Exhibit 10 (c)
LEASE
-----
LANDLORD: Theodore Pasquarello, as Trustee of the
E. B. Realty Trust
TENANT: New England Business Service, Inc.
PREMISES: The land and improvements located thereon and
consisting of a 117,000 square foot building (the
"Building") located at 33 Union Avenue, Sudbury,
MA 01776 and more particularly described on
Exhibit A
TABLE OF CONTENTS
Page
ARTICLE I REFERENCE DATA
1.1 Subjects Referred to 1
ARTICLE II PREMISES
2.1 Lease of Premises 3
ARTICLE III TERM OF THE LEASE
3.1 Preparation for Occupancy and Possession 3
3.2 Commencement and Expiration of Term 3
ARTICLE IV FIXED RENT
4.1 Fixed Rent 4
ARTICLE V TAX CHARGES
5.1 Definitions 4
5.2 Additional Rent 4
5.3 Refund of Taxes 5
5.4 Permitted Contests 5
ARTICLE VI OPERATING EXPENSES
6.1 Definitions 6
6.2 Additional Rent 6
ARTICLE VII USE OF PREMISES
7.1 Permitted Uses 6
7.2 Installations and Alterations by Tenant 7
ARTICLE VIII ASSIGNMENT AND SUBLETTING
8.1 Prohibition 9
8.2 Other Requirements and Provisions 10
ARTICLE IX RESPONSIBILITY FOR REPAIRS AND
CONDITION OF PREMISES
9.1 Landlord Repairs and Maintenance 11
9.2 Tenant's Agreement 12
9.3 Heavy Machinery 12
9.4 Utilities 12
9.5 Interruption or Curtailment of Services 13
ARTICLE X INDEMNITY AND INSURANCE
10.1 Tenant's Indemnity 13
10.2 Insurance 14
10.3 Tenant's Risk 14
10.4 Injury Caused by Third Parties 15
10.5 Landlord's Insurance 15
ARTICLE XI LANDLORD'S ACCESS TO PREMISES
11.1 Landlord's Rights 15
ARTICLE XII DAMAGE OR DESTRUCTION
12.1 Restoration 16
12.2 Rent 17
ARTICLE XIII CONDEMNATION
13.1 Termination of Lease 17
13.2 Awards 18
ARTICLE XIV DEFAULT
14.1 Tenant's Default 18
ARTICLE XV MISCELLANEOUS PROVISIONS
15.1 Extra Hazardous Use 22
15.2 Waiver 23
15.3 Covenant of Quiet Enjoyment 23
15.4 Force Majeure, etc. 23
15.5 Assignment of Rents and Transfer of Title 24
15.6 Rules and Regulations 24
15.7 Additional Charges 24
15.8 Invalidity of Particular Provisions 24
15.9 Provisions Binding 24
15.10 Notices 25
15.11 When Lease Becomes Binding 25
15.12 Paragraph Headings 25
15.13 Rights of Mortgagee and Ground Lessor 25
15.14 Estoppel Certificates 27
15.15 Remedying Defaults 27
15.16 Holding Over 27
15.17 Surrender of Premises 28
ARTICLE XVI BROKERAGE
16.1 Brokerage 28
ARTICLE XVII ENVIRONMENTAL MATTERS
17.1 Indemnification 29
17.2 Third Party Claims 30
17.3 Response Actions 31
17.4 Successors and Assigns 32
ARTICLE XVIII EXCULPATORY CLAUSE
18.1 Limitation on Liability 32
18.2 Actions Against Landlord 32
ARTICLE XIX SUBMISSION TO JURISDICTION, ETC.
19.1 Governing Law 33
19.2 Recovery of Fees 33
ARTICLE XX LANDLORD'S EQUITY
20.1 Landlord's Equity Requirement 33
<PAGE
LEASE
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This Lease is entered into as of this 31st day of
March, 1997, by and between Theodore Pasquarello, not
individually but as Trustee of E. B. Realty Trust under
Declaration of Trust dated January 28, 1988 (hereinafter
referred to as "Landlord") and New England Business
Service, Inc., a Delaware corporation (hereinafter referred
to as "Tenant").
WHEREAS, Landlord is the owner of the Premises, as
defined in Paragraph 1.1 hereof; and
WHEREAS, Tenant desires to lease the Premises from
Landlord and Landlord desires to lease such Premises to
Tenant;
NOW, THEREFORE, in consideration of the mutual
promises, covenants and conditions hereinafter contained,
and for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Landlord and
Tenant agree as follows:
ARTICLE I
---------
REFERENCE DATA
1.1: SUBJECTS REFERRED TO.
Each reference in this Lease to any of the following
subjects shall be construed to incorporate the data stated
for that subject in this Section 1.1:
LANDLORD'S ADDRESS: 490 Boston Post Road
Sudbury, MA 01776
Attention: Theodore Pasquarello
TENANT'S
ORIGINAL ADDRESS: 500 Main Street
Groton, MA 01471
PREMISES: The land and improvements located
thereon and consisting of a 117,000
square foot building (the
Building")located at 33 Union
Avenue, Sudbury, MA 01776 and more
particularly described on Exhibit A
COMMENCEMENT DATE: April 1, 1997
FIXED RENT:
Period Rent
- ------ ----
4/1/97-3/31/2000 $585,000 annually, payable in equal
monthly installments of $48,750
4/1/2000-3/31/2003 $620,100 annually, payable in equal
monthly installments of $51,675
4/1/2003-3/31/2007 $657,306 annually, payable in equal
monthly installments of $54,775.50
TENANT'S SHARE OF
OPERATING EXPENSES:
Period Tenant's Share of Operating
- ------ Expenses
----------------------------
4/1/97-3/31/2000 $58,500 annually, payable in equal
monthly installments of $4,875
4/1/2000-3/31/2003 $62,010 annually, payable in equal
monthly installments of $5,167.50
4/1/2003-3/31/2007 $65,730.60 annually, payable in
equal monthly installments of
$5,477.55
PERMITTED USE: Warehousing, storage and
distribution of materials in
connection with or relating to
Tenant's current business as
conducted as of the date of this
Lease. Permitted Use includes
general office use in connection with
warehousing, storage and distribution
activities.
PUBLIC LIABILITY
INSURANCE LIMITS: $5,000,000 per occurrence for
bodily injury (including death)
and $1,000,000 per occurrence for
property damage
TERM: Ten (10) years
ARTICLE II
----------
PREMISES
--------
2.1 LEASE OF PREMISES. Landlord hereby demises and
leases to Tenant, and Tenant hereby accepts from Landlord,
the Premises, for the Term of this Lease and subject to any
and all existing encumbrances, conditions, covenants,
easements, restrictions, rights of way and other matters of
record and to such matters as may be disclosed by
inspection or survey and subject to and with the benefit of
the terms, covenants, conditions and provisions of this
Lease. Attached hereto as Exhibit B is a copy of a title
policy dated December 16, 1993 insuring the Premises.
Landlord makes no representation or warranty concerning
title to the Premises.
ARTICLE III
-----------
TERM OF THE LEASE
3.1 AS-IS CONDITION. Tenant agrees that it has
inspected and examined, or caused to be inspected and
examined, the Premises and that it is fully familiar and
satisfied with the physical condition and state of repair
thereof, and Tenant does hereby agree to accept the
Premises in their existing condition and state of repair
"as is". Except as expressly otherwise provided herein,
Landlord shall have no obligation to do any work or make
any installation or alteration of any kind to the Premises.
Nothing in the foregoing sentence shall be construed to
reduce Landlord's obligations under Section 9.1 below.
Except as otherwise expressly set forth in this Lease, any
work performed in the Premises by Tenant shall be done at
Tenant's sole cost and expense, in accordance with the
terms of Section 7.2.
3.2 COMMENCEMENT AND EXPIRATION OF TERM. The term of
this Lease (herein referred to as the "Term") shall
commence on the Commencement Date, as defined in Section 1.1
and shall terminate on March 31, 2007, unless sooner
terminated as herein provided (the "Expiration Date").
ARTICLE IV
----------
FIXED RENT
4.1 FIXED RENT. (A) Tenant agrees to pay to
Landlord, or as directed by Landlord, without offset,
abatement, deduction or demand (except as otherwise
provided in Section 9.5) the Fixed Rent. The Fixed Rent
shall be payable in lawful money of the United States, in
equal monthly installments, in advance, on the first day of
each and every calendar month during the Term of this Lease
at Landlord's Address, or at such other place as Landlord
shall from time to time designate by notice.
(B) Fixed Rent for any partial month shall be prorated
on a
daily basis.
(C) If any installment of Fixed Rent, additional rent
or any other sums due hereunder are not paid when due and
such failure shall continue for ten (10) days after notice
thereof, Tenant shall pay on demand, in addition to any
other additional charges due under this Lease, an
administrative fee equal to 2% of the overdue payment (the
"Late Fee"). Notwithstanding the foregoing, if any
installment of Fixed Rent, additional rent or any other
sums due hereunder are not paid by the due date on two or
more occasions during any 12-month period, Landlord shall
thereafter have the right to charge a Late Fee if any such
sums are not paid within ten (10) days of the due date.
ARTICLE V
---------
TAX CHARGES
5.1 DEFINITIONS.
For purposes of this Article V, "Real Estate Taxes"
shall mean all or any of the real estate taxes and
assessments imposed on the Premises for the then current
Tax Year by any governmental authority having jurisdiction
upon the Premises and Building, or any tax or assessment to
the extent hereafter imposed in substitution for such real
estate taxes and/or assessments. Real Estate Taxes exclude
income taxes and all estate, succession, inheritance and
transfer taxes. The term "Tax Year" shall mean the period
from July 1, 1996 through June 30, 1997 and each subsequent
fiscal year thereafter.
5.2 ADDITIONAL RENT. Tenant shall pay to Landlord
during the Term of this Lease, as additional rent, all Real
Estate Taxes. If any Tax Year is only partially within the
Term, all payments pursuant hereto shall be appropriately
prorated, based on the portion of the Tax Year which is
within the Term. Landlord shall send to Tenant copies of
the tax bills for the Premises promptly upon receipt
thereof and Tenant shall remit the full payment of such tax
bill directly to Landlord within fifteen (15) days of
receipt of such bill. Notwithstanding the foregoing,
Tenant may elect to pay all Real Estate Taxes directly to
the applicable taxing authority provided that (i) Tenant
shall notify Landlord within 15 days of its receipt of the
tax bill that Tenant has elected to pay the tax bill
directly to the taxing authority; (ii) Tenant shall deliver
to Landlord receipted copies of such paid bills no later
than ten (10) days prior to the date when due; and (iii)
any failure by Tenant to pay Real Estate Taxes as required
by this Article V shall be deemed a default under
Section 14.1(A)(1) and Tenant shall be liable for all costs
and expenses incurred by Landlord as a result of any breach
by Tenant of its obligations under this Article V.
5.3 REFUND OF TAXES. If Landlord receives any refund
of Real Estate Taxes for any Tax Year for which Tenant has
made a payment pursuant hereto, Landlord shall (after
deducting from such refund all reasonable expenses,
including reasonable attorneys' fees, incurred in
connection therewith) pay Tenant, if Tenant is not in
default hereunder, the remainder of the refund.
5.4 PERMITTED CONTESTS. Notwithstanding anything to
the contrary herein, Tenant shall have the right, subject
to the conditions stated below, to contest by appropriate
legal proceedings the amount or validity of any Real Estate
Taxes. During the pendency of such legal proceedings,
Tenant shall not be required to pay the contested Real
Estate Taxes, provided that the following conditions are
satisfied:
(a) The proceedings stay the collection, realization
or enforcement of any such contested Real Estate Tax;
(b) The delay in any such payment, does not subject
the Premises, or any portion thereof, to any
liens or possible sale, forfeiture, foreclosure
or loss (including loss of appeal rights related
to such contest);
(c) Tenant shall escrow amount(s) equal to the Real
Estate Taxes that would have been due and payable
but for such proceedings, and any interest
accruing thereon and any additions thereto;
(d) Tenant shall indemnify and hold harmless Landlord
against any losses, damages, costs, and expenses
(including reasonable attorneys' fees and
disbursements) suffered by Landlord as a result
of such contest;
(e) Tenant shall not settle any such proceedings on
terms that would adversely affect Landlord in any
respect without Landlord's prior written consent;
(f) Tenant shall promptly provide Landlord with
copies of all pleadings, agreements and other
written communications resulting from such
proceedings.
ARTICLE VI
----------
OPERATING EXPENSES
6.1 DEFINITIONS.
For purposes of this Article VI, "Operating Expenses"
shall mean all expenses reasonably incurred by Landlord, on
an accrual basis, for the operation and maintenance of the
Premises and all expenses incurred as a result of Landlord's
compliance with any of its obligations hereunder, and shall
include (without limitation), depreciation of any
expenditure for any capital improvement which is intended to
result in a reduction of Operating Expenses and any and all
expenses incurred by Landlord in connection with compliance
with any law, rule, order, ordinance, regulation or
requirement of any governmental authority having or
asserting jurisdiction or any order, rule, requirement or
regulation of any utility company, insurer of Landlord or
the New England Fire Insurance Rating Association (or
successor organization) first applicable after the date
hereof.
6.2 ADDITIONAL RENT. Tenant shall pay to Landlord
during the Term of this Lease, as additional rent, Tenant's
Share of Operating Expenses (as defined in Article I
hereof) in the same manner as described in Section 4.1 for
the payment of Fixed Rent. Except as otherwise set forth in
Section 9.1(B), in no event shall Tenant's Share of
Operating Expenses exceed the amounts set forth in Article I
hereof.
ARTICLE VII
-----------
USE OF PREMISES
7.1 PERMITTED USES. (A) Tenant agrees that the
Premises shall be used and occupied by Tenant solely for
the Permitted Uses or for any uses permitted by applicable
zoning laws, provided that Tenant obtains Landlord's prior
written consent, which consent shall not be unreasonably
withheld.
(B) Tenant agrees to conform to the following
provisions during the Term of this Lease:
(1) Tenant will not place on the exterior of the
Premises (including both interior and exterior surfaces of
doors and interior surfaces of windows) or on any part of
the Building outside the Premises, any sign, symbol,
advertisement or the like which is visible to public view
outside of the Premises without the prior written consent
of Landlord, which consent shall not be unreasonably
withheld or delayed.
(2) Tenant shall not perform any act or carry on
any practice which may injure the Premises or cause any
offensive odors or loud noise or cause a nuisance.
(3) Tenant shall, in its use of the Premises,
subject to Landlord's compliance with Article IX, comply
with all applicable laws and rules, orders, regulations and
requirements of all governmental and quasi-governmental
authorities having or asserting jurisdiction and any
insurer of Landlord or of all or any part of the Building.
7.2 INSTALLATIONS AND ALTERATIONS BY TENANT. (A)
Tenant shall not make or perform, or permit the making or
performance of, any alterations, improvements, additions or
other physical changes in or about the Premises
(collectively, "Alterations") (other than non-structural
Alterations to the interior of the Premises costing less
than $20,000 in the aggregate during any 12 month period
and not affecting Building systems or reducing the value or
utility of the Building) without Landlord's prior written
consent. Landlord agrees not to unreasonably withhold its
consent to any Alterations which are nonstructural, do not
involve the Building's systems and are not visible from
outside the Building, provided that such Alterations do not
reduce the value or utility of the Building. All
Alterations shall be done at Tenant's expense and at such
times and in accordance with any reasonable rules and
regulations established by Landlord. Prior to making any
Alterations, Tenant (i) shall submit to Landlord plans and
specifications for each proposed Alteration, (ii) shall, at
its expense, obtain all permits, approvals and certificates
required by any governmental or quasi-governmental bodies,
and (iii) shall furnish to Landlord duplicate original
policies of worker's compensation insurance (covering all
persons to be employed by Tenant and Tenant's contractors
and subcontractors in connection with such Alteration) and
comprehensive public liability (including property damage
coverage) insurance in such form, with such companies, for
such periods and in such amounts as Landlord may reasonably
require, naming Landlord and its agents as additional
insureds. All materials and equipment to be incorporated
in the Building as a result of all alterations or
improvements shall be of at least comparable quality to the
then existing improvements. No such materials or equipment
shall be subject to any lien, encumbrance, chattel
mortgage, title retention or security agreement. All work
performed by Tenant to the Premises shall be done in
compliance with all applicable laws and regulations.
(B) All Alterations and all fixtures, paneling,
partitions, railings, equipment and like installations
installed in the Building at any time either by Tenant or
by Landlord on Tenant's behalf shall, upon installation,
become the property of Landlord (unless otherwise agreed in
writing by Landlord and Tenant) and remain upon and be
surrendered with the Premises unless Landlord, by notice to
Tenant given on or before the expiration of the Term of
this Lease, elects to relinquish Landlord's right thereto
and to have them removed by Tenant, in which event, they
shall be removed by Tenant at the expiration or earlier
termination of the Term of this Lease and at Tenant's
expense. Tenant shall repair any damage to the Premises or
the Building caused by any removal of such Alterations.
(C) All trade fixtures, articles of personal property
and all business machinery and equipment and furniture
owned or installed by Tenant solely at its expense in the
Premises ("Tenant's Removable Property") shall, remain the
property of Tenant and may be removed by Tenant at any time
prior to the expiration of this Lease, provided that
Tenant, at its expense, shall repair any damage to the
Premises or the Building caused by any installation and/or
removal of Tenant's Removable Property.
(D) Notice is hereby given that Landlord shall not be
liable for any labor or materials furnished or to be
furnished to Tenant. Tenant shall not permit any
mechanic's or other lien for any such labor or materials to
attach to or affect the reversion or other estate or
interest of Landlord in and to the Premises. Whenever and
as often as any mechanic's lien shall have been filed
against the Premises based upon any act of, or for work
claimed to have been done for, or materials furnished to,
Tenant, or of, for or to anyone claiming through Tenant,
Tenant shall forthwith take such action, by bonding,
deposit or payment, as will remove or satisfy the lien.
ARTICLE VIII
------------
ASSIGNMENT AND SUBLETTING
8.1 PROHIBITION. Tenant covenants and agrees that
neither this Lease nor the term and estate hereby granted,
nor any interest herein or therein, will be assigned
(including, without limitation, by operation of law),
mortgaged, pledged, encumbered or otherwise transferred,
and that neither the Premises nor any part thereof will be
encumbered in any manner by reason of any act or omission
on the part of Tenant, or used or occupied or permitted to
be used or occupied by anyone other than Tenant or for any
use or purpose except as may be permitted by Section 7.1, or
be sublet (which term, without limitation, shall include
granting of concessions, licenses and the like) in whole or
in part, without, in each instance, Tenant having first
received the express written consent of Landlord. Landlord
agrees that it will not withhold or delay consent to
subletting by a third party if, in Landlord's reasonable
discretion, Landlord is reasonably satisfied that (i) the
identity of such third party is of a type and character
suitable for a suburban warehouse/office building, and (ii)
the type of business that such third party proposes to
operate in the Premises is permitted under applicable
zoning regulations. If this Lease be assigned, or if the
Premises or any part thereof be sublet or occupied by
anyone other than Tenant, Landlord may collect rent and
other charges from the assignee, subtenant or occupant, and
apply the net amount collected to the Fixed Rent and other
charges herein reserved, but no such assignment,
subletting, occupancy or collection shall be deemed a
waiver of this covenant, the acceptance of the assignee,
subtenant or occupant as a tenant or a release of Tenant
from the further performance by Tenant of its obligations
hereunder. The consent by Landlord to an assignment or
subletting shall in no way be construed to relieve Tenant
or any successor from obtaining the express consent in
writing of Landlord to any further assignment or
subletting. Notwithstanding anything to the contrary in
the foregoing, no consent of Landlord shall be required for
(i) any sublease or occupancy agreement with an entity
controlled by, under common control with or controlling
Tenant; (ii) a pledge or assignment of Tenant's interest in
this Lease pursuant to a leasehold mortgage; or (iii) an
assignment of the Lease to any successor of Tenant by
merger, consolidation or acquisition of all or
substantially all the stock or assets of Tenant; provided
that (A) Tenant shall deliver to Landlord at least 30 days'
advance notice of any such sublease or occupancy agreement
or such leasehold mortgage; (B) Tenant shall provide
Landlord with complete copies of any leasehold mortgage
promptly after the execution of any such mortgage; (C) in
the case of a merger, consolidation or sale, the net worth
of Tenant's successor (determined in accordance with
generally accepted accounting principles) immediately after
such merger, consolidation or sale is equal to or greater
than $60,000,000; and (D) Tenant shall remain liable for
the performance of Tenant's obligations hereunder during
the balance of the Term.
In any case where Landlord shall consent to such
assignment, subletting or use, Tenant shall remain fully
liable for Tenant's obligations under this Lease,
including, without limitation, the obligation to pay the
rent and other amounts provided under this Lease. At
Landlord's election, it shall be a condition of the
validity of any such assignment, that, upon Landlord's
request, the assignee shall agree directly with Landlord,
in form reasonably satisfactory to Landlord, to be bound by
all the obligations of Tenant, including, without
limitation, the obligation to pay rent and other amounts
provided under this Lease and the covenant against further
assignment, subletting and use.
8.2 OTHER REQUIREMENTS AND PROVISIONS.
(A) No assignment of this Lease shall be effective
unless and until Tenant delivers to Landlord duplicate
originals of the instrument of assignment (wherein the
assignee assumes the performance of Tenant's obligations
under this Lease) and any accompanying documents.
(B) No sublease (or other occupancy agreement) of all
or any part of the Premises shall be effective unless and
until Tenant delivers to Landlord duplicate originals of
the instrument of sublease and any accompanying documents
(wherein the sublessee (or other occupier) assumes the
performance of Tenant's obligations as to the subleased
space). Any such sublease (or other occupancy agreement)
shall be subject and subordinate to this Lease.
(C) Any assignment or sublease shall neither release
Tenant from its liability for the performance of Tenant's
obligations hereunder during the balance of the Term of
this Lease nor constitute Landlord's consent to any further
assignment or sublet of this Lease. If a sublease to which
Landlord has consented is assigned or all or any portion of
the Premises is further sublet without in each instance,
the prior consent of Landlord, then Tenant shall
immediately terminate such sublease, or arrange for the
termination thereof, and proceed expeditiously to have the
occupant thereunder dispossessed.
(D) Tenant shall pay to Landlord, promptly upon
demand therefor, all reasonable costs and expenses
(including, without limitation, reasonable attorneys' fees
and disbursements) incurred by Landlord in connection with
any assignment of this Lease or sublease of all or any part
of the Premises.
(E) Any profit resulting from any such assignment or
subletting shall be 100% payable to Landlord.
ARTICLE IX
----------
RESPONSIBILITY FOR REPAIRS AND CONDITION OF PREMISES
9.1 LANDLORD REPAIRS AND MAINTENANCE.
(A) Landlord agrees to keep in good working order,
condition and repair the roof (but not the ceiling in the
Building), foundation, exterior walls and structure of the
Building. Landlord shall also be responsible for
landscaping of the Premises and repairs to and maintenance
of the common driveways and parking areas located on the
Premises, including lighting of such areas and removal of
snow and ice.
(B) Landlord shall keep in good working order,
condition and repair the existing septic, heating,
ventilating and air-conditioning systems servicing the
Building in place as of the Commencement Date,
(collectively, the "Building Systems"). Tenant shall pay
Landlord, as additional rent, and in the manner set forth
below, (i) for all costs incurred by Landlord in connection
with any and all maintenance performed on the Building
Systems during the Term of this Lease (but not for
replacements or other items of a capital nature), and
(ii) for all costs incurred by Landlord in connection with
any repairs or replacements (including without limitation
items of a capital nature) made to the Building Systems
during the period commencing on the fifth (5th) anniversary
of the Commencement Date and continuing through the
remainder of the Term of this Lease. Landlord shall submit
to Tenant copies of Landlord's invoices detailing any such
costs and Tenant shall pay to Landlord the entire amount of
such costs, as additional rent, within thirty (30) days of
receipt of Landlord's invoices. Any amounts paid by Tenant
under the terms of this Section 9.1(B) shall not be deemed
to be payment of Tenant's Share of Operating Expenses, and
shall be in addition to Tenant's obligations under Article
VI.
(C) Landlord shall in no event be responsible to
Tenant for the replacement of glass in the Building or for
the doors leading to the Building (except to the extent any
damage thereto is caused by Landlord), or for any condition
in the Premises or the Building caused by any negligence or
misconduct of Tenant, its employees, agents, invitees or
contractors (including any non-permitted use thereof).
Except as otherwise provided in this Lease, Landlord shall
not be responsible for making any other improvements or
repairs to the Building. Landlord shall not be liable for
any failure to make repairs which, under the provisions of
this Section 9.1 or elsewhere in this Lease, Landlord has
undertaken to make, unless Tenant has given notice to
Landlord of the need to make such repairs and Landlord has
failed to commence to make such repairs within a reasonable
time after receipt of such notice, or fails to proceed with
reasonable due diligence to complete such repairs.
9.2 TENANT'S AGREEMENT. (A) Tenant will keep the
Premises in good order, condition and repair, reasonable
wear and tear excepted, excepting only those repairs for
which Landlord is responsible under the terms of this Lease
or which are necessitated by the occurrence of a fire or
other casualty or by the exercise of the power of eminent
domain; and Tenant shall surrender the Premises, at the end
of the Term of this Lease, in such condition. Without
limitation, Tenant shall maintain and use the Premises in
accordance with all reasonable, rules and regulations of
Landlord and all governmental agencies having jurisdiction
and shall, at Tenant's own expense, obtain all permits,
licenses and the like required by applicable law for
Tenant's use of the Premises, other than occupancy permits
of general application. Tenant shall be responsible for
the provision of adequate security to the Premises and to
Tenant's personnel. Tenant shall be responsible for the
cost of repairs which may be made necessary by reason of
damage to the Premises caused by Tenant or its contractors
or invitees.
(B) If repairs are required to be made by Tenant
pursuant to the terms hereof and are not made within the
time periods allowed hereunder, Landlord may demand that
Tenant make the same forthwith, and, if Tenant refuses or
neglects to commence such repairs and complete the same
with reasonable dispatch after such demand, Landlord may
(but shall not be required to) make or cause such repairs
to be made at Tenant's expense and shall not be responsible
to Tenant for any loss or damage that may occur to Tenant's
stock or business by reason thereof unless caused by
Landlord's negligence or willful misconduct.
9.3 HEAVY MACHINERY. Any moving of machinery or
equipment by Tenant shall be at the sole risk and hazard of
Tenant, and Tenant will exonerate, indemnify and save
Landlord harmless against and from any liability, loss,
injury, claim or suit resulting directly or indirectly from
such moving.
9.4 UTILITIES. Tenant shall pay directly to the
proper authorities charged with the collection thereof all
charges for water, septic, gas, electricity, telephone and
other utilities or services used or consumed on the
Premises, all such charges to be paid as the same from time
to time become due.
9.5 INTERRUPTION OR CURTAILMENT OF SERVICES. Upon
reasonable advance notice to Tenant (except in case of
emergency), Landlord reserves the right to temporarily
interrupt, curtail, stop or suspend (a) the heating and air
conditioning services in the Building and (b) the operation
of the plumbing and electric systems in the Building, when
necessary by reason of accident or emergency, or for
repairs, alterations, maintenance, replacements or
improvements in the reasonable judgment of Landlord
desirable or necessary to be made, or by reason of
difficulty or inability in securing supplies or labor, or
strikes, or any other cause beyond the reasonable control
of Landlord, whether such other cause be similar or
dissimilar to those hereinabove specifically mentioned,
until said cause has been removed. This Lease shall not be
affected or any of the Tenant's obligations hereunder
reduced, and the Landlord shall have no responsibility or
liability for any such interruption, curtailment, stoppage,
or suspension of services or systems as in this Section 9.5
above provided, except that (i) Landlord shall exercise
reasonable diligence to eliminate the cause of same as soon
as reasonably practicable; (ii) Landlord shall use diligent
efforts to minimize any interruption of Tenant's use and
enjoyment of the Premises, and (iii) if all of the Premises
are rendered unfit for occupancy by Tenant for thirty (30)
consecutive days, the Fixed Rent shall abate from and after
the thirty (30) days and until the Premises are again
rendered fit for Tenant's occupancy.
ARTICLE X
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INDEMNITY AND INSURANCE
10.1 TENANT'S INDEMNITY. To the maximum extent this
agreement may be made effective according to law, Tenant
agrees to indemnify and save harmless Landlord and
Landlord's agents, affiliates, contractors and the
employees of the foregoing from and against all claims of
whatever nature arising from any act, omission or
negligence of Tenant or Tenant's contractors, licensees,
invitees, agents, servants or employees or arising from any
accident, injury or damage whatsoever caused to any person,
or to the property of any person, occurring on account of
or based upon the act, omission or negligence or misconduct
of Tenant or Tenant's contractors, licensees, invitees,
agents servants or employees or arising from any breach by
Tenant of the terms and conditions of this Lease. This
indemnity and hold harmless agreement shall include
indemnity against all costs, expenses and liabilities
(including, but not limited to, reasonable attorney's fees
and disbursements) incurred in connection with any such
claim or proceeding brought thereon and the defense
thereof. Tenant's liability hereunder shall survive any
expiration or termination of this Lease. Nothing in the
foregoing shall be construed to include indemnity with
respect to any claim of whatever nature to the extent (and
only to the extent) caused by the gross negligence or
willful misconduct of Landlord, Landlord's agents,
affiliates, contractors and employees or by a failure of
Landlord to perform its obligations hereunder. Nothing in
this Section 10.1 shall be construed to reduce or otherwise
affect Landlord's obligations pursuant to Article XVII
hereof.
10.2 INSURANCE. (A) Tenant agrees to maintain in
full force, from the date upon which Tenant first enters
the Premises for any reason throughout the Term of this
Lease and thereafter so long as Tenant is in occupancy of
any part of the Premises, (i) "all risk" property insurance
covering all present and future Tenant's Removable Property
and Tenant's improvements and betterments to a limit of not
less than the full replacement cost thereof and (ii) a
policy of general liability and property damage insurance
(including broad form contractual liability, independent
contractor's hazard and completed operations coverage) in
respect of the Premises and the conduct or operation of
business therein, with Landlord and any permitted mortgagee
under Section 15.13 hereof of which Tenant has received
written notice, including John Hancock Mutual Life
Insurance Company, (and such other persons as are in
privity of estate with Landlord as may be set out in notice
from time to time) named as an additional insured, and with
limits of not less than the amount of Public Liability
Insurance specified in Section 1.1. Tenant shall deliver
to Landlord certificates of insurance and receipts
evidencing payment of the premiums for such insurance on or
before the Commencement Date and annually thereafter. Each
such policy shall be noncancellable and nonamendable with
respect to Landlord and Landlord's said designees without
twenty (20) days' prior notice to Landlord.
(B) Tenant hereby waives and releases Landlord from
any and all liabilities, claims and losses on account of
damage to Tenant's Removable Property for which Landlord is
or may be held liable to the extent Tenant either is
required to maintain insurance pursuant to Section 10.2(A)
or actually receives insurance proceeds on account thereof.
Landlord hereby waives and releases Tenant from any and all
liabilities, claims and losses on account of damage to the
Building for which Tenant is or may be held liable to the
extent Landlord actually receives insurance proceeds on
account thereof or to the extent Landlord would have
received such proceeds had Landlord maintained the
insurance required by Section 10.5 of this Lease. Each
party hereto shall secure waiver of subrogation
endorsements from their respective insurance carriers.
10.3 TENANT'S RISK. Except as provided herein, to
the maximum extent this agreement may be made effective
according to law, Tenant agrees to use and occupy the
Premises and to use such other portions of the Building as
Tenant is herein given the right to use at Tenant's own
risk; and Landlord shall have no responsibility or
liability for any loss of or damage to Tenant's Removable
Property or for any other property of any kind, nature and
description which may be in or upon the Premises or the
Building. The provisions of this Section shall be
applicable from and after the execution of this Lease and
until the end of the Term of this Lease, and during such
further period as Tenant may use or be in occupancy of any
part of the Premises or of the Building.
10.4 INJURY CAUSED BY THIRD PARTIES. To the maximum
extent this agreement may be made effective according to
law, Tenant agrees that Landlord shall not be responsible
or liable to Tenant, or to those claiming by, through or
under Tenant, for any loss or damage that may be occasioned
by or through the acts or omissions of any third parties,
except to the extent (and only to the extent) caused by the
gross negligence or willful misconduct of Landlord,
Landlord's agents, affiliates, contractors and employees.
10.5 LANDLORD'S INSURANCE. Landlord shall insure the
Building against damage or destruction by fire or other
casualties insurable under a standard "all risk"
endorsement in an amount equal to one hundred percent
(100%) of the replacement cost of the Building (exclusive
of footings and foundations). Landlord agrees to maintain
a policy of commercial general liability and property
damage insurance in commercially reasonable limits. The
costs of all insurance carried by Landlord with respect to
the Premises shall be Operating Expenses.
ARTICLE XI
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LANDLORD'S ACCESS TO PREMISES
11.1 LANDLORD'S RIGHTS. Landlord shall have the
right upon reasonable advance notice to enter the Premises
at all reasonable hours for the purpose of inspecting or
making repairs to the Premises, and Landlord shall also
have the right to make access available at all reasonable
hours to prospective or existing mortgagees, purchasers or,
during the last 12 months of the term, prospective tenants
of any part of the Premises. Notwithstanding the
foregoing, Landlord shall have the right to enter the
Premises at any time without notice in the event of an
emergency. Any exercise of Landlord's right of entry under
this Section 11.1 shall be conducted at such times and in
such manner as to minimize interference with Tenant's
operations on the Premises.
ARTICLE XII
-----------
DAMAGE OR DESTRUCTION
12.1 RESTORATION. (A) If the Building is totally or
partially damaged or destroyed, thereby rendering the
Building totally or partially inaccessible or unusable,
then (unless such damage was caused by Tenant, its agents,
employees, invitees, or contractors) Landlord shall
diligently repair and restore the Building, to
substantially the same condition it was in prior to such
damage or destruction and only to the extent of insurance
proceeds received by Landlord; provided, however, that if
in Landlord's reasonable judgment such repair and
restoration cannot be completed within ninety (90) days
after the occurrence of such damage or destruction (taking
into account the time needed for effecting a satisfactory
settlement with any insurance company involved, removal of
debris, preparation of plans and issuance of all required
governmental permits), then Landlord shall have the right,
at its sole option, to terminate this Lease by giving
written notice of termination within forty-five (45) days
after the occurrence of such damage or destruction.
Landlord shall notify Tenant within 45 days whether
Landlord intends to repair and whether Landlord anticipates
that repairs to the Premises will exceed 180 days to bring
to completion. If Landlord's notice states that such
repairs are not expected to be completed within 180 days,
Tenant shall be entitled to terminate this Lease by notice
to Landlord given within fifteen (15) days of receipt of
Landlord's notice, and this Lease shall then terminate as
if such date were the date of the ordinary expiration of
the Term. In addition, in the event that Landlord has not
completed the repairs required of it under this Section
12.1(A) within one-hundred eighty (180) days of the damage
or destruction, such period to be subject to extension
pursuant to Section 15.4 (but in no event extended beyond a
total of 270 days), Tenant shall have the right, at its
option, to terminate this Lease by delivering written notice
of termination to Landlord within thirty (30) days after the
expiration of such one hundred eighty day period, as the
same may be extended as set forth above.
(B) Notwithstanding anything herein to the contrary,
Landlord shall not be obligated to restore the Building and
shall have the right to terminate this Lease if (1) the
holder of any Mortgage (as such term is defined in Section
15.13 hereof) fails or refuses to make insurance proceeds
available for such repair and restoration, or (2) the cost
of repairing and restoring the Building would exceed fifty
percent (50%) of the replacement value of the Building. If
Landlord is released from its obligation to restore the
Building as a result of this subsection (B) but fails to
terminate this Lease, Landlord shall promptly notify Tenant
and Tenant shall have the option to terminate this Lease by
written notice to Landlord.
12.2 RENT. If the Lease is terminated pursuant to
Section 12.1 above, then all Fixed Rent and additional rent
shall be apportioned (based on the portion of the Building
which is usable after such damage or destruction) and paid
to the date of termination. If this Lease is not
terminated as a result of such damage or destruction, then
until such repair and restoration of the Building is
substantially complete, Tenant shall be required to pay the
Fixed Rent, additional rent and other sums due hereunder
only for the portion of the Building that is fit for
Tenant's occupancy while such repair and restoration are
being made. Landlord shall bear the expenses of repairing
and restoring the Building; provided, however, that
Landlord shall not be required to repair or restore any
alteration, improvement or addition previously made by
Tenant at Tenant's expense or any of Tenant's Removable
Property. Notwithstanding anything in this Lease to the
contrary, if any damage or destruction to the Premises was
caused by the act or omission of Tenant or any agent,
employee, contractor or invitee of Tenant, then Tenant
shall pay the amount by which such expenses of repair or
restoration to the Premises exceed the insurance proceeds,
if any, actually received by Landlord on account of such
damage or destruction.
ARTICLE XIII
------------
CONDEMNATION
13.1 TERMINATION OF LEASE. If the Premises or the
Building or the means of access thereto are totally taken
or condemned by any governmental or quasi-governmental
authority for any public or quasi-public use or purpose,
thereby rendering the Premises totally or substantially
inaccessible or unusable, or are sold under threat of such
a taking or condemnation (collectively, "condemned"), then
this Lease shall terminate on the date title thereto vests
in such authority and Fixed Rent and additional rent shall
be apportioned as of such date. In the event that either
(i) Tenant's reasonable means of access to the Premises is
taken or condemned or (ii) only a "substantial part" of the
Premises is taken or condemned, either Landlord or Tenant,
at its option, by delivery of notice to the other party
within 30 days following the date on which Tenant shall
receive notice of vesting of title, may terminate this
Lease as of the date of vesting of title. A "substantial
part" shall be 60 percent or more of the Premises. In the
event either Landlord or Tenant does not elect to exercise
such termination option, this Lease shall remain in effect,
except the Fixed Rent and additional rent shall be abated
as of the date of vesting of title in an amount apportioned
according to the portion (measured in square feet) of the
Premises so condemned or taken, and Landlord and Tenant
shall execute an amendment to this Lease specifying the new
Fixed Rent and additional rent. In the event of any taking
or condemnation and if neither Landlord nor Tenant
exercises its option to terminate, Landlord, at its
expense, will restore the remaining portion of the Premises
with reasonable diligence to at least the condition
existing prior to such condemnation or taking.
13.2 AWARDS. All awards, damages and other
compensation paid by any governmental or quasi-governmental
authority on account of any condemnation shall belong to
Landlord, and Tenant assigns to Landlord all rights to such
awards, damages and compensation. Tenant shall not make
any claim against Landlord or the authority for any portion
of such award, damages or compensation attributable to
damage to the Premises, value of the unexpired portion of
the Term of this Lease, loss of profits or goodwill,
leasehold improvements or severance damages. Nothing
contained herein, however, shall prevent Tenant from
pursuing a separate claim against the authority for the
value of improvements, alterations, additions, furnishings
and trade fixtures installed in the Building at Tenant's
expense and for relocation expenses.
ARTICLE XIV
-----------
DEFAULT
14.1 TENANT'S DEFAULT. (A) If at any time
subsequent to the date of this Lease any one or more of the
following events (herein referred to as a "Default of
Tenant") shall happen:
(1) Tenant shall fail to pay Fixed Rent,
additional rent or any other amounts payable
under this Lease, when due and such failure
shall continue for ten (10) days after
notice thereof, except that if Landlord
gives such notice twice in any period of
twelve successive months, thereafter no such
notice shall be required; or
(2) Tenant shall neglect or fail to perform or
observe any other covenant herein contained
on Tenant's part to be performed or observed
and Tenant shall fail to remedy the same
within thirty (30) days after notice to
Tenant specifying such neglect or failure,
or if such failure is of such a nature that
Tenant cannot reasonably remedy the same
within such thirty (30) day period, Tenant
shall fail to commence promptly to remedy
the same and to prosecute such remedy to
completion with diligence and continuity,
but in no event longer than ninety (90) days
after notice to Tenant; or
(3) Tenant's leasehold interest in the Premises
shall be taken on execution or by other
process of law directed against Tenant; or
(4) Tenant shall make an assignment for the
benefit of creditors or shall file a
voluntary petition in bankruptcy or shall be
adjudicated bankrupt or insolvent, or shall
file any petition or answer seeking any
reorganization, arrangement, composition,
readjustment, liquidation, dissolution or
similar relief for itself under any present
or future Federal, State, or other statute,
law or regulation for the relief of debtors,
or shall seek or consent to or acquiesce in
the appointment of any trustee, receiver or
liquidator of Tenant or of all or any
substantial part of its properties, or shall
admit in writing its inability to pay its
debts generally as they become due; or
(5) A petition shall be filed against Tenant in
bankruptcy or under any other law seeking
any reorganization, arrangement,
composition, readjustment, liquidation,
dissolution, or similar relief under any
present or future Federal, State or other
statute, law or regulation and shall remain
undismissed or unstayed for an aggregate of
ninety (90) days (whether or not
consecutive), or if any debtor in possession
trustee, receiver or liquidator of Tenant or
of all or any substantial part of its
properties or of the Premises shall be
appointed without the consent or
acquiescence of Tenant, respectively and
such appointment shall remain unvacated or
unstayed for an aggregate of ninety (90)
days (whether or not consecutive);
(6) A Default of Tenant shall occur under either
(i) that certain Lease of even date herewith
between Theodore Pasquarello and Eileen
Pasquarello, as Trustees of The Paris Trust
(the "Paris Trust Landlord"), as landlord
and Tenant, as tenant for premises located
at 31 Union Avenue, Sudbury; or (ii) that
certain Lease between the Paris Trust
Landlord, as landlord and Tenant, as tenant
for the land and improvements located
thereon at 25 Union Avenue, Sudbury;
then in any such case (a) if such Default of Tenant shall
occur prior to the Commencement Date, this Lease shall ipso
facto, and without further act on the part of the Landlord,
terminate, and (b) if such Default of Tenant shall occur
after the Commencement Date, Landlord or Landlord's agent
may immediately, or at any time thereafter, without demand
or notice, enter into and upon the Premises, or any part
thereof in the name of the whole, and repossess the same
and upon such entry this Lease shall terminate or Landlord
may terminate this Lease at any time thereafter by notice
to Tenant, specifying a date not less than five (5) days
after the giving of such notice on which this Lease shall
terminate and this Lease shall come to an end on the date
specified therein as fully and completely as if such date
were the date herein originally fixed for the expiration of
the Term of this Lease (Tenant hereby waiving any rights of
redemption under M.G.L. ch. 186, sec. 11), and Tenant will
then quit and surrender the Premises to Landlord, but
Tenant shall remain liable as hereinafter provided.
(B) If this Lease shall have been terminated as
provided in this Article, or if any execution or attachment
shall be issued against Tenant or any of Tenant's property
whereupon the Premises shall be taken or occupied by
someone other than Tenant, then Landlord may, without
notice, reenter the Premises, either by summary
proceedings, ejectment or otherwise, and remove and
dispossess Tenant and all other persons and any and all
property from the Premises, as if this Lease had not been
made, and Tenant hereby waives the service of notice of
intention to reenter or to institute legal proceedings to
that end.
(C) In the event of any termination of this Lease,
Tenant shall pay the Fixed Rent, additional rent and all
other amounts payable hereunder up to the time of such
termination, and thereafter Tenant, until the end of what
would have been the Term of this Lease in the absence of
such termination, and whether or not the Premises shall
have been relet, shall be liable to Landlord for, and shall
pay to Landlord, as liquidated current damages, the Fixed
Rent, additional rent and all other amounts payable
hereunder had such termination not occurred, less the net
proceeds, if any, of any reletting of the Premises, after
deducting all reasonable expenses in connection with such
reletting, including, without limitation, all reasonable
repossession costs, brokerage commissions, legal expenses,
advertising and marketing costs, expenses of employees,
alteration and tenant improvement costs and expenses of
preparation for such reletting. Tenant shall pay such
damages to Landlord monthly on the days on which the Fixed
Rent and additional rent would have been payable hereunder
had this Lease not been terminated. Landlord shall use
reasonable efforts to relet the Premises.
(D) At any time after the termination of this Lease,
whether or not Landlord shall have collected any damages
pursuant to Section 14.1(C), as liquidated final damages,
and in lieu of all damages payable by Tenant pursuant to
Section 14.1(C) thereafter, at Landlord's election, Tenant
shall pay to Landlord an amount which at the time of such
election represents the then value of the excess, if any,
of (1) the Fixed Rent, additional rent and all other
amounts which would have been payable by Tenant hereunder
(conclusively presuming the annual payments with respect to
real estate taxes and expense escalation obligations to be
the same as were payable for the preceding year) for the
period commencing with the date of Landlord's election and
ending with the date contemplated as the expiration date
hereof if this Lease had not so terminated, over (2) the
aggregate fair rental value of the Premises for the same
period.
(E) In case of any Default of Tenant, reentry or
expiration and dispossession by summary proceedings or
otherwise, Landlord may (1) relet the Premises or any part
or parts thereof, either in the name of Landlord or
otherwise, for a term or terms which may in Landlord's good
faith judgment be equal to or less than or exceed the
period which would otherwise have reasonable constituted
the balance of the Term of this Lease and may grant
reasonable concessions of free rent to the extent that
Landlord considers advisable and necessary to relet the
same, and (2) may make such alterations, repairs and
decoration in and to the Premises as Landlord in its
reasonable judgment considers advisable and necessary for
the purpose of reletting the Premises, and the making of
such alterations, repairs and decorations shall not operate
or be construed to release Tenant from liability hereunder.
Landlord shall in no event be liable in any way whatsoever
for failure to relet the Premises, or in the event that the
Premises are relet, for failure to collect the rent under
such reletting provided Landlord uses reasonable efforts to
collect the rent. Tenant hereby expressly waives any and
all rights of redemption granted by or under any present or
future laws in the event of Tenant being evicted or
dispossessed, or in the event of Landlord obtaining
possession of the Premises, by reason of the violation by
Tenant of any of the covenants and conditions of this
Lease.
(F) The specified remedies to which Landlord may
resort hereunder are not intended to be exclusive of any
remedies or means of redress to which Landlord may at any
time be entitled lawfully, and Landlord may invoke any
remedy (including the remedy of specific performance)
allowed at law or in equity as if specific remedies were
not herein provided.
(G) All reasonable costs and expenses incurred by or
on behalf of Landlord (including, without limitation,
reasonable attorneys' fees and expenses) in enforcing its
rights hereunder or occasioned by any Default of Tenant
shall be paid by Tenant promptly upon demand.
ARTICLE XV
----------
MISCELLANEOUS PROVISIONS
15.1 EXTRA HAZARDOUS USE. (A) Tenant covenants and
agrees that Tenant will not do or permit anything to be
done in or upon the Premises, or bring in anything or keep
anything therein, which would increase the rate of property
or liability insurance of the Premises or of the Building
above the standard rate applicable to Premises as of the
Commencement Date being occupied for the Permitted Use; and
Tenant further agrees that, in the event that Tenant shall
do or permit any of the foregoing, Tenant will promptly pay
to Landlord, on demand, any such resulting increase.
(B) Tenant shall not (either with or without
negligence) cause or permit the escape, disposal or release
of any hazardous substances, or materials. Tenant shall
not allow the storage or use of hazardous substances or
materials on or in the Premises in any manner, nor allow to
be brought into any portion of the Building any such
materials or substances except for hazardous substances or
materials disclosed in writing to the Landlord for use in
the ordinary course of the conduct of the Permitted Use,
all such substances or materials to be used and stored in
compliance with applicable laws and regulations. Tenant
shall not store any flammable substances in the Premises,
unless such flammable substances are stored in areas with
in-rack sprinkling. Any such hazardous substances or
flammable substances shall be stored, used and disposed of
in accordance with all applicable laws and regulations.
Without limitation, hazardous substances and materials
shall include those described in the Comprehensive
Environmental Response, Compensation and Liability Act of
1980, as amended, 42 U.S.C. Section 9601 et seq., M.G.L.
Chapter 21E and any other applicable federal, state or
local laws and the regulations adopted under these acts.
If any lender or governmental agency shall ever require
testing to ascertain whether or not there has been any
release of hazardous materials as a result of a breach by
Tenant of the provisions of this Section 15.1(B), then the
reasonable costs thereof shall be reimbursed by Tenant to
Landlord upon demand as additional charges. In addition,
Tenant shall execute affidavits, representations and the
like from time to time at Landlord's reasonable request
concerning Tenant's best knowledge and belief regarding the
presence of hazardous substances or materials on the
Premises. In all events, Tenant shall indemnify Landlord
from and against any and all Environmental Damages (as
defined in Section 17.1) asserted by any third party or
governmental authority and either occurring during the Term
of this Lease or resulting from any violation by Tenant (or
its employees, agents, invitees, or contractors) of any
environmental laws pertaining to the Premises or caused by
Tenant (or its agents, employees, invitees, or contractors)
or persons acting under the direction of Tenant (except to
the extent caused by Landlord or persons acting under the
direction of Landlord). The within covenants shall survive
the expiration or earlier termination of the Term of this
Lease. Nothing in this Section 15.1 shall be construed to
reduce or otherwise affect Landlord's obligations pursuant
to Article XVII hereof. In the event of any conflict
between this Section and Article XVII, the provisions of
Article XVII shall control.
15.2 WAIVER. The failure of either Landlord or
Tenant to insist in any one or more instances upon the
strict performance of any one or more of the obligations of
this Lease, or to exercise any election herein contained,
shall not be construed as a waiver or relinquishment for
the future of the performance of such one or more
obligations of this Lease or of the right to exercise such
election, and such right to insist upon strict performance
shall continue and remain in full force and effect with
respect to any subsequent breach, act or omission. The
receipt by Landlord of Fixed Rent, additional rent or other
payments due hereunder or partial payments thereof with
knowledge of breach by Tenant of any obligation of this
Lease shall not be deemed a waiver of such breach.
15.3 COVENANT OF QUIET ENJOYMENT. Landlord covenants
tha t, if Tenant shall timely perform all of its obligations
hereunder, then, subject to the provisions of this Lease,
Tenant shall, during the Term of this Lease, peaceably and
quietly occupy and enjoy the full possession of the
Premises without hindrance by Landlord or any party
claiming through or under Landlord.
15.4 FORCE MAJEURE, ETC. (A) If either Tenant or
Landlord is in any way delayed or prevented from performing
any of its obligations under this Lease (excluding any
monetary obligations of Tenant, including without
limitation Tenant's obligation to pay Fixed Rent and
additional rent) due to fire, act of God, governmental act
or failure to act, strike, labor dispute, inability to
procure materials, war or any other cause beyond such
party's reasonable control (whether similar or dissimilar
to the foregoing events), then the time for performance of
such obligation shall be excused for the period equal to
the period of such delay or prevention and extended for a
period equal to the period of such delay or prevention.
(B) In no event shall either party be liable to the
other for any indirect or consequential damages suffered by
either from any cause whatsoever.
15.5 ASSIGNMENT OF RENTS AND TRANSFER OF TITLE. (A)
If Landlord shall assign Landlord's interest in this Lease
or in the rents payable hereunder to the holder of a
mortgage covering the Premises (regardless of whether or
not such assignment is conditional in nature), then such
assignment shall not be construed as an assumption by the
assignee of any of the obligations of Landlord hereunder
unless such assignee (1) by notice sent to Tenant,
specifically otherwise elects, or (2) forecloses on its
mortgage, or (3) takes possession of the Premises.
(B) In the event of any transfer of title to the
Premises by Landlord, Landlord shall thereafter be released
from the performance and observance of all covenants and
obligations hereunder occurring after the date of such
transfer and the transferee shall be deemed the Landlord
under this Lease from and after the date of such transfers,
except for the provisions of Articles XVII and XX (which
shall not be binding upon the transferee), provided that in
no event shall the original Landlord be relieved of any
obligations pursuant to Article XVII, which obligations
shall survive any such transfer in the manner and to the
extent set forth in Section 17.1.
15.6 RULES AND REGULATIONS. Tenant shall abide by
all reasonable rules and regulations reasonably established
by Landlord from time to time for the operation of the
Premises. Landlord agrees to use reasonable efforts to
insure that any such rules and regulations are uniformly
enforced, but Landlord shall not be liable to Tenant for
the violation of any such rules or regulations by any other
tenant or occupant of the Premises or persons conducting
business with such tenant or occupant.
15.7 ADDITIONAL CHARGES. If Tenant shall fail to pay
when due any sums under this Lease, Landlord shall have the
same rights and remedies as Landlord has hereunder for
failure to pay Fixed Rent.
15.8 INVALIDITY OF PARTICULAR PROVISIONS. If any
provision of this Lease or the application thereof to any
person or circumstance shall, to any extent, be invalid or
unenforceable, then the remainder of this Lease and the
application of such provision to persons or circumstances
other than those as to which it is invalid or unenforceable
shall not be affected thereby.
15.9 PROVISIONS BINDING. Except as herein otherwise
provided, the provisions of this Lease shall be binding
upon and shall inure to the benefit of the parties hereto
and each of their respective successors and assigns,
subject to the provisions herein restricting assignment or
subletting.
15.10 NOTICES. All notices or other permitted or
required communications hereunder shall be in writing and
shall be deemed duly given when delivered in person (with
receipt therefor), or when sent by Express Mail or
overnight courier service (provided a receipt will be
obtained) or by certified or registered mail, return
receipt requested, postage prepaid to the following
addresses:
If to Landlord, addressed to Landlord at Landlord's
Address (or to such other address or addresses as may
from time to time hereafter be designated by Landlord
by notice).
If to Tenant, addressed to Tenant at Tenant's Original
Address.
15.11 WHEN LEASE BECOMES BINDING. The submission of
this document for examination and negotiation does not
constitute an offer to lease, or a reservation of, or
option for, the Premises, and this document shall become
effective and binding only upon the execution and delivery
hereof by both Landlord and Tenant. All negotiations,
consideration, representations and understandings between
Landlord and Tenant are incorporated herein and this Lease
expressly supersedes any proposals or other written
documents relating hereto. This Lease may be modified or
altered only by written agreement signed by Landlord and
Tenant, and no act or omission of any employee or agent of
Landlord shall alter, change or modify any of the
provisions hereof. This Lease shall not be recorded, but
Landlord shall, on request from Tenant, execute and
acknowledge, a Notice of Lease pursuant to M.G.L. Chapter
183, Section 4.
15.12 PARAGRAPH HEADINGS. The paragraph headings
throughout this Lease are for convenience and reference
only, and the words contained therein shall in no way be
held to explain, modify, amplify or aid in the
interpretation, construction or meaning of the provisions
of this Lease.
15.13 RIGHTS OF MORTGAGEE AND GROUND LESSOR. (A)
This Lease is subject and subordinate to the lien,
provisions, operation and effect of all mortgages, deeds of
trust, ground leases or other security instruments which
may now encumber the Building or the Premises
(collectively, "Mortgages"; individually, "Mortgage"), to
all funds and indebtedness intended to be secured thereby,
and to all renewals, extensions, modifications, recastings
or refinancings thereof. The holder of any Mortgage to
which this Lease is subordinate shall have the right
(subject to any required approval of the holder of any
superior Mortgage) at any time to declare this Lease to be
superior to the lien, provisions, operation and effect of
such Mortgage and Tenant shall execute, acknowledge and
deliver all documents required by such holder in
confirmation thereof provided such documents are in form
and substance reasonably satisfactory to Tenant. The
holder of any Mortgage placed on the Premises after the
date of this Lease may elect to subordinate this Lease to
such Mortgage, provided that the holder shall deliver to
Tenant a Non-disturbance and Attornment Agreement, on a
commercially reasonable form, whereby such holder agrees
not to disturb Tenant's rights under this Lease provided
that Tenant is not in default beyond applicable cure
periods hereunder. Tenant acknowledges that John Hancock
Mutual Life Insurance Company and The First National Bank
of Boston are permitted mortgagees of the Landlord under
this Lease. The notice address of John Hancock is: John
Hancock Place, Post Office Box 111, Boston, MA 02117 and
the notice address of the Bank is: 100 Federal Street,
Boston, MA 02110, Attention Elise Pricone. Landlord agrees
to use reasonable efforts to obtain from John Hancock, a
Non-disturbance Agreement, on John Hancock's standard form,
within 90 days of the Commencement Date of this Lease.
(B) In confirmation of the foregoing subordination,
Tenant shall at Landlord's request promptly execute any
requisite or appropriate document. If the Premises are
sold at foreclosure or transferred by a deed-in-lieu of
foreclosure, then, at the request of such purchaser, Tenant
shall attorn to such purchaser and shall recognize such
purchaser as the landlord under this Lease provided that
such purchaser agrees not to disturb Tenant's possession of
the Premises and agrees to be bound by and assume
Landlord's obligations hereunder except such purchaser
shall not be (1) bound by any payment of the Fixed Rent or
additional payments due hereunder for more than one (1)
month in advance, (2) bound by any amendment of this Lease
made without the consent of the holder of each Mortgage
existing as of the date of such amendment provided Tenant
had notice of such Mortgage, (3) liable for damages for any
breach, act or omission of any prior landlord, and (4)
subject to any offsets or defenses which Tenant might have
against any prior landlord. Within fifteen (15) days after
the request of such purchaser, Tenant shall execute,
acknowledge and deliver confirmation of such attornment and
non-disturbance agreement in form reasonably acceptable to
Tenant.
(C) After Tenant receives notice from any person,
firm or other entity that it holds a Mortgage on the
Building or the Premises, no notice from Tenant to Landlord
alleging any default by Landlord shall be effective unless
and until a copy of the same is given to such holder,
provided that Tenant shall have been furnished with the
name and address of such holder. Any such holder shall
have thirty (30) days after its receipt of notice from
Tenant of a default by Landlord under this Lease to cure
such default before Tenant may exercise any remedy
hereunder. The curing of any of Landlord's defaults by
such holder shall be treated as performance by Landlord.
(D) This Lease is subject to Landlord obtaining on or
before the Commencement Date, the consent of John Hancock.
15.14 ESTOPPEL CERTIFICATES. At any time and from
time to time upon not less than fifteen (15) days prior
written notice, Tenant and each subtenant or assignee of
Tenant or occupant of the Premises shall execute,
acknowledge and deliver to Landlord and/or any other person
or entity designated by Landlord, an estoppel certificate
(1) certifying that this Lease is unmodified and in full
force and effect (or if there have been modifications, that
this Lease is in full force and effect as modified and
stating the modifications), (2) stating the dates to which
the rent and any other charges have been paid, (3) stating
whether or not, to the best of Tenant's knowledge, Landlord
is in default in the performance of any obligation of
Landlord contained in this Lease, and, if so, specifying
the nature of such default, (4) stating the address to
which notices are to be sent, and (5) certifying to such
other matters as Landlord may reasonably request. Tenant
acknowledges that time is of the essence to the delivery of
such statements. Upon request, Tenant agrees to furnish
Landlord with Tenant's current annual reports and any other
financial information of Tenant as Landlord may reasonably
request from time to time.
15.15 REMEDYING DEFAULTS. Upon five business days'
notice to Tenant, Landlord shall have the right, but shall
not be required, to pay such sums or perform such acts
which may be necessary or appropriate by reason of the
failure or neglect of Tenant to perform any of its
obligations under this Lease beyond any applicable notice
and grace period hereunder. If Landlord, in connection
with the foregoing, makes any reasonable expenditures or
incurs any obligations for the payment of money, Tenant
agrees to pay to Landlord within five (5) days of demand
all such sums. After a Default of Tenant in the payment of
Fixed Rent, additional rent or other amounts payable
hereunder, such amounts shall, at the option of Landlord,
bear interest from the due date thereof at a rate equal to
five percent (5%) over the rate of interest reported from
time to time in the Wall Street Journal as being the "prime
rate" then in effect and shall be payable by Tenant to
Landlord on demand by Landlord. Notwithstanding anything
to the contrary contained herein, the interest to be paid
by Tenant to Landlord hereunder shall be limited to the
then maximum legal rate thereof.
15.16 HOLDING OVER. If Tenant does not immediately
surrender the Premises upon the expiration or earlier
termination of the Term of this Lease, then Tenant shall
become a tenant by the month and the rent shall be
increased to 150% of the monthly installments of Fixed
Rent, additional rent and all other amounts that would have
been payable pursuant to the provisions of this Lease if
the Term of this Lease had continued during such holdover
period. Such rent shall be computed on a monthly basis and
shall be payable on the first day of such holdover period
and the first day of each calendar month thereafter during
such holdover period until the Premises have been vacated.
Landlord's acceptance of such rent shall not in any manner
adversely affect Landlord's other rights and remedies,
including Landlord's right to evict Tenant and to recover
damages.
15.17 SURRENDER OF PREMISES. Upon the expiration or
earlier termination of the Term of this Lease, Tenant shall
peaceably quit and surrender to Landlord the Premises in
good order and condition, together with all alterations,
additions and improvements which may have been made or
installed in, on or to the Premises prior to or during the
Term of this Lease (subject, however, to the provisions of
Section 7.2(B)), excepting only ordinary wear and use,
eminent domain, and damage by fire or other casualty.
Tenant shall remove all of Tenant's Removable Property and
all items specified by Landlord pursuant to Section 7.2(B)
and shall, at its expense, repair and restore the Premises
to the condition existing prior to installation and repair
any damage to the Premises or the Building due to such
removal. Any of Tenant's Removable Property which shall
remain in the Building or on the Premises after the
expiration or termination of the Term of this Lease shall
be deemed conclusively to have been abandoned, and either
may be retained by Landlord as its property or may be
disposed of, at Tenant's sole cost and expense, in such
manner as Landlord may see fit.
15.18 PAYMENTS BY TENANT. All amounts payable by
Tenant under the terms of this Lease, including without
limitation, all payments of Fixed Rent, additional rent
under Articles V and VI and all payments under Section
9.1(B), shall be paid to Landlord without offset, abatement,
deduction or demand.
ARTICLE XVI
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BROKERAGE
16.1 BROKERAGE. Landlord and Tenant each represent
to the other that it has dealt with no broker in connection
with this Lease. Landlord and Tenant each agree to
indemnify and hold the other harmless from any brokerage
commission, and any other loss, damage or expense,
including reasonable attorneys' fees, resulting from any
dealings by such party in breach of the foregoing
representation.
ARTICLE XVII
------------
ENVIRONMENTAL MATTERS
17.1 INDEMNIFICATION. Landlord shall defend (with
counsel selected by Landlord) and indemnify Tenant from and
against any and all Environmental Damages (as defined
below) asserted by any third party (including, without
limitation, any sub-tenant, assignee or other successor to
Tenant's interest hereunder but only to the extent Landlord
would have been liable to Tenant hereunder in the absence
of any such sublease, assignment or other transfer) or
governmental authority. Landlord's obligations under this
Article XVII shall survive and continue in full force and
effect (subject only to any applicable statutes of
limitations) for a period of three (3) years from the
expiration date of this Lease (the "Termination Date"),
except that Landlord's indemnity obligations under this
Article XVII as to matters caused directly by Landlord or
persons acting under the direction of Landlord during the
Term of this Lease shall survive beyond the Termination
Date and that if there are any pending claims under the
terms of this Article XVII existing on the Termination Date
(whether or not asserted in a case of law) or if there is
any response action which Landlord is obligated to perform
under Section 17.3 and of which Landlord has received notice
on or before the Termination Date, Landlord's obligations
under this Article XVII solely as to such pending claims or
such response action, shall be extended until such time as
the pending claims have been resolved or such response
action has been completed, respectively.
"Environmental Damages" means all claims, judgments,
damages, losses, penalties, fines, liabilities (including
as well strict liability), encumbrances, liens, costs, and
expenses of investigation and defense of any claim, whether
or not such claim is ultimately defeated, and of any good
faith settlement, of whatever kind or nature, contingent or
otherwise, matured or unmatured, foreseeable or
unforseeable, including without limitation reasonable
attorneys' fees and disbursements and consultants' fees and
response costs, any of which are incurred at any time as a
result of the existence of oil or hazardous materials upon,
about or beneath the Premises and/or any properties
downgradient from or cross-gradient to the Premises, or
migrating or threatening to migrate to or from the
Premises, and any violation by Landlord of any applicable
environmental law pertaining to the Premises (except as
specifically provided in the next paragraph), all to the
extent (and only to the extent) resulting from any
existence or migration of oil or hazardous materials,
provided that the violation, existence, migration and/or
threat of migration occurred or arose prior to the Term of
this Lease and is disclosed in certain reports and other
documents identified in Exhibit C attached hereto and
treating each report and document as applying equally to
the Property, the 31 Union Avenue property and the 25 Union
property or occurred or arose during the Lease Term and was
caused directly by Landlord or persons acting under the
direction of Landlord.
The foregoing indemnity shall not apply to any
Environmental Damages resulting from, relating to, or
arising out of the release or threat of release of oil or
hazardous materials occurring during the Term of the Lease
(unless directly caused by Landlord) or resulting from
Tenant's (or its employees', agents' invitees' or
contractors') violation of any environmental laws or caused
by Tenant's use, operation, or occupation of the Premises
or from any breach by Tenant of the provisions of Section
15.1 of this Lease.
17.2 THIRD PARTY CLAIMS.
(A) If any third party shall notify either Landlord
or Tenant with respect to any matter (a "Third Party
Claim") which may give rise to a claim for indemnification
against Landlord under this Article XVII or a claim for
indemnification against Tenant under Section 15.1, then the
party receiving notice shall promptly notify the other party
in writing; provided, however, that no delay in notifying
the other party shall relieve that party from any obligation
hereunder unless (and then solely to the extent) such party
is prejudiced.
(B) Landlord agrees to defend Third Party Claims
which arise solely out of Landlord's indemnity obligations
under Section 17.1 and so long as Landlord is conducting the
defense of the Third Party Claim in accordance with Section
17.1 above, (i) Tenant may retain separate co-counsel at
its sole cost and expense and participate in the defense of
the Third Party Claim, (ii) Tenant will not consent to the
entry of any judgment or enter into any settlement with
respect to the Third Party Claim without the prior written
consent of Landlord, and (iii) Landlord will not consent to
the entry of any judgment or enter into any settlement with
respect to the Third Party Claim without the prior written
consent of Tenant (not to be withheld unreasonably).
(C) If Landlord does not defend against the Third
Party Claim as required by Section 17.2(B), however, (i)
Tenant may defend against, and consent to the entry of any
judgment or enter into any settlement with respect to, the
Third Party Claim in any manner it reasonably may deem
appropriate (provided that Landlord may participate in any
such action, at its own expense, and Landlord shall have
the right to reject any settlement proposal by Tenant),
(ii) Landlord will reimburse Tenant promptly and
periodically for the costs of defending against the Third
Party Claim (including reasonable attorneys' fees and
expenses), and (iii) Landlord will remain responsible for
any Environmental Damages Tenant may suffer resulting from,
arising out of, relating to, in the nature of, or caused by
the Third Party Claim to the extent (and only to the
extent) provided in this Article XVII.
(D) Tenant agrees to defend Third Party Claims which
arise out of Tenant's indemnity obligations under Section
15.1 and so long as Tenant is conducting the defense of the
Third Party Claim in accordance with Section 15.1, (i)
Landlord may retain separate co-counsel at its sole cost and
expense and participate in the defense of the Third Party
Claim,(ii) Landlord will not consent to the entry of any
judgment or enter into any settlement with respect to the
Third Party Claim without the prior written consent of
Tenant (not to be withheld unreasonably), and (iii) Tenant
will not consent to the entry of any judgment or enter into
any settlement with respect to the Third Party Claim without
the prior written consent of Landlord (not to be withheld
unreasonably).
(E) If Tenant does not defend against the Third Party
Claim as required by Section 17.2(D), however, (i) Landlord
may defend against, and consent to the entry of any judgment
or enter into any settlement with respect to, the Third
Party Claim in any manner it reasonably may deem appropriate
(provided that Tenant may participate in any such action,
at its own expense), (ii) Tenant will reimburse Landlord
promptly and periodically for the costs of defending
against the Third Party Claim (including reasonable
attorneys' fees and expenses), and (iii) Tenant will remain
responsible for any Environmental Damages Landlord may
suffer resulting from, arising out of, relating to, in the
nature of, or caused by the Third Party Claim to the
fullest extent provided in this Article XVII and in Section
15.1.
17.3 RESPONSE ACTIONS. If Tenant or Landlord is
required by applicable law to remediate oil or hazardous
materials on or under the Premises or migrating or
threatening to migrate through, under or beyond the
Premises, or to take any other response actions related to
the Premises and/or any migration or threat of migration,
then Landlord shall promptly undertake all such response
actions in accordance with all applicable laws. Upon
completion of each response action, Landlord shall
reasonably restore any affected portion of the Premises to
the condition existing prior to the commencement of such
response action. If the response action is the result of
any breach by Tenant of the terms of Section 15.1 or
otherwise results from any environmental condition occurring
during the Term of this Lease, Tenant shall reimburse
promptly and periodically Landlord, as additional rent, for
all costs incurred by Landlord in connection with such
response action.
Tenant agrees, upon reasonable prior written notice
from Landlord, to grant Landlord or its contractors access
to the Premises to carry out such response actions as
Landlord deems appropriate, provided, however, that
Landlord shall use reasonable efforts to prevent any
interruption of Tenant's (or any permitted subtenant's or
assignee's) conduct of business at the Premises. Landlord
agrees to coordinate its activities with Tenant so as to
minimize any inconvenience to or interruption of the normal
use and enjoyment of the Premises by Tenant and by any
permitted subtenant and/or assignee consistent with
Landlord's obligations hereunder and under any applicable
judgment, decree or settlement.
17.4 SUCCESSORS AND ASSIGNS. This Article XVII is
binding upon and inures to the benefit of Landlord and
Tenant only. The parties acknowledge that Tenant has a
right to terminate this Lease in the event of a default by
Landlord or Theodore Pasquarello under the provisions of
Section 2 of that certain Letter of Credit Agreement of even
date herewith between Landlord, Tenant, Theodore Pasquarello
and the Paris Trust Landlord. In the event that this Lease
is assigned or the Premises are sublet by Tenant as
permitted hereunder, then Landlord's obligations under this
Article XVII shall thereafter be owed only to New England
Business Service, Inc. and not to any of Tenant's
subtenants, successors, transferees, or assigns. In the
event the Premises are acquired by a mortgagee of the
Premises at foreclosure sale or by a deed-in-lieu of
foreclosure, the provisions of this Article XVII shall not
apply to such mortgagee.
ARTICLE XVIII
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EXCULPATORY CLAUSE
18.1 LIMITATION ON LIABILITY. Notwithstanding
anything to the contrary herein, Landlord's liability for
its negligence or failure to perform its obligations
hereunder including all of Landlord's obligations under
Section 17 shall be limited to its interest in the Premises.
Tenant shall neither seek to enforce nor enforce any
judgment or other remedy against any other asset of Landlord
or any individual who holds any interest in Landlord.
18.2 ACTIONS AGAINST LANDLORD. In any claim made by
Tenant against Landlord alleging that Landlord has acted
unreasonably where Landlord had an obligation to act
reasonably, Tenant shall have no right to recover damages
(except as permitted under Section 19.2) from Landlord and
Tenant's sole and exclusive recourse against Landlord shall
be an action seeking specific performance of Landlord's
obligation to act reasonably.
ARTICLE XIX
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SUBMISSION TO JURISDICTION, ETC.
19.1 GOVERNING LAW. This Lease shall be construed in
accordance with the laws of the Commonwealth of
Massachusetts. All actions or proceedings relating,
directly or indirectly, to this Lease shall be litigated
only in courts located within the Commonwealth of
Massachusetts. Landlord, Tenant, their partners, trustees,
and their successors and assigns hereby subject themselves
to the jurisdiction of any state or federal court located
within the Commonwealth of Massachusetts.
19.2 RECOVERY OF FEES. If either party commences any
action or proceeding against the other in connection with
this Lease and such action or proceeding is disposed of, by
settlement, judgment or otherwise, the prevailing party
shall be entitled to recover from the other its reasonable
disbursements (including reasonable attorneys' fees) and
the reasonable fees and disbursements of consultants or
experts incurred in connection with such action or
proceedings.
ARTICLE XX
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LANDLORD'S EQUITY
20.1 LANDLORD'S EQUITY REQUIREMENT. Landlord agrees
that it shall not enter into any new loan (or refinance any
existing loan) secured by all or any portion of the
Premises such that the aggregate loan-to-value ratio of all
such loans, determined on the basis of the fair market
value of the Premises at the time of entering into the new
loan, exceeds a loan-to-value ratio of 75%. This Article
XX is binding upon and inures to the benefit of original
Landlord and Tenant only, and shall not be binding on
successors, assigns or transferees of Landlord. In the
event that this Lease is assigned or the Premises are
sublet by Tenant as permitted hereunder, then Landlord's
obligations under Article XX shall thereafter be owed only
to New England Business Service, Inc. and not to any of
Tenant's subtenants, successors, transferees, or assigns.
In the event the Premises are acquired by a mortgagee of
the Premises at foreclosure sale or by a deed-in-lieu of
foreclosure, the provisions of this Article XX shall not
apply to such mortgagee.
IN WITNESS WHEREOF, each of Landlord and Tenant has
caused this Lease to be duly executed as of the date first
written above
LANDLORD:
By: /s/ Theodore Pasquarello
_________________________
Theodore Pasquarello, not
individually but as
Trustee of E. B. Realty
Trust
TENANT:
NEW ENGLAND BUSINESS
SERVICE, INC.
By: /s/ John F. Fairbanks
__________________________
Name: John F. Fairbanks
---------------------
Title: V.P. Finance, Chief
Financial Officer
--------------------
LIST OF EXHIBITS
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EXHIBIT A Legal Description of Premises
EXHIBIT B Title Policy
EXHIBIT C List of Environmental Reports and Related
Documents