLE XII: MISCELLANEOUS 12.1 Notice from One Party to the Other. All notices, consents, approvals and the like shall be in writing and shall be delivered in hand by any courier service providing receipts, by a nationally recognized overnight courier providing receipts, or mailed by certified mail addressed to Landlord or Tenant as set forth below. If requested, Tenant shall deliver copies of all notices in like manner to Landlord's mortgagees and other persons having a relationship to the Premises at such address as designated from time to time by Landlord or such mortgagee. Any notice so addressed shall be deemed duly given on the second business day following the day of mailing if so mailed by registered or certified mail, return receipt requested, whether or not accepted, or if by hand or by overnight courier upon actual receipt by any person reasonably appearing to be an agent or employee working in the executive offices of the addressee. If to Tenant: Dayton Superior Corporation 2150B So. Rte. 45-52 Kankakee, Illinois 60901 Attention: Mark K. Kaler with a copy to: Dayton Superior Corporation -19- 200 East Touhy Avenue Des Plaines, Illinois 60018 Attention: Steven C. Huston If to Landlord: c/o STAG Capital Partners, LLC 93 Summer Street Boston, Massachusetts 02110 Attention: Benjamin Butcher with a copy to: John L. Sullivan, Esq. DLA Piper Rudnick Gray Cary US LLP One International Place Boston, MA 02110 Any address or name specified above may be changed by notice given to the addressee by the other party in accordance with this Section 12.1. The inability to deliver notice because of a changed address of which no notice was given as provided above, or because of rejection or other refusal to accept any notice, shall be deemed to be the receipt of the notice as of the date of such inability to deliver or rejection or refusal to accept. Any notice to be given by any party hereto may be given by the counsel for such party. 12.2 Quiet Enjoyment. Landlord agrees that upon Tenant's paying all rent and performing and observing all covenants, conditions and other provisions on its part to be performed and observed, Tenant may peaceably and quietly have, hold and enjoy the Premises during the Term without disturbance by Landlord or anyone claiming by, through or under it, subject always to the terms of this Lease, provisions of law, and rights or interests of record to which this Lease may be or become subject and subordinate. 12.3 Limitation of Landlord's Liability. Landlord shall be liable only for breaches of Landlord's obligations occurring while Landlord is owner of the fee of which the Premises are a part (provided, however, that if Landlord shall ever sell and lease-back such fee, or the ground thereof or the improvements thereon, then "fee" shall, in such event, be deemed to mean Landlord's leasehold interest). Tenant (and all persons claiming by, through or under Tenant) agrees to look solely to Landlord's interest from time to time in the Property (including the uncollected rents, issues, profits, and proceeds thereof, subject to the superior rights of mortgagees therein) for satisfaction of any claim or recovery of any judgment from Landlord; it being agreed that neither Landlord nor any trustee, beneficiary, partner, member, manager, shareholder, agent or employee of Landlord shall ever be personally or individually liable for any claim or judgment, or otherwise, to Tenant (or such persons). In no event shall Landlord ever be liable to Tenant (or such persons) for indirect or consequential damages; nor shall Landlord ever be answerable or liable in any equitable judicial proceeding or order beyond the extent of such interest in the Property. -20- 12.4 Applicable Law and Construction. This Lease may be executed in counterpart copies and shall be governed by and construed as a sealed instrument in accordance with the laws of the State of Ohio. If any provision shall to any extent be invalid, the remainder of this Lease shall not be affected. Other than contemporaneous instruments executed and delivered of even date, if any, this Lease contains all of the agreements between Landlord and Tenant with respect to the Premises and supersedes all prior dealings between them with respect thereto. There are no oral agreements between Landlord and Tenant affecting this Lease. This Lease may be amended only by an instrument in writing executed by Landlord and Tenant. The enumeration of specific examples of a general provision shall not be construed as a limitation of the general provision. Unless a party's approval or consent is required by its terms not to be unreasonably withheld, such approval or consent may be withheld in the party's sole discretion. If Tenant is granted any extension or other option, to be effective the exercise (and notice thereof) shall be unconditional, time always being of the essence to any options; and if Tenant purports to condition the exercise of any option or vary its terms in any manner, then the option granted will automatically and immediately become null and void and the purported exercise will be ineffective. This Lease and all consents, notices and other related instruments may be reproduced by any party by photographic, microfilm, microfiche or other reproduction process and the originals thereof may be destroyed; and each party agrees that reproductions will be admissible in evidence to the same extent as the original itself in and judicial or administrative proceeding (whether or not the original is in existence and whether or not reproduction was made in the regular course of business), and further reproduction will likewise be admissible. The titles of the several Articles and Sections are for convenience only, and shall not be considered a part hereof. The submission of a form of this Lease or any summary of its terms shall not constitute an offer by Landlord to Tenant; but a leasehold shall only be created and the parties bound when this Lease is executed and delivered by both Landlord and Tenant. 12.5 Successors and Assigns. Except as herein provided otherwise, the agreements and conditions in this Lease contained on the part of Landlord to be performed and observed shall be binding upon Landlord and its legal representatives, successors and assigns, and shall inure to the benefit of Tenant and its legal representatives, successors and assigns; and the agreements and conditions on the part of Tenant to be performed and observed shall be binding upon Tenant (and any guarantor of Tenant) and Tenant's legal representatives, successors and assigns and shall inure to the benefit of Landlord and its legal representatives, successors and assigns. 12.6 Relationship of the Parties. Nothing herein shall be construed as creating the relationship between Landlord and Tenant of principal and agent, or of partners or joint venturers; it being understood and agreed that neither the manner of fixing rent, nor any other provision of this Lease, nor any act of the parties, shall ever be deemed to create any relationship between them other than the relationship of landlord and tenant. 12.7 Estoppel Certificate. Within ten (10) business days after either party's request, Landlord and Tenant agree, in favor of the other, to execute, acknowledge and deliver a statement in writing certifying that this Lease is unmodified and in full force and effect (or, if there have been any modifications that the same is in full force and effect as modified and stating the modifications), and the amount and dates to which the Annual Fixed Rent (and Additional Rent and all other charges) have been paid and any other information reasonably requested by the requesting party or Landlord's mortgagee. Both parties intend and agree that any such statement -21- may be relied upon by any prospective purchaser, mortgagee, or other person to whom the same is delivered. Tenant acknowledges that prompt execution and delivery of such statements, and all instruments referred to in Article XI, constitute essential requirements of any financings or sales by Landlord, and Tenant will indemnify Landlord in the manner elsewhere provided against all costs and damages resulting from Tenant's failure to comply herewith (notwithstanding any grace period) or Landlord's right to execute the same on Tenant's behalf. 12.8 Notice of Lease. Neither party shall record this Lease, but each party will, upon request of the other, execute a recordable notice of lease in a form reasonably approved by Landlord and, upon termination, a like notice of termination of lease; and Tenant irrevocably appoints Landlord as its attorney-in-fact, with full power of substitution, to execute, acknowledge and deliver such notice of termination of lease in Tenant's name, place and stead if Tenant fails so to do with five (5) days of any request. 12.9 Tenant as Business Entity. Simultaneously with the execution of the Lease, each of Landlord and Tenant shall deliver to the other (i) a certificate of legal existence and good standing and (ii) a certified copy of a resolution of its directors, manager, or general partner authorizing the execution of this Lease or other reasonable evidence of such authority. 12.10 Legal Proceedings. If either party shall be in breach or default under this Lease, such party shall reimburse the other upon demand for any costs or expenses incurred in connection with any breach or default of the defaulting party, as provided in this Section. Such costs shall include all reasonable legal fees and costs incurred for the negotiation of a settlement, enforcement of rights or otherwise. 12.11 Landlord's Consent. Tenant shall pay Landlord's reasonable fees and expenses, including, without limitation, legal, engineering and other consultants' fees and expenses, incurred in connection with Tenant's request for Landlord's consent under this Lease, or in connection with any other act by Tenant which requires Landlord's consent or approval under this Lease. 12.12 Holding Over. If Tenant (or anyone claiming by, through or under Tenant) shall remain in possession of the Premises or any part thereof after the expiration or earlier termination of this Lease with respect to any portion of the Premises without any agreement in writing executed with Landlord, the person remaining in possession shall be deemed a tenant at sufferance, Tenant shall thereafter pay Annual Fixed Rent at 150% of the greater of the amount payable for the twelve month period immediately preceding such expiration or termination or the then prevailing fair market rent for the Premises and with all additional rent payable and covenants of Tenant in force as otherwise herein provided, and Tenant shall be liable to Landlord for all damages directly arising from such breach, and for indirect or consequential damages relating only to any loss of any replacement tenant(s) for the Premises of which Tenant had notice. After acceptance of the full amount of such rent by Landlord the person remaining in possession shall be deemed a tenant from month-to-month at such rent and otherwise subject to and having agreed to perform all of the provisions of this Lease, but Landlord will not be deemed to have relinquished any claims for damages. 12.13 Interpretation. Whenever required by the context of this Lease, the singular shall include the plural and the plural shall include the singular. The masculine, feminine and neuter -22- genders shall each include the other. In any provision relating to the conduct, acts or omissions of Tenant, the term "Tenant" shall include Tenant's agents, employees, contractors, invitees, successors or others using the Premises with Tenant's expressed or implied permission. 12.14 Waivers. All waivers shall be in writing and signed by the waiving party. Landlord's failure to enforce any provision of this Lease or its acceptance of rent shall not be a waiver and shall not prevent Landlord from enforcing that provision or any other provision of this Lease in the future. No statement on a payment check from Tenant or in a letter accompanying a payment check shall be binding on Landlord. Landlord may, with or without notice to Tenant, negotiate such check without being bound by to the conditions of such statement. 12.15 Force Majeure. If either party cannot perform any of its obligations due to events beyond such party's reasonable control, the time provided for performing such obligations shall be extended by a period of time equal to the duration of such events. Events beyond the parties' reasonable control include, but are not limited to, acts of God, war, civil commotion, labor disputes, strikes, fire, flood or other casualty, shortages of labor or material, government regulation or restriction and weather conditions but exclude financial circumstances. Notwithstanding the foregoing, the events listed in this Section 12.15 shall not excuse Tenant's failure to pay any Annual Fixed Rent or Additional Rent due under this Lease. 12.16 Brokers. Each of Tenant and Landlord represents and warrants to the other that it has not dealt with any broker (other than the Broker(s) identified in Article I, if any) in connection with this Lease or the Premises and agrees to indemnify and save the other harmless from all loss, claim, damage, cost or expense (including reasonable attorneys' fees of counsel of the other's choice against whom the indemnifying party makes no reasonable objection) arising from any its breach of this representation and warranty. This warranty and representation shall survive the term or any early termination of this Lease. The fees of any Broker named in Article I will be paid by Landlord. ARTICLE XIII: SPECIAL PROVISIONS -23- Executed as a sealed instrument as of the Date of Lease first set forth above. LANDLORD: STAG II Miamisburg, LLC By: /s/ BENJAMIN S. BUTCHER ------------------------------------- Name: Benjamin S. Butcher Title: President TENANT: Dayton Superior Corporation By: /s/ MARK K. KALER ------------------------------------- Name: Mark K. Kaler ----------------------------------- Title: Vice President, Strategic Planning ---------------------------------- -24- Schedule 9.10 Letter of Credit Requirements The Letter of Credit (as defined in the Lease) shall be for the Original Amount. The Letter of Credit (i) shall be irrevocable and shall be issued by a commercial bank reasonably acceptable to Landlord that has an office in Boston, Massachusetts or New York City or Chicago, Illinois that accepts requests for draws on the Letter of Credit, (ii) shall require only the presentation to the issuer of a certificate of the holder of the Letter of Credit stating that Landlord is entitled to draw on the Letter of Credit pursuant to the terms of the Lease, (iii) shall be payable to Landlord or its successors in interest as the Landlord and shall be freely transferable without cost to any such successor or any lender holding a collateral assignment of Landlord's interest in the Lease, (iv) shall be for an initial term of not less than one year and contain a provision that such term shall be automatically renewed for successive one-year periods unless the issuer shall, at least forty five (45) days prior to the scheduled expiration date, give Landlord notice of such nonrenewal, and (v) shall otherwise be in form and substance reasonably acceptable to Landlord. Notwithstanding the foregoing, the term of the Letter of Credit for the final period shall be for a term ending not earlier than the date thirty (30) days after the last day of the Term. Landlord shall be entitled to draw upon the Letter of Credit for its full amount or any portion thereof if (a) Tenant shall fail to perform any of its obligations under the Lease after the expiration of any applicable notice and cure period, or fail to perform any of its obligations under the Lease and transmittal of a default notice is barred by applicable law, or fail to perform any of its obligations under the Lease and any applicable notice and cure period would expire prior to the expiration of the Letter of Credit, or (b) not less than thirty (30) days before the scheduled expiration of the Letter of Credit, Tenant has not delivered to Landlord a new Letter of Credit in accordance with this Schedule. Without limiting the generality of the foregoing, Landlord may, but shall not be obligated to, draw on the Letter of Credit from time to time in the event of a bankruptcy filing by or against Tenant and/or to compensate Landlord, in such order as Landlord may determine, for all or any part of any unpaid rent, any damages arising from any termination of the Lease in accordance with the terms of the Lease, and/or any damages arising from any rejection of the Lease in a bankruptcy proceeding commenced by or against Tenant. Landlord may, but shall not be obligated to, apply the amount so drawn to the extent necessary to cure Tenant's failure. Any amount of the Letter of Credit drawn in excess of the amount applied by Landlord to cure any such failure shall be held by Landlord as a cash security deposit for the performance by Tenant of its obligations under the Lease. Any cash security deposit may be mingled with other funds of Landlord and no fiduciary relationship shall be created with respect to such deposit, nor shall Landlord be liable to pay Tenant interest thereon. If Tenant shall fail to perform any of its obligations under this Lease, Landlord may, but shall not be obliged to, apply the cash security deposit to the extent necessary to cure Tenant's failure. After any such application by Landlord of the Letter of Credit or cash security deposit, as the case may be, Tenant shall reinstate the Letter of Credit to the amount originally required to be maintained under the Lease, upon demand. Provided that Tenant is not then in default under the Lease, and no condition exists or event has occurred which after the expiration of any applicable notice or cure period would constitute such a default, within thirty (30) days after the expiration or sooner termination of the Term the Letter of Credit -25- and any cash security deposit, to the extent not applied, shall be returned to the Tenant, without interest. In the event of a sale of the Premises, Building or lease, conveyance or transfer of the Premises or the Building, Landlord shall transfer the Letter of Credit or cash security deposit to the transferee. Upon such transfer, the transferring Landlord shall be released by Tenant from all liability for the return of such security, and Tenant agrees to look to the transferee solely for the return of said security. The provisions hereof shall apply to every transfer or assignment made of the security to such a transferee. Tenant further covenants that it will not assign or encumber or attempt to assign or encumber the Letter of Credit or the monies deposited herein as security, and that neither Landlord nor its successors or assigns shall be bound by any assignment, encumbrance, attempted assignment or attempted encumbrance. -26- Exhibit A The Property Parcel I: Situated in the City of Miamisburg, County of Montgomery, State of Ohio and being Lots numbered One thousand eighty one (1881), One thousand eighty two (1882), One thousand eighty four (1884), Five Thousand Four Hundred Seventy Eight (5478), and Five Thousand Four Hundred Seventy Nine (5479) of the consecutive numbers of lots on the revised plat of the said city of Miamisburg, Ohio. Parcel II: Located in Section 26, Town 1, Range 6 MRS, City of Miamisburg, Montgomery County, State of Ohio and being a tract of land described as follows: Beginning at a point on the centerline of Richard Street, said point being located 200.00 feet westwardly from the southward extension of the west line of Eighth Street; Thence with the centerline of Richard Street, North 87 degrees 15'00" west for 106.75 feet; Thence North 02 degrees 45'00" east for 263.12 feet; Thence south 79 degrees 19'00" east for 107.78 feet; Thence South 02 degrees 45'00" west for 248.25 feet to the point of beginning containing 0.6266 Acres more or less. Excepting therefrom the following described real estate: Located in Section 26, Town 1, Range 6 MRS, City of Miamisburg, Montgomery County, State of Ohio and being a tract of land described as follows: Beginning at a point on the centerline of Richard Street, said point being located 200.00 feet westwardly from the southward extension of the west line of Eighth Street; Thence with the centerline of Richard Street, North 87 degrees 15'00" west for 106.75 feet; Thence North 02 degrees 45'00" east for 25.00 feet; Thence south 87 degrees 15'00" east for 106.75 feet; Thence South 02 degrees 45'00" west for 25.00 feet to the point of beginning containing 0.061 Acres more or less. -27- Exhibit B Annual Fixed Rent
LEASE YEAR ANNUAL AMOUNT MONTHLY PAYMENT - ---------- ------------- --------------- 1 $430,598 $35,883 2 $439,210 $36,601 3 $447,994 $37,333 4 $456,954 $38,080 5 $466,093 $38,841 6 $475,415 $39,618 7 $484,923 $40,410 8 $494,622 $41,219 9 $504,514 $42,043 10 $514,604 $42,884 11 $524,896 $43,741 12 $535,394 $44,616
-28- Exhibit C Rules and Regulations 1. Tenant shall not use any method of heating or air-conditioning other than that supplied by the building systems without the prior written consent of Landlord, which shall not be unreasonably withheld. 2. Except for dock shelters and seals as may be expressly permitted by Landlord, no awnings or other projections shall be attached to the outside walls of the building. 3. Tenant shall not use, keep or permit to be used or kept any flammable or combustible materials without proper governmental permits and approvals. 4. Tenant shall not use, keep or permit to be used or kept food or other edible materials in or around the Premises in such a manner as to attract rodents, vermin or other pests. Tenant shall not permit cooking in or about the Premises other than in microwave ovens. 5. Tenant shall not use or permit the use of the Premises for lodging or sleeping, for public assembly, or for any illegal or immoral purpose. 6. Storage of propane tanks, whether interior or exterior, shall be in secure and protected storage enclosures approved by the local fire department and, if exterior, shall be located in areas specifically designated by Landlord. Safety equipment, including eye wash stations and approved neutralizing agents, shall be provided in areas used for the maintenance and charging of lead-acid batteries. Tenant shall protect electrical panels and building mechanical equipment from damage from forklift trucks. 7. No person shall go on the roof of the Property without Landlord's permission except to perform obligations or to exercise Tenant's rights under its lease. 8. No animals (other than seeing eye dogs) or birds of any kind may be brought into or kept in or about the Premises. 9. Tractor trailers which must be unhooked or parked with dolly wheels beyond the concrete loading areas must use steel plates or wood blocks of sufficient size to prevent damage to the asphalt paving surfaces. No parking or storing of such trailers will be permitted on streets adjacent to the Property. 10. Forklifts which operate on asphalt paving areas shall not have solid rubber tires and shall use only tires that do not damage the asphalt. 11. Tenant shall be responsible for the safe storage and removal of all pallets. Pallets shall be stored in a neat and orderly manner, so as not to have an unkempt appearance from the street or other public areas. If pallets are stored within the Premises, storage shall comply with safe practices as described in Factory Mutual Loss Prevention Data Sheet 8-24. -29- 12. Tenant shall be responsible for the safe storage and removal of all trash and refuse. All such trash and refuse shall be contained in suitable receptacles stored in a neat and orderly manner, so as not to have an unkempt appearance from the street or other public areas. Landlord reserves the right to remove, at Tenant's expense and without further notice, any trash or refuse left elsewhere outside of the Premises or Building. 13. Tenant shall appoint an Emergency Coordinator who shall be responsible for assuring notification of the local fire department in the event of an emergency, assuring that sprinkler valves are kept open and implementing the Factory Mutual "Red Tag Alert" system including weekly visual inspection of all sprinkler system valves on or within the Premises. -30- Exhibit D Insurance, Casualty and Condemnation This Exhibit D shall be incorporated into the Lease, and where terms of this Exhibit conflict with these terms within the Lease, the terms of this Exhibit shall prevail and govern the Lease. I. INSURANCE (a) Coverage. Tenant shall purchase and maintain insurance during the entire Term of the Lease and any period Tenant (or any party claiming by, through or under Tenant) occupies any portion of the Premises, for the benefit of the Tenant and Landlord (as their interest may appear) with terms and coverages reasonably satisfactory to Landlord, and with insurers having a minimum A.M. Best rating of at least A-/X, and with such increases in limits as Landlord may from time to time reasonably request, but initially Tenant shall maintain the following coverages in the following amounts: (i) Commercial General Liability Insurance naming Landlord, Landlord's management, leasing and development agents and Landlord's mortgagee(s) from time to time as additional insureds, with coverage for premises/operations, personal and advertising injury, products/completed operations and contractual liability with combined single limits of liability of not less than $1,000,000 for bodily injury and property damage per occurrence and not less than 2,000,000 in the aggregate and excess liability insurance with a limit not less than $20,000,000 per occurrence and aggregate. (ii) Property insurance covering property damage and business interruption for the entire Property. Covered property shall include the Building, boilers and machinery, all tenant improvements, office furniture, trade fixtures, office equipment, merchandise and all other items Tenant's property on the Premises. Such insurance shall name Landlord and Landlord's mortgagee(s) from time to time as additional loss payees as their interests may appear. Such insurance shall be written on an "all risk" of physical loss or damage basis including but not limited to the perils of fire, extended coverage, windstorm, vandalism, malicious mischief, sprinkler leakage, flood, windstorm and earthquake, for the full replacement cost value of the covered items and other endorsements as Landlord shall reasonably request from time to time and in amounts that meet any co-insurance clause of the policies of insurance with a deductible amount not to exceed $50,000 with respect to property insurance and $500,000 with respect to commercial general liability insurance. (iii) Workers' Compensation Insurance and Employers Liability Insurance with statutory limits and automobile liability insurance (coverage must include owed, leased, hired and non owned vehicles) with a limit of at least $1,000,000. -31- Tenant shall, prior to the commencement of the Term and on each anniversary of the Term Commencement Date and/or renewal date thereof, furnish to Landlord certificate(s) (ACCORD Form 27) evidencing such coverage, which certificate(s) shall state that such insurance coverage may not be changed or canceled without at least thirty (30) days' prior written notice to Landlord and Tenant. The insurance maintained by Tenant shall be deemed to be primary insurance and any insurance maintained by Landlord (acknowledging that Landlord has no obligation to maintain any insurance) shall be deemed secondary thereto. (b) Avoid Action Increasing Rates. Tenant shall comply with all applicable laws and ordinances, all orders and decrees of court and all requirements of other governmental authorities, and shall not, directly or indirectly, make any use of the Premises which may thereby be prohibited or be dangerous to person or property or which may jeopardize any insurance coverage or may increase the cost of insurance or require additional insurance coverage. If Tenant fails to comply with the provisions of this Section I(b) and (i) any insurance coverage is jeopardized and Tenant fails to correct such dangerous or prohibited use following ten (10) days' notice, or (ii) insurance premiums are increased and Tenant fails, following ten (10) days' notice, to cease such use, then in each event such failure shall constitute an Event of Default by Tenant hereunder, without any further notice or cure right, and Landlord shall have all of its remedies as set forth in the Lease. (c) Waiver of Subrogation. Landlord and Tenant each hereby waive any and every claim for recovery from the other for any and all loss of or damage to the Building or Premises or to the contents thereof, which loss or damage is covered by valid and collectible property insurance policies. Landlord waives any and every claim against Tenant for any and all loss of or damage to the Building or the Premises or contents thereof, which would have been covered had the insurance policies required to be maintained by Landlord by this Lease been in force, to the extent that such loss or damage would have been recoverable under such insurance policies. Tenant waives any and every claim against Landlord for any and all loss of, or damage to, the Building or Premises or the contents thereof which would have been covered had Tenant maintained the insurance policies required to be maintained by Tenant under this Lease been in force, to the extent that such loss or damage would have been recoverable under such insurance policies. Inasmuch as this mutual waiver will preclude the assignment of any such claim by subrogation (or otherwise) to an insurance company (or any other person), Landlord and Tenant each agree to give to each insurance company which has issued, or in the future may issue, to it policies of property insurance, written notice of the terms of this mutual waiver, and to have said insurance policies properly endorsed, if necessary, to prevent the invalidation of said insurance coverage by reason of said waiver. II. FIRE OR CASUALTY (a) If the Premises or the Building (including machinery or equipment used in its operation) shall be damaged by fire or other casualty and if such damage does not cause a termination of this Lease as described in the following sentences, then -32- Landlord shall repair and restore the damage with reasonable promptness, subject to reasonable delays for insurance adjustments and delays caused by matters beyond Landlord's reasonable control, but Landlord shall not be obligated to expend for repairing or restoring the damage an amount in excess of the proceeds of insurance actually received by Landlord for application to the repair of such damage. If in Landlord's estimate the Premises cannot be restored within three hundred sixty-five (365) days from the date of such fire or casualty, then Landlord shall give notice to Tenant of such estimate within one hundred twenty (120) days after such fire or casualty. Tenant may elect by written notice given to Landlord within sixty (60) days following the date of such notice from Landlord (time being of the essence) to terminate this Lease effective as of the date of Tenant's notice. If any such damage (i) renders 25% or more of the Building untenantable or (ii) renders general Building systems inoperable and such systems cannot be repaired in Landlord's reasonable estimate within three hundred sixty-five (365) days from the date of such damage or (iii) occurs within the last two (2) Lease Years, Landlord shall have the right to terminate this Lease as of the date of such damage upon written notice given to the Tenant at any time within one hundred twenty (120) days after the date of such damage. Landlord shall have no liability to Tenant, and Tenant shall not be entitled to terminate this Lease, by virtue of any delays in completion of such repairs and restoration provided that Tenant shall have the right to terminate the Lease if such repairs are not completed within such 365-day period, subject to extension for delays caused by reasons outside of Landlord's control, by notice given within thirty (30) days after such repair period expires, which notice shall be deemed withdrawn if the restoration is completed within thirty (30) days after such notice is delivered to Landlord. Annual Fixed Rent and additional rent, however, shall abate on those portions of the Premises as are, from time to time, untenantable and, in fact, unoccupied by Tenant as a result of such damage. (b) Notwithstanding anything to the contrary herein set forth, Landlord shall have no duty pursuant to this Section II to repair or restore any portion of any alterations, additions, installation or improvements in the Premises or the decoration thereto except to the extent that the proceeds of the insurance carried by Tenant are timely received by Landlord for application to such use. If Tenant desires any other additional repairs or restoration, and if Landlord consents thereto, it shall be done at Tenant's sole cost and expense subject to all of the applicable provisions of the Lease. Tenant acknowledges that Landlord shall be entitled to the full proceeds of any insurance coverage whether carried by Landlord or Tenant, for damage to any alterations, addition, installation, improvements or decorations which would become the Landlord's property upon the termination of the Lease. III. WAIVER OF CLAIM - INDEMNIFICATION Without limiting any other provisions hereof, but subject to the provisions of Section I(c) hereof, Tenant agrees to defend, protect, indemnify and save Landlord and its partners, affiliates, officers, agents, servants and employees and Landlord's management, leasing and development agents and Landlord's mortgagee(s) from time to time from and against all liability to third parties arising out of the use of the Premises by, or the acts or omissions of, -33- Tenant or its servants, agents, employees, contractors, suppliers, workers or invitees. To the extent not prohibited by law and subject to the waiver of subrogation contained in Section I(c), Landlord and its partners, affiliates, officers, agents, servants and employees shall not be liable for any damage either to person, property or business resulting from the loss of the use thereof sustained by Tenant or by other persons due to the Building or any part thereof or any appurtenances thereto becoming out of repair, or due to the happening of any accident or event in or about the Building, including the Premises, or due to any act or neglect of any tenant or occupant of the Building or of any other person, unless and then only to the extent caused by the negligence or willful misconduct of Landlord or its agents, employees or contractors. This provision shall apply particularly, but not exclusively, to damage caused by gas, electricity, snow, ice, frost, steam, sewage, sewer gas or odors, fire, water or by the bursting or leaking of pipes, faucets, sprinklers, plumbing fixtures and windows, and except as provided above, shall apply without distinction as to the person whose act or neglect was responsible for the damage and shall apply whether the damage was due to any of the causes specifically enumerated above or to some other cause of an entirely different kind. Tenant further agrees that all personal property upon the Premises, or upon loading docks, recovering and holding areas, or freight elevators of the Building, shall be at the risk of Tenant only, and that Landlord shall not be liable for any loss or damage thereto or theft thereof. The provisions of this Rider shall survive the expiration or earlier termination of the Lease, and shall not derogate from the abatement and termination rights set forth in Section 6.11. IV. NONWAIVER No waiver of any provisions of this Lease shall be implied by any failure of Landlord to enforce any remedy on account of the violation of such provisions, even if such violation is continued or repeated subsequently, and no express waiver shall affect any provision other than the one specified in such waiver and that one only for the time and in the manner specifically stated. No receipt for monies by Landlord from Tenant after the termination of this Lease shall in any way alter the length of the Term or of Tenant's right to possession hereunder or after the finding of any notice shall reinstate, continue or extend the Term or affect any notice given Tenant prior to the receipt of such monies, it being agreed that after the service of notice or the commencement of a suit or after final judgment for possessions of the Premises, Landlord may receive and collect any Annual Fixed Rent and additional rent due, and the payment of said Annual Fixed Rent and additional rent shall not waive or affect said notice, suit or judgment. V. CONDEMNATION If the Land or the Building (or any portion of the Building, the loss of which would require reconfiguration or restoration of the Building which Landlord reasonably estimates will cost in excess of 25% of the current replacement cost of the Building) shall be taken or condemned by any competent authority for any public or quasi-public use or purpose, Landlord shall have the right, exercisable at its sole direction, to cancel the Lease upon not less than sixty (60) days' notice prior to the date of cancellation designated in the notice. No money or other consideration shall be payable by Landlord to Tenant for the right of -34- cancellation and Tenant shall have no right to share in the condemnation award or in any judgment for damages caused by such taking or condemnation. If any such taking (i) renders 25% or more of the Building untenantable or (ii) renders general Building systems inoperable and such systems cannot be repaired in Landlord's reasonable estimate within three hundred sixty-five (365) days from the date of such taking or (iii) occurs within the last two (2) Lease Years, Landlord or Tenant shall have the right to terminate this Lease as of the date of such taking upon written notice given to the other at any time within one hundred twenty (120) days after the date of such taking. Landlord shall have no liability to Tenant, and Tenant shall not be entitled to terminate this Lease, by virtue of any delays in completion of such repairs and restoration unless such repairs are not completed within such 365-day period, in which event Tenant shall have the right to terminate the Lease if such repairs are not completed within such 365-day period, subject to extension under Section 12.15, by notice given within 30 days after such repair period expires, which notice shall be deemed withdrawn if the restoration is completed within 30 days after such notice is delivered to Landlord. Annual Fixed Rent and additional rent, however, shall abate on those portions of the Premises as are, from time to time, untenantable and, in fact, unoccupied by Tenant as a result of such taking. -35- Exhibit E Form of SNDA SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT Tenant Name: ___________________________ Trade Name: ____________________________ Room/Unit No.: _________________________ THIS AGREEMENT is dated the _____ day of ____________________, 20__, and is made by and among CONNECTICUT GENERAL LIFE INSURANCE COMPANY, having an address c/o CIGNA Investments, Inc., 900 Cottage Grove Road, Hartford, Connecticut 06152, Attn: Debt Asset Management, S-319 ("Mortgagee"), _______________________________________________________, d/b/a _____________________________________________________, having an address of ________________________________________________________ ("Tenant"), and _____________________________________________________, having an address of ________________________________________ ("Landlord). RECITALS: A. Tenant has entered into a lease ("Lease") dated ____________________ with ____________________ as lessor ("Landlord"), covering the premises known as ____________________ (the "Premises") within the property known as ____________________, more particularly described as shown on Exhibit A, attached hereto (the "Real Property"). B. Mortgagee has agreed to make or has made a mortgage loan in the amount of ____________________ to Landlord, secured by a mortgage of the Real Property (the "Mortgage"), and the parties desire to set forth their agreement herein. NOW, THEREFORE, in consideration of the premises and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: 1. The Lease and all extensions, renewals, replacements or modifications thereof are and shall be subject and subordinate to the Mortgage and all terms and conditions thereof insofar as it affects the Real Property of which the Premises form a part, and to all renewals, modifications, consolidations, replacements and extensions thereof, to the full extent of amounts secured thereby and interest thereon. -36- 2. Tenant shall attorn to and recognize any purchaser at a foreclosure sale under the Mortgage, any transferee who acquires the Premises by deed in lieu of foreclosure, and the successors and assigns of such purchaser(s), as its landlord for the unexpired balance (and any extensions, if exercised) of the term of the Lease on the same terms and conditions set forth in the Lease. 3. If it becomes necessary to foreclose the Mortgage, Mortgagee shall neither terminate the Lease nor join Tenant in summary or foreclosure proceedings for the purpose of terminating the Lease so long as Tenant is not in default under any of the terms, covenants, or conditions of the Lease beyond any applicable notice and cure periods. 4. If Mortgagee succeeds to the interest of Landlord under the Lease, Mortgagee shall not be: (a) liable for the return of any security deposit unless such deposit has been delivered to Mortgagee by Landlord or is in an escrow fund available to Mortgagee, (b) bound by any rent or additional rent that Tenant might have paid for more than the current month to any prior landlord (including Landlord), (c) bound by any amendment, modification, or termination of the Lease made without Mortgagee's prior written consent (which consent shall not be unreasonably withheld or delayed), or (d) personally liable under the Lease, Mortgagee's liability thereunder being limited to its interest in the Real Property. 5. This Agreement shall be binding on and shall inure to the benefit of the parties hereto and their successors and assigns. 6. Tenant shall give Mortgagee, by commercial overnight delivery service, a copy of any notice of default served on Landlord at the same time such notice is sent to the Landlord, addressed to Mortgagee at Mortgagee's address set forth above or at such other address as to which Tenant has been notified in writing. Mortgagee shall have the right, but not the obligation, to cure such default within the time period specified in the Lease. 7. Landlord has agreed under the Mortgage and other loan documents that rentals payable under the Lease shall be paid directly by Tenant to Mortgagee upon default by Landlord under the Mortgage. After receipt of notice from Mortgagee to Tenant, at the address set forth above or at such other address as to which Mortgagee has been notified in writing, that rentals under the Lease should be paid to Mortgagee, Tenant shall pay to Mortgagee, or at the direction of Mortgagee, all monies due or to become due to Landlord under the Lease. Tenant shall have no responsibility to ascertain whether such demand by Mortgagee is permitted under the Mortgage, or to inquire into the existence of a default. Landlord hereby waives any right, claim, or demand it may now or hereafter have against Tenant by reason of such payment to Mortgagee, and any such payment shall discharge the obligations of Tenant to make such payment to Landlord. -37- IN WITNESS WHEREOF, the parties hereto have executed these presents as of the day and year first above written. WITNESSES: MORTGAGEE: ---------------------------------------- By: - ------------------------------------- ------------------------------------ Name: Its: - ------------------------------------- ----------------------------------- Name: TENANT: ---------------------------------------- By: - ------------------------------------- ------------------------------------ Name: Its: - ------------------------------------- ----------------------------------- Name: LANDLORD: ---------------------------------------- By: - ------------------------------------- ------------------------------------ Name: Its: - ------------------------------------- ----------------------------------- Name: -38- STATE OR COMMONWEALTH OF _______________ : ss. COUNTY OF ______________________________ On this, the _____ day of ________________, 20___, before me, the undersigned officer, personally appeared _______________________, who acknowledged himself/herself to be the ____________________________ of ___________________________, and signed the foregoing instrument for the purposes therein contained as his/her free act and deed and the free act and deed of such entity. IN WITNESS WHEREOF, I hereunto set my hand and official seal the day and year aforesaid. - ------------------------------------- Notary Public My Commission Expires: STATE OR COMMONWEALTH OF _______________ : ss. COUNTY OF ______________________________ On this, the _____ day of ________________, 20___, before me, the undersigned officer, personally appeared _______________________, who acknowledged himself/herself to be the ____________________________ of ___________________________, and signed the foregoing instrument for the purposes therein contained as his/her free act and deed and the free act and deed of such entity. IN WITNESS WHEREOF, I hereunto set my hand and official seal the day and year aforesaid. - ------------------------------------- Notary Public -39- My Commission Expires: STATE OR COMMONWEALTH OF _______________ : ss. COUNTY OF ______________________________ On this, the _____ day of ________________, 20___, before me, the undersigned officer, personally appeared _______________________, who acknowledged himself/herself to be the ____________________________ of ___________________________, and signed the foregoing instrument for the purposes therein contained as his/her free act and deed and the free act and deed of such entity. IN WITNESS WHEREOF, I hereunto set my hand and official seal the day and year aforesaid. - ------------------------------------- Notary Public My Commission Expires: -40- ~~-----END PRIVACY-ENHANCED MESSAGE-----~~