EXHIBIT 10(ii)
AMENDMENT OF LEASE
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THIS AMENDMENT OF LEASE (this "Amendment") effective as of the 1st day of
April, 1994 between EQUITABLE FEDERAL STREET REALTY COMPANY LIMITED PARTNERSHIP,
a Massachusetts limited partnership, having an address at 00 Xxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000 ("Landlord"), and THE FIRST NATIONAL BANK OF BOSTON,
a national banking association duly organized and existing under the laws of The
United States of America having its principal place of business at 000 Xxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 ("Tenant").
BACKGROUND
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Landlord and Tenant are Landlord and Tenant, respectively, under an
Indenture of Lease having an effective date of September 1, 1991 (the "Original
Lease"), covering certain premises at 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
(the "Building"), as amended by a Letter Agreement dated February 5, 1992, an
Amendment of Lease dated July 2, 1993 and an Amendment of Lease dated as of
March 31, 1994 (as so amended, the Original Lease shall be referred to
hereinafter as the "Lease"). The parties desire to add certain floors of the
Building to the Premises under the Lease and to amend the Lease in certain other
respects, all as hereinafter set forth. Capitalized terms not defined herein
shall have the meaning ascribed to them in the Lease.
WITNESSETH:
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NOW, THEREFORE, the parties hereby agree as follows:
1. Effective as of the date hereof, the Areas shown on Schedule P-1
attached hereto (collectively, "Space D") are hereby added to the Premises under
the Lease. Space D shall be treated as a "Space" for all purposes of the Lease.
All terms and provisions of the Lease (as amended hereby) shall be applicable to
Space D, including, without limitation, Tenant's obligation to make Operating
Expense and Imposition payments with respect to Space D in accordance with
Section 2 of Article III of the Lease, except: (i) the term of the Lease for
Space D shall commence as of the date hereof and shall expire on December 31,
2008 (the "Space D Initial Term"); (ii) Space D shall not be considered to be
part of either Space A or Space B; (iii) the Base Rent and the Tenant
Improvement Allowance for Space D shall be as set forth in Sections 2 and 3
hereof; (iv) Tenant's right to extend the term of the Lease with respect to
Space D shall be as set forth in Section 4 hereof; and (v) the Operating
Expenses Stop for Space D shall be $8.00 per square foot and the Impositions
Stop for Space D shall be $6.00 per square foot.
2. Tenant shall pay Base Rent for the Areas included in Space D at the
annual rates specified in Schedule R-1 for such Areas, including the adjustments
in such rates noted in Schedule R-1 for different time periods during the Space
D Initial Term.
3. Landlord shall provide Tenant with a Tenant Improvement Allowance for
the Areas included in Space D in amounts not exceeding the amounts specified in
Schedule R-1. Such Tenant Improvement Allowance shall be subject to the
provisions regarding the Tenant
Improvement Allowance set forth in Section 3 of Article XVI of the Lease,
provided, however, that in no event shall Landlord be obligated to pay any
portion of the Tenant Improvement Allowance for any portion of any Space if such
payment would result in the total unexpended Tenant Improvement Allowance for
all Spaces to be less than the portion of the Tenant Improvement Allowance
applicable to the Areas in Space D for which Base Rent shall not have become
payable under Schedule R-1.
4. In addition to its options to extend the term of the Lease for other
Spaces, Tenant shall have the successive options to extend the term of the Lease
(with respect to Space D only) for two (2) successive five (5) year periods from
and after December 31, 2008, which options shall be otherwise subject to the
same terms and conditions that are applicable to the options for Space A and
Space B under Section 3 of Article II of the Original Lease. With respect to
each floor included in Space D, "$48.50 per square foot per annum" appearing in
clause (a) of the third paragraph of Section 3 of Article III of the Original
Lease shall be deemed to read "the annual rate of Base Rent per square foot for
such floor in effect during year 2008 according to Schedule R-1".
5. Landlord shall perform the work to the Areas included in Space D
necessary to bring such Premises into the condition required by Schedule COND to
the Lease. Landlord's work under this Section 5 shall be accomplished in a
timely manner in phases on a floor-by-floor basis on a schedule to be determined
in consultation with, and as reasonably approved by, Tenant. Each floor in
Space D in which Landlord shall perform work under this Section 5 shall remain
part of the Premises during such work, and during such work all of Tenant's
obligations under the Lease with respect to each such floor shall remain in full
force and effect, including any obligation to pay rent and additional rent
therefor.
6. In order to defray certain of Landlord's costs incurred in constructing
improvements to the main lobby of the Building and the Building plaza, Tenant
shall pay on the first day of each month, in addition to Tenant's monthly
payments on account of Base Rent, Operating Expenses and Impositions, an
additional monthly amount of rent equal to the monthly payment required to pay
in full, on a direct reduction basis over an amortization period equal to the
length of the "Repayment Period" (defined herein), an amount equal to Tenant's
Share (hereinafter defined) of the amount, if any, by which the "project cost"
(hereinafter defined) shall exceed $10,000,000, with interest at a rate equal to
the sum of one percent (1%) plus Tenant's Base Rate in effect on the date the
first portion of such excess shall have been expended by Landlord, in equal
monthly installments of principal and interest commencing on January 1, 1995 and
continuing through the expiration of the Space D Initial Term (the "Repayment
Period").
As used herein, "Tenant's Share" shall mean, with respect to the first
$700,000 of such excess, 50% and, with respect to the balance of such excess,
the share required to be paid by Tenant under the second paragraph of Section 2
of Article XVI of the Lease.
For the purpose hereof and for the purpose of Section 2 of Article XVI of
the Lease, "project cost" shall mean the sum of the fees and expenses of the
design architect and the consulting architect, engineering, project supervision
and similar soft costs (but expressly excluding costs of money), cost of permits
and other associated reasonable out-of-pocket costs and the "hard" costs payable
to the approved contractor for the work to be done pursuant to
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Schedule RENOV of the Lease, but exclusive of the cost of any related asbestos
abatement, installation of sprinkler and life safety systems and modifications
required by the Americans with Disabilities Act.
The payment obligations of Tenant under the second paragraph of Section 2
of such Article XVI of the Lease shall be deemed modified by this Section 6.
7. The provisions of Section 3 of Article XVI which require Landlord to
make available to Tenant up to 168,000 square feet of temporary substitute space
in the Building shall cease to be of any further force or effect as of the date
hereof, subject to the following paragraph.
Solely for the purpose of the provisions of Section 3 of Article XVI which
require Landlord to reimburse Tenant for certain of Tenant's expenses in
temporarily relocating personnel to the Swing Space, each of Floors 20, 21, 22
and 23 shall be deemed to be Swing Space until such time as Tenant shall
construct improvements in such Floor (other than minor temporary improvements
for temporary occupancy).
8. Commencing on the date hereof, Tenant shall pay Base Rent for Floor 15
at the annual rate set forth in Schedule R of the Original Lease for Floor 15,
including the adjustments in such rate noted in Schedule R for the different
time periods during the lease term for Floor 15. Landlord acknowledges that
Tenant owes no Base Rent for Floor 15 for any period prior to April 1, 1994.
9. Tenant shall have no obligation to pay Base Rent for any of Floors 31,
32 and 34 for the period commencing on April 1, 1994 and ending on the day
before the date Base Rent for such floor shall commence as provided in Schedule
R-1 hereto.
Promptly after the execution of this Amendment of Lease, Landlord and
Tenant shall account to each other with respect to Base Rent for Floors 15, 31,
32 and 34, and Tenant shall pay any net amount due to Landlord or Landlord shall
refund any net amount due to Tenant.
10. Section 5 of Article XIV of the Lease is hereby amended by deleting
the chart appearing at the end of the second paragraph thereof (which sets forth
Space, Date of Availability and Option) and inserting the following in place
thereof:
Space Date of Availability
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26th and 27th floors On or about May 31, 2000 if the current tenant of
such space shall not exercise any option to extend
the term of its lease; or
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On or about May 31, 2005 if the current tenant of
such space shall extend the term of its lease for
one five year period but not for a second five
year period; or
On or about May 31, 2010 if the current tenant of
such space shall exercise its options to extend
the term of its lease for two periods of five
years.
30th floor On or about June 1, 1996 if the current tenant of
such space shall not exercise its option to extend
the term of its lease.
On or about June 1, 2001 if the current tenant of
such space shall exercise its option to extend the
term of its lease.
37th floor On or about November 1, 2003 if the current tenant
of such space shall not exercise its option to
extend the term of its lease; or
On or about November 1, 2008 if the current tenant
of such space shall exercise its option to extend
the term of its lease.
Section 5 of Article XIV of the Lease is hereby further amended as follows:
(a) By deleting the words "eighteen (18) months" appearing in the second
sentence of the third paragraph thereof and inserting "twelve (12) months"
in place thereof.
(b) By deleting the words "twelve months" appearing in the third sentence
of the third paragraph thereof and inserting "eleven (11) months" in place
thereof.
(c) By deleting the second sentence of the fourth paragraph thereof and
inserting the following in place thereof:
"The time period is thirty days after such notice from Landlord."
(d) By deleting the words "Option 1 space" and "sixty (60) days" appearing
in the fifth paragraph thereof and inserting in place thereof the words
"such space" and "thirty (30) days", respectively.
(e) By deleting the words "sixty (60) days" appearing in the sixth
paragraph thereof and inserting "thirty (30) days" in place thereof.
11. Article XIII of the Lease is hereby amended as follows:
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(a) In the first paragraph of Section 2, the words "either Space A or Space
B" are hereby deleted and the words "any of Space A, Space B or Space D"
substituted therefor.
(b) In Clause (b) of Section 2, (i) the words "either or both Space A or
Space B (whichever or both shall have been affected by such casualty)" are
hereby deleted and the words "any one or more or all of Space A, Space B
or Space D (whichever one or more or all shall have been affected by such
casualty)" substituted therefor and (ii) the words "for Space A or Space B
(whichever or both shall have been affected by such casualty)" are hereby
deleted and the words "for Space A, Space B or Space D (whichever one or
more or all shall have been affected by such casualty)" substituted
therefor.
(c) In Section 3, (i) the words "whether Space A or Space B (or both)" are
hereby deleted and the words "whether Space A, Space B or Space D (or any
one or more or all thereof)" substituted therefor and (ii) the words
"either Space A or Space B" are hereby deleted and the words "any of Space
A, Space B or Space D" substituted therefor.
12. During the period from the date hereof through December 31, 2000, the
restriction on rental and offering rates for sublettings by Tenant provided in
Article VIII of the Lease shall not be applicable to a total of any three floors
in Space D designated by Tenant. With respect to the remainder of Space D
(other than the three floors referred to in the preceding sentence) during the
period ending on December 31, 2000 and with respect to all of Space D
thereafter, the restriction on rental and offering rates for sublettings by
Tenant provided in Article VIII of the Lease shall not be applicable to Space D
when Landlord has no competing space (in terms of size) available in the
Building.
13. Tenant represents and warrants to Landlord that Tenant has dealt with
no broker, finder or other person claiming to be entitled to a commission in
connection with this Amendment of Lease other than U.S. Equities Realty, Inc.,
the compensation of which shall be paid by Tenant. Landlord represents to
Tenant that it has dealt with no broker, finder or other person claiming to be
entitled to a commission in connection with this Lease other than U.S. Equities
Realty, Inc.
14. Upon request, each of Landlord and Tenant shall execute and deliver an
amendment to the Notice of Lease previously executed in connection with the
Lease in order to reflect Tenant's leasing of additional space in the Building
under this Amendment of Lease.
15. Except as only expressly amended hereby, the Lease shall continue in
full force and effect.
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WITNESS the execution hereof as an instrument under seal as of the date
first above written.
LANDLORD:
EQUITABLE FEDERAL STREET REALTY
COMPANY LIMITED PARTNERSHIP
By: 000 Xxxxxxx Xxxxxx Realty Corporation, its
General Partner
By: /s/ XXXXXXXX X. XXXXXXX
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Its President
TENANT:
THE FIRST NATIONAL BANK OF BOSTON
By: /s/ XXXXXXXX X. XXXXX
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Its Director, Facilities
Hereunto duly authorized
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Schedule P-1
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Areas Included in Space D, Term and Rights
of Extension With Reference to Each Area
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Rentable Period of Options Term of Each
Floor Sq. Footage Term to Extend Option
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20 27,002 4/1/1994-12/31/2008 2 5 Years
21 27,002 4/1/1994-12/31/2008 2 5 Years
22 27,002 4/1/1994-12/31/2008 2 5 Years
23 27,002 4/1/1994-12/31/2008 2 5 Years
31 28,147 4/1/1994-12/31/2008 2 5 Years
32 28,147 4/1/1994-12/31/2008 2 5 Years
34 28,147 4/1/1994-12/31/2008 2 5 Years
