AMENDMENT NO. 1 OF LEASE
This Amendment No. 1 of Lease executed as of the 24th day of April,
1997 by and between C.L.C. North Attleboro Trust u/d/t dated October 1, 1981 (as
amended of record from time to time), recorded with Bristol County (North
District) Registry of Deeds in Book 2230, Page 213 (the "Landlord") and X.X.
Xxxxxxx Company, Inc., a Delaware corporation (the "Tenant").
Reference is made to the following:
A. The certain Indenture of Lease, dated as of March 14, 1994,
between Landlord and Tenant, pertaining to certain premises (referred to therein
as the "Premises", and hereinafter as the "Original Premises"), more
particularly described therein and now commonly known as and numbered 00 Xxxx X.
Xxxxxxx Xxxxxxxxx, xx Xxxxx Xxxxxxxxx, Xxxxxxx Xxxxxx, Xxxxxxxxxxxxx. That
instrument, as heretofore amended (if at all), is hereinafter referred to as the
"Lease".
B. Landlord and Tenant have agreed to amend the Lease to reduce the
premises covered thereby and shorten the term thereof, upon all of the terms and
provisions hereinafter set forth.
NOW, THEREFORE, in consideration of the agreements herein contained,
and for ONE DOLLAR ($1.00) and other good and valuable consideration by each of
the parties hereto to the other of them in hand this day paid, the receipt and
sufficiency of which are hereby acknowledged, it is agreed as follows:
1. Lease Term. The term of the Lease shall run through and expire
at 11:59 P.M. on July 31, 1999, unless sooner terminated as provided therein or
hereinbelow, with the same force and effect as though said expiration date
originally had been specified in the Lease as the end of the term thereof.
2. Premises. Annexed hereto and made a part hereof is a copy of the
Exhibit A Site Plan originally annexed to and made part of the Lease; and a new
copy of that plan, labeled (and hereinafter referred to) as "Exhibit A-1". As of
May 17, 1997 (referred to hereinafter as the "Delivery Date"), the Lease shall
relate to and cover only the portion of the Original Premises which are
comprised of the premises located on the area identified on Exhibit A-1 as the
"Balfour Parcel" (together with an appurtenant right of access and egress
between the Balfour Parcel and Xxxx Xxxxxxx Blvd.). Accordingly, and without
limitation, effective from and after the Delivery Date, the Tenant shall have no
right, title or interest in and to the balance of the Original Premises (shown
on Exhibit A-1, and referred to hereinafter, as the "Adjacent Parcel"), and the
Tenant shall vacate and deliver up possession of the Adjacent Parcel including,
without limitation, the Building located thereon, in the condition required as
if 12:01 A.M. on the Delivery Date were the end of the term of the Lease with
respect to the Adjacent Parcel, on or before the Delivery
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Date. Further, from and after the Delivery Date: all references in the Lease to
the "Lot" shall be references to the parcel(s) comprising the area shown on
Exhibit A-1 as the Balfour Parcel; all such references to a Building or the
Buildings, as the case may be, shall be references to the Building located on
the Balfour Parcel; all such references to the "improvements" thereon shall be
references to those contained on the Balfour Parcel; and all such references to
the "Premises" shall be references to the Balfour Parcel together with the
Building and improvements thereon. Likewise, from and after the Delivery Date,
whenever reference is made to the Site Plan or to Exhibit A in the Lease, such
reference shall be construed to be reference to Exhibit A-1 hereto.
3. Provisions Applicable to the Balance of the Term. The period
from and after the date (the "Effective Date") which is fourteen (14) days
following (i) the Delivery Date or (ii) if later, the date on which Tenant
actually vacates and delivers possession of the Adjacent Parcel to Landlord as
aforesaid, through the end of the term of the Lease, is hereinafter referred to
as the "Balance of the Term". Landlord and Tenant agree to memorialize said
Effective Date in writing promptly when the same has been determined. The
following provisions shall be applicable to the Balance of the Term:
A. Fixed Rate. Throughout the Balance of the Term, Fixed
Rent to be paid by Tenant to Landlord shall be at the
rate of $201,666.67 per annum, payable at the rate of
$16,805.55 per calendar month (and proportionately at
such rate for any partial month); all as the Fixed Rent
payable for and with respect to the Balance of the Term.
B. Other charges and Matters. All other charges, costs and
expenses with respect to the Original Premises accruing
up to the Effective Date shall continue to be the
responsibility and liability of Tenant as set forth in
the Lease. Without limitation, Tenant shall be and remain
liable for the prompt and complete payment when due of
all charges for utilities and services, real estate taxes
and any other maintenance obligations with respect to the
Original Premises, subject to and in accordance with all
applicable provisions of the Lease, and for all of
Tenant's indemnity, insurance and other monetary and
non-monetary obligations under the provisions of the
Lease, accruing up to the Effective Date. From and after
the Effective Date, all of Tenant's said monetary and
non-monetary obligations shall continue in full force and
effect with respect to the Balfour Premises (and only
with respect thereto).
In the event that there are any real estate taxes or
other Impositions (or any maintenance or other costs and
expenses) which are assessed against or applicable to the
Original Premises or any
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larger parcel of land (with or without improvements)
which includes the Balfour Parcel (any such larger parcel
being referred to for the purposes of this provision as
the "Larger Parcel"), then Tenant shall be responsible
for its share of such real estate taxes, Impositions and
any other charges, as the case may be, in a fair and
equitable portion determined reasonably and in good faith
by Landlord; and, in the absence of such a determination
by Landlord for good cause to apportion any such charged
differently, the same shall be apportioned based upon the
square footage of ground floor area contained within the
Building as a percentage of the total square footage of
ground floor area contained within all buildings intended
for occupancy and located upon the Larger Parcel. In
particular, as the Building located on the Balfour
Parcel, unless otherwise determined for good cause by
Landlord as aforesaid, all real estate taxes and
Impositions assessed against the Larger Parcel which is
comprised of the Original Premises and/or the Buildings
and improvements thereon, shall be apportioned such that
Tenant's share thereof shall be equal to one-third (1/3)
thereof.
C. Landlord's Option to Terminate. Landlord shall have the
right and option to terminate the Lease earlier than
hereinabove set forth, upon notice of Landlord's election
so to do given to Tenant hereafter any time and setting
forth an earlier termination date during the Balance of
the Term which is not less than sixty (60) days from the
date of Landlord's said notice to Tenant, but effective
in no event earlier than May 31, 1998. Said notice from
Landlord electing to exercise said option to terminate,
if given, shall be addressed to Tenant c/o Town & Country
Corporation at 00 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx
00000 (Attention: Xx. Xxxxxx Xxxxxx), or to such other
address as may from time to time hereafter be designated
by Tenant as its notice address, provided the same is
theretofore received by Landlord at its notice address
under the Lease, and shall be given in writing by
registered or certified mail, postage prepaid, or by
recognized overnight express service (such as Federal
Express, Express Mail, or the like). As set forth in the
Lease any such notice from Landlord's attorney acting or
purporting to act on behalf of Landlord shall be deemed
to be notice from Landlord for the purposes hereof
provided that such attorney is them employed at Goulston
& Storrs, P.C., in Boston, Massachusetts, or otherwise is
an attorney authorized to act on behalf of Landlord.
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If Landlord gives such a notice to Tenant, the term of
the Lease shall end on the date designated in Landlord's
said notice in accordance with the foregoing, with the
same force and effect as though that date originally had
been specified in the Lease, as amended hereby, as the
expiration date of the term thereof. If either party so
requests, each party agrees promptly to join in the
execution and delivery of a recordable instrument
memorializing any such earlier termination date.
4. Landlord hereby confirms and agrees that any new lease or
other occupancy agreement it executes with a third party
covering the Adjacent Parcel will contain a provision
expressly reserving the continuing right of access and
egress between the Balfour Parcel and Xxxx Xxxxxxx
Boulevard and an agreement from the tenant or occupant of
the Adjacent Parcel not materially to disturb the
Tenant's rights under the Lease, as amended hereby,
during the Balance of the Term.
5. This instrument and the effectiveness of all of the
provisions hereof are conditioned upon the satisfaction
by Tenant (or written waiver by Landlord) of the
following conditions precedent: (i) the vacating by
Tenant and delivery to Landlord of possession of the
Adjacent Premises in accordance with the applicable
provisions of the Lease and this instrument, on or before
the Delivery Date (or, if despite reasonable efforts, the
same is delayed, then in any event on or before May 27,
1997); and (ii) the execution and delivery by Landlord
and a replacement tenant of a new lease covering the
Adjacent Premises contemporaneously with the execution
and delivery hereof (and, in any event, on or before the
Delivery Date); failing which this instrument shall be
void as if it never had been executed or delivered.
Landlord agrees, upon request of Tenant, to confirm the
satisfaction (or waiver) of said conditions and the
effectiveness hereof, or that this instrument is void,
promptly when determined.
6. Tenant does hereby warrant and represent to Landlord that
it is the lawful and sole owner of the Tenant's interest
in and to the Lease and that Tenant has full right, power
and authority to execute this instrument and effect a
valid and binding amendment of the Lease as set forth
herein; and the signatory below on behalf of Tenant does
hereby warrant and represent to Landlord that said
signatory has been duly and validly authorized to execute
this instrument on behalf of Tenant.
7. Reference is made to the Sublease dated December 16,
1996, between Tenant and Commemorative Brands, Inc.
(f/k/a Scholastic Brands, Inc.), as Subtenant and to the
Consent and Estoppel Certificate dated as of December 16,
1996, by and among Landlord, Tenant and said subtenant,
relating to said Sublease; and to that certain Lessor's
Waiver dated as of December 19, 1996, between Landlord,
Tenant and the Secured party referred to therein. Tenant
shall give such notice and take such other steps, if any,
as may be necessary or appropriate in accordance with the
requirements of its documentation with said Subtenant
and/or Secured Party, in order to perform its obligations
under this instrument.
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8. Landlord and Tenant each agrees that it will indemnify
and hold the other harmless from any and all claims for
brokerage (and including any attorneys' fees and
disbursements incurred in connection with the defense of
any such claim) from any broker or finder with respect to
the transaction memorialized hereby (or the
contemporaneous re-leasing of the Adjacent Parcel) and
predicated upon dealings with either of them,
respectively. In any event, however, if there should be
any brokerage fee payable to Lynch, Murphy, Xxxxx &
Partners with respect to the transaction memorialized
hereby (or the contemporaneous re-leasing of the Adjacent
Parcel), Tenant shall not be responsible therefore and
Landlord's foregoing indemnity will cover the same.
WITNESS the execution hereof, under seal, in any number of counterpart
copies each of which shall be an original for all purposes, as of the date first
set forth hereinabove.
LANDLORD
C.L.C. North Attleboro Trust
/s/ Xxxxxx Xxxxx
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/s/ Xxxxxx X. Xxxxxxxx
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Trustees of C.L.C. North Attleboro Trust,
for themselves and their co-Trustee, but in
their fiduciary capacity only, and without
personal liability
TENANT
X.X. Xxxxxxx Company, Inc.
By: /s/ Xxxxxxxx Xxxxxxxx
______________________
Its: Treasurer
Hereunto duly authorized
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COMMONWEALTH OF MASSACHUSETTS
Middlesex, SS: May 2, 1997
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Then personally appeared the above-named Xxxxxx Xxxxx and Xxxxxx X.
Xxxxxxxx, as Trustees of C.L.C. North Attleboro Trust, and acknowledged the
foregoing instrument to be their free act and deed in said capacity, before me,
/s/ Xxxxxxx X. Xxxxxx
____________________________________
Xxxxxxx X. Xxxxxx, Notary Public
My Commission Expires: June 15, 0000
XXXXXXXXXXXX XX XXXXXXXXXXXXX
Xxxxxxx, SS: April 24, 1997
Then personally appeared the above-named Xxxxxxxx Xxxxxxxx, Treasurer
of X.X. Xxxxxxx Company, Inc., and acknowledged the foregoing instrument to be
his free act and deed in said capacity and the free act and deed of X.X.
Xxxxxxx Company, Inc., before me,
/s/ Xxxx X. Xxxxxx
____________________________________
Xxxx X. Xxxxxx, Notary Public
My Commission Expires: Sept. 18, 2003
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X.X. XXXXXXX COMPANY LEASE
EXHIBIT A-1
[Site Plan of Land in North Attleborough, Massachusetts showing Balfour Parcel
and Adjacent Parcel.]
