EXHIBIT 10.9
LEASE
000 Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx
ARTICLE 1
REFERENCE DATA
1.1 INTRODUCTION AND SUBJECTS REFERRED TO.
This is a lease (this "LEASE") entered into by and between ATC Realty,
Inc., a Delaware corporation ("LANDLORD") and Sonesta International Hotels
Corporation, a New York corporation ("TENANT").
Each reference in this Lease to any of the following terms or phrases shall
be construed to incorporate the corresponding definition stated in this
Section 1.1.
Date of
this Lease: March 18, 2002.
Building and
Property: That building in the City of Boston, bounded by
Xxxxxxxxxx Xxxxxx, Xxxxxxxx Xxxxxx, Xxxxxxxx Xxxxxx and
Public Alley #401 and known as 000 Xxxxxxxxxx Xxxxxx (the
"BUILDING"). The Building and the land parcels on which
it is located and the sidewalks adjacent thereto are
hereinafter collectively referred to as the "PROPERTY".
Premises: A portion of the ninth floor of the Building,
substantially as shown on Exhibit A hereto.
Premises
Rentable Area: 11,899 square feet, measured in accordance with BOMA
Standard Methods (1996).
Commencement
Date: April 1, 2002.
Original Term: Ten (10) years and one (1) month, expiring on May 31,
2012.
Annual
Fixed Rent: The sum of (i) for the period commencing on July 15, 2002
and expiring on the day preceding the second anniversary
of the Commencement Date, $345,071 ($29.00 per square
foot of Premises Rentable Area) per annum ($28,755.92 per
month); (ii) for the four years following the period
described in clause (i), $404,566 ($34.00 per square foot
of Premises Rentable Area) per
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annum ($33,713.83 per month); and (iii) for the remainder
of the Original Term, $452,162 ($38.00 per square foot of
Premises Rentable Area) per annum ($37,680.17 per month).
Base Taxes: The Taxes (as defined in Subsection 4.2.1) for the fiscal
year ending June 30, 2003, as the same may be reduced by
the amount of any abatement.
Base Operating
Costs: The Operating Costs (as defined in Subsection 4.2.2) for
the 2002 calendar year.
Tenant's
Percentage: four and seventy-eight hundredths percent (4.78%).
Permitted Uses: Executive, administrative, and general office purposes,
and for other lawful uses incidental thereto, subject to
the provisions of Subsection 6.1.2.
Security Deposit: See Subsection 4.7
Commercial
General Liability
Insurance Limits: $5,000,000 per occurrence (combined single limit) for
property damage, bodily and personal injury and death.
Original Address
of Landlord: 000 Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Landlord's Agent: Xxxxxxxx Company
00 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
ATTN: Property Manager 000 Xxxxxxxxxx Xxxxxx
or such other entity as shall be designated by Landlord from time to time.
Original Address
of Tenant: 000 Xxxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxx, XX 00000
ATTN: Office of the Treasurer
Address of Ground
Lessor: Massachusetts Turnpike Authority
00 Xxxx Xxxxx - Xxxxx 0000
Xxxxxx, XX 00000
ATTN: Legal Counsel
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Address of
Mortgagee: Xxxxxxxx Xxxxxxxx Xxxxxx, X.X.
0000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
ATTN: Xxxx Xxxx
1.2 Exhibits.
The Exhibits listed below in this section are incorporated in this Lease by
reference and are to be construed as a part of this Lease.
EXHIBIT A. Plan showing the Premises.
EXHIBIT B. Rules and Regulations.
EXHIBIT C. Alterations Requirements.
EXHIBIT D. Contractor's Insurance Requirements.
EXHIBIT E. Clerk's Certificate.
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TABLE OF CONTENTS
ARTICLE 1 Reference Data....................................................................188
1.1 Introduction and Subjects Referred To..............................................188
1.2 Exhibits...........................................................................190
ARTICLE 2 Premises and Term.................................................................193
2.1 Premises...........................................................................193
2.2 Term...............................................................................193
2.3 Extension Option...................................................................193
2.4 Measurement of the Premises........................................................195
ARTICLE 3 Commencement and Condition........................................................195
3.1 Commencement Date..................................................................195
3.2 Condition..........................................................................195
ARTICLE 4 Rent, Additional Rent, Insurance and Other Charges................................196
4.1 The Annual Fixed Rent..............................................................196
4.2 Additional Rent....................................................................196
4.2.1 Real Estate Taxes.........................................................196
4.2.2 Operating Costs...........................................................198
4.3 Personal Property and Sales Taxes..................................................200
4.4 Insurance..........................................................................200
4.5 Utilities..........................................................................202
4.6 Late Payment of Rent...............................................................202
4.7 Security Deposit...................................................................203
ARTICLE 5 Landlord's Covenants..............................................................203
5.1 Affirmative Covenants..............................................................203
5.1.1 Heat and Air-Conditioning.................................................203
5.1.2 Cleaning; Water...........................................................204
5.1.3 Elevator, Lighting and Electricity........................................204
5.1.4 Repairs...................................................................204
5.1.5 Insurance.................................................................204
5.2 Interruption.......................................................................204
5.3 Outside Services...................................................................205
5.4 Access to Building.................................................................205
5.5 Parking............................................................................205
ARTICLE 6 Tenant's Additional Covenants.....................................................206
6.1 Affirmative Covenants..............................................................206
6.1.1 Perform Obligations.......................................................206
6.1.2 Use.......................................................................206
6.1.3 Repair and Maintenance....................................................206
6.1.4 Compliance with Law.......................................................207
6.1.5 Indemnification...........................................................207
6.1.6 Landlord's Right to Enter.................................................207
6.1.7 Personal Property at Tenant's Risk........................................207
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6.1.8 Payment of Landlord's Cost of Enforcement.................................208
6.1.9 Yield Up..................................................................208
6.1.10 Rules and Regulations....................................................208
6.1.11 Estoppel Certificate.....................................................208
6.1.12 Landlord's Expenses For Consents.........................................209
6.1.13 Financial Information....................................................209
6.1.14 Ground Lease; Traffic Mitigation.........................................209
6.2 Negative Covenants.................................................................209
6.2.1 Assignment and Subletting.................................................209
6.2.2 Nuisance..................................................................212
6.2.3 Floor Load; Heavy Equipment...............................................213
6.2.4 Electricity...............................................................213
6.2.5 Installation, Alterations or Additions....................................213
6.2.6 Abandonment...............................................................214
6.2.7 Signs.....................................................................214
6.2.8 Oil and Hazardous Materials...............................................214
ARTICLE 7 Casualty or Taking................................................................216
7.1 Termination........................................................................216
7.2 Restoration........................................................................216
7.3 Award..............................................................................216
7.4 Effect of Casualty or Taking on the Tax Excess and the Operating Cost Excess.......216
ARTICLE 8 Defaults..........................................................................217
8.1 Default of Tenant..................................................................217
8.2 Remedies...........................................................................218
8.3 Remedies Cumulative................................................................219
8.4 Landlord's Right to Cure Defaults..................................................219
8.5 Holding Over.......................................................................220
8.6 Effect of Waivers of Default.......................................................220
8.7 No Waiver, etc.....................................................................220
8.8 No Accord and Satisfaction.........................................................220
8.9 Landlord's Lien....................................................................220
ARTICLE 9 Rights of Holders.................................................................221
9.1 Rights of Mortgagees or Ground Lessor..............................................221
9.2 Modifications......................................................................222
ARTICLE 10 Miscellaneous Provisions.........................................................222
10.1 Notices...........................................................................222
10.2 Quiet Enjoyment; Landlord's Right to Make Alterations, Etc........................222
10.3 Lease not to be Recorded; Confidentiality of Lease Terms..........................223
10.4 Assignment of Rents and Transfer of Title; Limitation of Landlord's Liability.....223
10.5 Landlord's Default................................................................224
10.6 Notice to Mortgagee and Ground Lessor.............................................225
10.7 Brokerage.........................................................................226
10.8 Applicable Law and Construction...................................................226
10.9 Expansion Option...................................................................38
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ARTICLE 2
PREMISES AND TERM
2.1 PREMISES. Landlord hereby leases to Tenant and Tenant hereby leases
from Landlord, subject to and with the benefit of the terms, covenants,
conditions and provisions of this Lease, the Premises, excluding exterior faces
of exterior walls, the common lobbies, hallways, stairways, stairwells, elevator
shafts and other common areas, and the escalators, elevators, pipes, ducts,
conduits, wires and appurtenant fixtures and other common facilities serving the
common areas, the Premises and the premises of other tenants in the Building.
Tenant shall have, as appurtenant to the Premises, rights to use, in common
with others, subject to reasonable rules of general applicability to tenants of
the Building from time to time made by Landlord of which Tenant is given notice:
(a) the common lobbies, hallways and stairways of the Building, (b) the common
escalators, elevators, pipes, ducts, conduits, wires and appurtenant fixtures
and other common facilities serving the Premises, (c) common walkways and
driveways (if any) necessary for access to the Building, (d) the cafeteria
located on the Penthouse floor of the Building, and (e) if the Premises include
less than all of the rentable area of any floor of the Building, the common
toilets and other common facilities located on such floor.
2.2 TERM. The term of this Lease shall be for a period beginning on the
Commencement Date (as defined in Section 3.1) and continuing for the Original
Term and any extension of the term hereof in accordance with the provision of
this Lease, unless sooner terminated as hereinafter provided. When the dates of
the beginning and end of the Original Term have been determined such dates shall
be evidenced by a document executed by Landlord and Tenant and delivered each to
the other, but the failure of Landlord and Tenant to execute or deliver such
document shall have no effect upon such dates. The Original Term and any
extension of the term hereof in accordance with the provisions of this Lease are
hereinafter referred to as the "TERM" of this Lease.
2.3 EXTENSION OPTION. So long as this Lease is still in full force and
effect, and the named Tenant as set forth in Section 1.1 (or any successor by
merger, or any Affiliate) shall actually occupy the entire Premises, Tenant
shall have the right to extend the term of this Lease for one (1) additional
period (the "EXTENDED TERM") of five (5) years. The Extended Term shall commence
on the day succeeding the expiration of the Original Term and shall end on the
day immediately preceding the fifth anniversary of the commencement of the
Extended Term. All of the terms, covenants and provisions of this Lease
applicable immediately prior to the expiration of the Original Term shall apply
to the Extended Term except that the Annual Fixed Rent for such Extended Term
shall be the Market Rate (as hereinafter defined) for the Premises determined as
of the commencement of such Extended Term, as designated by Landlord by notice
to Tenant ("LANDLORD'S NOTICE"), but subject to Tenant's right to dispute as
hereinafter provided; and (ii) Tenant shall have no further right to extend the
term of this Lease beyond the Extended Term hereinabove provided. Upon request
by Tenant no sooner than ten (10) months prior to the expiration of the Original
Term, Landlord shall, within ten (10) business days following the request,
provide Tenant with the Market Rate for such Extended Term. If Tenant shall
elect to exercise the aforesaid option, it shall do so by giving Landlord notice
of its election
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not later than nine (9) months prior to the expiration of the Original Term. If
Tenant fails to give such notice to Landlord, the term of this Lease shall
automatically terminate no later than the end of the Original Term, and Tenant
shall have no further option to extend the term of this Lease, it being agreed
that time is of the essence with respect to the giving of any such notice. If
Tenant shall extend the term hereof pursuant to the provisions of this Section
2.3, such extension shall be automatically effected without the execution of any
additional documents, but Tenant shall, at Landlord's request, execute an
agreement confirming the Annual Fixed Rent for the applicable Extended Term.
"MARKET RATE" shall mean the then annual rental rate and terms for the
Premises for the applicable period (determined as set forth below). If Tenant
disagrees with Landlord's designation of the Market Rate, and the parties cannot
agree upon the Market Rate by the date that is thirty (30) days following
Landlord's Notice, then the Market Rate shall be submitted to appraisal as
follows: Within fifteen (15) days after the expiration of such thirty (30) day
period, Landlord and Tenant shall each give notice to the other specifying the
name and address of the appraiser each has chosen. The two appraisers so chosen
shall meet within ten (10) days after the second appraiser is appointed and if,
within twenty (20) days after the second appraiser is appointed, the two
appraisers shall not agree upon a determination of the Market Rate in accordance
with the following provisions of this Section 2.3 they shall together appoint a
third appraiser. If only one appraiser shall be chosen whose name and address
shall have been given to the other party within such fifteen (15) day period and
who shall have the qualifications hereinafter set forth, that sole appraiser
shall render the decision which would otherwise have been made as hereinabove
provided.
If said two appraisers cannot agree upon the appointment of a third
appraiser within ten (10) days after the expiration of such twenty (20) day
period, then either party, on behalf of both and on notice to the other, may
request such appointment by the then President of the Greater Boston Real Estate
Board (or any similar or successor organization) in accordance with its then
prevailing rules. If said President shall fail to appoint said third appraiser
within ten (10) days after such request is made, then either party, on behalf of
both and on notice to the other, may request such appointment by the American
Arbitration Association (or any successor organization) in accordance with its
then prevailing rules. In the event that all three appraisers cannot agree upon
such Market Rate within ten (10) days after the third appraiser shall have been
selected, then each appraiser shall submit his or her designation of such Market
Rate to the other two appraisers in writing; and Market Rate shall be determined
by calculating the average of the two numerically closest (or, if the values are
equidistant, all three) values so determined.
Each of the appraisers selected as herein provided shall have at least ten
(10) years experience as a commercial real estate broker in the financial
district and the Back Bay areas of Boston dealing with properties of the same
type and quality as the Building. Each party shall pay the fees and expenses of
the appraiser it has selected and the fees of its own counsel. Each party shall
pay one half (1/2) of the fees and expenses of the third appraiser (or the sole
appraiser, if applicable) and all other expenses of the appraisal. The decision
and award of the appraiser(s) shall be in writing and shall be final and
conclusive on all parties, and counterpart copies thereof shall be delivered to
both Landlord and Tenant. Judgment upon the award of the appraiser(s) may be
entered in any court of competent jurisdiction.
Both appraisers or a majority of them (or the sole appraiser, if
applicable) shall determine the Market Rate of the Premises for the applicable
period as of the commencement of the
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applicable Extended Term and render a decision and award as to their
determination to both Landlord and Tenant (a) within twenty (20) days after the
appointment of the second appraiser, (b) within twenty (20) days after the
appointment of the third appraiser or (c) within fifteen (15) days after the
appointment of the sole appraiser, as the case may be. In rendering such
decision and award, the appraiser(s) shall assume (i) that the Premises are
available in the then rental market, (ii) that Landlord has had a reasonable
time to locate a tenant, (iii) that neither Landlord nor the prospective tenant
is under a compulsion to rent, (iv) that Landlord and Tenant are typically
motivated, well-informed and well-advised, and each is acting in what it
considers its own best interest, (v) the Premises (w) are fit for immediate
occupancy and use "as is", (x) require no additional work by Landlord or Tenant,
(y) are appropriate and desired for immediate occupancy by Tenant, and (z)
contain no work that has been carried out thereon by Tenant, its subtenant(s),
or its or their successors-in-interest during the Term of this Lease which has
diminished the rental value of the Premises, and (vi) that in the event the
Premises are destroyed or damaged by fire or other casualty prior to the
commencement of the applicable Extended Term, they have been fully restored. The
appraisers shall also take into consideration any increases or possible
increases in rent then being included in leases for comparable space in the
Building or in comparable buildings based on changes in price indices, cost of
living or other similar increases, or periodic market rental adjustments. In
rendering such decision and award, the appraiser(s) shall consider the market
fixed annual rents then being charged for comparable space in comparable
buildings in the Back Bay area of Boston, but shall not modify the provisions of
this Lease.
If the dispute between the parties as to the Market Rate has not been
resolved before the commencement of Tenant's obligation to pay the Annual Fixed
Rent based upon determination of such Market Rate, then Tenant shall pay the
Annual Fixed Rent under the Lease based upon the Market Rate designated by
Landlord in Landlord's Notice until either the agreement of the parties as to
the Market Rate, or the decision of the appraiser(s), as the case may be, at
which time Tenant shall pay any underpayment of the Annual Fixed Rent to
Landlord, or Landlord shall refund any overpayment of the Annual Fixed Rent to
Tenant.
Landlord and Tenant hereby waive the right to an evidentiary hearing before
the appraiser(s) and agree that the appraisal shall not be an arbitration nor be
subject to state or federal law relating to arbitrations.
2.4 MEASUREMENT OF THE PREMISES. Landlord and Tenant agree that the
Premises Rentable Area identified in Section 1.1 is recited for Landlord's
administrative purposes only and that, although the Annual Fixed Rent has been
determined by reference to such square footage (regardless of the possibility
that the actual measurement of the Premises may be more or less than the number
identified, irrespective of measurement method used), Annual Fixed Rent and
Tenant's Percentage shall not be changed except as expressly provided in this
Lease.
ARTICLE 3
COMMENCEMENT AND CONDITION
3.1 COMMENCEMENT DATE. The Commencement Date shall be April 1, 2002.
3.2 CONDITION. Landlord shall deliver possession of the Premises to
Tenant for early occupancy on the Commencement Date in its then as in condition;
and for physical occupancy
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(i.e., the opening by Tenant of its business) in its then as is condition, but
free of any personal property not belonging to Tenant and broom clean, on or
before May 1, 2002. Within thirty (30) days after proof of payment has been
provided to Landlord, Landlord shall pay up to two thousand and 00/100's dollars
($2000) for reasonable architectural and engineering fees incurred by Tenant
regarding the Premises. Tenant acknowledges that it has inspected the Premises
(including the HVAC equipment providing service to the Premises) and the
Property and has found the same in satisfactory condition.
ARTICLE 4
RENT, ADDITIONAL RENT, INSURANCE AND OTHER CHARGES
4.1 THE ANNUAL FIXED RENT. Tenant agrees to pay to Landlord's Agent, or
as otherwise directed by Landlord, commencing on the Commencement Date, without
offset, abatement (except as provided in Article 7), deduction or demand, the
Annual Fixed Rent. Annual Fixed Rent shall be payable in equal monthly
installments, in advance, on the first day of each and every calendar month
during the term of this Lease, at the Original Address of Landlord, or at such
other place as Landlord shall from time to time designate by notice, by check
drawn on a domestic bank.
Annual Fixed Rent for any partial month shall be prorated on a daily basis,
and if Annual Fixed Rent commences on a day other than the first day of a
calendar month, the first payment which Tenant shall make to Landlord shall be
payable on the date Annual Fixed Rent commences and shall be equal to a
proportionate part of the monthly installment of Annual Fixed Rent for the
partial month in which Annual Fixed Rent commences plus the installment of
Annual Fixed Rent for the succeeding calendar month.
4.2 ADDITIONAL RENT. Tenant covenants and agrees to pay Tenant's
Percentage of Taxes and Operating Costs as provided in Sections 4.2.1 and 4.2.2,
and all other charges and amounts payable by or due from Tenant to Landlord (all
such amounts referred to in this sentence being "ADDITIONAL RENT").
4.2.1 REAL ESTATE TAXES. If Taxes (as hereinafter defined)
assessed against the Property (or estimated to be due by governmental authority)
for any fiscal tax period (a "TAX YEAR") during the term of this Lease shall
exceed Base Taxes, whether due to increase in rate or reassessment of the
Property, or both, Tenant shall reimburse Landlord therefor, as Additional Rent,
in an amount equal to Tenant's Percentage of any such excess (the "TAX EXCESS").
Except as otherwise provided in the immediately following paragraph, Tenant
shall pay the Tax Excess to Landlord at least thirty (30) days prior to the date
or dates within any year during the term hereof that the same, or any fractional
share thereof, shall be due and payable to any governmental authority
responsible for collection of same (as stated in a notice to Tenant given at
least twenty (20) days prior to the date or dates any such payment shall be due,
which notice shall set forth the manner of computation of any Tax Excess due
from Tenant), except that such payment shall be made to Landlord not later than
thirty (30) days after such notice to Tenant, if such notice is given subsequent
to the date twenty days prior to the date the same is due and payable as
aforesaid.
At Landlord's election, Tenant shall pay to Landlord, as Additional Rent on
the first day of each calendar month during the term but otherwise in the manner
provided for the payment of
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Annual Fixed Rent, estimated payments on account of the Tax Excess, such monthly
amounts to be sufficient to provide Landlord by the time Tax payments are due or
are to be made by Landlord a sum equal to the Tax Excess, as reasonably
estimated by Landlord from time to time on account of Taxes for the then current
Tax Year. If the total of such monthly remittances for any Tax Year is greater
than the Tax Excess for such Tax Year, Landlord shall credit such overpayment
against Tenant's subsequent obligations on account of Taxes (or, within thirty
(30) days, refund such overpayment if the term of this Lease has ended and
Tenant has no further obligations to Landlord); if the total of such remittances
is less than the Tax Excess for such Tax Year, Tenant shall pay the difference
to Landlord within thirty (30) days after being so notified by Landlord.
If, after Tenant shall have made all payments due to Landlord pursuant to
this subsection 4.2.1, Landlord shall receive a refund of any portion of Taxes
as a result of an abatement of such Taxes by legal proceedings, settlement or
otherwise (without either party having any obligation to undertake any such
proceedings and notwithstanding the prior termination of the Lease), Landlord
shall pay or credit to Tenant Tenant's Percentage of that percentage of the
refund (after first deducting any expenses, including attorneys', consultants',
and appraisers' fees, incurred in connection with obtaining any such refund)
which equals the percentage of the applicable Tax Year included in the term
hereof, provided however, in no event shall Tenant be entitled to receive more
than the sum of payments actually made by Tenant on account of Taxes with
respect to such Tax Year or to receive any payment if Taxes for any Tax Year are
less than Base Taxes.
In the event that the Commencement Date shall occur or the term of this
Lease shall expire or be terminated during any Tax Year, or should the Tax Year
or period of assessment of real estate taxes be changed or be more or less than
one (1) year, or should Tenant's Percentage be modified during any Tax Year due
to a change in the rentable area of the Building and/or the Premises or
otherwise, as the case may be, then the amount of Tax Excess which may be
otherwise payable by Tenant as provided in this subsection 4.2.1 shall be
appropriately apportioned and adjusted.
"TAXES" shall mean all taxes, assessments, excises and other charges and
impositions which are general or special, ordinary or extraordinary, foreseen or
unforeseen, of any kind or nature which are levied, assessed or imposed at any
time during the term by any governmental authority upon, against or with respect
to the Property (or Landlord's interest therein), Landlord or the owner or
lessee of personal property used by or on behalf of Landlord, or taxes in lieu
of any of the foregoing, and additional types of taxes to supplement real estate
taxes due to legal limits imposed thereon. If, at any time during the term of
this Lease, any tax or excise on rents or other taxes, however described, are
levied or assessed against Landlord with respect to the rent reserved hereunder,
either wholly or partially in substitution for, or in addition to, real estate
taxes assessed or levied on the Property, such tax or excise on rents shall be
included in Taxes; however, Taxes shall not include franchise, estate,
inheritance, succession, capital levy, income or excess profits taxes assessed
on Landlord. Taxes also shall include all court costs, attorneys', consultants',
and accountants' fees, and other expenses incurred by Landlord contesting Taxes
through and including all appeals. Taxes shall include any estimated payment
made by Landlord on account of a fiscal tax period for which the actual and
final amount of taxes for such period has not been determined by the
governmental authority as of the date of any such estimated payment.
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4.2.2 OPERATING COSTS. If, during the term hereof, Operating Costs
(as hereinafter defined) paid or incurred by Landlord in any twelve-month period
established by Landlord (an "OPERATING YEAR") shall exceed Base Operating Costs,
Tenant shall reimburse Landlord for the Tenant's Percentage of any such excess
(such amount being hereinafter referred to as the "OPERATING COST EXCESS").
Except as otherwise provided in the immediately following paragraph Tenant shall
pay the Operating Cost Excess to Landlord within twenty (20) days from the date
Landlord shall furnish to Tenant an itemized statement thereof, prepared,
allocated and computed in accordance with then prevailing customs and practices
of the real estate industry in the greater Boston area, consistently applied.
Any year-end statement by Landlord relating to Operating Costs (other than an
invoice for a monthly estimate) shall be final and binding upon Landlord and
Tenant unless either party within thirty (30) days after Tenant's receipt
thereof, shall contest any items therein by giving notice to the other
specifying each items contested and the reasons therefor.
At the election of Landlord, Tenant shall pay to Landlord, as Additional
Rent on the first day of each calendar month during the term but otherwise in
the manner provided for the payment of Annual Fixed Rent, estimated payments on
account of Operating Cost Excess, such monthly amounts to be sufficient to
provide to Landlord, by the end of each Operating Year, a sum equal to the
Operating Cost Excess for such Operating Year, as estimated by Landlord from
time to time during such Operating Year. If, at the expiration of each Operating
Year in respect of which monthly installments of Operating Cost Excess shall
have been made as aforesaid, the total of such monthly remittances is greater
than the Operating Cost Excess for such Operating Year, Landlord shall credit
such overpayment against Tenant's subsequent obligations on account of Operating
Costs (or, within thirty (30) days, refund such overpayment if the term of this
Lease has ended and Tenant has no further obligation to Landlord); if the total
of such remittances is less than the Operating Cost Excess for such Operating
Year, Tenant shall pay the difference to Landlord within thirty (30) days after
being so notified by Landlord. In no event shall Tenant be entitled to receive
any reimbursement or credit if Operating Costs for any Operating Year are less
than Base Operating Costs.
In the event that the Commencement Date shall occur or the term of this
Lease shall expire or be terminated during any Operating Year or Tenant's
Percentage shall be modified during any Operating Year due to a change in the
rentable area of the Building and/or the Premises or otherwise, as the case may
be, then the amount of Operating Cost Excess which may be payable by Tenant as
provided in this subsection 4.2.2 shall be appropriately apportioned and
adjusted.
"OPERATING COSTS" shall include, without limitation, all costs and expenses
paid or incurred for the operation, cleaning, management, maintenance, repair,
upkeep and security of the Property, including, without limitation:
(a) all salaries, wages, fringe benefits, payroll taxes and
workmen's compensation insurance premiums related thereto and all other costs
paid or incurred with respect to employment of personnel engaged in operation,
administration, cleaning, maintenance, repair, upkeep and security of the
Property including, without limitation, supervisors, property managers,
accountants, bookkeepers, janitors, carpenters, engineers, mechanics,
electricians and plumbers;
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(b) all utilities and other costs related to provision of heat
(including oil, steam and/or gas), electricity, air conditioning, and water
(including sewer charges) and other utilities to the Property (exclusive of
reimbursement to Landlord for any of same received as a result of direct billing
to any tenant of the Building);
(c) all costs, including supplies, material and equipment costs,
for cleaning and janitorial services to the Property, the Building and, if
applicable, adjacent walks and ways (including, without limitation, trash
removal and interior and exterior window cleaning), and interior and exterior
landscaping and pest control;
(d) the cost of replacements for tools and other similar
equipment used in the repair, maintenance, cleaning and protection of the
Property, provided that, in the case of any such equipment used jointly on other
property of Landlord, such costs shall be suitably prorated among the Property
and such other properties;
(e) all costs and premiums for fire, casualty, rental income,
liability and such other insurance as may be maintained from time to time by
Landlord relating to the Property and premiums for fidelity bonds covering
persons having custody or control over funds or other property of Landlord
relating to the Property;
(f) all costs of maintaining, repairing, decorating, operating,
administering, inspecting and protecting the Property (including, without
limitation, lighting, installation, maintenance, repair and alteration of signs,
snow removal on the Property and adjacent walks and ways, paving, patching and
restriping of parking areas and operation, maintenance, and repair of heating,
ventilating and air conditioning equipment, fire protection and security
systems, elevators, roofs, parking areas and any other common Building
equipment, systems or facilities), all costs of structural and other repairs and
replacements that in Landlord's reasonable judgment will reduce other operating
costs or increase energy efficiency (other than repairs for which Landlord has
received full reimbursement from contractors, other tenants of the Building or
from others) necessary to keep the Property in good working order, repair,
appearance and condition;
(g) costs of compliance with any laws, rules, regulations,
ordinances, agreements or standards applicable to the Building or the Property,
which conformance is not the responsibility of any tenant of the Building, and
which Landlord elects or is required to perform, and costs of removal or
remediation of any Hazardous Materials in the Building or Property, which is not
the responsibility of any tenant of the Building, and which Landlord elects to
perform; provided, that as of the Date of this Lease, to the best of its
knowledge Landlord knows of no Hazardous Materials in the Building or Property;
(h) all costs incurred in connection with the administration and
supervision of all matters referred to in items (a) through (g) hereof and in
performing Landlord's obligations under Article 5, including Landlord's office
overhead costs provided that, if any such administrative or supervisory
personnel are also employed on other property of Landlord, such cost of
compensation shall be suitably prorated among the Property and such other
properties;
(i) payments under all service contracts relating to matters
referred to in Items (a) through (h) hereof;
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(j) a management fee of up to five percent (5%) of gross rents
payable by tenants of the Property; and
(k) attorney's fees and disbursements (exclusive of any such
fees and disbursements incurred in tax abatement proceedings or in the
preparation of leases) and auditing and other professional fees and expenses
that pertain to the Building.
If, during the term of this Lease, Landlord shall make any capital
expenditure that in Landlord's reasonable judgment will reduce other operating
costs or increase energy efficiency, the total cost of which is not included in
Operating Costs for the Operating Year in which it was made, Landlord may
include in Operating Costs for such Operating Year in which such expenditure was
made and in Operating Costs for each succeeding Operating Year an annual
charge-off of such capital expenditure. Annual charge-offs shall be determined
by dividing the original capital expenditure plus an interest factor, reasonably
determined by Landlord as being the interest rate then being charged for
long-term mortgages by institutional lenders on like properties within the
locality in which the Building is located, by the number of years of useful life
of the improvement, repair, alteration or replacement made with the capital
expenditure; and the useful life shall be determined reasonably by Landlord in
accordance with then prevailing customs and practices of the real estate
industry in the greater Boston area, consistently applied.
In addition, if during any portion of any Operating Year for which
Operating Costs are being computed, less than ninety five percent (95%) (but not
less than eighty percent (80%)) of the rentable area of the Building was leased
to tenants or if Landlord is supplying less than ninety five percent (95%) (but
not less than eighty percent (80%)) of the rentable area of the Building with
the services and utilities being supplied hereunder, actual Operating Costs
incurred shall be reasonably projected by Landlord on an item-by-item basis to
the estimated Operating Costs that would have been incurred if ninety five
percent (95%) of the Building were occupied for such Operating Year and such
services and utilities were being supplied to ninety five percent (95%) of the
rentable area of the Building, and such projected amount shall, for the purposes
hereof, be deemed to be the Operating Costs for such Operating Year. If during
any portion of any Operating Year for which Operating Costs are being computed,
less than eighty percent (80%) of the rentable area of the Building was leased
to tenants or if Landlord is supplying less than eighty percent (80%) of the
rentable area of the Building with the services and utilities being supplied
hereunder, Landlord and Tenant shall negotiate a reduced amount for Operating
Costs.
4.3 PERSONAL PROPERTY AND SALES TAXES. Tenant shall pay all taxes
charged, assessed or imposed upon the personal property of Tenant and all taxes
on the sales of inventory, merchandise and any other goods by Tenant in or upon
the Premises.
4.4 INSURANCE. Tenant shall, at its expense, take out and maintain,
throughout the term of this Lease, the following insurance:
4.4.1 Commercial general liability insurance (on an occurrence
basis, including without limitation, broad form contractual liability, bodily
injury, property damage, fire legal liability, and products and completed
operations coverage) under which Tenant is named as an insured and Landlord and
Landlord's Agent (and the holder of any mortgage on the Premises or Property, as
set out in a notice from time to time) are named (on a 1993 ISO CGL Form or its
equivalent) as additional insureds as their interests may appear, in an amount
which shall, at the
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beginning of the term, be at least equal to the Commercial General Liability
Insurance Limits, and, which, from time to time during the term, shall be for
such higher limits, if any, as Landlord shall determine to be customarily
carried in the area in which the Premises are located at property comparable to
the Premises and used for similar purposes;
Worker's compensation insurance with statutory limits covering all of
Tenant's employees working on the Premises; and
So-called special form property insurance on a "replacement cost" basis
with an agreed value endorsement covering all furniture, furnishings, fixtures
and equipment and other personal property brought to the Premises by Tenant and
all improvements and betterments to the Premises performed at Tenant's expense.
4.4.2 All such policies shall contain a clause confirming that
such policy and the coverage evidenced thereby shall be primary with respect to
any insurance policies carried by Landlord and shall be obtained from
responsible companies qualified to do business and in good standing in the state
or district in which the Property is located, which companies shall have a
general policy holder's rating in Best's of at least A or otherwise be
acceptable to Landlord. A copy of each paid-up policy evidencing such insurance
(appropriately authenticated by the insurer) or a certificate (on XXXXX Form 27
or its equivalent) of the insurer, certifying that such policy has been issued
and paid in full, providing the coverage required by this Section and containing
provisions specified herein, shall be delivered to Landlord prior to the
commencement of the term of this Lease and, upon renewals, not less than thirty
(30) days prior to the expiration of such coverage. Each such policy shall be
non-cancelable and not materially changed with respect to the interest of
Landlord and such mortgagees of the Property (and others that are in privity of
estate with Landlord of which Landlord provides notice to Tenant from time to
time) without at least thirty (30) days' prior written notice thereto. Any
insurance required of Tenant under this Lease may be furnished by Tenant under a
blanket policy carried by it provided that such blanket policy shall reference
the Premises, and shall guarantee a minimum limit available for the Premises
equal to the insurance amounts required in this Lease. Landlord may, at any
time, and from time to time, inspect and/or copy any and all insurance policies
required to be procured by Tenant hereunder.
4.4.3 Tenant shall endeavor to secure an appropriate clause in, or
an endorsement upon, each property damage insurance policy obtained by it and
covering the Premises or the personal property, fixtures and equipment located
therein or thereon, pursuant to which the insurance company waives subrogation
and permits the insured, prior to any loss, to agree with a third party to waive
any claim it might have against said third party. The waiver of subrogation or
permission for waiver of any claim hereinbefore referred to shall extend to the
agents of each party and its employees and, in the case of Tenant, shall also
extend to all other persons and entities occupying or using the Premises by,
through or under Tenant. If and to the extent that such waiver or permission can
be obtained only upon payment of an additional charge then the party benefiting
from the waiver or permission shall pay such charge upon demand, or shall be
deemed to have agreed that the party obtaining the insurance coverage in
question shall be free of any further obligations under the provisions hereof
relating to such waiver or permission from such insurance companies.
Subject to the foregoing provisions of this Subsection 4.4.3, and insofar
as may be permitted by the terms of the insurance policies carried by it, each
party hereby releases the other
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with respect to any claim which it might otherwise have against the other party
for loss, damage or destruction of or to its property to the extent such damage
is or would be covered by policies of insurance required by this Lease to be
carried by the respective parties hereunder. In addition, Tenant agrees to
exhaust any and all claims against its insurer(s) prior to commencing an action
against Landlord for any property loss; provided that Tenant shall be under no
obligation to commence legal action against any of its insurers to satisfy the
terms of this Subsection 4.4.3.
4.5 UTILITIES. Tenant shall pay all charges for electricity, telephone
and other utilities or services not supplied by Landlord pursuant to Subsections
5.1.1 and 5.1.2, whether designated as a charge, tax, assessment, fee or
otherwise, all such charges to be paid as the same from time to time become due.
Except as otherwise provided in this Subsection 4.5 or in Article 5, it is
understood and agreed that Tenant shall make its own arrangements for the
installation or provision of all utilities and services and that Landlord shall
be under no obligation to furnish any utilities to the Premises.
Tenant acknowledges that Annual Fixed Rent does not include the cost of
supplying electricity to the Premises, which shall be separately metered and
billed directly to Tenant. Landlord shall, at Landlord's expense, be responsible
for the cost of installing, operating, maintaining, and repairing any meter or
other devise used to measure Tenant's electrical consumption.
Landlord shall have the right at any time, and from time to time during the
term of this Lease, to contract for electric services from the company of
Landlord's choice, whether the company is the provider currently providing
electric service to the Property ("CURRENT PROVIDER") or a different company or
companies ("ALTERNATE PROVIDER"). Tenant shall cooperate with Landlord and
Current Provider or Alternate Provider at all times, and, as reasonably
necessary, shall allow Landlord and Current Provider or Alternate Provider
reasonable access to the electric lines, feeders, risers, wiring, and any other
equipment within the Premises. Landlord shall in no way be liable or responsible
for any loss, damage or expense that Tenant may sustain or incur by reason of
any change, failure, interference, disruption, or defect in the supply or
character of the electric energy furnished to the Premises, or if the quantity
or character of the electric energy supplied by the Current Provider or any
Alternate Provider is no longer available or suitable for Tenant's requirements,
and no such change, failure, defect, unavailability, or unsuitability shall
constitute an actual or constructive eviction, in whole or in part, or entitle
Tenant to any abatement or diminution of rent, or relieve Tenant from any of its
obligations under the Lease.
4.6 LATE PAYMENT OF RENT. If any installment of Annual Fixed Rent or
Additional Rent is not paid on or before the date the same is due, it shall bear
interest (as Additional Rent) from the date due until the date paid at the
Default Rate (as defined in Section 8.4). In addition, if any installment of
Annual Fixed Rent or Additional Rent is unpaid for more than five (5) business
days after the date due, Tenant shall pay to Landlord a late charge equal to one
and one-half percent (1.5%) of the delinquent amount. The parties agree that the
amount of such late charge represents a reasonable estimate of the cost and
expense that would be incurred by Landlord in processing and administration of
each delinquent payment by Tenant, but the payment of such late charges shall
not excuse or cure any default by Tenant under this Lease. Absent specific
provision to the contrary, all Additional Rent shall be due and payable in full
ten (10) days after demand by Landlord.
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4.7 SECURITY DEPOSIT. If at any time during the Term of this Lease Tenant
shall default in payment of either the Annual Fixed Rent, Additional Rent or
other sums, Tenant shall deposit with Landlord a Security Deposit in an amount
equal to three (3) monthly installments of the then current Annual Fixed Rent
and Additional Rent. The Security Deposit shall be held by Landlord as security
for the faithful performance of all the terms of this Lease to be observed and
performed by Tenant. The Security Deposit shall not be mortgaged, assigned,
transferred or encumbered by Tenant and any such act on the part of Tenant shall
be without force and effect and shall not be binding upon Landlord.
If, after the Security Deposit has been deposited with Landlord, the Annual
Fixed Rent or Additional Rent payable hereunder shall be overdue and unpaid or
should Landlord make any payment on behalf of the Tenant, or Tenant shall fail
to perform any of the terms of this Lease, then Landlord may, at its option and
without notice or prejudice to any other remedy which Landlord may have on
account thereof, appropriate and apply the entire Security Deposit or so much
thereof as may be necessary to compensate Landlord toward the payment of Annual
Fixed Rent, Additional Rent or other sums or loss or damage sustained by
Landlord due to such breach by Tenant; and Tenant shall forthwith upon demand
restore the Security Deposit to the original sum deposited. So long as Tenant
shall not be in default of its obligations under this Lease, Landlord shall
return the Security Deposit, or so much thereof as shall have not theretofore
been applied in accordance with the terms of this Section 4.7, to Tenant
promptly following the expiration or earlier termination of the term of this
Lease and the surrender of possession of the Premises by Tenant to Landlord in
accordance with the terms of this Lease. While Landlord holds the Security
Deposit, Landlord shall have no obligation to pay interest on the same and shall
have the right to commingle the same with Landlord's other funds. If Landlord
conveys Landlord's interest under this Lease, the Security Deposit, or any part
thereof not previously applied, shall be turned over by Landlord to Landlord's
grantee, and Tenant shall look solely to such grantee for proper application of
the Security Deposit in accordance with the terms of this Section 4.7 and the
return thereof in accordance herewith. The holder of a mortgage on the Property
shall not be responsible to Tenant for the return or application of the Security
Deposit, whether or not it succeeds to the position of Landlord hereunder,
unless such holder actually receives the Security Deposit.
ARTICLE 5
LANDLORD'S COVENANTS
5.1 AFFIRMATIVE COVENANTS. Landlord shall, during the term of this Lease
provide the following:
5.1.1 HEAT AND AIR-CONDITIONING. Landlord shall provide heat,
ventilation, and air-conditioning services and cooling tower water for the
Premises during Normal Building Operating Hours as part of Operating Costs and
at Tenant's request provide heat, ventilation and air-conditioning services and
cooling tower water for the Premises at times other than Normal Building
Operating Hours at a fifty and 00/100's dollars ($50.00) per hour charge to
cover Landlord's costs (including administrative expense) of providing such
service. Pursuant to Section 6.1.3, Tenant shall maintain any heat, ventilation
and air-conditioning equipment serving the Premises that was installed by
Tenant, including routine servicing and making of any and all repairs.
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5.1.2 CLEANING; WATER. Landlord shall provide cleaning,
maintenance and landscaping to the common areas of the Building and Property
(including snow removal to the extent necessary to maintain reasonable access to
the Building) in accordance with standards generally prevailing throughout the
term hereof in comparable office buildings in the Back Bay area of Boston; and
furnish water for ordinary drinking, lavatory and toilet facilities (as opposed
to special laboratory or other uses in excess of general office uses).
If Tenant uses water for any purpose other than ordinary drinking, lavatory
and toilet purposes, Landlord may assess a reasonable charge for the additional
water so used, or install a water meter and thereby measure Tenant's water
consumption for all purposes. In the latter event, Tenant shall pay the cost of
the meter and the cost of installation thereof and shall keep such meter and
installation equipment in good working order and repair. Tenant agrees to pay
for water consumed, as shown on such meter, together with the sewer charge based
on such meter charges, as and when bills are rendered, and if Tenant shall fail
to make such payment, Landlord may pay such charges and collect the same from
Tenant as Additional Rent.
5.1.3 ELEVATOR, LIGHTING AND ELECTRICITY. Landlord shall furnish
non-exclusive passenger elevator service from the lobby to the Premises; provide
at Tenant's sole cost and expense non-exclusive freight elevator service
(subject to reasonable scheduling by Landlord); purchase and install, at
Tenant's expense, all lamps, tubes, bulbs, starters and ballasts for lighting
fixtures in the Premises; provide lighting to public and common areas of the
Property; and arrange for the supply of electrical power to the Premises to
accommodate a load not exceeding the limitations contained in Section 6.2.4.
5.1.4 REPAIRS. Except as otherwise expressly provided herein,
Landlord shall make such repairs and replacements to the roof, exterior walls,
floor slabs and other structural components of the Building, and to the common
areas and facilities of the Building (including any plumbing and electrical
equipment, elevators and any other common equipment or systems in the Building)
as may be necessary to keep them in good repair and condition (exclusive of
equipment installed by Tenant and except for those repairs required to be made
by Tenant pursuant to Subsection 6.1.3 hereof and repairs or replacements
occasioned by any act or negligence of Tenant, its servants, agents, customers,
contractors, employees, invitees, or licensees).
5.1.5 INSURANCE. Landlord shall take out and maintain throughout
the term of this Lease such insurance as shall be required by the Ground Lease
(as defined in Section 6.1.14) or the holder from time to time (if any) of any
Superior Mortgage (as defined in Article 9).
5.2 INTERRUPTION. Landlord shall be under no responsibility or liability
for failure, interruption or unavailability of any services, facilities,
utilities, repairs or replacements or inability to provide access or inability
to perform any other obligation under this Lease caused by breakage, accident,
fire, flood or other casualty, strikes or other labor trouble, order or
regulation of or by any governmental authority, inclement weather, repairs,
inability to obtain or shortages of supplies, labor or materials, war, civil
commotion or other emergency, transportation difficulties or due to any act or
neglect of Tenant or Tenant's servants, agents, employees or licensees or for
any other cause beyond the reasonable control of Landlord, and in no event for
any indirect or consequential damages to Tenant; and failure or omission on the
part of Landlord to furnish any of same for any of the reasons set forth in this
paragraph shall not be construed as an eviction of Tenant, actual or
constructive, nor entitle Tenant to an abatement of rent, nor
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render the Landlord liable in damages, nor release Tenant from prompt
fulfillment of any of its covenants under this Lease.
Landlord reserves the right temporarily (up to twenty-four (24) hours) to
stop the services of the HVAC, plumbing, electrical or other mechanical systems
or facilities in the Building when necessary from time to time by reason of
accident or emergency, or for repairs, alterations, replacements or improvements
which in the reasonable judgment of Landlord are desirable or necessary, until
such repairs, alterations, replacements or improvements shall have been
completed. Landlord shall use reasonable efforts to give to Tenant at least
three (3) days' notice if service is to be stopped, except in cases of
emergency.
5.3 OUTSIDE SERVICES. In the event Tenant wishes to obtain services or to
hire vendors relating to the Premises, Tenant shall first obtain the prior
approval of Landlord for the installation and/or utilization of such services or
vendors, which approval shall not be unreasonably withheld, conditioned or
delayed. ("OUTSIDE SERVICES" shall include, but shall not be limited to,
cleaning services, utility providers, security services, moving services,
equipment installers, catering services and the like). Notwithstanding any
Landlord approval of the installation and/or utilization of such services or
vendors, such installation and utilization shall be at Tenant's sole cost, risk
and expense.
5.4 ACCESS TO BUILDING. During Normal Building Operating Hours, the
Building shall, subject to the provisions of Section 5.2, be open and access to
the Premises shall be freely available, subject to the Rules and Regulations.
During periods other than Normal Building Operating Hours, Tenant shall have
access to the Premises, but such access shall also be subject to the Rules and
Regulations. Tenant acknowledges that Tenant is responsible for providing
security to the Premises following Tenant's entry onto the Premises for any
reason and for its own personnel whenever located therein. Subject to the
foregoing, Landlord shall, at all times, retain the right to control and prevent
such access by all persons whose presence, in the sole discretion of Landlord,
may jeopardize the safety, protection, character, reputation and interests of
the Building and its tenants or occupants. Landlord shall in no case be liable
for damages resulting from any error with regard to the admission or exclusion
of any person from the Building.
5.5 PARKING. During the term of this Lease, Landlord shall provide Tenant
with access to parking spaces at the Property as follows:
(a) Tenant shall be entitled to park three (3) cars in the
parking garage (the "PARKING FACILITY") of the Building.
(b) Tenant shall use its unreserved parking spaces in the
Parking Facility for the parking of passenger vehicles of Tenant only. No work,
including but not limited to repairs, window changing, cleaning, and waxing,
shall be performed on any vehicle while in the Parking Facility.
(c) Landlord reserves the right to implement and modify systems
to regulate access to and use of the Parking Facility, including, without
limitation, parking passes, parking stickers, and card key access, or any other
system reasonably designated by Landlord. Upon reasonable notice to Tenant,
Landlord further reserves the right to close the Parking Facility for
maintenance and special events parking.
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(d) Tenant acknowledges that Landlord is not required to provide
any security or security services for the Parking Facility. All of the vehicles,
the contents thereof, and any other items of whatever kind or nature placed by
Tenant in the Parking Facility shall be at the sole risk and hazard of the owner
thereof. If the whole or any part of such personal property shall be lost,
destroyed or damaged by fire, water (including, without limitation, leaks from
pipes, groundwater, or flooding from any other source) or other casualty, by
theft or from any other cause, no part of such loss or damage is to be charged
to or borne by Landlord unless the same is caused by the gross negligence or
willful misconduct of Landlord or Landlord's agents or employees. Tenant
acknowledges and agrees that it shall be solely responsible for insuring said
vehicles.
(e) Tenant hereby indemnifies and shall hold Landlord harmless
from and against all claims, loss, cost, or damage arising out of the use by
Tenant and its employees and invitees of the Parking Facility, except to the
extent caused by the gross negligence or willful misconduct of Landlord or
Landlord's agent or employees.
(f) Landlord reserves the right to designate and redesignate
reserved and unreserved parking areas within the Parking Facility, to change
entrances or exits and alter traffic flow within the Parking Facility, and to
modify the Parking Facility to any extent.
(g) Tenant shall pay, as Additional Rent, the market rent for
each parking space as uniformly established by Landlord for the Building from
time to time, as of the Date of this Lease three hundred twenty-five and
00/100's dollars ($325.00) per month for each parking space.
ARTICLE 6
TENANT'S ADDITIONAL COVENANTS
6.1 AFFIRMATIVE COVENANTS. Tenant shall do the following:
6.1.1 PERFORM OBLIGATIONS. Tenant shall perform promptly all of
the obligations of Tenant set forth in this Lease; and pay when due the Annual
Fixed Rent and Additional Rent and all other amounts which by the terms of this
Lease are to be paid by Tenant.
6.1.2 USE. Tenant shall, during the term of this Lease, use the
Premises only for the Permitted Uses and from time to time to procure and
maintain all licenses and permits necessary therefor and for any other use or
activity conducted at the Premises, at Tenant's sole expense. The Permitted Uses
shall expressly exclude use for utility company offices, or employment agency or
governmental or quasi-governmental offices.
6.1.3 REPAIR AND MAINTENANCE. Tenant shall, during the term of
this Lease, maintain the Premises in neat and clean order and condition and upon
receiving Landlord's prior approval (which shall not be unreasonably withheld)
perform all repairs to the Premises and all fixtures, systems, and equipment
therein (including Tenant's equipment and other personal property) as are
necessary to keep them in good and clean working order, appearance and
condition, reasonable use and wear thereof and damage by fire or by unavoidable
casualty only excepted and shall replace any damaged or broken glass in windows
and doors of the Premises
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(except glass in the exterior walls of the Building) with glass of the same
quality as that damaged or broken.
6.1.4 COMPLIANCE WITH LAW. Tenant shall, during the term of this
Lease, make all repairs, alterations, additions or replacements to the Premises
required by any law or ordinance or any order or regulation of any public
authority; keep the Premises safe and equipped with all safety appliances so
required; and comply with, and perform all repairs, alterations, additions or
replacements required by, the orders and regulations of all governmental
authorities with respect to zoning, building, fire, health and other codes,
regulations, ordinances or laws applicable to the Premises or applicable to the
Premises or other portions of the Property and arising out of any use being
conducted in or on the Premises or arising out of any work performed by Tenant,
except that Tenant may (but only so long as (i) Landlord shall not be subject to
any fine or charge, (ii) neither the Property nor any portion thereof shall be
subject to being condemned or vacated and (iii) neither the Property nor any
portion thereof shall be subject to any lien or encumbrance) defer compliance so
long as the validity of any such law, ordinance, order or regulation shall be
contested by Tenant in good faith and by appropriate legal proceedings, if
Tenant first gives Landlord assurance or security against any loss, cost or
expense on account thereof in form and amount acceptable to Landlord.
6.1.5 INDEMNIFICATION. Tenant shall save Landlord harmless, and
exonerate and indemnify Landlord from and against (i) any and all claims,
liabilities or penalties asserted by or on behalf of any person, firm,
corporation or public authority on account of nuisance or injury, death, damage
or loss to person or property in or upon the Premises arising during the term
hereof and (ii) any loss, cost, damage or expense incurred by Landlord (a)
arising out of the use or occupancy of the Premises by Tenant or by any person
claiming by, through or under Tenant (including, without limitation, all
patrons, employees, contractors, vendors, suppliers, invitees and customers of
Tenant), (b) arising out of labor disputes with Tenant's employees or strikes,
picketing or other similar actions, or (c) on account of or based upon anything
whatsoever done on or occurring in the Premises during the term of this Lease
except (and then only to the extent not subject to the provisions of the last
paragraph of Subsection 4.4.3) if the same were caused by the gross negligence
or willful misconduct of Landlord, its agents, servants or employees. In respect
of the matters set forth in clause (i), Tenant shall indemnify and defend (using
counsel reasonably satisfactory to Landlord) Landlord (and such others as are in
privity of estate with Landlord) from and against all costs, expenses (including
reasonable attorneys' fees), and liabilities incurred in or in connection with
any such claim, action or proceeding brought thereon.
6.1.6 LANDLORD'S RIGHT TO ENTER. Tenant shall, during the term of
this Lease, permit Landlord and its agents and invitees to enter into and
examine the Premises at reasonable times and to show the Premises to prospective
lessees, lenders, partners, and purchasers and others having a bona fide
interest in the Premises, and to make such repairs, alterations, and
improvements and to perform such testing and investigation as Landlord shall
reasonably determine to make or perform, and, during the last six (6) months
prior to the expiration of this Lease, to keep affixed in suitable places
reasonably agreed upon by both parties notices of availability of the Premises.
6.1.7 PERSONAL PROPERTY AT TENANT'S RISK. Tenant shall, during the
term of this Lease keep, at the sole risk and hazard of Tenant, all of the
furnishings, fixtures, equipment, effects and property of every kind, nature and
description of Tenant and of all persons claiming by, through or under Tenant
which may be on the Property, and if the whole or any part thereof
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shall be destroyed or damaged by fire, water or otherwise, or by the leakage or
bursting of water pipes, steam pipes, or other pipes, by theft or from any other
cause, Tenant shall hold harmless and indemnify and defend (using counsel
reasonably satisfactory to Landlord) Landlord from and against any and all
injury, loss, damage or liability to Tenant or to any other person or entity
arising out of said loss or damage, unless such injury, loss, damage or
liability is due directly to the fault of Landlord or its agent.
6.1.8 PAYMENT OF COST OF ENFORCEMENT. The parties shall pay on
demand the expenses, including reasonable attorneys' fees, incurred in enforcing
any obligation of the other party under this Lease or in curing any default by
the other party under this Lease as provided in Section 8.4.
6.1.9 YIELD UP. Tenant shall, at the expiration or earlier
termination of the term of this Lease, surrender all keys to the Premises;
remove all of its trade fixtures and personal property in the Premises; remove
such installations made (or if applicable, restore any items removed) by it as
Landlord may request and all Tenant's signs wherever located; repair all damage
caused by such removal and yield up the Premises (including all installations
and improvements made by Tenant except for trade fixtures and such of said
installations or improvements as Landlord shall request Tenant to remove), broom
clean and in the same good order and repair in which Tenant is obliged to keep
and maintain the Premises by the provisions of this Lease; provided, however,
that notwithstanding the foregoing, no telephone data lines shall be removed by
Tenant. Any property not so removed shall be deemed abandoned and may be removed
and disposed of by Landlord in such manner as Landlord shall determine and
Tenant shall pay Landlord the reasonable cost and expense incurred by it in
effecting such removal and disposition and in making any incidental repairs and
replacements to the Premises and for use and occupancy during the period after
the expiration or earlier termination of the term of this Lease and prior to the
performance by Tenant of its obligations under this subsection 6.1.9. Tenant
shall further indemnify Landlord against all loss, cost and damage resulting
from Tenant's failure or delay in surrendering the Premises as above provided.
6.1.10 RULES AND REGULATIONS. Tenant shall, during the term of this
Lease, observe and abide by the Rules and Regulations of the Building set forth
as EXHIBIT B, as the same may from time to time be amended, revised or
supplemented (the "RULES AND REGULATIONS"). Tenant shall further be responsible
for compliance with the Rules and Regulations by the employees, servants,
agents, and visitors of Tenant. The failure of Landlord to enforce any of the
Rules and Regulations against Tenant, or against any other tenant or occupant of
the Building, shall not be deemed to be a waiver of such Rules and Regulations.
Tenant shall be liable for all injuries or damages sustained by Landlord or
Landlord's agents or by other tenants, occupants or invitees of the Building
arising by reason of any breach of the Rules or Regulations by Tenant or by
Tenant's agents or employees.
6.1.11 ESTOPPEL CERTIFICATE. Tenant shall, within ten (10) days'
following written request by Landlord, execute, acknowledge and deliver to
Landlord a statement in form satisfactory to Landlord in writing certifying that
this Lease is unmodified and in full force and effect and that Tenant has no
defenses, offsets or counterclaims against its obligations to pay the Annual
Fixed Rent and Additional Rent and any other charges and to perform its other
covenants under this Lease (or, if there have been any modifications, that the
Lease is in full force and effect as modified and stating the modifications and,
if there are any defenses, offsets or counterclaims, setting them forth in
reasonable detail), the dates to which the Annual Fixed Rent
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and Additional Rent and other charges have been paid, and any other matter
pertaining to this Lease. Any prospective purchaser or mortgagee of the
Property, or any prospective assignee of such mortgage may rely upon any such
statement delivered pursuant to this subsection 6.1.11.
6.1.12 LANDLORD'S EXPENSES FOR CONSENTS. Tenant shall reimburse
Landlord, as Additional Rent, promptly on demand for all reasonable
extraordinary legal, engineering, and other professional services expenses
incurred by Landlord in connection with all requests by Tenant for consent or
approval hereunder.
6.1.13 FINANCIAL INFORMATION. Tenant shall, from and after the Date
of this Lease and thereafter throughout the term of this Lease, provide Landlord
with such information as to Tenant's financial condition and/or organizational
structure as Landlord or the holder of any mortgage of the Property requires,
within fifteen (15) days of request.
6.1.14 GROUND LEASE; TRAFFIC MITIGATION. Reference is made to a
certain Sublease dated as of February 21, 1990 between Urban Investment and
Development Co. ("UID"), as landlord, and JMB/Urban Huntington Limited
Partnership ("JMB"), as tenant, notice of which was recorded in the Suffolk
Registry of Deeds in Book 16150, Page 89, as affected by the following: (i)
Notice of Direct Lease dated April 13, 1994 among the
Massachusetts Turnpike
Authority, as landlord, UID and JMB; (ii) Assignment of Direct Lease dated as of
April 13, 1994 between JMB and Huntington Avenue Limited Partnership ("HALP");
and (iii) Assignment of Ground Lease made as of July 2, 1999 between HALP and
Landlord (collectively, the "GROUND LEASE").
Pursuant to Section 6.11 of the Ground Lease, (x) Landlord hereby gives
notice to Tenant that it supports the affirmative action and resident preference
goals set forth in Paragraph 6 of Schedule D to the Ground Lease, and encourages
Tenant to pursue such goals in Tenant's own employment practices and (y) Tenant
agrees that it (a) shall not discriminate against any employee or applicant for
employment at the Premises because of race, color, religious creed, national
origin, age or sex and (b) shall comply to the extent applicable, with Title VII
of the U.S. Civil Rights Act and M.G.L. c.151B with respect to employment at the
Premises. Tenant also agrees, upon request of the Landlord, to furnish such
information regarding employment as Landlord shall be required to provide under
the Ground Lease.
To further Landlord's intent to endeavor to mitigate the effects of
operation of the Building on traffic and parking in the neighborhood, Tenant
agrees, to the extent practical, to make use of, and to encourage its employees
and invitees to make use of parking in the Tent City and Xxxxxx Place garages,
to participate in and support ride sharing programs, to participate in surveys
of employees transportation needs and preferences, and to distribute ride
sharing promotional materials; and if employee interest warrants to contribute
toward van pooling costs. In addition, Landlord encourages, and Tenant agrees in
good faith to consider, subsidizing portions of the public transportation costs
of its employees and implementing staggered and flexible work hours and
compressed workweeks for its employees.
6.2 NEGATIVE COVENANTS. Tenant shall not do the following.
6.2.1 ASSIGNMENT AND SUBLETTING. Tenant shall not assign,
mortgage, pledge, hypothecate, encumber or otherwise transfer this Lease or
suffer or permit this Lease or the leasehold estate hereby created or any other
rights arising under this Lease to be assigned,
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transferred, mortgaged, pledged, hypothecated or encumbered, in whole or in
part, whether voluntarily, involuntarily or by operation of law, or permit the
use or occupancy of the Premises by anyone other than Tenant, or the Premises to
be offered or advertised for assignment. Any transfer of the stock or
partnership or beneficial interests or other evidences of ownership of Tenant or
the issuance of additional stock or partnership or beneficial interests or other
indicia of ownership in Tenant or any transactions pursuant to which Tenant is
merged or consolidated with another entity or pursuant to which all or
substantially all of Tenant's assets are transferred to any other entity shall
be deemed to be an assignment of this Lease; provided, however, that any
transaction pursuant to which Tenant is merged or consolidated with another
entity or pursuant to which all or substantially all of Tenant's assets are
transferred shall not be deemed a prohibited assignment, if (w) after any such
transaction or transfer, the successor to Tenant or the transferee of or
successor to any of Tenant's rights hereunder has a tangible net worth computed
in accordance with generally accepted accounting principles at least equal to
the greater of (1) the net worth of Tenant immediately prior to such merger,
consolidation or transfer, or (2) the net worth of Tenant herein named on the
Date of this Lease, (x) proof satisfactory to Landlord of such net worth shall
have been delivered to Landlord at least ten (10) days prior to the effective
date of any such transaction, (y) in the case of a sale of assets, proof
satisfactory to Landlord shall have been delivered to Landlord at least ten (10)
days prior to the effective date of any such transfer that substantially all of
Tenant's assets shall be sold to such transferee, and (z) the assignee,
transferee or successor agrees directly with Landlord, by written instrument in
form satisfactory to Landlord, to be bound by all the terms of this Lease
including, without limitation, the covenants contained in this Subsection.
Tenant shall not sublease (which term shall be deemed to include the granting of
concessions and licenses and the like) all or any part of the Premises without
the prior written consent of Landlord, which shall not be unreasonably withheld,
conditioned or delayed; provided that the proposed subtenant (i) has a credit
worthiness and reputation acceptable to Landlord in its sole but reasonable
discretion, (ii) shall use the Premises for the Permitted Uses and in keeping
with a first-class office building, (iii) shall not use the Premises for a
purpose or in a manner which is inconsistent with Landlord's commitments to
other tenants in the Building, and (iv) shall not result in increases in
Operating Costs or cause Landlord to incur any additional expense. If the
proposed subtenant is either a tenant or other occupant of the Building or is an
entity, that controls or is controlled by or under common control with any
entity, which shall have entered into negotiation with Landlord for space in the
Building within the preceding twelve (12) months, Tenant shall not charge the
proposed subtenant an Annual Fixed Rent and Additional Rent that is less than
what Tenant is then paying hereunder, and Tenant shall pay Landlord as
Additional Rent one hundred percent (100%) of any payments in excess of its
Annual Fixed Rent and Additional Rent received from such prospective subtenant.
Tenant may, however, upon not less than ten (10) days prior notice to Landlord,
sublease all or any portion of the Premises to any entity which controls, is
controlled by or is under common control with the Tenant identified in Section
1.1 (such entity being an "AFFILIATE"). Any sublease to an Affiliate shall, at
Landlord's election, be terminated if the subtenant shall cease to be an
Affiliate, and any sublease shall so provide. The term "CONTROL" shall mean the
ownership, directly or indirectly, of more than seventy-five percent (75%) of
the outstanding voting stock of a corporation or other equity interest if Tenant
is not a corporation. Any sublease shall contain terms specifically prohibiting
the sublessee from subleasing the Premises, or any portion thereof. Tenant shall
pay all brokerage costs associated with the subleasing of the Premises.
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In the event that Tenant shall intend to enter into any sublease which is
not to an Affiliate, then Tenant shall, not sooner than ninety (90) days, and
not later than forty-five (45) days, prior to the proposed effective date of
such sublease, give Landlord notice of such intent, identifying the proposed
subtenant, all of the terms and conditions of the proposed sublease and such
other information as Landlord may reasonably request. If Landlord shall give its
consent, Tenant may enter into such sublease on the terms and conditions set
forth in such notice from Tenant within the following sixty (60) days. If Tenant
shall not enter into such sublease within such following sixty (60) day period
and shall still desire to enter into any sublease, or if Tenant shall materially
change the terms and conditions thereof following the date of Tenant's notice to
Landlord, the first sentence of this paragraph shall again become applicable.
If this Lease is assigned or if the Premises or any part thereof are sublet
(or occupied by any party other than Tenant and its employees) Landlord, after
default by Tenant hereunder, may collect the rents from such assignee, subtenant
or occupant, as the case may be, and apply the net amount collected to the
Annual Fixed Rent and Additional Rent herein reserved, but no such collection
shall be deemed a waiver of the provisions set forth in the first paragraph of
this Subsection 6.2.1, the acceptance by Landlord of such assignee, subtenant or
occupant, as the case may be, as a tenant, or a release of Tenant from the
future performance by Tenant of its covenants, agreements or obligations
contained in this Lease.
Any sublease of all or any portion of the Premises shall provide that it is
subject and subordinate to this Lease and to the matters to which this Lease is
or shall be subject or subordinate, and that in the event of termination of this
Lease or reentry or dispossession of Tenant by Landlord under this Lease,
Landlord may, at its option, take over all of the right, title and interest of
Tenant, as sublessor under such sublease, and such subtenant shall, at
Landlord's option, attorn to Landlord pursuant to the then executory provisions
of such sublease, except that neither Landlord nor any mortgagee of the
Property, as holder of a mortgage or as Landlord under this Lease if such
mortgagee succeeds to that position, shall (a) be liable for any act or omission
of Tenant under such sublease, (b) be subject to any credit, counterclaim,
offset or defense which theretofore accrued to such subtenant against Tenant, or
(c) be bound by any previous modification of such sublease or by any previous
prepayment of more than one (1) month's rent, (d) be bound by any covenant of
Tenant to undertake or complete any construction of the Premises or any portion
thereof, (e) be required to account for any security deposit of the subtenant
other than any security deposit actually received by Landlord, (f) be bound by
any obligation to make any payment to such subtenant or grant any credits, (g)
be responsible for any monies owing by Landlord to the credit of Tenant or (h)
be required to remove any person occupying the Premises or any part thereof; and
such sublease shall provide that the subtenant thereunder shall, at the request
of Landlord, execute a suitable instrument in confirmation of such agreement to
attorn. To enable Landlord to confirm that any sublease that Tenant shall desire
to enter into shall comply with the provisions of this Section 6.2.1 and/or
otherwise be acceptable to Landlord, Tenant shall submit the final form of
sublease to Landlord not less than thirty (30) days prior to its execution. The
provisions of this paragraph shall not be deemed a waiver of the provisions set
forth in the first paragraph of this Subsection 6.2.1.
Tenant shall not enter into, nor shall it permit any person having an
interest in the possession, use, occupancy or utilization of any part of the
Premises to enter into, any sublease, license, concession, assignment or other
agreement for use, occupancy or utilization of the Premises (i) which provides
for rental or other compensation based on the income or profits
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derived by any person or on any other formula such that any portion of such
sublease rental, or other consideration for a license, concession, assignment or
other occupancy agreement, would fail to qualify as "rents from real property"
within the meaning of Section 856(d) of the Internal Revenue Code or any similar
or successor provision thereto, or would otherwise disqualify Landlord for
treatment as a real estate investment trust under Sections 856-869 of the
Internal Revenue Code, (ii) under which fifty percent (50%) or more of the total
rent or other compensation received by Tenant is attributable to personal
property or (iii) which would otherwise be subject to the prohibitions of
Section 406 of ERISA or result in imposition of any tax pursuant to Section 511
or Section 4975 of the Internal Revenue Code; and any such purported lease,
sublease, license, concession or other agreement shall be absolutely void and
ineffectual as a conveyance of any right or interest in the possession, use,
occupancy or utilization of such part of the Premises.
No subletting or assignment shall in any way impair the continuing primary
liability of Tenant hereunder, and no consent to any subletting or assignment in
a particular instance shall be deemed to be a waiver of the obligation to obtain
the Landlord's written approval in the case of any other subletting or
assignment. The joint and several liability of Tenant named herein and any
immediate and remote successor in interest of Tenant (by assignment or
otherwise), and the due performance of the obligations of this Lease on Tenant's
part to be performed or observed, shall not in any way be discharged, released
or impaired by any (a) agreement which modifies any of the rights or obligations
of the parties under this Lease, (b) stipulation which extends the time within
which an obligation under this Lease is to be performed, (c) waiver of the
performance of an obligation required under this Lease, or (d) failure to
enforce any of the obligations set forth in this Lease. No assignment,
subletting or occupancy shall affect the Permitted Uses. Any subletting,
assignment or other transfer of Tenant's interest in this Lease in contravention
of this Subsection 6.2.1 shall be voidable at Landlord's option. Tenant shall
not occupy any space in the Building (by assignment, sublease or otherwise)
other than the Premises.
If the rent and other sums (including, without limitation, all monetary
payments plus the reasonable value of any services performed or any other thing
of value given by any assignee or subtenant in consideration of such assignment
or sublease), either initially or over the term of any assignment or sublease,
payable by such assignee or subtenant (other than an Affiliate) on account of an
assignment or sublease of all or any portion of the Premises exceed the sum of
(i) Annual Fixed Rent plus Additional Rent and any other charges called for
hereunder with respect to the space sublet, plus (ii) all brokerage fees and
legal fees paid by Tenant with respect to such sublease and any demising costs
and any cost of alterations which are performed solely for the benefit of the
subtenant (all such costs to be amortized over the term of such sublease or
assignment), Tenant shall pay to Landlord as Additional Rent fifty percent (50%)
of such excess payable monthly at the time for payment of Annual Fixed Rent.
Nothing in this paragraph shall be deemed to abrogate the provisions of this
Subsection 6.2.1 and Landlord's acceptance of any sums pursuant to this
paragraph shall not be deemed a granting of consent to any assignment of the
Lease or sublease of all or any portion of the Premises.
6.2.2 NUISANCE. Tenant shall not injure, deface or otherwise harm
the Premises; nor commit any nuisance; nor permit in the Premises any vending
machine (except such as is used for the sale of merchandise to employees of
Tenant) or inflammable fluids or chemicals (except such as are customarily used
in connection with standard office equipment); nor permit any cooking to such
extent as requires special exhaust venting; nor permit the emission of any
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objectionable noise or odor; nor make, allow or suffer any waste; nor make any
use of the Premises which is improper, offensive or contrary to any law or
ordinance or which will invalidate or increase the premiums for any of
Landlord's insurance or which is liable to render necessary any alteration or
addition to the Building; nor conduct any auction, fire, "going out of business"
or bankruptcy sales.
6.2.3 FLOOR LOAD; HEAVY EQUIPMENT. Tenant shall not place a load
upon any floor of the Premises exceeding the lesser of the floor load capacity
that such floor was designed to carry or which is allowed by law. Landlord
reserves the right to prescribe the weight and position of all heavy business
machines and equipment, including safes, which shall be placed so as to
distribute the weight. Business machines and mechanical equipment which cause
vibration or noise shall be placed and maintained by Tenant at Tenant's expense
in settings sufficient to absorb and prevent vibration, noise and annoyance.
Tenant shall not move any safe, heavy machinery, heavy equipment, freight,
construction materials or fixtures into or out of the Premises without
Landlord's prior consent which consent may include a requirement to provide
insurance naming Landlord, and the holder of any mortgage affecting the
Property, as additional insureds, with such coverages and in such amount as
Landlord reasonably requires. If any such safe, machinery, heavy equipment,
freight, or fixtures requires special handling, Tenant agrees to employ only
persons holding a master rigger's license to do said work, and that all work in
connection therewith shall comply with applicable laws and regulations. Any such
moving shall be at the sole risk and hazard of Tenant and Tenant hereby agrees
to exonerate, indemnify and save Landlord harmless against and from any
liability, loss, injury, claim or suit resulting directly or indirectly from
such moving. Tenant shall schedule such moving at such times as Landlord shall
reasonably designate.
6.2.4 ELECTRICITY. Tenant shall not connect to the electrical
distribution system serving the Premises (i) a total load exceeding the lesser
of the capacity of such system or the maximum load permitted from time to time
under applicable governmental regulations or (ii) any apparatus or device in the
Premises (1) using current in excess of 110 volts, or (2) which would cause
Tenant's electrical demand load to exceed 1.0 xxxxx per rentable square foot for
overhead lighting or 2.0 xxxxx per rentable square foot for convenience outlets.
The capacity of the electrical distribution system serving the Premises shall be
the lesser of (a) the capacity of the branch of the system serving the Premises
exclusively or (b) the allocation to the Premises of the capacity of the system
serving the entire Building, Landlord and Tenant agreeing that such capacity
shall be allocated equally over the entire rentable area of the Building.
6.2.5 INSTALLATION, ALTERATIONS OR ADDITIONS. Tenant shall not
make any installations, alterations or additions in, to or on the Premises nor
to permit the making of any holes in the walls, partitions, ceilings or floors
(except for artwork, office shelving, and the like) without on each occasion
obtaining the prior written consent of Landlord, and then only pursuant to plans
and specifications approved by Landlord in advance in each instance. All work to
be performed to the Premises by Tenant shall (i) be performed in a good and
workmanlike manner by contractors approved in advance by Landlord and in
compliance with the provisions of EXHIBIT C and all applicable zoning, building,
fire, health and other codes, regulations, ordinances and laws, (ii) be made at
Tenant's sole cost and expense and at such times and in such a manner as
Landlord may from time to time designate, and (iii) become part of the Premises
and the property of Landlord without being deemed additional rent for tax
purposes, Landlord and Tenant agreeing that Tenant shall be treated as the owner
for tax purposes until the
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expiration or earlier termination of the term hereof, subject to Landlord's
rights pursuant to Section 6.1.9 to require Tenant to remove the same at or
prior to the expiration or earlier termination of the term hereof. Tenant shall
pay promptly when due the entire cost of any work to the Premises so that the
Premises, Building and Property shall at all times be free of liens for labor
and materials, and, at Landlord's request, Tenant shall furnish to Landlord a
bond or other security acceptable to Landlord assuring that any such work will
be completed in accordance with the plans and specifications theretofore
approved by Landlord and assuring that the Premises will remain free of any
mechanics' lien or other encumbrances that may arise out of such work. Prior to
the commencement of any such work, and throughout and until completion thereof,
Tenant shall maintain, or cause to be maintained, the insurance required by
EXHIBIT D, all with coverage limits as stated therein or such higher limits as
shall be reasonably required by Landlord. In addition, Tenant shall save
Landlord harmless, defend (using counsel reasonably satisfactory to Landlord),
and indemnify Landlord from all injury, loss, claims or damage to any person or
property occasioned by or arising out of such work. Whenever and as often as any
mechanic's or materialmen's lien shall have been filed against the Property
based upon any act of Tenant or of anyone claiming through Tenant, Tenant shall
within three (3) days of notice from Landlord to Tenant take such action by
bonding, deposit or payment as will remove or satisfy the lien.
Tenant shall not, at any time, directly or indirectly, employ or permit the
employment of any contractor, mechanic or laborer in the Premises, if such
employment will interfere or cause any conflict with other contractors,
mechanics or laborers engaged in the construction, maintenance or operation of
the Building by Landlord, Tenant or others. In the event of any such
interference or conflict, Tenant, upon demand of Landlord, shall cause all
contractors, mechanics or laborers causing such interference or conflict to
leave the Building immediately.
6.2.6 ABANDONMENT. Tenant shall not abandon or vacate the Premises
during the term.
6.2.7 SIGNS. Tenant shall not paint or place any signs or place
any curtains, blinds, shades, awnings, aerials, or the like, visible from
outside the Premises. Landlord agrees, to maintain a tenant directory in the
lobby of the Building in which will be placed Tenant's name and the location of
the Premises in the Building. Landlord also agrees to provide and pay for
signage on the entryway to the Premises, of similar type to the other signage
throughout the Building.
6.2.8 OIL AND HAZARDOUS MATERIALS. Tenant shall not introduce on
or transfer to the Premises or Property, any Hazardous Materials (as hereinafter
defined) other than ordinary household cleaners or toner typically used for
photocopy machines, computer printers or facsimile machines; nor dump, flush or
otherwise dispose of any Hazardous Materials into the drainage, sewage or waste
disposal systems serving the Premises or Property; nor generate, store, use,
release, spill or dispose of any Hazardous Materials in or on the Premises or
the Property, or transfer any Hazardous Materials from the Premises to any other
location; and Tenant shall not commit or suffer to be committed in or on the
Premises or Property any act which would require any reporting or filing of any
notice with any governmental agency pursuant to any statutes, laws, codes,
ordinances, rules or regulations, present or future, applicable to the Property
or to Hazardous Materials.
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Tenant agrees that if it shall generate, store, release, spill, dispose of
or transfer to the Premises or Property any Hazardous Materials, it shall
forthwith remove the same, at its sole cost and expense, in the manner provided
by all applicable Environmental Laws (as hereinafter defined), regardless of
when such Hazardous Materials shall be discovered. Furthermore, Tenant shall pay
any fines, penalties or other assessments imposed by any governmental agency
with respect to any such Hazardous Materials and shall forthwith repair and
restore any portion of the Premises or Property which it shall disturb in so
removing any such Hazardous Materials to the condition which existed prior to
Tenant's disturbance thereof.
Tenant agrees to deliver promptly to Landlord any notices, orders or
similar documents received from any governmental agency or official concerning
any violation of any Environmental Laws or with respect to any Hazardous
Materials affecting the Premises or Property. In addition, Tenant shall, within
ten (10) days of receipt, accurately complete any questionnaires from Landlord
or other informational requests relating to Tenant's use of the Premises and, in
particular, to Tenant's use, generation, storage and/or disposal of Hazardous
Materials at, to, or from the Premises.
Tenant shall indemnify, defend (by counsel reasonably satisfactory to
Landlord), protect, and hold Landlord free and harmless from and against any and
all claims, or threatened claims, including without limitation, claims for death
of or injury to any person or damage to any property, actions, administrative
proceedings, whether formal or informal, judgments, damages, punitive damages,
liabilities, penalties, fines, costs, taxes, assessments, forfeitures, losses,
expenses, reasonable attorneys' fees and expenses, consultant fees, and expert
fees that arise from or are caused in whole or in party, directly or indirectly,
by (i) the presence or suspected presence in, on, under or about the Premises or
discharge in or from the Premises of any Hazardous Materials, or Tenant's use,
analysis, storage, transportation, disposal, release, threatened release,
discharge or generation of Hazardous Materials to, in, on, under, about or from
the Premises, or (ii) Tenant's failure to comply with any Environmental Laws.
Tenant's obligations hereunder shall include, without limitation, and whether
foreseeable or unforeseeable, all costs (including, without limitation, capital,
operating and maintenance costs) incurred in connection with any investigation
or monitoring of site conditions, repair, cleanup, containment, remedial,
removal or restoration work, or detoxification or decontamination of the
Premises, and the preparation and implementation of any closure, remedial action
or other required plans in connection therewith. For purposes of this Section
6.2.8, any acts or omissions of Tenant, or its subtenants or assignees or its or
their employees, agents, or contractors (whether or not they are negligent,
intentional, willful or unlawful) shall be attributable to Tenant.
The term "HAZARDOUS MATERIALS" shall mean and include any oils, petroleum
products, asbestos, radioactive, biological, medical or infectious wastes or
materials, and any other toxic or hazardous wastes, materials and substances
which are defined, determined or identified as such in any Environmental Laws,
or in any judicial or administrative interpretation of Environmental Laws.
"ENVIRONMENTAL LAWS" shall mean any and all federal, state and municipal
statutes, laws, regulations, ordinances, rules, judgments, orders, decrees,
codes, plans, injunctions, permits, concessions, grants, franchises, licenses,
agreements or other governmental restrictions relating to the environment or to
emissions, discharges or releases of pollutants, contaminants, petroleum or
petroleum products, medical, biological, infectious, toxic or hazardous
substances or wastes into the environment including, without limitation, ambient
air, surface water, ground water or
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land, or otherwise relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of pollutants, contaminants,
petroleum or petroleum products, medical, biological, infectious, toxic or
hazardous substances or wastes or the cleanup or other remediation thereof.
ARTICLE 7
CASUALTY OR TAKING
7.1 TERMINATION. In the event that the Premises or the Property, or any
material part thereof shall be destroyed or damaged by fire or casualty, shall
be taken by any public authority or for any public use or shall be condemned by
the action of any public authority, then this Lease may be terminated at the
election of Landlord, provided however if the Property shall then be encumbered
by a mortgage, such election to terminate shall only be valid if joined by the
holder thereof. Such election, which may be made notwithstanding the fact that
Landlord's entire interest may have been divested, shall be made by the giving
of notice by Landlord to Tenant within sixty (60) days after the date of the
taking or casualty.
7.2 RESTORATION. If Landlord does not elect to so terminate, this Lease
shall continue in force and (so long as the damage is not caused by the
negligence or other wrongful act of Tenant or its employees, agents, contractors
or invitees) a just proportion of the Annual Fixed Rent reserved, according to
the nature and extent of the damages sustained by the Premises, shall be
suspended or abated until the Premises (excluding any improvements to the
Premises made at Tenant's expense), or what may remain thereof, shall be put by
Landlord in proper condition for use, which Landlord covenants to do with
reasonable diligence to the extent permitted by the net proceeds of insurance
recovered or damages awarded for such destruction, taking, or condemnation and
subject to zoning and building laws or ordinances then in existence; provided,
however, that if Landlord shall fail to complete (or, for all practical matter,
be unable to complete) such restoration work within one hundred twenty (120)
days after the damage has occurred, Tenant shall have the right to terminate
this Lease by giving Landlord thirty (30) days prior written notice, which
notice period can run concurrently with the last 30 days of the 120 day
restoration period. "NET PROCEEDS OF INSURANCE RECOVERED OR DAMAGES AWARDED"
refers to the gross amount of such insurance or damages actually made available
to Landlord (and not retained by any Superior Lessor or Superior Mortgagee) less
the reasonable expenses of Landlord incurred in connection with the collection
of the same, including without limitation, fees and expenses for legal and
appraisal services.
7.3 AWARD. Irrespective of the form in which recovery may be had by law,
all rights to damages or compensation shall belong to Landlord in all cases.
Tenant hereby grants to Landlord all of Tenant's rights to such damages and
covenants to deliver such further assignments thereof as Landlord may from time
to time request. Nothing contained herein shall be construed to prevent Tenant
from prosecuting in any condemnation proceedings a claim for relocation
expenses, provided that such action shall not affect the amount of compensation
otherwise recoverable by Landlord from the taking authority.
7.4 EFFECT OF CASUALTY OR TAKING ON THE TAX EXCESS AND THE OPERATING COST
EXCESS. In the event of any taking, condemnation or damage by fire or casualty
affecting the Property whereby this Lease shall not terminate pursuant to the
provisions of Section 7.1, then for purposes of determining the Operating Cost
Excess or Tax Excess there shall be established new
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Base Taxes and Base Operating Costs as hereinafter provided. Base Taxes shall be
a product of the initial Base Taxes as recited in Section 1.1 multiplied by a
fraction, the numerator of which shall be the Taxes for the first full Tax Year
subsequent to the taking, condemnation or damage which reflects the occurrence
of such taking, condemnation or damage (the "Revised Tax Year"), and the
denominator of which shall be the Taxes for the full Tax Year prior to such
taking, condemnation or damage; and Base Operating Costs shall be the product of
the initial Base Operating Costs as recited in Section 1.1 multiplied by a
fraction, the numerator of which shall be Operating Costs for the first full
Operating Year subsequent to such taking, condemnation or damage which reflects
the occurrence of such taking, condemnation or damage (the "Revised Operating
Year") and the denominator of which shall be the Operating Costs for the full
Operating Year prior to such taking, condemnation or damage. The foregoing
revisions shall be effective as of the first day of the Revised Tax Year or the
Revised Operating Year (as applicable). Effective as of the date of any such
taking, condemnation or damage, Tenant's Percentage shall be adjusted
appropriately to reflect the change, if any, in the rentable area of the
Premises and/or the rentable area of the Building.
ARTICLE 8
DEFAULTS
8.1 DEFAULT OF TENANT. (a) (I) If Tenant shall default in its obligations
to pay the Annual Fixed Rent or Additional Rent or any other charges under this
Lease when due or shall default in complying with its obligations under
Subsection 6.1.11 of this Lease and if any such default shall continue for five
(5) days after notice from Landlord designating such default, or (II) if as
promptly as possible but in any event within thirty (30) days after notice from
Landlord to Tenant specifying any default or defaults other than those set forth
in clause (I) Tenant has not cured the default or defaults so specified; or (b)
if any assignment shall be made by Tenant or any guarantor of Tenant for the
benefit of creditors; or (c) if Tenant's leasehold interest shall be taken on
execution; or (d) if a lien or other involuntary encumbrance shall be filed
against Tenant's leasehold interest or Tenant's other property, including said
leasehold interest, or against the property of any guarantor of Tenant, and
shall not be discharged within ten (10) days thereafter; or (e) if a petition
shall be filed by Tenant or any guarantor of Tenant for liquidation, or for
reorganization or an arrangement under any provision of any bankruptcy law or
code as then in force and effect; or (f) if an involuntary petition under any of
the provisions of any bankruptcy law or code shall be filed against Tenant or
any guarantor of Tenant and such involuntary petition shall not be dismissed
within thirty (30) days thereafter; or (g) if a custodian or similar agent shall
be authorized or appointed to take charge of all or substantially all of the
assets of Tenant or any guarantor of Tenant; or (h) if Tenant or any guarantor
of Tenant dissolves or shall be dissolved or shall liquidate or shall adopt any
plan or commence any proceeding, the result of which is intended to include
dissolution or liquidation; or (i) if any order shall be entered in any
proceeding by or against Tenant or any guarantor of Tenant decreeing or
permitting the dissolution of Tenant or any guarantor of Tenant or the winding
up of its affairs; or (j) if Tenant shall fail to pay any installment of Annual
Fixed Rent or Additional Rent when due, Tenant shall cure such default within
the grace period provided in clause (a) (I) above (or with Landlord's approval
after the expiration of such grace period) and Tenant shall, within the next
year following the date such initial defaulted payment was first due, fail more
than once to pay any installment of Annual Fixed Rent or Additional Rent when
due, then, and in any of such cases indicated in clauses (a) through (j) hereof
(collectively and individually, a "DEFAULT OF
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TENANT"), Landlord and the agents and servants of Landlord lawfully may, in
addition to and not in derogation of any remedies for any preceding breach of
covenant, immediately or at any time thereafter mail a notice of termination
addressed to Tenant, and repossess the same as of Landlord's former estate and
expel Tenant and those claiming through or under Tenant and remove its and their
effects without being deemed guilty of any manner of trespass and without
prejudice to any remedies which might otherwise be used for arrears of rent or
prior breach of covenant, and upon such entry or mailing as aforesaid the term
of this Lease shall terminate, and Landlord, without notice to Tenant, may store
Tenant's effects, and those of any person claiming through or under Tenant, at
the expense and risk of Tenant, and, if Landlord so elects, may sell or
otherwise dispose of such effects at public auction or private sale or otherwise
and apply the net proceeds (if any) to the payment of all sums due to Landlord
from Tenant, if any, and pay over the balance, if any, to Tenant.
8.2 REMEDIES. In the event of any termination pursuant to Section 8.1,
Tenant shall pay the Annual Fixed Rent, Additional Rent and other charges
payable hereunder up to the time of such termination. Thereafter, whether or not
the Premises shall have been re-let, Tenant shall be liable to Landlord for, and
shall pay to Landlord the Annual Fixed Rent, Additional Rent and other charges
which would be payable hereunder for the remainder of the term of this Lease 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 repossession costs, brokerage
commissions, attorneys' fees and expenses, advertising costs, administration
expenses, alteration costs, the value of any tenant inducements (including but
without limitation free rent, moving costs, and contributions toward leasehold
improvements) and any other expenses incurred in preparation for such reletting.
Tenant shall pay such damages to Landlord monthly on the days on which the
Annual Fixed Rent would have been payable hereunder if the term of this Lease
had not been terminated.
At any time after such termination, in lieu of recovering damages pursuant
to the provisions of such immediately preceding paragraph with respect to any
period after the date of demand therefor, at Landlord's election, Tenant shall
pay to Landlord the greater of (i) the amount, if any, by which (A) the Annual
Fixed Rent, Additional Rent and other charges as hereinbefore provided which
would be payable hereunder from the date of such demand (assuming that, for the
purposes of this paragraph, annual payments by Tenant on account of Taxes and
Operating Costs would be the same as payments required for the immediately
preceding twelve calendar months, or if lesser than twelve calendar months have
expired since the Commencement Date, the payments required for such lesser
period projected to an annual amount) for what would be the then unexpired term
of this Lease had such termination not occurred, shall exceed (B) the then fair
rental value of the Premises for the same period or (ii) an amount equal to the
lesser of (x) the Annual Fixed Rent, Additional Rent and other charges that
would have been payable for the remainder of the term of this Lease had such
termination not occurred or (y) the aggregate of the Annual Fixed Rent,
Additional Rent and other charges accrued in the twelve (12) months ended next
prior to such termination (without reduction for any free rent or other
concession or abatement) except that in the event the term of this Lease is so
terminated prior to the expiration of the first full year of the term of this
Lease, the liquidated damages which Landlord may elect to recover pursuant to
clause (ii) (y) of this paragraph shall be calculated as if such termination had
occurred on the first anniversary of the Commencement Date and there had been no
so-called free rent or other rental concession or any rental abatement.
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Nothing contained in this Lease shall, however, limit or prejudice the
right of Landlord to prove for and obtain in proceedings for bankruptcy or
insolvency by reason of the termination of this Lease, an amount equal to the
maximum allowed by any statute or rule of law in effect at the time when, and
governing the proceedings in which, the damages are to be proved, whether or not
the amount be greater than, equal to, or less than the amount of the loss or
damages referred to above.
In case of any Default of Tenant, re-entry, expiration and repossession by
summary proceedings or otherwise, Landlord may (i) relet the Premises or any
part or parts thereof, either in the name of Landlord or otherwise, for a term
or terms which may at Landlord's option be equal to or less than or exceed the
period which would otherwise have constituted the balance of the term of this
Lease and may grant concessions or free rent to the extent that Landlord
considers advisable and necessary to relet the same and (ii) may make such
alterations, repairs and decorations in the Premises as Landlord in its sole
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 as aforesaid.
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.
To the fullest extent permitted by law, Tenant hereby expressly waives any
and all rights of redemption granted 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.
8.3 REMEDIES CUMULATIVE. Except as expressly provided otherwise in
Section 8.2, any and all rights and remedies which Landlord may have under this
Lease, and at law and equity (including without limitation actions at law for
direct, indirect, special and consequential (foreseeable and unforeseeable)
damages, for Tenant's failure to comply with its obligations under this Lease
shall be cumulative and shall not be deemed inconsistent with each other, and
any two or more of all such rights and remedies may be exercised at the same
time insofar as permitted by law.
8.4 LANDLORD'S RIGHT TO CURE DEFAULTS. At any time with or without
notice, Landlord shall have the right, but shall not be required, to pay such
sums or do any act which requires the expenditure of monies which may be
necessary or appropriate by reason of the failure or neglect of Tenant to comply
with any of its obligations under this Lease (irrespective of whether the same
shall have ripened into a Default of Tenant), and in the event of the exercise
of such right by Landlord, Tenant agrees to pay to Landlord forthwith upon
demand, as Additional Rent, all such sums including reasonable attorneys fees,
together with interest thereon at a rate (the "DEFAULT RATE") equal to the
lesser of six percent (6%) over the Prime Rate or the maximum rate allowed by
law. "PRIME RATE" shall mean the annual floating rate of interest, determined
daily and expressed as a percentage from time to time announced by Fleet Bank as
its "prime" or "base" rate, so-called, or if at any time Fleet Bank ceases to
announce such a rate, as announced by the largest national or state-chartered
banking institution then having its principal office in the City of Boston and
announcing such a rate. If at any time neither Fleet Bank nor the largest
national or state-chartered banking institution having its principal offices in
the City of Boston is announcing such a floating rate, "PRIME RATE" shall mean a
rate of interest, determined daily,
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which is two (2) percentage points above the 14-day moving average closing
trading price of 90-day Treasury Bills.
8.5 HOLDING OVER. Any holding over by Tenant after the expiration or
early termination of the term of this Lease shall be treated as a daily tenancy
at sufferance at a rate equal to one and one-half (1.5) times the greater of the
fair market rental value for the Premises on a month-to-month basis or the
Annual Fixed Rent in effect immediately prior to the expiration or earlier
termination of the term plus Additional Rent and other charges herein provided
(prorated on a daily basis). Tenant shall also pay to Landlord all damages,
direct and/or consequential (foreseeable and unforeseeable), sustained by reason
of any such holding over. Otherwise, all of the covenants, agreements and
obligations of Tenant applicable during the term of this Lease shall apply and
be performed by Tenant during such period of holding over as if such period were
part of the term of this Lease.
8.6 EFFECT OF WAIVERS OF DEFAULT. Any consent or permission by Landlord
to any act or omission by Tenant shall not be deemed to be consent or permission
by Landlord to any other similar or dissimilar act or omission and any such
consent or permission in one instance shall not be deemed to be consent or
permission in any other instance.
8.7 NO WAIVER, ETC. The failure of Landlord or Tenant to seek redress for
violation of, or to insist upon the strict performance of, any covenant or
condition of this Lease shall not be deemed a waiver of such violation nor
prevent a subsequent act, which would have originally constituted a violation,
from having all the force and effect of an original violation. The receipt by
Landlord of rent with knowledge of the breach of any covenant of this Lease
shall not be deemed to have been a waiver of such breach by Landlord, or by
Tenant, unless such waiver is in writing signed by the party to be charged. No
consent or waiver, express or implied, by Landlord or Tenant to or of any breach
of any agreement or duty shall be construed as a waiver or consent to or of any
other breach of the same or any other agreement or duty.
8.8 NO ACCORD AND SATISFACTION. No acceptance by Landlord of a lesser sum
than the Annual Fixed Rent, Additional Rent or any other charge then due shall
be deemed to be other than on account of the earliest installment of such rent
or charge due, nor shall any endorsement or statement on any check or any letter
accompanying any check or payment as rent or other charge be deemed an accord
and satisfaction, and Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance of such installment or
pursue any other remedy in this Lease provided.
8.9 LANDLORD'S LIEN. As additional security for the performance of
Tenant's obligations, Tenant grants to Landlord a lien upon and a security
interest in Tenant's personal property, inventory, furniture, fixtures,
equipment and other assets (excepting any artwork that has been installed by
Tenant) that are located in the Premises or used in connection with the business
to be conducted in the Premises. Within five (5) days after request, Tenant
shall execute, acknowledge and deliver to Landlord a financing statement and any
other document submitted to Tenant in form reasonably acceptable to Tenant
evidencing or establishing such lien and security interest. During any period
Tenant is in default under this Lease, Tenant shall not sell, transfer or remove
from the Premises such personal property, inventory, furniture, fixtures,
equipment and other assets except in the ordinary course of Tenant's business or
to repair such items or to exchange or replace such items with items of equal or
greater value. Landlord hereby agrees that its lien upon Tenant's property shall
be automatically subordinated to any purchase
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money security interest or to the lien of any institutional lender of Tenant, if
required by such lender. In confirmation of such subordination, Landlord shall,
upon request, promptly execute any commercially customary subordination
instrument in form reasonably acceptable to Landlord.
ARTICLE 9
RIGHTS OF HOLDERS
9.1 RIGHTS OF MORTGAGEES OR GROUND LESSOR. This Lease, and all rights of
Tenant hereunder, are and shall be subject and subordinate to any ground or
master lease (including the "GROUND LEASE"), and all renewals, extensions,
modifications and replacements thereof, and to all mortgages, which may now or
hereafter affect the Building or the Property and/or any such lease, whether or
not such mortgages shall also cover other lands and/or buildings and/or leases,
to each and every advance made or hereafter to be made under such mortgages, and
to all renewals, modifications, replacements and extensions of such leases and
such mortgages and all consolidations of such mortgages. This Section shall be
self-operative and no further instrument of subordination shall be required. In
confirmation of such subordination, Tenant shall promptly execute, acknowledge
and deliver any instrument that Landlord, the lessor under any such lease or the
holder of any such mortgage or any of their respective successors in interest
may reasonably request to evidence such subordination; provided, however, that
such subordination shall include non-disturbance covenants in favor of Tenant by
any Superior Lessor or Superior Mortgagee (as those terms are hereinafter
defined), and is signed on behalf of such Superior Lessor or Superior Mortgagee.
Any lease to which this Lease is subject and subordinate is herein called
"SUPERIOR LEASE" and the lessor of a Superior Lease or its successor in
interest, at the time referred to, is herein called "SUPERIOR LESSOR"; and any
mortgage to which this Lease is subject and subordinate, is herein called
"SUPERIOR MORTGAGE" and the holder of a Superior Mortgage is herein called
"SUPERIOR MORTGAGEE".
If any Superior Lessor or Superior Mortgagee or the nominee or designee of
any Superior Lessor or Superior Mortgagee shall succeed to the rights of
Landlord under this Lease, whether through possession or foreclosure action or
delivery of a new lease or deed, or otherwise, then at the request of such party
so succeeding to Landlord's rights (herein called "SUCCESSOR LANDLORD") and upon
such Successor Landlord's written agreement to accept Tenant's attornment,
Tenant shall attorn to and recognize such Successor Landlord as Tenant's
landlord under this Lease and shall promptly execute and deliver any instrument
that such Successor Landlord may reasonably request to evidence such attornment.
Upon such attornment, this Lease shall continue in full force and effect as a
direct lease between the Successor Landlord and Tenant upon all of the terms,
conditions and covenants as are set forth in this Lease (including Subsection
10.2), except that the Successor Landlord (unless formerly the landlord under
this Lease) shall not be (a) liable in any way to Tenant for any act or
omission, neglect or default on the part of Landlord under this Lease, (b)
responsible for any monies owing by or on deposit with Landlord to the credit of
Tenant, (c) subject to any counterclaim or setoff which theretofore accrued to
Tenant against Landlord, (d) bound by any modification of this Lease subsequent
to such Superior Lease or Superior Mortgage, or by any previous prepayment of
Annual Fixed Rent or Additional Rent for more than one (1) month, which was not
approved in writing by the Successor Landlord, (e) liable to the Tenant beyond
the Successor Landlord's interest in the Property, (f) responsible for the
performance of any work to be done by Landlord under this Lease to render the
Premises
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ready for occupancy by the Tenant, or (g) required to remove any person
occupying the Premises or any part thereof, except if such person claims by,
through or under the Successor Landlord. Tenant agrees at any time and from time
to time to execute a suitable instrument in confirmation of Tenant's agreement
to attorn, as aforesaid.
9.2 MODIFICATIONS. If any Superior Lessor or Superior Mortgagee shall
require any modification(s) of this Lease, Tenant shall, at Landlord's request,
promptly execute and deliver to Landlord such instruments effecting such
modification(s) as Landlord shall require, provided that such modification(s) do
not adversely affect in any material respect any of Tenant's rights under this
Lease. In addition, and notwithstanding Section 9.1 to the contrary, any
Superior Lessor or Superior Mortgagee may, at its option, subordinate the
Superior Lease or Superior Mortgage of which it is the lessor or holder to this
Lease by giving Tenant ten (10) days prior written notice of such election,
whereupon this Lease shall, irrespective of dates of execution, delivery and
recording, be superior to such Superior Lease or Superior Mortgage and no other
documentation shall be necessary to effect such change.
ARTICLE 10
MISCELLANEOUS PROVISIONS
10.1 NOTICES. All notices, requests, demands, consents, approvals or other
communications to or upon the respective parties hereto shall be in writing and
delivered by hand or mailed by certified or registered mail, return receipt
requested, or a nationally recognized courier service that provides a receipt
for delivery such as Federal Express, United Parcel Service or U.S. Postal
Service Express Mail and shall be effective on the date delivered (or the first
date such delivery is attempted and refused) in writing to the party to which
such notice, request, demand, consent, approval or other communication is
required or permitted to be given or made under this Lease, addressed if
intended for Landlord, to the Original Address of Landlord set forth in Section
1.1 of this Lease with a copy by regular mail to Landlord's Agent (or to such
other address or addresses as may from time to time hereafter be designed by
Landlord by like notice); and if intended for Tenant, addressed to Tenant at the
Original Address of Tenant set forth in Section 1.1 of this Lease until the
Commencement Date and thereafter to the Property (or to such other address or
addresses as may from time to time hereafter be designated by Tenant by like
notice). Notices from Landlord may be given by Landlord's Agent, if any, or
Landlord's attorney.
10.2 QUIET ENJOYMENT; LANDLORD'S RIGHT TO MAKE ALTERATIONS, ETC. Landlord
agrees that upon Tenant's paying the rent and performing and observing the
agreements, conditions and other provisions on its part to be performed and
observed, Tenant shall and may peaceably and quietly have, hold and enjoy the
Premises during the term hereof without any manner of hindrance or molestation
from Landlord or anyone claiming under Landlord, subject, however, to the terms
of this Lease; provided, however, Landlord reserves the right at any time and
from time to time, without the same constituting breach of Landlord's covenant
of quiet enjoyment or an actual or constructive eviction, and without Landlord
incurring any liability to Tenant or otherwise affecting Tenant's obligations
under this Lease, to make such changes, alterations, improvements, repairs or
replacements in or to the interior and exterior of the Building (including the
Premises) and the fixtures and equipment thereof, and in or to the Property, or
properties adjacent thereto, as Landlord may deem necessary or desirable, and to
change (provided that there be no unreasonable obstruction of the right of
access to the Premises by
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Tenant and that Landlord use commercially reasonable efforts to minimize, to the
extent practical, any interference with the conduct of business at the Premises)
the arrangement and/or location of entrances or passageways, doors and doorways,
corridors, elevators, or other common areas of the Building and Property.
Without incurring any liability to Tenant, Landlord may permit access to
the Premises and open the same, whether or not Tenant shall be present, upon any
demand of any receiver, trustee, assignee for the benefit of creditors, sheriff,
marshal or court officer Landlord reasonably believes is entitled to such access
for the purpose of taking possession of, or removing, Tenant's property or for
any other lawful purpose (but this provision and any action by Landlord
hereunder shall not be deemed a recognition by Landlord that the person or
official making such demand has any right or interest in or to this Lease, or in
or to the Premises), or upon demand of any representative of the fire, police,
building, sanitation or other department of the city, state or federal
governments.
10.3 LEASE NOT TO BE RECORDED; CONFIDENTIALITY OF LEASE TERMS. Tenant
agrees that it will not record this Lease. Both parties shall, upon the request
of either (and at the expense of the requesting party), execute and deliver a
notice or short form of this Lease in such form, if any, as may be acceptable
for recording with the land records of the governmental entity responsible for
keeping such records for Suffolk County. In no event shall such document set
forth the rent or other charges payable by Tenant pursuant to this Lease; and
any such document shall expressly state that it is executed pursuant to the
provisions contained in this Lease and is not intended to vary the terms and
conditions of this Lease.
Tenant acknowledges that the terms under which the Landlord has leased the
Premises to Tenant (including, without limitation, the rental rate(s), term and
other financial and business terms), constitute confidential information of
Landlord ("CONFIDENTIAL INFORMATION"). Tenant covenants and agrees to keep the
Confidential Information confidential and not to disclose the same to third
parties; provided, however, that such Confidential Information may be disclosed
by Tenant to those of its officers, employees, attorneys, accountants, lenders,
and financial advisors (collectively, "REPRESENTATIVES") who need to know such
information in connection with Tenant's use and occupancy of the Premises and
for financial reporting and credit related activities; and provided further that
such Confidential Information may be disclosed by Tenant in the course of
complying with state or federal securities laws, or by the rules and regulations
of any applicable stock exchange. Tenant furthermore agrees to inform its
Representatives of the confidential nature of such Confidential Information and
to use all reasonable efforts to cause each Representative to treat such
Confidential Information confidentially and in accordance with the terms of this
paragraph.
10.4 ASSIGNMENT OF RENTS AND TRANSFER OF TITLE; LIMITATION OF LANDLORD'S
LIABILITY. Tenant agrees that the assignment by Landlord of Landlord's interest
in this Lease, or the rents payable hereunder, whether absolute or conditional
in nature or otherwise, which assignment is made to the holder of a mortgage on
property which includes the Premises, shall never be treated as an assumption by
such holder of any of the obligations of Landlord hereunder unless such holder
shall, by notice sent to Tenant, specifically otherwise elect and that, except
as aforesaid, such holder shall be treated as having assumed Landlord's
obligations hereunder (subject to the limitations set forth in Section 9.1) only
upon foreclosure of such holder's mortgage and the taking of possession of the
Premises.
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The term "LANDLORD", so far as covenants or obligations to be performed by
Landlord are concerned, shall be limited to mean and include only the owner or
owners at the time in question of Landlord's interest in the Property, and in
the event of any transfer or transfers of such title to said property, Landlord
(and in case of any subsequent transfers or conveyances, the then grantor) shall
be concurrently freed and relieved from and after the date of such transfer or
conveyance, without any further instrument or agreement, of all liability with
respect to the performance of any covenants or obligations on the part of
Landlord contained in this Lease thereafter to be performed, it being intended
hereby that the covenants and obligations contained in this Lease on the part of
Landlord, shall, subject as aforesaid, be binding on Landlord, its successors
and assigns, only during and in respect of their respective period of ownership
of such interest in the Property.
Notwithstanding the foregoing, in no event shall the acquisition of
Landlord's interest in the Property by a purchaser which, simultaneously
therewith, leases Landlord's entire interest in the Property back to Landlord or
the seller thereof be treated as an assumption by operation of law or otherwise,
of Landlord's obligations hereunder. Tenant shall look solely to such
seller-lessee, and its successors from time to time in title, for performance of
Landlord's obligations hereunder. The seller-lessee, and its successors in
title, shall be the Landlord hereunder unless and until such purchaser expressly
assumes in writing the Landlord's obligations hereunder.
Tenant, its successors and assigns, shall not assert nor seek to enforce
any claim for breach of this Lease against any of Landlord's assets other than
Landlord's interest in the Property, and Tenant agrees to look solely to such
interest for the satisfaction of any liability or claim against Landlord under
this Lease, it being specifically agreed that in no event whatsoever shall
Landlord ever be personally liable for any such liability. Tenant furthermore
agrees that no trustee, officer, director, general or limited partner, member,
shareholder, beneficiary, employee or agent (including any person or entity from
time to time engaged to supervise and/or manage the operation of Landlord) of
Landlord shall be held to any liability, jointly or severally, for any debt,
claim, demand, judgment, decree, liability or obligation of any kind (in tort,
contract or otherwise) of, against or with respect to Landlord or arising out of
any action taken or omitted for or on behalf of Landlord.
10.5 LANDLORD'S DEFAULT. Landlord shall not be deemed to be in default in
the performance of any of its obligations hereunder unless it shall fail to
perform such obligations and such failure shall continue for a period of thirty
(30) days or such additional time as is reasonably required to correct any such
default after written notice has been given by Tenant to Landlord and to the
holder(s) of any mortgage(s) specifying the nature of Landlord's alleged
default. Tenant shall have no right to terminate this Lease for any default by
Landlord hereunder and no right, for any such default, to offset or counterclaim
against any rent due hereunder. In no event shall Landlord ever be liable to
Tenant for any punitive damages or for any loss of business or any other
indirect, special or consequential damages suffered by Tenant from whatever
cause.
Where provision is made in this Lease for Landlord's consent and Tenant
shall request such consent and Landlord shall fail or refuse to give such
consent, Tenant shall not be entitled to any damages for any withholding by
Landlord of its consent, it being intended that Tenant's sole remedy shall be
either an action for specific performance or injunction, or arbitration, and
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that such remedy shall be available only in those cases where Landlord is
expressly required not to withhold its consent unreasonably.
Arbitration shall be the sole recourse of Tenant for any claims against
Landlord. When used in this Subsection 10.5, "arbitration" means a dispute
between the parties that the parties are unable to reach agreement after written
notice from one party to the other party of a disputed issue. To demand
arbitration, any party (the "Demanding Party") shall give written notice to the
other party (the "Responding Party"). Such notice shall specify the nature of
the issues in dispute, and within ten (10) days after the receipt of the notice,
the Responding Party shall answer the demand in writing, specifying the issues
which that party disputes. Each party shall select one (1) qualified arbitrator
within ten (10) days after the Demanding Party receives the Responding Party's
answer. Each of the arbitrators shall be a disinterested person qualified by
experience to hear and determine the issues to be arbitrated. The two
arbitrators so chosen shall select a third neutral arbitrator within ten (10)
days of their selection. If the named arbitrators cannot agree on a neutral
arbitrator, the named arbitrators shall make application to the Chief Arbitrator
of the local chapter of the American Arbitration Association located in
Massachusetts, with a copy to both parties, requesting that person to select and
appoint the third arbitrator. The selection shall be final and binding on the
parties. If either party does not name an arbitrator, the arbitrator named by
the other party shall serve as sole arbitrator. Immediately upon appointment of
the third arbitrator, each party shall present in writing to the panel of three
arbitrators (with a copy to the other party) its statement of the issues in
dispute. The arbitrators, as soon as possible, but not more than thirty (30)
days after their appointment, shall meet and hold a hearing in
Massachusetts, at
a time and place reasonably convenient for the parties, after giving each party
at least ten (10) days' notice. The arbitration hearing shall be conducted in
accordance with the commercial arbitration rules of the American Arbitration
Association, as amended. In the event of conflict between the provisions of this
Lease and the provisions of the commercial arbitration rules of the American
Arbitration Association, the provisions of this Lease shall prevail. The failure
of a party to appear at the hearing shall not constitute an event of default.
The attendance of all arbitrators shall not be required at all hearings. Actions
of the arbitrators shall be by majority vote. After hearing the parties in
regard to the matter in dispute, taking such evidence and making such other
investigation as justice requires and as the arbitrators deem necessary, they
shall decide the issues submitted to them within ten (10) days thereafter and
serve a written and signed copy of the award upon each party; provided, however,
that the arbitrators, in deciding the dispute before them, shall be bound to
select the position requested by one party or the other, without compromise.
Such award shall be final and binding on the parties, and confirmation thereon
may be applied for in any court of competent jurisdiction by any party. If the
parties settle the dispute in the course of the arbitration, such settlement
shall be approved by the arbitrators on request of either party and become the
award. Fees and expenses of the arbitration shall be shared equally by the
parties. Each party shall bear its own attorneys' fees.
10.6 NOTICE TO MORTGAGEE AND GROUND LESSOR. After receiving notice from
any party that it holds a mortgage which includes the Premises as part of the
mortgaged premises, or that it is the ground lessor under a lease with Landlord,
as ground lessee, which includes the Premises as part of the demised premises,
no notice from Tenant to Landlord shall be effective unless and until a copy of
the same is given to such holder or ground lessor, and the curing of any of
Landlord's defaults by such holder or ground lessor shall be treated as
performance by Landlord.
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10.7 BROKERAGE. Tenant warrants and represents that it has dealt with no
broker in connection with the consummation of this Lease, other than Xxxxx &
Xxxxx, Inc. and GVA Xxxxxxxx Xxxxx Xxxxxxxxx & Everest, and in the event of any
brokerage claims or liens, other than by Xxxxx & Xxxxx, Inc. or by GVA Xxxxxxxx
Xxxxx Xxxxxxxxx & Everest, against Landlord or the Property predicated upon or
arising out of prior dealings with Tenant, Tenant agrees to defend the same and
indemnify and hold Landlord harmless against any such claim, and to discharge
any such lien.
10.8 APPLICABLE LAW AND CONSTRUCTION. This Lease shall be governed by and
construed in accordance with the laws of the Commonwealth of
Massachusetts and
if any provisions of this Lease shall to any extent be invalid, the remainder of
this Lease shall not be affected thereby. Tenant expressly acknowledges and
agrees that Landlord has not made and is not making, and Tenant, in executing
and delivering this Lease, is not relying upon, any warranties, representations,
promises or statements, except to the extent that the same are expressly set
forth in this Lease or in any other written agreement which may be made between
the parties concurrently with the execution and delivery of this Lease and which
shall expressly refer to this Lease. All understandings and agreements
heretofore made between the parties are merged in this Lease and any other such
written agreement(s) made concurrently herewith, which alone fully and
completely express the agreement of the parties and which are entered into after
full investigation, neither party relying upon any statement or representation
not embodied in this Lease or any other such written agreement(s) made
concurrently herewith. This Lease may be amended, and the provisions hereof may
be waived or modified, only by instruments in writing executed by Landlord and
Tenant. The titles of the several Articles and Sections contained herein are for
convenience only and shall not be considered in construing this Lease. 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 Tenant
shall have no right to the Premises hereunder until the execution and delivery
hereof by both Landlord and Tenant. Except as herein otherwise provided, the
terms hereof shall be binding upon and shall inure to the benefit of the
successors and assigns, respectively, of Landlord and Tenant and, if Tenant
shall be an individual, upon and to his heirs, executors, administrators,
successors and assigns. If two or more persons or parties are named as Tenant
herein, each of such persons or parties shall be jointly and severally liable
for the obligations of the Tenant hereunder, and Landlord may proceed against
any one without first having commenced proceedings against any other of them.
Each term and each provision of this Lease to be performed by Landlord or Tenant
shall be construed to be both an independent covenant and a condition and time
is of the essence with respect to the exercise of any of Landlord's or Tenant's
rights under this Lease. The reference contained to successors and assigns of
Tenant is not intended to constitute a consent to assignment of Tenant. Except
as otherwise set forth in this Lease, any obligations of Tenant (including,
without limitation, rental and other monetary obligations, repair obligations
and obligations to indemnify Landlord), shall survive the expiration or earlier
termination of this Lease, and Tenant shall immediately reimburse Landlord for
any expense incurred by Landlord in curing Tenant's failure to satisfy any such
obligation (notwithstanding the fact that such cure might be effected by
Landlord following the expiration or earlier termination of this Lease).
10.9 EXPANSION OPTION. Provided that this Lease is then in full force and
effect and Tenant is not then in default for which Landlord is then entitled to
terminate this Lease, and subject to any right previously given to existing
tenants in the Building, Tenant may, at its option, lease all space contiguous
to the Premises, including space on the eighth (8th) and tenth
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(10th) floors. Such space shall be leased by Tenant upon the same terms and
conditions contained in this Lease, except for the rent, which shall be at
Market Rate, but as is without any improvements to be made at Landlord's expense
except as agreed to in a writing signed by both parties. In the event Tenant
exercises the Expansion Option, Tenant's Percentage shall be correspondingly
increased upon the addition of such space to the Premises. Tenant shall exercise
the Expansion Option by giving written notice to Landlord within thirty (30)
days of Landlord's notice to Tenant that such space is available. If Tenant
fails to respond in writing within the applicable thirty day period, the
Expansion Option shall be deemed to have been declined.
WITNESS the execution hereof under seal on the day and year first above
written.
Landlord: Tenant:
ATC REALTY, INC.
SONESTA INTERNATIONAL
HOTELS CORPORATION
By: /S/ By: /S/
---------------------------------- ----------------------------
Name: Xxxx X. Xxxxx Name: Xxxxx X. Xxxxxxxxx
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Title: Senior Vice President/Development Title: Vice President
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[MUST GIVE NOTICE TO MASS TURNPIKE AUTHORITY OF TERM OF LEASE, NAME AND ADDRESS
OF TENANT AND COPY OF LEASE WITHIN TEN (10) DAYS OF EXECUTION]
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