EXHIBIT 10.1
LEASE OF OFFICE SPACE
Date: June 11, 1987
BETWEEN: Jaymont (U.S.A.), Incorporated, with a principal office at 000 Xxxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 ("Landlord") AND Xxxxxx Xxxxx Corporation,
with an address at 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 ("Tenant").
FOR PREMISES IN: Landlord's building located at 00 Xxxxxx Xxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx (the "Building" which term shall include the land on which it is
located where the context shall so admit).
LANDLORD AND TENANT, in consideration of the covenants herein contained, hereby
agree as follows:
ARTICLE 1.00 DEFINITIONS
1.01 DEFINITIONS IN THIS LEASE:
(a) "Annual Rent" means $1,516,148.00 per annum at the rate of $31.00 per
rentable square foot for 40,000 square feet and at the rate of $34.00
per rentable square foot for 8,122 rentable square feet as herein
provided, and payable as provided under Article 4.01.
(b) "Article" means an article of this Lease.
(c) "Commencement Date" means the date of substantial completion provided
that it may not occur earlier than July 1, 1988 nor later than January
1, 1989 (the "Original Commencement Date"), unless said Commencement
Date is delayed and set at a later date in accordance with Article
3.03.
(d) "Exhibit A" means the plan(s) attached hereto as Exhibit A.
(e) "Exhibit B" means the provisions relating to Occupancy Costs and other
matters attached hereto as Exhibit B.
(f) "Exhibit C" means the Building Rules and Regulations attached hereto
as Exhibit C.
(g) "Exhibit D" means the provisions relating to Landlord's Services
attached hereto as Exhibit D.
(h) "Exhibit E" means the provisions relating to the Tenant Improvements
to the Premises attached hereto as Exhibit E.
(i) "Exhibit F" means the form of Estoppel Certificate attached hereto as
Exhibit F.
(j) "Exhibit G" means the Commencement Date acknowledgment to be executed
by Landlord and Tenant at the commencement of the Term attached hereto
as Exhibit G.
(k) "Exhibit H" means the form of Square Footage Measurement Notification
attached hereto as Exhibit H.
(l) "Fiscal Year" means a twelve-month period (all or part of which falls
within the Term) from time to time determined by Landlord at the end
of which Landlord's books are balanced for auditing and/or taxation
purposes.
(m) "Lease" means this lease, Exhibits X, X, X, X, X, X, X and H and
Riders (if attached) to this Lease, and every properly executed
instrument which by its terms amends, modifies or supplements this
Lease.
(n) "Occupancy Costs" means amounts payable by Tenant to Landlord under
Article 4.02.
(o) "Other Charges" means amounts payable to Landlord under Article 4.03.
(p) "Premises" means 48,122 rentable square feet, more or less, consisting
of the entire second (2nd), third (3rd) and fourth (4th) floors of the
Building as generally indicated on Exhibit A.
(q) "Rent" means the aggregate of all amounts payable by Tenant to
Landlord under Articles 4.01, 4.02 and 4.03.
(r) "Rules and Regulations" means those rules and regulations set forth in
Exhibit C as the same may be amended from time to time by Landlord.
(s) "Security Deposit" means $126,345.66 to be held as provided in Article
20.11 hereof.
(t) "Term" means a period of ten (10) years commencing with the
Commencement Date, unless sooner terminated as herein provided; and
any renewals or extensions thereof.
(u) "Use" means for office use in connection with the conduct of the
business activity set forth below only and none other: Insurance
Business, and with the approval of Landlord, office uses consistent
with first-class office buildings in the financial district of Boston.
ARTICLE 2.00 GRANT OF LEASE
2.01 GRANT. Landlord hereby demises and leases the Premises to Tenant, and
Tenant hereby leases and accepts the Premises from Landlord, to have and
to hold during the Term, subject to the terms and conditions of this
Lease. Tenant is hereby granted the right to
2
use, in common with all others lawfully entitled thereto, all means of
egress, ingress, lobbies and common facilities within the Building.
2.02 QUIET ENJOYMENT. Landlord shall warrant and defend Tenant in the quiet
enjoyment and possession of the Premises during the Term against all
parties claiming by, through or under Landlord, subject to the terms and
conditions of this Lease.
2.03 COVENANTS OF LANDLORD AND TENANT. Landlord covenants to observe and
perform all of the terms and conditions to be observed and performed by
Landlord under this Lease. Tenant covenants to pay the Rent when due under
this Lease, and to observe and perform all of the terms and conditions to
be observed and performed by Tenant under this Lease.
ARTICLE 3.00 TERM AND POSSESSION
3.01 TERM. The term of this Lease shall be the number of years set forth in
Article 1.01(t), beginning on the date set forth in said Article (the
"Commencement Date") unless extended or renewed or terminated earlier as
provided in this Lease.
3.02 EARLY OCCUPANCY. If Tenant begins to conduct business in all or any
portion of the Premises before the Commencement Date, Tenant shall pay to
Landlord on the Commencement Date on account of Rent in respect thereof
for the period from the date Tenant begins to conduct business therein to
the Commencement Date, which Rent shall be that proportion of Rent for one
calendar year which the number of days in such period bears to 365. Except
where clearly inappropriate, the provisions of this Lease shall be
applicable during such period.
3.03 POSSESSION. On or before the Original Commencement Date, Landlord shall
substantially complete the work specified in Exhibit E hereto, if any, and
(i) the term substantial completion or substantially complete shall mean
that the Premises have been completed in full compliance with the Space
Plans and Engineering Plans with the exception of mechanical adjustments
and minor touch-up so that the Premises may be used for their intended
purposes excluding, however, any special items or long lead items
designated by Tenant which are not Tenant Standard Improvements; and (ii)
that the lobby of the Building shall have been completed except for
mechanical adjustments and touch-up and that reasonable means of access to
the Premises shall be provided free of all construction debris; and (iii)
that a Certificate of Occupancy or other permission for Tenant to occupy
the Premises for the Use shall have been obtained; and (iv) that the date
of substantial completion shall have been established by notice to Tenant
accompanied and confirmed by Landlord's Architect's Certificate of
Substantial Completion. If Landlord is delayed in delivering possession of
all or any portion of the Premises to Tenant on or before the Original
Commencement Date, then Tenant shall take possession of the Premises on
the date (not later than six month's after the Original Commencement Date)
when Landlord delivers possession of all of the Premises substantially
completed, which date shall be conclusively established by notice to
Tenant, accompanied and confirmed by a Landlord's Architect's Certificate
of Substantial Completion, at least five days before such date, and which
date shall then be considered to be the Commencement Date for purposes of
this Lease. This Lease shall not be void or voidable nor shall Landlord be
3
liable to Tenant for any loss or damage resulting from any delay in
delivering possession of the Premises to Tenant, and no Rent shall be
payable by Tenant for the period prior to the date on which Landlord can
so deliver possession of all of the Premises, unless Tenant elects to take
possession of a portion of the Premises whereupon Rent shall be payable in
respect thereof from the date such possession is taken; provided, however,
that in the event that any delay in delivery of possession of the Premises
to Tenant is principally caused by or is attributable to the act or
neglect of Tenant, its servants, agents, employees or independent
contractors (collectively "Tenant's Acts"), the Commencement Date shall be
the later of the Original Commencement Date or the date on which
possession of the Premises would have been delivered to Tenant but for the
delay caused by Tenant's Acts, and Tenant shall be liable for Rent and the
other obligations under the Lease from said Commencement Date. If for
reasons beyond the Landlord's reasonable control the Commencement Date
shall not occur within twelve (12) months after the Original Commencement
Date, Landlord shall have the right to terminate this Lease by written
notice to Tenant. In such case, this Lease shall be void and without
recourse to either party except that any Security Deposit given by Tenant
to Landlord shall be refunded.
3.04 ACCEPTANCE OF PREMISES. Taking possession of all or any portion of the
Premises by Tenant shall be conclusive evidence as against Tenant that the
Premises are in satisfactory condition on the date of taking possession,
subject only to those punch list items, written notice of which is given
to Landlord prior to the commencement of Tenant's moving into the Premises
and latent defects and deficiencies (if any) listed in writing in a notice
delivered by Tenant to Landlord not more than thirty (30) days after the
earlier of the date of taking possession or the Commencement Date, except
that with respect to failure to perform work called for on the Space Plans
or Engineering Plans which constitute latent defects, said thirty (30)
days shall be extended to one hundred eighty (180) days and, with respect
to the operation of mechanical systems, the period shall be extended to
one (1) full cycle of operation of such system. Each of said periods shall
commence upon the Commencement Date.
ARTICLE 4.00 RENT AND OCCUPANCY COSTS
4.01 ANNUAL RENT. Tenant shall pay to Landlord as Annual Rent for the Premises
the sum shown in Article 1.01(a) as Annual Rent in respect of each year of
the Term, payable in advance and without notice in equal monthly
installments on the Commencement Date and on the first day of each
calendar month thereafter during the Term. Tenant shall not be required to
pay the first twenty-three (23) installments of Annual Rent with respect
to 40,000 rentable square feet of the Premises. Tenant shall not be
required to pay the first twelve (12) installments of Annual Rent with
respect to the 8,122 rentable square feet for which the Annual Rent is
computed at $34.00 per rentable square foot and Tenant shall not be
required to pay the first (2) months of the second (2nd), third (3rd),
fourth (4th), fifth (5th) years of the Term of this Lease and the first
three (3) months of the sixth (6th) year of the Term of this Lease with
respect to said 8,122 rentable square feet.
4
4.02 OCCUPANCY COSTS. Tenant shall pay to Landlord at the times and in the
manner provided in Article 4.06, the Occupancy Costs (including Common
Areas Cost and Tax Cost) determined pursuant to Exhibit B.
4.03 OTHER CHARGES. Tenant shall pay to Landlord, at the times and in the
manner provided in this Lease or, if not so provided, as reasonably
required by Landlord, all amounts (in addition to those amounts payable
under Articles 4.01 and 4.02) which are payable by Tenant to Landlord
under this Lease. Without limitation, this Lease shall be deemed and
construed as a "Net Lease" except as herein otherwise expressly set forth.
Tenant shall pay to Landlord, through the term of this Lease, the Rent and
other payments hereunder, free of any charges, assessments, impositions or
deductions of any kind, all of which Tenant shall pay or discharge,
without abatement, deduction or set off, and under no circumstances or
conditions, whether now existing or hereafter arising, or whether beyond
the present contemplation of the parties, shall Landlord be expected or
required to make any payment of any kind whatsoever or be under any other
obligation or liability hereunder, except as herein otherwise expressly
set forth.
4.04 PAYMENT OF RENT - GENERAL. All amounts payable by Tenant to Landlord under
this Lease shall be deemed to be Rent and shall be payable and recoverable
as Rent in the manner herein provided, and Landlord shall have all rights
against Tenant for default in any such payment as in the case of arrears
of Rent. Rent shall be paid to Landlord, without deduction or set-off, in
legal tender of the jurisdiction in which the Building is located, at the
address of Landlord as set forth in the beginning of this Lease, or to
such other person or at such other address as Landlord may from time to
time designate in writing. Tenant's obligation to pay accrued Rent shall
survive the expiration or earlier termination of this Lease.
4.05 RENT - EARLY COMMENCEMENT OR TERMINATION. If the Term, respectively,
begins or ends on a day other than the first or last day of a calendar
month, the installment of Rent payable on the first day of the Term or the
first day of the last calendar month of the Term shall be prorated for
such first or last partial month on a daily basis.
4.06 PAYMENT - OCCUPANCY COSTS.
(a) Prior to the Commencement Date and prior to the beginning of each
Fiscal Year thereafter, Landlord shall compute and deliver to Tenant a
bona fide estimate of Occupancy Costs for the appropriate Fiscal Year
and, without further notice, Tenant shall pay to Landlord in monthly
installments one-twelfth of such estimate simultaneously with Tenant's
payments of Annual Rent during such Fiscal Year.
(b) Unless delayed by causes beyond Landlord's reasonable control,
Landlord shall deliver to Tenant within 120 days after the end of each
Fiscal Year a written statement (the "Statement") setting out in
reasonable detail the amount of Occupancy Costs for such Fiscal Year
and certified to be correct by an officer of Landlord. If the
aggregate of monthly installments of Occupancy Costs actually paid by
Tenant to Landlord during such Fiscal Year differs from the amount of
Occupancy Costs payable for such Fiscal Year under Article 4.02,
Tenant shall
5
pay or Landlord shall give Tenant credit for (or after the expiration
of the Term if Tenant is not in default, refund to Tenant) the
difference (as the case may be) without interest within 30 days after
the date of delivery of the Statement.
(c) If Landlord and Tenant disagree on the accuracy of Occupancy Costs as
set forth in the Statement, Tenant shall nevertheless make payment in
accordance with any notice given by Landlord. Landlord agrees at the
request of Tenant to have Landlord's representative meet with Tenant
and to furnish reasonable information to Tenant with respect to any
disputed item. If, notwithstanding such meeting and disclosure, Tenant
shall nevertheless continue to question the accuracy of Occupancy
Costs, the disagreement shall immediately be referred by Landlord for
prompt decision by a mutually acceptable public accountant, architect,
insurance broker or other professional consultant who shall be deemed
to be acting as expert(s) and not arbitrator(s), and a determination
signed by the selected expert(s) shall be final and binding on both
Landlord and Tenant. Any adjustment required to any previous payment
made by Tenant or Landlord by reason of any such decision shall be
made within 14 days thereof, and the party required to make payment
under such adjustment shall bear all costs of the expert's making such
decision except where that payment represents 3% or less of the
Occupancy Costs that were the subject of the disagreement, in which
case Tenant shall bear all such costs.
(d) Neither party may claim a readjustment in respect of Occupancy Costs
for a Fiscal Year if based upon any error of computation or allocation
except by notice delivered to the other party within six months after
the date of delivery of the Statement.
(e) In any Fiscal Year when the Building has an average annual occupancy
rate of less than 95%, the Occupancy Costs will be extrapolated as
though the Building were 95% occupied and the Occupancy Costs
allocable to the Premises shall mean the same proportion of the
Occupancy Costs for the entire Building as the rentable floor area of
Tenant's space bears to 100% of the rentable floor area in the
Building. In any Fiscal Year when the Building has an average annual
occupancy rate of 95% or more, then the Occupancy Costs for the
Premises shall be the Occupancy Costs as set forth and determined
pursuant to Exhibit B.
(f) In the event that any tax or charge shall be imposed upon Landlord by
reason of any improvements made by or at the request of Tenant to the
Premises subsequent to the completion of the work to be done by
Landlord prior to the Commencement Date, Tenant shall pay the entire
amount of such tax as additional Rent.
ARTICLE 5.00 USE OF PREMISES
5.01 USE. The Premises shall be used and occupied solely for the Use set forth
in Article 1.01(u) and for no other use or purpose.
6
5.02 COMPLIANCE WITH LAWS. The Premises shall be used and occupied in a safe,
careful and proper manner so as not to contravene any present or future
governmental or quasi-governmental laws in force or regulations or orders
and those of insurers. If due solely to Tenant's use of the Premises,
improvements are necessary to comply with any of the foregoing or with the
requirements of insurance carriers, Tenant shall pay the entire cost
thereof.
5.03 ABANDONMENT. Tenant shall not vacate or abandon the Premises except for
temporary periods of not more than fifteen (15) business days without an
expressed written intention to return on a specific date which written
intention is delivered to Landlord prior to the commencement of such
temporary period any time during the Term without Landlord's prior written
consent.
5.04 NUISANCE. Tenant shall not cause or maintain any nuisance in or about the
Premises and shall keep the Premises free of debris or materials which
would attract rodents or vermin, and free of anything of a dangerous,
noxious or offensive nature or which could create a fire hazard or
increase the cost of casualty or other insurance on the Building or the
Premises (through undue load on electrical circuits or otherwise) or cause
undue vibration, heat or noise. Tenant shall not use in the Premises sound
equipment (such as loudspeakers, broadcasts and telecasts) in a manner
seen or heard outside the Premises, nor permit any odors to emanate
therefrom, regardless of the nature of Tenant's use, and shall not place
or keep any merchandise or other thing in the Common Areas.
ARTICLE 6.00 SERVICES, MAINTENANCE, REPAIR AND ALTERATIONS BY LANDLORD
6.01 OPERATION OF BUILDING. During the Term, Landlord shall operate and
maintain the Building in accordance with all applicable laws and
regulations and with standards from time to time prevailing for buildings
of its type in the area in which the Building is located and, subject to
participation by Tenant by payment of Occupancy Costs under Article 4.02,
shall provide the services set out in this Article 6.00.
6.02 SERVICES. Landlord shall provide in the Building or Premises as the case
may be:
(A) BUILDING SERVICES:
(i) domestic running water and necessary supplies in common
washrooms sufficient for the normal use thereof by occupants in
the Building;
(ii) access to and egress from the Premises, including elevator or
escalator service if included in the Building;
(iii) heat, ventilation, cooling, lighting, electric power, and
janitor service in those areas of the Building from time to time
designated by Landlord for use by Tenant in common with all
tenants and other persons in the Building but under the
exclusive control of Landlord;
7
(iv) a general directory board or electronic display on which Tenant
shall be entitled to have its name shown, provided that Landlord
shall have exclusive control thereof and of the space thereon to
be allocated to each tenant;
(v) maintenance, repair, and replacement as set out in Article 6.03;
and
(vi) twenty-four (24) hour security by a manned guard desk in the
Building lobby.
(B) SERVICES TO PREMISES:
(i) equipment for heat, ventilation and cooling as required for the
comfortable use and occupancy of the Premises during normal
business hours, which shall be from 8:00 A.M. to 6:00 P.M.,
Monday through Friday, and 8:00 A.M. to 1:00 P.M. on Saturday;
(ii) janitor services, as reasonably required to keep the Premises in
a clean and wholesome condition in accordance with the Building
standards set forth on Exhibit D to this Lease, provided that
Tenant shall leave the Premises in a reasonably tidy condition
at the end of each business day, and interior window washing on
a periodic basis;
(iii) for Tenants occupying an entire floor, as set forth on Exhibit
D, electric power for normal lighting and small business office
equipment (but not equipment using amounts of power
disproportionate to that used by other tenants in the Building),
provided, however, that Tenant shall pay the costs of the same
in accordance with Landlord's submetering system. If more than
one tenant shall occupy the floor of the Building on which the
Premises are located, Landlord shall reasonably apportion the
cost of electricity among them on a square footage basis and in
accordance with applicable engineering standards. At the request
of Tenant if Tenant shares a floor, the Landlord shall conduct
an electrical audit at Tenant's expense and shall reapportion
the cost of electricity among tenants on the floor if said audit
demonstrates that one or more of said tenants are utilizing
electricity at a level disproportionate to the proportion of the
square footage that it or they occupies;
(iv) replacement of Building standard fluorescent tubes, light bulbs
and ballasts in the Common Areas as required from time to time
as a result of normal usage; and
(v) maintenance, repair, and replacement as set out in Article 6.03.
(C) ADDITIONAL SERVICES:
(i) If from time to time requested in writing by Tenant, and to the
extent that it is reasonably able to do so, Landlord shall
provide in the Premises
8
services in addition to those set out in this Article 6.02,
provided that Tenant shall, within ten days of receipt of any
invoice for any such additional service, pay Landlord therefor
at such reasonable rates as Landlord may from time to time
establish; and
(ii) Tenant shall not, without Landlord's written consent, install in
the Premises equipment (including telephone equipment) which
generates sufficient heat to affect the temperature otherwise
maintained in the Premises by the air conditioning system as
normally operated. Landlord may install supplementary air
conditioning units, facilities or services in the Premises, or
modify its air conditioning system, as may in Landlord's
reasonable opinion be required to maintain proper temperature
levels, and Tenant shall pay Landlord within ten days of receipt
of any invoice for the cost thereof, including the cost of
installation, operation and maintenance.
6.03 MAINTENANCE, REPAIR AND REPLACEMENT. Except to the extent that the need
therefor shall result from the negligence or default of Tenant, Landlord
shall operate, maintain, repair and replace the systems, facilities and
equipment necessary for the proper operation of the Building and for
provision of Landlord's services under Article 6.02 and shall be
responsible for and shall maintain and repair the foundations, structure
and roof of the Building and repair damage to the Building which Landlord
is obligated to insure against under Article 9.00, as determined to be
necessary by Landlord, provided that:
(a) if all or part of such systems, facilities and equipment are
destroyed, damaged or impaired, Landlord shall have a reasonable time
in which to complete the necessary repair or replacement, and during
that time shall be required only to maintain such services as are
reasonably possible in the circumstances;
(b) Landlord may temporarily discontinue such services or any of them at
such times as may be necessary due to causes beyond the reasonable
control of Landlord;
(c) Landlord shall use reasonable diligence in carrying out its
obligations under this Article 6.03, but, to the fullest extent
permitted by law, shall not be liable under any circumstances for any
consequential damage to any person or property for any failure to do
so;
(d) no reduction or discontinuance of such services under this Article
6.03(a) or (b) shall be construed as an eviction of Tenant or (except
as specifically provided in this Lease) release Tenant from any
obligation of Tenant under this Lease; and
(e) to the extent that Tenant shall install any equipment which has any
connection to the building systems within the Premises or shall
request of Landlord that Landlord install such equipment, including
any which may be installed during the initial construction of the
Premises, Tenant shall, at the request of Landlord, enter into a
Maintenance Contract with a responsible maintenance contractor
approved by Landlord, or Landlord shall enter into such contract for
the account of Tenant and at Tenant's expenses.
9
(f) nothing contained herein shall derogate from the provisions of Article
16.00.
6.04 ALTERATIONS BY LANDLORD. Landlord may from time to time:
(a) make repairs, replacements, changes or additions to the structure,
systems, facilities and equipment in the Premises;
(b) make changes in or additions to any part of the Building not in or
forming part of the Premises; and
(c) change or alter the location of Common Areas of the Building;
provided that in doing so Landlord shall give reasonable advance notice of
the same, except in case of emergency. Landlord shall not disturb or
interfere with Tenant's use of the Premises and the operation of Tenant's
business any more than is reasonably necessary in the circumstances.
6.05 ACCESS BY LANDLORD. Tenant shall permit Landlord to enter the Premises
outside normal business hours, and during normal business hours where such
will not unreasonably disturb or interfere with Tenant's use of the
Premises and the operation of Tenant's business, to examine, inspect, and
show the Premises to persons wishing to lease them, to provide services or
make repairs, replacements, changes or alterations as set out in this
Lease, and to take such steps as Landlord may deem necessary for the
safety, improvement or preservation of the Premises or the Building.
Landlord shall, whenever possible, consult with or give reasonable notice
to Tenant prior to such entry, except in the case of an emergency, but no
such entry shall constitute an eviction or entitle Tenant to any abatement
of Rent.
6.06 ENERGY, CONSERVATION AND SECURITY POLICIES. Landlord shall be deemed to
have observed and performed the terms and conditions to be performed by
Landlord under this Lease, including those relating to the provision of
utilities and services, if in so doing it acts in accordance with a
directive, policy or request of a governmental or quasi-governmental
authority serving the public interest in the fields of energy,
conservation or security. Without limitation of any other provision of
this Lease, Tenant shall comply with all reasonable directives of Landlord
relative to the conservation of energy.
ARTICLE 7.00 MAINTENANCE, REPAIRS, IMPROVEMENTS AND ALTERATIONS BY TENANT
7.01 CONDITION OF PREMISES. Except to the extent that Landlord is specifically
responsible therefor under this Lease, Tenant shall maintain the Premises
and all improvements therein in good order and condition, including:
(a) repainting and redecorating the Premises and cleaning drapes, carpets
and the like at reasonable intervals as needed to the extent necessary
to maintain the Premises at a standard of occupancy generally
acceptable in first class office buildings in the Central Business
District of Boston; and
10
(b) making repairs and replacements in the Premises as needed, including
without limitation those repairs and replacements necessary to comply
with laws, rules, ordinances, regulations or orders of any
governmental or quasi-governmental authority.
7.02 FAILURE TO MAINTAIN PREMISES. If Tenant fails to perform any obligation
under this Article 7.00, then on not less than ten days' notice to Tenant
(except in the case of emergency), Landlord may enter the Premises and
perform such obligation without liability to Tenant for any loss or damage
to Tenant thereby incurred, and Tenant shall pay Landlord for the cost
thereof within ten (10) days of demand therefor.
7.03 ALTERATIONS BY TENANT. Tenant may from time to time at its own expense
make non-structural changes, additions and improvements in the Premises to
better adapt the same to its business, provided that any such change,
addition or improvement shall:
(a) comply with the requirements of Landlord's insurer and any
governmental or quasi-governmental authority having jurisdiction;
(b) be made only with the prior written consent of Landlord, after
submission of satisfactory plans and specifications to Landlord which
are approved by Landlord;
(c) equal or exceed the then current standard for the Building, and will
not interfere with or injure the Building or any system or facility
thereof; and
(d) be carried out only by persons selected by Tenant and approved in
writing by Landlord in its sole discretion, who shall, if required by
Landlord, deliver to Landlord, before commencement of the work,
performance and payment bonds as well as proof of worker's
compensation and public liability and property damage insurance
coverage, with Landlord named as an additional insured in amounts,
with companies, and in form reasonably satisfactory to Landlord, which
shall remain in effect during the entire period in which the work will
be carried out.
Any increase in property taxes on, or fire or casualty insurance
premiums for, the Building attributable to such change, addition or
improvement or any other conduct of Tenant shall be borne by Tenant.
7.04 TRADE FIXTURES AND PERSONAL PROPERTY. Tenant may install in the Premises
its usual trade fixtures and personal property in a proper manner,
provided that no such installation shall interfere with or damage (or
threaten the same) the mechanical or electrical systems or the structure
of the Building. If Tenant is not then in default hereunder, trade
fixtures and personal property installed in the Premises by Tenant may be
removed from the Premises:
(a) from time to time in the ordinary course of Tenant's business or in
the course of reconstruction, renovation, or alteration of the
Premises by Tenant; and
(b) during a reasonable period prior to the expiration of the Term;
11
provided that Tenant promptly repairs at its own expense any damage to the
Premises resulting from such installation and removal.
7.05 MECHANICS LIENS. Tenant shall pay before delinquency all costs for work
done or caused to be done by Tenant in the Premises which could result in
any lien or encumbrance on Landlord's interest in the Building or the land
on which it is located or any part thereof, shall keep the title to the
said land and Building and every part thereof free and clear of any lien
or encumbrance in respect of such work, and shall indemnify and hold
harmless Landlord against any claim, loss, cost, demand and legal or other
expense, whether in respect of any lien or otherwise, arising out of the
supply of material, services or labor for such work. Tenant shall
immediately notify Landlord of any such lien, claim of lien or other
action of which it has or reasonably should have knowledge and which
affects the title to the said land or Building or any part thereof, and
shall cause the same to be removed within five days (or such additional
time as Landlord may consent to in writing), failing which Landlord may
take such action as Landlord deems necessary to remove the same and the
entire cost thereof shall be immediately due and payable by Tenant to
Landlord.
7.06 SIGNS. Any sign, decal, lettering or design of Tenant which is visible
from the exterior of the Premises shall be at Tenant's expense and subject
to approval by Landlord, and shall conform to the uniform pattern of
identification signs for tenants in the Building as prescribed by
Landlord. Tenant shall not otherwise inscribe or affix any sign, lettering
or design in the Premises or Building which is visible from the exterior
of the Building.
ARTICLE 8.00 TAXES
8.01 LANDLORD'S TAXES. Landlord shall pay (subject to participation by Tenant
by payment of Occupancy Costs under Article 4.02) every real estate tax,
assessment, license fee and other charge, excepting Tenant's Taxes under
Article 8.02, which is, after any contest Landlord may care to make,
imposed, levied, assessed or charged by any governmental or
quasi-governmental authority having jurisdiction and which is payable in
respect of the Term upon or on account of the Building or the parcel or
parcels of land on which the Building is located.
8.02 TENANT'S TAXES. Tenant shall pay before delinquency every tax, assessment,
license fee, excise and other charge, however described, which is imposed,
levied, assessed or charged upon Tenant by any governmental or
quasi-governmental authority having jurisdiction and which is payable in
respect of the Term upon or on account of:
(a) operations at, occupancy of, or conduct of business in or from the
Premises by Tenant or with Tenant's permission;
(b) fixtures or personal property in the Premises which do not belong to
the Landlord; and
(c) the Rent paid or payable by Tenant to Landlord for the Premises or for
the use and occupancy of all or any part thereof;
12
provided that if Landlord so elects by notice to Tenant, Tenant shall add
any amounts payable under this Article 8.02 to the monthly installments of
Annual Rent payable under Article 4.01 and Landlord shall remit such
amounts to the appropriate authorities.
8.03 RIGHT TO CONTEST. Landlord and Tenant shall each have the right to contest
in good faith the validity or amount of any tax, assessment, license fee,
excise fee and other charge which it is responsible to pay under this
Article 8.00, provided that no contest by Tenant may be undertaken unless
Tenant shall deposit with Landlord adequate and sufficient security
against any loss or damage which may ensue or involve the possibility of
forfeiture, sale or disturbance of Landlord's interest in the Premises or
the Building and that upon the final determination of any contest by
Tenant, Tenant shall immediately pay and satisfy the amount found to be
due, together with any costs, penalties and interest.
ARTICLE 9.00 INSURANCE
9.01 LANDLORD'S INSURANCE. During the Term, Landlord shall maintain at its own
expense (subject to participation by Tenant by payment of Occupancy Costs
under Article 4.02) liability insurance, fire insurance with extended
coverage, boiler and pressure vessel insurance, and other insurance on the
Building and all property and interest of Landlord in the Building with
coverage and in amounts not less than those required by any first
mortgagee of the Building. Policies for such insurance shall waive, to the
extent available from Landlord's carrier(s) without additional cost
(unless Tenant pays the same in advance), any right of subrogation against
Tenant. If, by reason of Tenant's particular use of the Premises,
Landlord's insurance premiums shall be increased, Tenant shall pay all of
such increased premiums.
9.02 TENANT'S INSURANCE. During the Term, Tenant shall maintain at its own
expense:
(a) fire insurance with extended coverage and water damage insurance in
amounts sufficient to fully cover Tenant's improvements and all
property in the Premises which is not owned by Landlord;
(b) liability insurance, with Landlord and any mortgagee of Landlord named
as an additional insured, against claims for death, personal injury
and property damage in or about the Premises, in amounts which are
from time to time required by landlords of like buildings in the
community in which the Building is located, but not less than
$2,000,000 for death, illness or injury to one or more persons in a
single occurrence, and $500,000 for property damage in respect of each
occurrence. Such insurance may be purchased with primary and
supplementary coverage or by an umbrella coverage so-called;
(c) rent insurance covering all Rent hereunder for a period of one (1)
year; and
(d) such other and/or additional coverages in such amounts as may be
requested from time to time by Landlord if generally required of
tenants in first class office buildings in the Central Business
District of Boston aforesaid.
13
Policies for such insurance shall be in a form and with an insurer
reasonably acceptable to Landlord, shall require at least fifteen days'
written notice to Landlord of termination or material alteration during
the Term, and shall waive any right of subrogation against Landlord. If
requested by Landlord, Tenant shall from time to time promptly deliver to
Landlord certificates, certified copies or other evidence of such
policies, and evidence satisfactory to Landlord that all premiums thereon
have been paid and that the policies are in full force and effect.
ARTICLE 10.00 INJURY TO PERSON OR PROPERTY
10.01 INDEMNITY BY TENANT. To the fullest extent permitted by law, Tenant shall
indemnify and hold Landlord harmless from and against every demand, claim,
cause of action, judgment and expense, and all loss and damage arising
from:
(a) any injury or damage to the person or property of Tenant, any other
tenant in the Building or to any other person, where the injury or
damage is caused by the conduct of Tenant's business or the negligence
or misconduct of Tenant, its agents, servants, or employees, or of any
other person entering upon the Premises under express or implied
invitation of Tenant, or results from the violation of this Lease or
of laws or ordinances, governmental orders of any kind or of the
provisions of this Lease by any of the foregoing;
(b) any loss or damage, however caused, to books, records, files, money,
securities, negotiable instruments or papers in or about the Premises;
(c) any loss or damage resulting from Tenant's or its agents', servants'
or employees' interference with or obstruction of deliveries to or
from the Premises; and
(d) any injury or damage not specified above to the person or property of
Tenant, its agents, servants or employees, or any other person
entering upon the Premises under express or implied invitation of
Tenant, where the injury or damage is caused by any reason other than
the negligence or misconduct of Landlord, its agents, servants, or
employees.
10.02 SUBROGATION. The provisions of this Article 10.00 are subject to the
waiver of any right of subrogation against Tenant in Landlord's Insurance
in accordance with Article 9.01 and to the waiver of any right of
subrogation against Landlord in Tenant's Insurance under Article 9.02.
ARTICLE 11.00 ASSIGNMENT AND SUBLETTING
11.01 ASSIGNMENT. Tenant, but only with Landlord's prior written consent, may
assign this Lease:
(a) to an assignee who is a purchaser of all or substantially all of the
business of the Tenant provided that such assignee has a net worth
greater than the higher of the net worth of Tenant on (i) the date
hereof or (ii) the date of such assignment (sometimes an "Equivalent
Net Worth"), or to a parent or wholly owned
14
subsidiary company of Tenant, or to a company which results from the
reconstruction, consolidation, amalgamation or merger of Tenant,
provided that any such assignee after such assignment has an
Equivalent Net Worth; or
(b) subject to Article 11.03 to any other assignee who in Landlord's
discretion (i) will not be inconsistent with the character of the
Building and its other tenants; and (ii) has an Equivalent Net Worth;
and
(c) in any such case, Landlord shall be entitled to receive from Tenant,
and Tenant shall pay to Landlord as a condition of such consent, an
amount equal to the total consideration or compensation
("Compensation") received by Tenant however designated for the
Tenant's Leasehold Estate. Landlord may request and Tenant shall
furnish an Affidavit from the Chief Executive Officer of Tenant and
from the Chief Executive Officer of any such assignee certification as
to the amount of such consideration. Such consideration shall be paid
to Landlord as and when received by Tenant;
(d) Notwithstanding the foregoing, and without Landlord's written consent,
but with prior notice to Landlord and the written assumption by the
assignee or sub-lessee as the case may be, Tenant may assign this
Lease or sublet all or any part of the Premises to any parent,
subsidiary or affiliate ("Affiliates") of any Tenant subject to all of
the terms and provisions of this Lease but without regard to the net
worth requirements of Section 11.01(a) or the payment provisions of
11.01(c) unless in the latter case there shall in fact be
consideration paid and that Tenant named herein, and any Guarantor of
this Lease affirm in writing that their liability continue hereunder.
Failure of the Landlord to request such affirmation shall not release
Tenant or any Guarantor of such liability all of which shall be and
remain in full force and effect as if such assignment or subletting
had not occurred.
11.02 SUBLEASING. Tenant, with Landlord's prior written consent which may be
withheld in Landlord's discretion, and subject to Article 11.03, may
sublet all or any part of the Premises to a sublessee who, in Landlord's
discretion, will not be inconsistent with the character of the Building
and its other tenants and otherwise meets Landlord's standards. Landlord
may condition such consent upon having the Rent for the Term of this Lease
as to the portion of the Premises being sublet raised so that it shall be
the same as the rent being paid by such sublessee. If the sublessee shall
be paying a lower rent, then the Rent for the portion of the Premises
being sublet shall remain as provided for in Article 4.01.
11.03 FIRST OFFER TO LANDLORD. If Tenant wishes to assign this Lease (except as
set out in Article 11.01 (a)) or sublet all or any part of the Premises,
Tenant shall first offer in writing to assign or sublet (as the case may
be) to Landlord on the same terms and conditions and for the same Rent as
provided in this Lease. Any such first offer shall be deemed to have been
rejected unless within thirty days of receipt thereof, Landlord delivers
written notice of acceptance to Tenant. Alternatively, Landlord may
terminate this Lease with respect to any such proposed assignment or
subleasing of all of the Premises or with respect to any portion thereof
in which case all sums payable hereunder shall be equitably adjusted.
Tenant hereby releases Landlord from any claim which may arise or accrue
from such
15
termination including, but without limitation, hereby expressly consenting
to Landlord's dealing with any proposed assignee or sublessee directly and
entering into a direct lease with such person.
11.04 LIMITATION. Except as specifically provided in this Article 11.00, Tenant
shall not assign or transfer this Lease or any interest therein or in any
way part with possession of all or any part of the Premises, or permit all
or any part of the Premises to be used or occupied by any other person. If
Tenant shall be a corporation, partnership or other entity, the transfer
at one time or in the aggregate of more than twenty-five (25%) percent of
the corporate stock, partnership interests or other interests in the
Tenant shall be deemed to be an assignment for all purposes of this Lease.
Any assignment, transfer or subletting or purported assignment, transfer
or subletting, except as specifically provided herein, shall be null and
void and of no force and effect. Landlord shall not be required to consent
to an assignment of this Lease or a sublease of all or part of the
Premises by Tenant to any tenant in the Building. Without limitation, the
rights and interests of Tenant under this Lease shall not be assignable by
operation of law without Landlord's written consent, which consent may be
withheld in Landlord's sole discretion.
11.05 TENANT'S OBLIGATIONS CONTINUE. No assignment, transfer or subletting (or
use or occupation of the Premises by any other person) which is permitted
under this Article 11.00 shall in any way release or relieve Tenant of its
obligations under this Lease, unless such release or relief is
specifically granted by Landlord to Tenant in writing.
11.06 SUBSEQUENT ASSIGNMENTS. Landlord's consent to an assignment, transfer or
subletting (or use or occupation of the Premises by any other person)
shall not be deemed to be a consent to any subsequent or other assignment,
transfer, subletting, use or occupation, including without limitation a
reassignment to a person who was a prior tenant or occupant of the
Premises.
ARTICLE 12.00 SURRENDER
12.01 POSSESSION. Upon the expiration or other termination of the Term, Tenant
shall immediately quit and surrender possession of the Premises in
substantially the condition in which Tenant is required to maintain the
Premises, excepting only reasonable wear and tear and damage covered by
Landlord's insurance under Article 9.01. Upon such surrender, all right,
title and interest of Tenant in the Premises shall cease.
12.02 TRADE FIXTURES, PERSONAL PROPERTY AND IMPROVEMENTS. Subject to Tenant's
rights under Article 7.04, after the expiration or other termination of
the Term, all of Tenant's trade fixtures, personal property and
improvements remaining in the Premises shall be deemed conclusively to
have been abandoned by Tenant and may be appropriated, sold, destroyed or
otherwise disposed of by Landlord without notice or obligation to
compensate Tenant or to account therefor, and Tenant shall pay to Landlord
on written demand all costs incurred by Landlord in connection therewith.
12.03 MERGER. The voluntary or other surrender of this Lease by Tenant or the
cancellation of this Lease by mutual agreement of Tenant and Landlord
shall not work a merger, and
16
shall, at Landlord's option, terminate all or any subleases and
subtenancies or operate as an assignment to Landlord of all or any
subleases or subtenancies. Landlord's option hereunder shall be exercised
by notice to Tenant and all known sublessees or subtenants in the Premises
or any part thereof.
12.04 PAYMENTS AFTER TERMINATION. No payments of money by Tenant to Landlord, or
performance of any obligation by Tenant after the expiration or other
termination of the Term or after the giving of any notice of termination
by Landlord to Tenant, shall reinstate, continue or extend the Term or
make ineffective any notice given to Tenant prior to the payment of such
money, except payment or performance during any grace period expressly
provided herein. After the service of notice or the commencement of a
suit, or after final judgment granting Landlord possession of the
Premises, Landlord may receive and collect any sums of Rent due under the
Lease, and the payment thereof shall not make ineffective any notice or in
any manner affect any pending suit or any judgment theretofore obtained.
ARTICLE 13.00 HOLDING OVER
13.01 MONTH-TO-MONTH TENANCY. If, with Landlord's written consent, Tenant
remains in possession of the Premises after the expiration or other
termination of the Term, Tenant shall be deemed to be occupying the
Premises on a month-to-month tenancy only, at a monthly rental equal to
the Rent as determined in accordance with Article 4.00 or such other
rental as is stated in such written consent, and such month-to-month
tenancy may be terminated by Landlord or Tenant on the last day of any
calendar month by delivery of at least 30 days' advance notice of
termination to the other.
13.02 TENANCY AT SUFFERANCE. If, without Landlord's written consent, Tenant
remains in possession of the Premises after the expiration or other
termination of the Term, Tenant shall be deemed to be occupying the
Premises upon a tenancy at sufferance only, at a monthly charge for use
and occupancy equal to two times the Rent determined in accordance with
Article 4.00. Such tenancy at sufferance may be terminated by Landlord at
any time.
13.03 GENERAL. Any month-to-month tenancy or tenancy at sufferance hereunder
shall be subject to all other terms and conditions of this Lease except
any right of renewal, and nothing contained in this Article 13.00 shall be
construed to limit or impair any of Landlord's rights of re-entry,
eviction or the like or constitute a waiver thereof.
ARTICLE 14.00 RULES AND REGULATIONS
14.01 PURPOSE. The Rules and Regulations in Exhibit C have been adopted by
Landlord for the safety, benefit and convenience of all tenants and other
persons in the Building.
14.02 OBSERVANCE. Tenant shall at all times comply with, and shall cause its
employees, agents, licensees and invitees to comply with, the Rules and
Regulations from time to time in effect.
17
14.03 MODIFICATION. Landlord may from time to time, for the purposes set out in
Article 14.01, amend, delete from, or add to the Rules and Regulations,
provided that any such modification:
(a) shall not be specifically repugnant to any other provision of this
Lease;
(b) shall have general application to all tenants in the Building
similarly situated; and
(c) shall be effective only upon delivery of a copy thereof to Tenant at
the Premises.
14.04 NON-COMPLIANCE. Landlord shall not be responsible to Tenant for failure of
any person to comply with such Rules and Regulations, nor for any failure
to enforce the same in any particular instance.
ARTICLE 15.00 EMINENT DOMAIN
15.01 TAKING OF PREMISES. If, during the Term, all of the Premises or the
Building shall be taken for any public or quasi-public use under any
statute or by right of eminent domain, or purchased under threat of such
taking, this Lease shall automatically terminate on the date on which the
condemning authority takes possession of the Premises (hereinafter called
the "date of such taking").
15.02 PARTIAL TAKING OF BUILDING. If, during the Term, only part of the Building
is taken or purchased as set out in Article 15.01, then:
(a) if, in the reasonable opinion of Landlord, substantial alteration or
reconstruction of the Building is necessary or desirable as a result
thereof, whether or not the Premises are or may be affected, Landlord
shall have the right to terminate this Lease by giving the Tenant at
least 30 days' written notice of such termination; and
(b) if more than one-third of the number of Square Feet in the Premises is
included in such taking or purchase or if the Premises shall be
deprived of suitable means of access on a permanent basis, Landlord
and Tenant shall each have the right to terminate this Lease by giving
the other at least 30 days' written notice thereof.
If either party exercises its right of termination hereunder, this Lease
shall terminate on the date stated in the notice, provided, however that
no termination pursuant to notice hereunder may occur later than 60 days
after the date of such taking.
15.03 SURRENDER. On any such date of termination under Article 15.01 or 15.02,
Tenant shall immediately surrender to Landlord the Premises and all its
interests therein under this Lease. Landlord may re-enter and take
possession of the Premises and remove Tenant therefrom, and the Rent shall
xxxxx on the date of termination, except that if the date of such taking
differs from the date of termination, Rent shall xxxxx on the former date
in respect of the portion taken. After such termination, and on notice
from Landlord stating the Rent then owing, Tenant shall forthwith pay
Landlord such Rent.
18
15.04 PARTIAL TAKING OF PREMISES. If any portion of the Premises (but less than
the whole thereof) is so taken, and no rights of termination herein
conferred are timely exercised, the Term of this Lease shall expire with
respect to the portion so taken on the date of such taking. In such event,
the Rent payable hereunder with respect to such portions so taken shall
xxxxx on such date, and the Rent thereafter payable with respect to the
remainder not so taken shall be adjusted pro rata by Landlord in order to
account for the resulting reduction in the number of Square Feet in the
Premises, and Landlord shall reconstruct the balance to an architectural
whole to the extent of the awards actually received by it, subject to the
rights of any mortgagee.
15.05 AWARDS. Upon any such taking or purchase, whether or not this Lease is
terminated, Landlord shall be entitled to receive and retain the entire
award or consideration for the affected lands and improvements, and Tenant
shall not have nor advance any claim against Landlord for the value of its
property or its leasehold estate or the unexpired Term of the Lease, or
for any business interruption expense or any other damages arising out of
such taking or purchase. Nothing herein shall give Landlord any interest
in, or preclude Tenant from seeking and recovering on its own account from
the condemning authority, any award or compensation attributable to the
taking or purchase of Tenant's trade fixtures, or the removal or
relocation of its business and effects, or the interruption of its
business, provided that no such award to Tenant shall reduce any award
which would otherwise be due to Landlord. If any such award made or
compensation paid to either party specifically includes an award or amount
for the other, the party first receiving the same shall promptly account
therefor to the other.
15.06 TEMPORARY TAKING. In the event of any so-called temporary taking of all or
part of the Premises for public or quasi-public use for a period of less
than six (6) months (or a period which in Landlord's judgment is likely to
be less than six (6) months), this Lease and the terms hereof shall
continue, including, without limitation, the obligation to pay Rent and
all other sums hereunder, and Tenant shall receive awards or consideration
on account thereof up to the amount of said Rent and other sums actually
paid to Landlord, and the balance shall be the property of Landlord.
ARTICLE 16.00 DAMAGE BY FIRE OR OTHER CASUALTY
16.01 LIMITED DAMAGE TO PREMISES. If all or part of the Premises are rendered
untenantable by damage from fire or other casualty which, in the
reasonable opinion of an architect selected by Landlord, cannot be
substantially repaired under applicable laws and governmental regulations
within 90 days from the date of such casualty (employing normal
construction methods without overtime or other premium and utilizing sums
from insurers recoverable by Landlord under its then existing insurance
coverage), or if such damage or destruction shall occur during the last
year of the Term of the Lease, Landlord may terminate this Lease by
written notice to Tenant. If Landlord shall not so terminate this Lease,
Landlord shall forthwith at its own expense repair such damage, other than
damage to improvements, furniture, chattels or trade fixtures which do not
belong to Landlord or which were originally constructed by Tenant, and
other than damage due to the negligence or default of Tenant, which Tenant
shall repair. Upon substantial
19
completion of Landlord's work as aforesaid, Tenant shall promptly
reconstruct and refixture the Premises as required to conduct its
business.
16.02 MAJOR DAMAGE TO PREMISES. If all or part of the Premises are rendered
untenantable by damage from fire or other casualty which, in the
reasonable opinion of an architect selected by Landlord, cannot be
substantially repaired under applicable laws and governmental regulations
within 180 days from the date of such casualty (employing normal
construction methods without overtime or other premium and utilizing
insurance proceeds, all as provided in Article 16.01), then either
Landlord or Tenant may elect to terminate this Lease as of the date of
such casualty by written notice delivered to the other not more than 10
days after receipt of such architect's opinion.
16.03 ABATEMENT. If, pursuant to such casualty work is required to repair damage
to all or part of the Premises under Article 16.01 or 16.02, the Rent
payable by Tenant hereunder shall be proportionately reduced to the extent
that the Premises are thereby rendered unuseable by Tenant in its
business, from the date of such casualty until five days after completion
by Landlord of the repairs to the Premises (or the part thereof rendered
untenantable) or until Tenant again uses the Premises (or the part thereof
rendered untenantable) in its business, whichever first occurs, provided,
however, that Rent shall xxxxx as aforesaid only to the extent that Tenant
shall have provided Landlord with the full proceeds of such insurance as
is required to be carried by Tenant under Article 9.02(c) hereof.
16.04 MAJOR DAMAGE TO BUILDING. If all or a substantial part (whether or not
including the Premises) of the Building is rendered untenantable by damage
from fire or other casualty to such a material extent that in the
reasonable opinion of Landlord the Building must be totally or partially
demolished or reconstructed, whether or not to be reconstructed in whole
or in part, Landlord may elect to terminate this Lease as of the date of
such casualty (or on the date of notice if the Premises are unaffected by
such casualty) by written notice delivered to Tenant not more than 60 days
after the date of such casualty.
16.05 LIMITATION ON LANDLORD'S LIABILITY. Except as specifically provided in
this Article 16.00, and to the fullest extent permitted by law, there
shall be no reduction of Rent and Landlord shall have no liability to
Tenant by reason of any injury to or interference with Tenant's business
or property arising from fire or other casualty, howsoever caused, or from
the making of any repairs resulting therefrom in or to any portion of the
Building or the Premises. Notwithstanding anything contained in this
Article 16.00, Rent payable by Tenant hereunder shall not be abated if the
damage is caused by any act or omission of Tenant, its agents, servants,
employees or any other person entering upon the Premises under express or
implied invitation of Tenant.
ARTICLE 17.00 TRANSFERS BY LANDLORD
17.01 EFFECT OF SALE, CONVEYANCE OR ASSIGNMENT. A sale, conveyance or assignment
of the Building shall operate to release Landlord from liability from and
after the effective date thereof upon all of the covenants, terms and
conditions of this Lease, express or implied, except as such may relate to
the period prior to such effective date, and Tenant shall thereafter look
solely to Landlord's successor in interest in and to this Lease. This
Lease
20
shall not be affected by any such sale, conveyance or assignment, and
Tenant shall attorn to Landlord's successor in interest thereunder by
written agreement between Tenant and such successor, upon request of such
successor. In any event, Landlord shall be liable hereunder only to the
extent of its interest in the Building.
17.02 SUBORDINATION. At the election of Landlord or any present or future
mortgagee or any person who is or shall become the owner of the land on
which the Building is located and who has or shall lease the same to
Landlord, which election may be changed from time to time, the Lease and
the rights of Tenant hereunder, shall be subject and subordinate in all
respects to any and all mortgages and deeds of trust now or hereafter
placed on the Building or land, and to all renewals, modifications,
consolidations, replacements and extensions thereof and to any advances
secured by any of the foregoing regardless of when made, and to any and
all overleases.
17.03 ATTORNMENT. Subject to Article 17.05, if the interest of Landlord is
transferred to any person (herein called "Purchaser") by reason of
foreclosure or other proceedings for enforcement of any such mortgage or
deed of trust, or by delivery of a deed in lieu of such foreclosure or
other proceedings, or by reason of any termination of any xxxxxxxxx,
Tenant shall immediately and automatically attorn to Purchaser by written
agreement between Tenant and such Purchaser, upon request of such
Purchaser.
17.04 EFFECT OF ATTORNMENT. Upon attornment under Article 17.03, this Lease
shall continue in full force and effect as a direct lease between
Purchaser and Tenant, upon all of the same terms, conditions and covenants
as are set forth in this Lease except that after such attornment Purchaser
shall not be:
(a) liable for any act or omission of Landlord; or
(b) subject to any offsets or defenses which Tenant might have against
Landlord; or
(c) bound by any prepayment by Tenant of more than one month's installment
of Rent, or by any previous modification of this Lease, unless such
prepayment or modification shall have been approved in writing by
Purchaser or any predecessor in interest except Landlord.
17.05 EXECUTION OF INSTRUMENTS. The subordination and attornment provisions of
this Article 17.00 shall be self-operating and no further instrument shall
be required. Nevertheless, Tenant, on request by and without cost to
Landlord or any successor in interest or Purchaser, shall execute and
deliver any and all instruments further evidencing such subordination and
(where applicable hereunder) attornment, and if Tenant shall fail to do
so, Landlord may do so as Tenant's duly authorized attorney-in-fact, which
appointment shall be deemed to be irrevocable and coupled with an
interest.
ARTICLE 18.00 NOTICES, ACKNOWLEDGEMENTS, AUTHORITIES FOR ACTION
18.01 NOTICES. Any notice from one party to the other required or otherwise to
be given hereunder shall, unless otherwise stated to the contrary, be in
writing and shall be deemed duly served if mailed by registered or
certified mail, postage prepaid, return receipt
21
requested, addressed to Tenant at the Premises (whether or not Tenant has
departed from, vacated or abandoned the Premises) or to Landlord at the
place from time to time established for the payment of Rent or as
otherwise directed by Landlord. Personal delivery of any such notice may
be effected in lieu of mailing. Initially, notices to Landlord shall be
sent to the address shown on the first page hereof. Any notice shall be
deemed to have been given at the time of personal delivery or, if mailed,
five (5) days after the date of mailing thereof, or the date of receipt,
whichever shall be earlier. Either party shall have the right to designate
by notice, in the manner above set forth, a different address to which
notices are to be mailed and two additional parties to whom copies of
notices to be given to Tenant or to Landlord shall be sent in like manner.
18.02 ACKNOWLEDGEMENTS. Each of the parties hereto shall at any time and from
time to time upon not less than 20 days prior notice from the other
execute, acknowledge and deliver a written statement, substantially in the
form of Exhibit F, certifying to the extent that the same are, in fact,
true:
(a) that the Lease is in full force and effect, subject only to such
modifications (if any) as may be set out therein;
(b) that the Tenant is in possession of the Premises and paying Rent as
provided in this Lease;
(c) the dates (if any) to which Rent is paid in advance;
(d) that there are not, to such party's knowledge, any uncured defaults on
the part of the other party hereunder, or specifying such defaults if
any are claimed; and
(e) as to any other matter the other party or any mortgagee or overlessor
shall reasonably require.
Any such statement may be relied upon by any prospective transferee or
encumbrancer of all or any portion of the Building, or any assignee of any
such persons. If Tenant fails to timely deliver such statement, Tenant
shall be deemed to have acknowledged that this Lease is in full force and
effect, without modifications except as may be represented by Landlord,
and that there are no uncured defaults in Landlord's performance.
18.03 AUTHORITIES FOR ACTION. Landlord may act in any matter provided for herein
by its property manager and any other person who shall from time to time
be designated by Landlord by notice to Tenant. Tenant shall designate in
writing one or more persons to act on its behalf in any matter provided
for herein and may from time to time change, by notice to Landlord, such
designation. In the absence of any such designation, the person or persons
executing this Lease for Tenant shall be deemed to be authorized to act on
behalf of Tenant in any matter provided for herein.
ARTICLE 19.00 DEFAULT
19.01 INTEREST AND COSTS. Without limitation on any other provision hereof or
remedy at law or in equity, Tenant shall pay monthly to Landlord interest
at a rate equal to the lesser of the
22
base rate from time to time charged by the First National Bank of Boston
plus 3% per annum or the maximum rate permitted by applicable law, upon
all Rent and other sums required to be paid hereunder from the due date
for payment thereof until the same is fully paid and satisfied. Tenant
shall indemnify Landlord against all costs and charges (including legal
fees) lawfully and reasonably incurred in enforcing payment thereof, or in
obtaining possession of the Premises after default of Tenant or upon
expiration or earlier termination of the Term of this Lease, or in
enforcing any covenant, provision or agreement of Tenant herein contained,
and in addition thereto, if litigation shall be instituted, an amount
equal to twenty percent (20%) of the foregoing in compensation to Landlord
for administrative fees and Landlord's costs which cannot separately be
computed as aforesaid.
19.02 RIGHT OF LANDLORD TO PERFORM COVENANTS. All covenants and agreements to be
performed by Tenant under any of the terms of this Lease shall be
performed by Tenant, at Tenant's sole cost and expense, and without any
abatement of Rent, counterclaim, deduction or set-off. If Tenant shall
fail to perform any act on its part to be performed hereunder, and such
failure shall continue for 10 days after notice thereof from Landlord,
Landlord may (but shall not be obligated so to do) perform such act,
without waiving or releasing Tenant from any of its obligations relative
thereto. All sums paid or costs incurred by Landlord in so performing such
acts under this Article 19.02, together with interest thereon at the rate
set out in Article 19.01 from the date each such payment was made or each
such cost incurred by Landlord, shall be payable by Tenant to Landlord on
demand.
19.03 EVENTS OF DEFAULT. If and whenever:
(a) part or all of the Rent is not paid when due, and such default
continues for seven days after the due date thereof or after demand
therefor if there be no due date fixed herein; or
(b) the estate of Tenant or any goods, chattels or equipment of Tenant is
taken in execution or in attachment or if a writ of execution or the
equivalent is issued against Tenant; or
(c) Tenant becomes insolvent or commits an act of bankruptcy or becomes
bankrupt or takes the benefit of any statute that may be in force for
bankrupt or insolvent debtors or becomes involved in voluntary or
involuntary winding-up proceedings or if a receiver shall be appointed
for the business, property, affairs or revenues of Tenant; or
(d) except as provided in Section 5.03 for temporary periods, Tenant makes
a bulk sale of its goods or moves or commences, attempts or threatens
to move its goods, chattels and equipment out of the Premises (other
than in the normal course of its business) or ceases to conduct
business from the Premises; or
(e) Tenant fails to observe, perform and keep each and every of the
covenants, agreements, provisions, stipulations and conditions herein
contained to be observed, performed and kept by Tenant (other than
payment of Rent) and
23
persists in such failure after 10 days notice by Landlord requiring
that Tenant remedy, correct, desist or comply (or if any such breach
would reasonably require more than 10 days to rectify, unless Tenant
commences rectification within the 10 day notice period and thereafter
promptly and effectively and continuously proceeds with the
rectification of the breach) Landlord shall have the right,
immediately or at any time thereafter, to enter upon the Premises or
any part thereof in the name of the whole and repossess the same as of
its former estate and expel Tenant and those claiming by, through or
under it, and remove their goods and effects without breach of the
peace and store the same on behalf of Tenant 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 other payments or
preceding breach of covenant, and upon entry as aforesaid this Lease
shall be terminated. Landlord, at its election, may effect such
termination by written notice to Tenant to that effect, which shall
have the same force as an entry for breach as provided in this
Article. In case of such termination, or in case of termination under
the provisions of any law by reason of the default of a tenant,
Landlord shall become entitled to receive from Tenant, and Tenant
shall pay to Landlord on demand, as initial liquidated damages, a sum
equal to the amount by which the sum of the Rent and other payments
called for hereunder for the remainder of the Term exceeds the fair
rental value of the Premises for the remainder of the Term. Further,
Tenant shall, on demand of Landlord, from time to time indemnify
Landlord against all loss of Rent and other payments and damages which
it may incur by reason of such termination during the remainder of the
Term, first giving credit to any payments made by Tenant to Landlord
on account of initial liquidated damages as aforesaid. In computing
such damages there shall be added such reasonable expenses as Landlord
may incur in connection with such termination and/or reletting.
Landlord shall also have the right to pursue such other rights and
remedies as may be allowed at law or equity against Tenant and any and
all other parties who may be liable. All such remedies shall be
cumulative. All rights and remedies given to Landlord herein and all
rights and remedies available to Landlord at law or equity shall be
cumulative and concurrent.
19.04 SURRENDER. Without limitation on any provision hereof, if and whenever
Landlord terminates this Lease by giving notice thereof or by re-entry as
aforesaid, Tenant shall forthwith vacate and surrender the Premises.
19.05 PAYMENTS. Upon Landlord's termination of this Lease by re-entry or notice
as aforesaid, Landlord's damages and expenses as aforesaid shall include:
(a) Rent up to the time of said termination; and
(b) all expenses incurred by Landlord in performing any of Tenant's
obligations under this Lease, re-entering or terminating and
re-letting, collecting sums due or payable by Tenant, realizing upon
assets seized (including brokerage, legal fees and disbursements), and
the expense of keeping the Premises in good order,
24
repairing the same and completing any alterations, replacements and
decorations made in preparing them for re-letting.
19.06 REMEDIES CUMULATIVE. No reference to nor exercise of any specific right or
remedy by Landlord shall prejudice or preclude Landlord from exercising or
invoking any other remedy in respect thereof, whether allowed at law or in
equity or expressly provided for herein. No such remedy shall be exclusive
or dependent upon any other such remedy, but Landlord may from time to
time exercise any one or more of such remedies independently or in
combination.
ARTICLE 20.00 MISCELLANEOUS
20.01 RELATIONSHIP OF PARTIES. Nothing contained in this Lease shall create any
relationship between the parties hereto other than that of landlord and
tenant, and it is acknowledged and agreed that Landlord does not in any
way or for any purpose become a partner of Tenant in the conduct of its
business, or a joint venturer or a member of a joint or common enterprise
with Tenant.
20.02 CONSENT NOT UNREASONABLY WITHHELD. Except as otherwise specifically
provided, whenever consent, approval, permission or the exercise of
discretion of Landlord or Tenant is required or permitted under the terms
of this Lease, such consent, approval, permission or the exercise of
discretion shall not be unreasonably withheld, delayed, or exercised.
Tenant's sole remedy if Landlord unreasonably withholds or delays consent,
approval or permission or exercise as the case may be, shall be an action
for specific performance, and Landlord shall not be liable for damages. If
either party withholds any consent, approval, permission or exercise as
the case may be, such party shall on written request deliver to the other
party a written statement giving the reasons therefor.
20.03 NAME OF BUILDING. Landlord shall have the right, after 30 days notice to
Tenant, to change the name, number or designation of the Building during
the Term without liability to Tenant.
20.04 APPLICABLE LAW AND CONSTRUCTION. This Lease shall be governed by and
construed under the laws of the jurisdiction in which the Building is
located, and its provisions shall be construed as a whole according to
their common meaning and not strictly for or against Landlord or Tenant.
The words Landlord and Tenant shall include the plural as well as the
singular. If this Lease is executed by more than one tenant, Tenants'
obligations hereunder shall be joint and several obligations of such
executing tenants. Time is of the essence of this Lease and each of its
provisions. The captions of the Articles are included for convenience
only, and shall have no effect upon the construction or interpretation of
this Lease.
20.05 ENTIRE AGREEMENT. Exhibits X, X, X, X, X, X, X and H and the Riders, if
any, attached hereto are made a part of this Lease. This Lease contains
the entire agreement between the parties hereto with respect to the
subject matter of this Lease. Tenant acknowledges and agrees that it has
not relied upon any statement, representation, agreement, or warranty
except such as are set out in this Lease. If this Lease is made pursuant
to an
25
Offer to Lease, then the term "Lease" in this Article 20.05 shall be
deemed to include such Offer to Lease.
20.06 AMENDMENT OR MODIFICATION. Unless otherwise specifically provided in this
Lease, no amendment, modification, or supplement to this Lease shall be
valid or binding unless set out in writing and executed by the parties
hereto in the same manner as the execution of this Lease.
20.07 CONSTRUED COVENANTS AND SEVERABILITY. All of the provisions of this Lease
are to be construed as covenants and agreements as though the words
importing such covenants and agreements were used in each separate Article
hereof. Should any provision of this Lease be or become invalid, void,
illegal or not enforceable, it shall be considered separate and severable
from the Lease and the remaining provisions shall remain in force and be
binding upon the parties hereto as though such provision had not been
included.
20.08 NO IMPLIED SURRENDER OR WAIVER. No provisions of this Lease shall be
deemed to have been waived by Landlord unless such waiver is in writing
signed by Landlord. Landlord's waiver of a breach of any term or condition
of this Lease shall not prevent a subsequent act, which would have
originally constituted a breach, from having all the force and effect of
any original breach. Landlord's receipt of Rent with knowledge of a breach
by Tenant of any term or condition of this Lease shall not be deemed a
waiver of such breach. Landlord's failure to enforce against Tenant or any
other tenant in the Building any of the Rules and Regulations made under
Article 14.00 shall not be deemed a waiver of such Rules and Regulations.
No act or thing done by Landlord, its agents or employees during the Term
shall be deemed an acceptance of a surrender of the Premises. The delivery
of keys to any of Landlord's agents or employees shall not operate as a
termination of this Lease or a surrender of the Premises. No payment by
Tenant, or receipt by Landlord, of a lesser amount than the Rent due
hereunder shall be deemed to be other than on account of the earliest
stipulated Rent, nor shall any endorsement or statement on any check or
any letter accompanying any check or payment as Rent 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 Rent or
pursue any other remedy available to Landlord.
20.09 SUCCESSORS BOUND. Except as otherwise specifically provided, the
covenants, terms, and conditions contained in this Lease shall apply to
and bind the heirs, successors, executors, administrators and assigns of
the parties hereto.
20.10 DELAYS. In any case where either party hereto is required to do any act,
other than the making of any payment of Rent or other monetary sum due
Landlord hereunder, the time for performance thereof shall be extended for
a period equal to any delay caused by or resulting from any act of God,
war, civil commotion, fire, casualty, labor difficulties, shortages of
labor, materials or equipment, governmental regulations or other causes
beyond such party's reasonable control, whether such time be designated by
a fixed date, a fixed time, or a "reasonable time".
26
20.11 SECURITY DEPOSIT. Tenant has herewith deposited with Landlord the sum
shown in Article 1.01(s) as a security deposit to assure the Landlord of
the full and prompt payment and performance of Tenant's obligations under
this Lease. Said amount is not advance Rent and, subject to any diminution
thereof pursuant to the terms of this Lease, if Tenant shall have fully
performed all of its obligations under this Lease at the expiration or
prior termination thereof, Landlord shall return said security deposit or
what may remain thereof to Tenant. Landlord need not have recourse to said
security deposit, but may require Tenant's performance without regard
thereto. If Landlord shall use all or any part of the said security
deposit to cure Tenant's default hereunder, Tenant shall restore the part
so used promptly upon demand of Landlord. Landlord need not segregate said
sum, nor shall Landlord be under any obligation to pay interest thereon.
20.12 LANDLORD'S DEFAULT. In no case shall Landlord be deemed to be in default
under this Lease unless Tenant shall have first given Landlord notice in
writing specifying the nature of the default complained of and Landlord
shall have failed to cure said default within a reasonable period of time
after such notice. If Tenant shall have been given notice of any mortgage
or xxxxxxxxx, Landlord shall not be deemed in default hereunder until
notice shall similarly be given to the overlessor and/or mortgagee and
such default shall not have been cured within thirty (30) days thereafter
or such reasonable additional period as may thereafter be required. No
performance by any such party of Landlord's obligation, nor exercise by
any mortgagee of the right to collect Rent or to inspect the Premises,
shall subject such party to any liability under this Lease.
20.13 NO BROKER. Tenant warrants and represents that it has dealt with no broker
or agent in connection with this Lease other than Leggatt XxXxxx/Xxxxx &
Xxxxx, Inc. and Xxxxx Xxxxxx & Co., Incorporated and that Tenant shall
indemnify and hold Landlord harmless of and from all claims which may be
made by any person other than Leggatt XxXxxx/Xxxxx & Xxxxx, Inc. and Xxxxx
Xxxxxx & Co., Incorporated against Landlord for brokerage or other
compensation in the nature of brokerage with respect to this Lease.
20.14 RELOCATION OF PREMISES. Landlord may, upon not less than thirty (30) days
advance written notice to Tenant, relocate the Premises to substantially
comparable space within the Building, provided only that Landlord pays
Tenant's reasonable costs in connection with any such relocation,
including, without limitation, costs of moving, disconnecting and
reinstalling all of Tenant's equipment, including, but without limitation,
computers and telephone systems and provided that Tenant shall not be
obligated to give up possession of the Premises or to have its possession
of the Premises disturbed until the premises to which it is being
relocated have been substantially completed and are ready for Tenant's
occupancy.
20.15 OPTION TO EXPAND. Provided that:
(i) Tenant is not in default hereunder, either at the time of the
Exercise of this Option or at the Effective Date of the
inclusion of the option space, hereinafter defined, within the
Premises;
(ii) this Lease has not otherwise been terminated or cancelled; and
27
(iii) the Lease has not been assigned except with the permission of
Landlord, nor have more than 10,000 rentable square-feet of the
Premises been sublet, which subletting will remain in effect as
of the date upon which the First Expansion space is to be added
to the Premises.
FIRST EXPANSION OPTION:
Commencing on the first day of the sixth (6th) Lease Year hereof, Tenant
shall have the Option to Expand its premises by leasing the entire fifth
(5th) floor (consisting of approximately 12,452 rentable square feet
measured by Landlord as provided in Exhibit B, Section 3.00), by giving
Landlord prior written notice on or before the start of the fifth (5th)
Lease Year of the original Lease Term. Landlord at that time shall inform
Tenant of the date such space shall be available, which shall be no
earlier than the first (1st) month of the sixth (6th) Lease Year hereof,
and no later than the last month of the sixth (6th) Lease Year hereof, and
Rent shall commence upon the availability of the space. The Annual Rental
rate shall be the then market rate for space in the-Building on the date
the additional space is added to the Premises, but not less than the per
square rentable foot Annual Rent for the fifth (5th) year of the Original
Lease Term; plus Tenant's Percentage shall be adjusted by Landlord to
reflect the inclusion of such space in the Premises.
If all or any portion of the fifth (5th) floor shall become available
after the first tenancy thereof, prior to the time which Tenant could
exercise its first Expansion Option, Landlord shall advise Tenant of its
availability and Tenant shall have the right, but not the obligation, to
exercise its First Expansion Option at such time, and thereupon all or any
such portion of the First Expansion space shall be added to the Premises
at the then market rate for the Premises for the remainder of the Term of
the Lease all to the same effect as if Tenant had then exercised its First
Expansion Option as to all or any such portion of the expansion space, as
the case may be.
Tenant shall also have the right to exercise this First Expansion option
if it has not already done so, and if the Term of the Lease shall be
extended, by giving written notice to that effect to the Landlord on or
before the start of the tenth (10th) year of the original Lease Term and
in such event, the additional space shall be added to the Premises on such
date if the same shall become available, which shall be no earlier than
the first month of the eleventh (11th) Lease Year hereof and no later than
the last month of the eleventh (11th) Lease Year hereof.
SECOND EXPANSION OPTION:
Provided that Tenant shall have exercised its First Expansion Option as
provided above, Tenant shall have a Second Option to Expand its Premises
by leasing the entire sixth (6th) floor (consisting of approximately
11,104 rentable square feet measured by Landlord as provided in Exhibit B,
Section 3.00), by giving Landlord prior written notice on or before the
start of the tenth (10th) Lease Year of the original Term. Landlord at
that time shall inform Tenant of the date such space shall be available,
which shall be no earlier than the first month of the eleventh (11th)
Lease Year hereof and no later than the
28
last month of the eleventh (11th) Lease Year, and rent shall commence upon
the availability of the space. The Annual Rental rate shall be the then
market rate for space in the Building on the date the additional space is
added to the Premises, but not less than the per square rentable foot
Annual Rent for the eleventh (11th) year of the original Lease Term; and
Tenant's Percentage shall be adjusted by Landlord to reflect the inclusion
of such space in the Premises.
At any time after Tenant shall have exercised its First Expansion Option,
if all or any portion of the Premises subject to Tenant's Second Expansion
Option shall become vacant after their initial tenancy, Landlord shall
advise Tenant of their availability and Tenant may exercise its Second
Expansion Option at such time and upon the terms hereinabove set forth
within fifteen (15) days after receipt of Landlord's notice of its
availability.
Wherever in connection with the exercise by Tenant of an Expansion Option
the rent is to be adjusted to the market rate, there shall be taken into
account Base Taxes and Base Occupancy Costs.
Tenant's exercise of any right of expansion with respect to any Lease Year
after the tenth (10th) Lease Year shall be conditioned upon Tenant having
exercised its rights to extend hereinafter provided for.
Any Option to Expand hereinabove contained, if not exercised in a timely
fashion by Tenant, shall lapse and be void and without effect.
20.16 OPTION TO EXTEND. Provided that:
(i) Tenant is not in default either at the time of Exercise of this
Option or at the Commencement Date of any Extended Term;
(ii) this Lease has not otherwise been terminated or cancelled;
(iii) this Lease has not been assigned, except with the permission of
the Landlord, nor have more than fifty percent (50%) of the
rentable square feet of the Premises been sublet, which
subletting will remain in effect as of the date the extended
term shall commence.
Tenant shall have the Option to Extend the Term of this Lease for two (2)
periods of five (5) years each, commencing upon the expiration of the Term
hereof (or First Extended Term hereof, as the case may be) and continuing
for sixty (60) months thereafter by giving written notice of its Exercise
of this Option not later than twelve (12) months prior to the expiration
of the Term hereof (or First Extended Term, as the case may be). Each
Extended Term shall be upon the terms, provisions and conditions herein
set forth, except that there shall be no further right of extension and
the rate of Annual Rent shall be at the then market rate as of its
commencement, as determined by Landlord, but not less than the Annual
Rent, paid for the last year of the Original Term.
29
If Tenant shall fail to exercise an Option to Extend at least twelve (12)
months prior to the expiration of the then current term, such options
shall lapse and be void and without effect.
20.17 PARKING. Tenant shall be entitled to eight (8) parking spaces in the
Building garage. In the event Tenant exercises its Expansion Options,
Landlord shall provide
Tenant with additional parking at the rate of one (1) space per 5,463
rentable square feet with respect to the space added by the exercise of
the Expansion Option. The fee to be paid by Tenant for such spaces shall
be that amount charged by the Building or the parking garage operator from
time to time. These spaces shall be on an unassigned basis.
IN WITNESS OF THIS LEASE, Landlord and Tenant have properly executed it as
of the date set out on page one of this Lease.
LANDLORD TENANT
JAYMONT (U.S.A.), INCORPORATED XXXXXX XXXXX CORPORATION
By: /s/Xxxxxxx X. Xxxxxxx By: /s/Xxxxxxx Xxxxxxx
------------------------------ ----------------------------
Title: Vice President Title: President
30
ADDENDA TO LEASE
BETWEEN
JAYMONT (U.S.A.) INCORPORATED, LANDLORD
AND
XXXXXX XXXXX CORPORATION, TENANT
FOR PREMISES AT
00 XXXXXX XXXXX XXXXXX
XXXXXX, XXXXXXXXXXXXX
June 11, 1987
The following constitute amendments and modifications of the provisions of
the above-captioned Lease to the extent herein expressly set forth. In the event
of any conflict between the provisions of this Addenda and the provisions of the
Lease, the provisions of this Addenda shall control.
1. Section 1.01(l): Add "Provided that if due to a change in Fiscal Year
Tenant shall be required to pay for prior periods amounts in excess of
One Thousand and 00/100 Dollars ($l,000.00), Tenant shall be entitled
to make such payments in six (6) equal installments without interest".
2. Section 1.01(p): Add after "or less" in the second line, "measured as
provided in Section 3.00 of Exhibit B hereof".
3. Section 2.01: In line 4 after the word "Tenant" delete "is" and
replace with "and its employees and business invitees are".
4. Section 3.02: Add the following sentence "Occupancy of the Premises
for purposes of fixturing them, doing Tenant's Work, or otherwise
preparing them for occupancy shall not be deemed to be the conduct of
business".
5. Section 3.03: In line 29 change "five (5)" to "ten (10)", in line 31
insert before "this Lease" "except as otherwise provided" and add at
the end "Landlord shall also provide Tenant, as a convenience, with
ninety (90) days advance written notice of the projected Commencement
Date; but the failure of the Commencement Date to occur on or before
such date shall have no consequence".
6. Section 3.04: Add the following sentence "Occupancy of the Premises
for purposes of fixturing them, doing Tenant's Work, or otherwise
preparing them for occupancy shall not be deemed to be the conduct of
business".
7. Add a new Section 3.05:
"Section 3.05 FAILURE TO COMMENCE CONSTRUCTION OR DELIVER POSSESSION:
I. ANTICIPATED COMMENCEMENT DATE PRIOR TO DECEMBER 31, 1988
(a) Landlord shall notify Tenant on or before June 15, 1988 of
Landlord's anticipated occurrence of the Commencement Date
("Anticipated Date"). If the Anticipated Date is more than
twelve (12) months after January 1, 1989, Landlord may terminate
this Lease. If the Anticipated Date is subsequent to July 1,
1989, Tenant may terminate this Lease. If (i) the Anticipated
Date shall be on or before August 8, 1988 and (ii) the Tenant
shall for any reason question the accuracy of such Anticipated
Date, the Tenant shall appoint a construction representative
within two (2) days after receiving Landlord's notice of the
Anticipated Date, and the Landlord shall also appoint a
construction representative within two (2) days of receiving
notice of appointment of Tenant's construction representative.
The two (2) construction representatives shall themselves
appoint a third construction representative. The three (3)
construction representatives shall inspect the Premises, review
plans and specifications and interview such construction
xxxxxxx, contractors and suppliers as they shall deem necessary
to determine by majority vote prior to June 26, 1988 whether
Landlord's Anticipated Date is reasonable. If they determine
that Landlord's Anticipated Date is not reasonable, they shall
set a new Anticipated Date.
(b) If (i) this Lease shall not be terminated pursuant to clause (a)
above, and (ii) the Anticipated Date (as fixed by Landlord or by
a majority of the construction representatives) shall be after
August 8, 1988, Tenant may exercise its option ("First Option")
to extend the term of its existing tenancy ("Existing Tenancy")
at 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx ("Old Space") for six
(6) months at fair market rent from January 1, 1989 to June 30,
1989 ("First Option Term").
(c) If (i) Tenant has exercised the First Option; and (ii) the
Commencement Date shall occur prior to September 30, 1988,
then during the First Option Term Tenant shall pay the
monthly rental for the Old Space at the rate payable by
Tenant for the month of December 1988 and the Landlord shall
pay the difference between the rental rate payable for
December 1988, and the fair market rent for the Old Space.
If (i) Tenant has exercised the First Option and (ii) the
Commencement Date shall occur in October 1988, during the
First Option Term Tenant shall be responsible for the rental
at the Old Space at seventy-five percent (75%) of the rate
payable by Tenant for the month of December, 1988 and the
Landlord shall pay the balance of the rental and other
charges payable under Tenant's Existing Lease for such First
Option Term. If (i) Tenant has exercised the First Option
and (ii) the Commencement Date shall occur in November,
1988, during the First Option Term, Tenant shall be
responsible for the rental at the Old Space at fifty percent
(50%) of the rate payable by Tenant for the month of
December, 1988 and the Landlord shall pay the balance of the
rental and
other charges payable under Tenant's Existing lease for such
First Option Term. If (i) Tenant has exercised the First
Option and (ii) the Commencement Date shall occur in
December, 1988, during the First Option Term Tenant shall be
responsible for the rental at the Old Space at twenty-five
percent (25%) of the rate payable by Tenant for the month of
December, 1988, and the Landlord shall pay the balance of
the rental and other charges payable under Tenant's Existing
Lease for such First Option Term.
(d) If (i) Tenant has exercised the First Option; and (ii) the
Commencement Date shall occur after January 1, 1989, upon the
Tenant taking occupancy of the Premises Landlord shall be
responsible for the full rental and other payments due on
account of Tenant's Existing Tenancy for the balance of the
First Option Term. Until the Commencement Date shall occur
(i.e., between January 1, 1989 and the Commencement Date),
Tenant shall pay the monthly rental on the Old Space at the rate
payable by Tenant for the month of December 1988 and Landlord
shall pay the difference between the rate payable for December
1988 and the fair market rent for the Old Space for the balance
of the First Option Term.
II. ANTICIPATED COMMENCEMENT DATE AFTER DECEMBER 31, 1988
(a) If the Commencement Date will not occur on or before December
31, 1988, Landlord shall notify Tenant on or before December 20,
1988 of Landlord's then Anticipated Date. If Landlord's then
Anticipated Date would be later than twelve (12) months after
January 1, 1989, Landlord may terminate this Lease. If the then
Anticipated Date shall be later than July 1, 1989, Tenant may
terminate this Lease.
(b) If this Lease shall not be terminated pursuant to clause (a)
above, Tenant may elect to exercise a further option to extend
the term of its Existing Tenancy ("Second Option") for another
six (6) months at fair market rent from July 1, 1989 to December
31, 1989 ("Second Option Term").
(c) If (i) Tenant has exercised the Second Option; and (ii) the
Commencement Date shall occur prior to March 31, 1989, during
the Second Option Term Tenant shall pay the monthly rental for
the Old Space at the rate payable by Tenant for the month of
December 1988 and Landlord shall pay the difference between the
rate payable for December 1988 and the fair market rent for the
Old Space. If (i) Tenant has exercised the Second Option; and
(ii) the Commencement Date shall occur after March 31, 1989, but
prior to June 30, 1989, upon Tenant taking occupancy of the
Premises Landlord shall be responsible for the full rental and
other payments due on account of Tenant's Existing Tenancy for
the balance of the Second Option Term.
(d) If (i) Tenant has exercised the Second Option; and (ii) the
Commencement Date shall occur after July 1, 1989, upon Tenant
taking occupancy of the Premises Landlord shall be responsible
for the full rental and other payments due on account of
Tenant's Existing Tenancy for the balance of the Second Option
Term. Until the Commencement Date shall occur (i.e., between
July 1, 1989 and the Commencement Date), Tenant shall pay the
monthly rental on the Old Space at the rate payable by Tenant
for the month of December 1988 and Landlord shall pay the
difference between the rate available for December 1988 and the
fair market rent for the Old Space for the balance of the Second
Option Term.
III. MISCELLANEOUS
(a) If, after Landlord shall have given Tenant notice of the
Anticipated Date an event described in Section 20.10 shall
occur, Landlord shall give Tenant prompt notice of such event
and its then Anticipated Date. Tenant shall thereupon have the
right to terminate this Lease unless Landlord shall have been
able to make arrangements within fifteen (15) days after such
occurrence for Tenant's continued occupancy of the Old Space for
such period of time as may be necessary to complete the
Building. In such event, Tenant shall pay its then current rent
obligation for the Old Space and Landlord shall pay any excess
rent payable therefor until the Commencement Date. To the extent
that payments are required for Tenants Existing Tenancy after
the Commencement Date shall occur, Landlord shall pay the full
amount of such payment.
(b) All payments to be made by Landlord or Tenant on account of
Tenant's obligations for the Old Space shall be paid promptly
when due. If Landlord shall not make the payments to Tenant's
Old Space landlord when due, Landlord shall reimburse Tenant for
such payments made by Tenant with interest thereon at the rate
provided in Section 19.01 hereof and shall indemnify Tenant
against all costs and charges (including reasonable legal fees)
lawfully and reasonably incurred in enforcing payment thereof.
Each of Landlord and Tenant agree that they will cooperate in
negotiating with Tenant's present Landlord to reduce their
collective liabilities for any period subsequent to the
Commencement Date.
(c) If Tenant's Lease at the Old Space shall expire on January 15,
1989, as opposed to December 31, 1988 as stated elsewhere
herein, the First Option shall expire on July 15, 1989 and the
Second Option shall expire on January 15, 1990 and the
provisions of this Section 3.05 shall be adjusted accordingly.
(d) The provisions of this Section 3.05 are a complete statement of
the rights, liabilities and obligations of the parties with
respect to the failure of the Commencement Date to occur as
provided in this Lease.
8. Section 4.03: Delete the second sentence. Delete everything after
"deduction or set off" in the sixth line from the end of the
paragraph.
9. Section 4.06(c): Delete at the end of the Section "shall bear all such
costs" and replace with "and Landlord shall each bear fifty percent
(50%) of said costs".
10. Section 4.06(d): In line 4 change "six (6)" to "eighteen (18)".
11. Section 4.06(e) shall not be applicable during the first two (2) years
of the Term. Add at the end "The Occupancy Costs to be extrapolated
are those Occupancy Costs which vary as occupancy levels in the
Building vary. All extrapolation will be done in a fair and
commercially reasonable manner and shall be subject to the provisions
of Section 4.06(c) above".
12. Section 5.02: Add at the end "This Clause shall not, however, apply to
any improvements arising out of the work done pursuant to Exhibit E,
or the construction of the Building. Landlord agrees that the Building
shall be constructed in compliance with all applicable laws and
codes".
13. Section 6.01: In line 4 before "Buildings" insert "new first class
office"
14. Section 6.02 A. (ii): Add at the end "such elevator service shall be
consistent with that provided in first class buildings of a like
nature in the City of Boston.
15. Section 6.02 A. (iv): Add "Tenant shall also have the right to have a
reasonable number of affiliates actually operating in the Premises so
listed".
16. Section 6.02 B. (i): Delete everything after the words "business
hours" in the third line, and replace with "which on weekdays shall be
7:00 A.M. to 7:00 P.M. and on Saturday from 8:00 A.M. to 1:00 P.M.,
all subject to the provisions of this Lease".
17. Section 6.02 B. (iii): Add "The computer room described on the Space
Plans and Engineering Plans are approved".
18. Section 6.02 C. (i): Add after "establish" in the last line "which
rates shall be applicable to all tenants in the Building;"
19. Section 6.02 C (ii): Add at the end "The equipment reflected on
Tenant's Space Plans and Tenant's Engineering Plans is approved and
Tenant shall not be required to pay for any supplementary air
conditioning by reason thereof so long as such approved equipment is
used in a reasonably typical manner.
20. Section 6.04: Add at the end "provided that no such action by Landlord
shall reduce the number of rentable square feet in the Premises".
21. Section 7.01(b): Add "provided that repairs and replacements necessary
to comply with laws shall be Tenant's obligation, only if they are
attributable to Tenant's particular use".
22. Section 7.02: Add "Provided, however, that if such failure to perform
(i) does not adversely impact upon any building system, the structure
of the Building; or (ii) adversely affect any other Tenant in the
Building; and is not discernable or visible from outside the Premises,
the ten (10) day period above shall be twenty (20) days, and
furthermore, if such failure to perform would be subject to the twenty
(20) day period, so long as Tenant shall commence the cure of such
default and proceed diligently to completion, there shall be no
default".
23. Section 7.03(b): Add "Provided that with respect to non-structural
alterations which (i) do not adversely impact upon any building
system, the structure of the Building; or (ii) adversely affect any
other Tenant in the Building; and are not discernable or visible from
outside the Premises, and which cost less than Ten Thousand and 00/100
Dollars ($l0,000.00), Landlord's consent need not be obtained but
plans and specifications must be submitted at least twenty-five (25)
days prior to the commencement of the work. Landlord's failure to
disapprove Tenant's plans within twenty (20) days after they have been
submitted shall be deemed to be approval of such plans by Landlord".
24. Section 7.04, line 6: Delete "If Tenant is not then in default
hereunder, trade" and insert "Trade".
25. Section 7.05: Line 16 after the word "removed" insert "by bonding or
otherwise", and change "five (5) days" to "ten (10) days after notice
from Landlord of such lien".
26. Section 8.01: Add "Tenant shall not be obligated to pay any charge in
the nature of a linkage charge imposed upon Landlord by the City of
Boston or any of its instrumentalities".
27. Section 9.01(a) and (b): it is agreed that Tenant may have a
$25,000.00 deductible feature.
28. Section 9.02(d): After the word "generally" in line 3, insert "and
customarily" and at the end of the Clause insert "so long was
substantially all of the other tenants in the Building similarly
situated are required to obtain such additional coverages".
29. Section 11.03, line 3: After the word "Premises" insert "for a term in
excess of one (1) year".
30. Section 11.04: Change "twenty-five percent (25%)" in line 8 to
"forty-nine percent (49%)" and add at the end of that sentence
"transfers of stock by reason of the death of a stockholder shall not
be proscribed by this provision".
Add at the end of the next to last sentence "provided that such
Building is owned or managed by Landlord or an affiliate on the
Commencement Date".
At the end of this Section add "If the stock of the Tenant shall be
listed on any recognized stock exchange or traded over the counter
so-called, the limitation of forty-nine percent (49%) above referred
to shall not be applicable so long as the net worth requirement which
would have applied in Section 11.01(a) would have been satisfied".
31. Section 12.02: Delete "therewith" at the end, and replace with "the
disposal of Tenant's trade fixtures and personal property".
32. Section l4.02: Add at the end "These rules shall be applicable to all
tenants in the Building. Landlord agrees not to enforce the rules and
regulations in a discriminatory manner".
33. Section 16.01: In Line 6 change "ninety (90) to "one hundred-twenty
(120) days of actual construction time", and in the Line 9 insert
after "insurance coverage" "together with the amount of any deductible
which Landlord shall supply".
34. Section 16.02: Add "Landlord agrees to give Tenant notice within six
(6) months after such casualty as to whether or not Landlord intends
to restore the Premises".
35. Section 16.03: Add at the end "Landlord shall give Tenant at least
twenty (20) days notice of the estimated completion date of Landlord's
restoration. Landlord agrees to expend such amount as is equal to the
deductible feature, if any, carried on Landlord's insurance.
36. Section 16.04: In Line 4 the word "partially" is deleted and replaced
with "substantially". In line 6 change "demolished or" to "demolished
and".
37. Section 17.02: Add at the end "Landlord shall obtain a Recognition
Agreement from its construction lender in favor of Tenant to be
effective as of the Commencement Date. As a condition precedent to the
subordination of this Lease to any mortgagee subsequent to the
construction lender, such mortgagee shall agree in writing with Tenant
in accordance with customary Subordination and Recognition Agreements,
that Tenant's rights under this Lease shall not be disturbed except in
accordance with the terms of this Lease.
38. Section 17.03, line 7: Insert before "Tenant" "subject to the
provisions of Section 17.04".
39. Section 17.04(c): After the word "Lease" in line 3 add "except for
rental concessions contained in this Lease and construction allowances
set forth in this Lease".
40. 40. Section 18.01: Add at the end "Notices under this Lease may also
be given by recognized expedited mail carriers utilizing receipts".
41. Section 19.01: In line, 7 insert before "due date" "the fifth day
after".
42. Section 19.03(a), line 3: Insert before "after demand" "seven (7)
days".
43. Section 19.03(b): In the 4th line after the word "Tenant" insert
"Except that with respect to any such item arising by virtue of
Tenant's failure to respond to a judgment against it by reason of a
claim made in its capacity as the issuer of an insurance policy for an
amount of more than $1,000,000.00, Tenant shall have thirty (30) days
within which to discharge the same".
44. Section 19.03(c), line 7: Insert after "Tenant" "and such proceedings
are not discharged within forty-five (45) days".
45. Section 19.03(e): In lines 5, 8 and 9 the figures "ten (10)" are
changed to "twenty (20)".
46. Section 20.03: Add at the end "provided that the name of the Building
shall not include reference to insurance or any particular insurance
company".
47. Section 20.11: Add at the end "Notwithstanding the foregoing, if
Tenant is not in default hereunder, such deposit may be applied to the
last month's rent and shall bear interest between the date of receipt
by Landlord and the Commencement Date at money market rates. The
interest through the Commencement Date shall be paid to the Tenant
promptly after the Commencement Date. Tenant shall have the right, at
Tenant's election, either upon the execution of this Lease or at any
time thereafter, to furnish in lieu of cash, an unconditional
irrevocable site draft Letter of Credit issued by a Boston Bank having
a term of not less than twelve (12) months. The only condition to the
drawing upon said Letter of Credit shall be the presentation to the
issuer by a person purporting to be an officer of Landlord certifying
that (i) an event of default has occurred under the Lease; (ii) notice
of such default has been given to Tenant to the extent required under
the Lease; and (iii) any applicable period of grace shall have expired
and such default shall not have been cured. Said Letter of Credit
shall furthermore provide that if the same shall not be renewed or a
substitute Letter of Credit furnished at least ten (10) business days
prior to the expiration of the Letter of Credit then expired, Landlord
shall have the right to draw upon said Letter of Credit and to hold
the proceeds of such draft as security deposit under this Lease. Upon
the expiration of this Lease or the prior termination of this Lease
the Letter of Credit, if then held by the Landlord, shall be returned
to Tenant in the same fashion that a cash security deposit would be
returned".
48. Section 20.14: This clause 20.14 is deleted from the Lease.
49. Section 20.16: Add "The Annual Rent determined as aforesaid shall take
into account then existing Base Taxes and then existing Base Operating
Expenses".
50. Exhibit B, Section 2.01(a): Add at the end "The foregoing provisions
of this Section 2.01(a) shall not apply to Federal Income Taxes or
State Income Taxes unless the same are expressly levied upon the
Building.
51. Exhibit B, Section 2.03: Add "the Management Fee charged by Landlord
shall not be greater than those customarily charged for the management
of similar buildings".
52. Exhibit B, Section 2.04(d): Add "and legal fees for services rendered
in connection with leasing, or in connection with enforcing tenants
obligations under a lease or otherwise not directly related to the
operation of the Building".
53. Exhibit D, II, Clause B: Change "one hundred-fifty (150)" in line 2 to
"one hundred (100)".
In line 5 change "2.4 xxxxx" to "4.0 xxxxx".
TENANT LANDLORD
XXXXXX XXXXX CORPORATION JAYMONT (U.S.A), INCORPORATED
By: /s/ Xxxxxxx Xxxxxxx By: /s/Xxxxxxx X. Xxxxxxx
------------------- ---------------------
Vice President
EXHIBIT A
[SECOND FLOOR: GRAPHIC OMITTED]
EXHIBIT A
[THIRD FLOOR: GRAPHIC OMITTED]
EXHIBIT A
[FOURTH FLOOR: GRAPHIC OMITTED]
Addenda - 00 -
00/00 Xxxxxxxxxxx Xxxxxx
Exhibit E page 1 of 11
EXHIBIT E
BUILDING STANDARD IMPROVEMENTS
FOR
#00 XXXXXXXXXXX XXXXXX
#00 XXXXXXXXXXX XXXXXX
XXXXXX, XXXXXXXXXXXXX
--------------------------------------------------------------------------------
Landlord shall furnish and install within the Premises, substantially in
accordance with plans and specifications approved by Tenant and Landlord, the
Building Standard Improvements provided for in Paragraph 2.0 at the Landlord's
expense and any additional work (Tenant Extra Improvements) normally performed
by the construction trades, as required by plans and specifications at Tenant's
expense. The quantities, character and manner of installation of all the
foregoing work shall be subject to the limitations imposed by any applicable
regulations, laws, ordinances, codes and rules. Tenant shall pay fifty percent
(50%) of the estimated cost of Tenant Extra Improvements at the time of approval
of the Plans and the balance at substantial completion of construction
1.0 GENERAL
1.1 Architectural space planning and design services shall be provided by
the Landlord's Architect or "Tenant's Architect" when and as approved by the
Landlord. The tenant shall be responsible to provide at tenant's sole expense
preliminary and final space plans, specifications, and details at such times and
with sufficient information for pricing, engineering design and construction as
further defined in section F "The Process".
1.2 Engineering design and construction documents for structural,
mechanical, HVAC, electrical, or other building systems to satisfy tenant's
needs shall be prepared by Landlord's engineers at tenant's sole expense. Tenant
Covenants and agrees to furnish to Landlord's Engineer's all information
necessary for the preparation of said plans and specifications.
1.3 Construction of premises on behalf of tenant shall be by Landlord's
General Interiors Contractor (hereinafter referred to as "Contractor").
1.4 All plans and specifications shall require Landlord's written approval
which shall not be unreasonably withheld.
1.5 Tenant's plans and specifications shall comply with applicable
building codes for the City of Boston, the Commonwealth of Massachusetts, and
with insurance regulations for a fire resistant Class A building. All plans and
specifications shall be in a form satisfactory to obtain approval from
government authorities responsible for issuing permits and licenses required for
construction. Landlord will cause said plans to be filed with the appropriate
governmental agencies and tenant shall reimburse Landlord for fees charged by
said governmental agencies.
00/00 Xxxxxxxxxxx Xxxxxx
Exhibit E Page 2 of 11
1.6 Whether and the extent to which any of Tenant's plans and
specifications include Building Nonstandard Work or otherwise exceed Building
Standard shall be determined by Landlord. The cost to Tenant for Building
Nonstandard Work and for substitutions for Building Standard items shall include
Contractor's direct charges plus ten percent (10%) general conditions, five
percent (5%) overhead and five percent (5%) profit.
1.7 Substitutions and Credits.
(a) Except for light fixtures, doors and door frames, hardware, and
ceilings, Tenant may select different materials (hereinafter "substituted
materials") in place of Building Standard materials which would otherwise be
initially furnished and installed by Landlord in the interior of the Premises
under the provisions of this Work Letter, provided such selection is indicated
on Tenant's plans and specifications as approved by Landlord. If Tenant shall
make any such selection Tenant shall pay to Landlord, as hereinafter provided,
Landlord's additional costs resulting from such substitution.
(b) No credit shall be given for the omission of materials where no
replacement in kind is made. There shall be credits only for substitutions in
kind, e.g., a credit for carpet may be applied only against the cost of another
type of carpet.
1.8 Tenant shall bear the cost of any changes in the work requested by
Tenant after final approval of plans and specifications under Paragraphs Al and
A2 herein.
1.9 In order to expedite the space planning process a Tenant Design Manual
will be provided to the Architect defining building standard materials some of
which have been prestocked in the building.
2.0 BUILDING STANDARD IMPROVEMENTS
Landlord, through his Contractor agrees, at his sole cost and expense, to
supply and install and otherwise undertake to do the following Building Standard
Improvements in the Premises on behalf of Tenant in the quantities listed:
2.1 Partitions:
One linear foot of straight interior partitioning for each 14 square feet
of rentable area. Partitions shall consist of one layer of 5/8" gypsum board
8'-6" high each side of 2 1/2" metal drywall studs at 16" o.c. taped, spackled,
and sanded to receive paint. Partitions ending at an exterior wall shall meet a
column or mullion without bisecting or in any other way interfering with a
glazed vision light.
2.2 Doors, frames and hardware.
Interior, cherry veneer flush solid core door at a ratio of one single
swing 3'-0" wide x full height door for each 300 square feet of rentable area to
be stained and sealed in the field to match approved building standard. The
doors shall be mounted in an extruded aluminum frame primed for paint finish
with a continuous gasket silencer and doors shall be furnished with
00/00 Xxxxxxxxxxx Xxxxxx
Exhibit E Page 3 of 11
building standard hardware consisting of mortise style latch set with lever
handle, l-1/2 pair of hinges, and door stop; polished brass finish.
2.3 Ceiling.
Landlord shall furnish and install Building Standard 1' x 1' fine fissured
mineral fiber acoustic tile ceilings in a concealed spline suspension system.
Ceiling height throughout the Premises shall be approximately 8'4", without
breaks, except in such areas as such height may be impracticable due to specific
field conditions.
2.4 Flooring and base.
Landlord shall furnish and install Building Standard carpeting (glue down)
in all areas of the Premises (other than restrooms, mechanical rooms, stairwells
and other service rooms) and 4" straight vinyl base on all columns and all
partitions furnished and installed by Landlord pursuant to this Building
Standard.
Tenant shall select the color of all such carpeting from Landlord's color
chart. In the event Tenant elects in accordance with the Work Letter to install
non-Building Standard flooring, such flooring and underlayment shall be subject
to Landlord's and Landlord's Architects' approval, which approval shall be in
Landlord's and Landlord's Architects' sole and absolute discretion for which
tenant will be allowed $12.00 per square yard installed price credit based on
usable area.
2.5 Painting.
All partitions and all exterior perimeter walls, column enclosures, and
core walls within the Premises shall be painted with one (1) primer coat and one
(1) finish coat of satin finish latex paint. Doors shall be field stained and
polyurethane finished veneer. No color breaks, dados or special "designer"
colors shall be provided by Landlord. All colors shall be selected from
Landlord's color chart, with no more than one color in any office. Landlord
painting shall be restricted to surfaces, Building Standard items or materials
provided pursuant to this Work Letter.
2.6 Tenant Signage.
One Building Standard tenant identification sign at Tenant's entry door
and inclusion in building lobby directory at a maximum of one name per 400
square feet of rentable area.
2.7 Drinking Fountain.
Landlord has installed in the core area of each floor of the Building a
drinking fountain in a location designated by Landlord and shown on plans.
2.8 Electrical Construction.
Tenant electrical energy consumption is separately metered directly by
Boston Edison. Base building power is available on each floor from a
distribution bus duct riser at 480/277 volt
00/00 Xxxxxxxxxxx Xxxxxx
Exhibit E Page 4 of 11
service with individual step-down transformers for 120/208 volt, 3 phase power
on the basis of 1.4 xxxxx per square foot for lighting at 277 volt and 2 xxxxx
per square foot tenant power at 120 volt. Metering shall be in the core
electrical/telephone closet with circuit breaker panels and step down
transformers. Additional capacity is available in the bus duct for special
tenant requirements at tenant cost.
Landlord shall furnish and install the following:
a. Lighting: Landlord shall furnish and install 2'0"x2'0" Building
Standard parabolic fluorescent light fixtures, with sockets for 2 standard 40
watt fluorescent lamps (Building Standard-277 volts), in the quantity of one (1)
for every 60 square feet rentable area to be installed in the ceiling so as not
to conflict with existing Building Structure, Mechanical, or electrical systems.
Initial xxxxxxx in building standard white lamp color included.
b. Power: Furnish and install one duplex 120 volt power outlet for
each 150 square feet rentable area. Outlets shall be provided eight per circuit
in tenant partitions.
c. Telephone: Furnish and install one telephone outlet for each 200
square feet of rentable area with pullcord into ceiling. Telephone outlet does
not include conduit or wiring. (Teflon wiring by tenant).
d. Switching: Furnish and install one ceiling mounted motion
detector switch in each private office or a single pole rocker type switch for
each 400 square feet rentable area.
e. Exit Signs: Exit lights are to be Building Standard ceiling hung
at a ratio of one for every lease space or one for every 3,000 square feet
rentable area.
f. Emergency Lighting: A Building Standard 2'0" x 2'0" fluorescent
light fixture installed and connected to the building emergency service and to
be illuminated 24 hours a day without a switch leg at a ratio of one light for
every 3000 rentable square feet. The Fixture above is part of the fixtures
allotted in paragraph 2.8.a. lighting.
g. Tenant will pay the premium cost associated with locating
electrical and telephone outlets within knee walls, column casings and other
partitions which are part of the Base Building.
2.9 Sprinkler.
Landlord shall furnish and install flush concealed sprinkler heads at a
ratio of one for every 225 square feet premises area which will meet the
requirements of Massachusetts State Building Code, based upon an open floor
layout. Any additional sprinkler heads or relocation of existing heads required,
as a result of tenant layout shall be a tenant cost. Landlord shall furnish and
install all sprinkler heads in the core area of the Building. All sprinkler
heads shall be installed with white finish "unspoiler" painted covers.
Notwithstanding the foregoing, in no event shall Landlord be obligated to
furnish and install any heads for special density applications or for hazardous
material storage areas (e.g.
00/00 Xxxxxxxxxxx Xxxxxx
Exhibit E Page 5 of 11
rack deluge, or deluge type heads at interconnecting stairways) or relocate any
pre-installed piping to accommodate the tenants design.
2.10 HVAC (Heating, Ventilating, Air Conditioning)
(a) General:
The HVAC system consists of an all air overhead ducted supply distribution
network that provides constant volume circulating air tempered to satisfy
individual zone thermostat demand.
The complete year-round HVAC system is engineered to handle normal office
usage, with one package type water cooled air handling unit per floor connected
to the roof top building cooling tower. Supply air to the space is ducted above
the ceiling through fan powered variable-air-volume (VAV) units entering the
space through ceiling diffusers at the perimeter and at building standard air
handling flight fixtures at the interior. HVAC zones per typical floor shown on
Landlord's drawings at approximately one zone per 1,000 S.F./rentable. Return
air to the air handling unit on each floor is through the ceiling plenum. Any
alterations or additions to said system required to accommodate Tenant
Improvements shall be at Tenant's sole expense.
(b) Ventilation and Exhaust:
1. Fresh air shall be supplied to each floor air handling rooms.
2. Toilet exhaust shall be ducted to the roof.
3. Electric room exhaust is by gravity into the ceiling return air
plenum.
4. Miscellaneous exhaust is not provided in the building.
5. Conference room exhaust shall discharge into the ceiling return
air plenum.
(c) Operation:
1. HEATING SEASON OPERATION
During occupied periods, VAV boxes shall deliver air to perimeter
zones and the air temperature shall be raised first by recirculating
ceiling plenum air and secondly by energizing the electric booster
coils in stages.
During unoccupied and warm-up periods. The perimeter fan boxes and
their electric coils shall heat the building.
During off-hour occupancy, the air distribution system shall revert to
occupied cycle on the floor-by-floor basis, as required, to maintain
space temperatures.
[ATTN: TEXT MISSING FROM SCAN -- 'PAGE 7 OF 14"]
00/00 Xxxxxxxxxxx Xxxxxx
Exhibit E Page 6 of 11
2. SMOKE CONTROL
Smoke control shall be provided by the central smoke exhaust duct
connected to a fan at the roof.
Smoke shall be evacuated from each floor where detected.
Outside, return air and smoke exhaust damper shall isolate particular
floors for smoke evacuation.
3. STAIR PRESSURIZATION
Stairway pressurization system shall include a supply fan and relief
air damper for each stairway.
4. ENERGY MANAGEMENT SYSTEM
Office tower, mercantile area and public lobbies shall be serviced by
an energy management system with time clock control of the individual
floor air handling units.
(d) Supplementary Cooling
Supplementary cooling for unique tenant requirements can be provided
from the condenser water system. Taps are provided to each leasable
floor. Btu meters shall be required to monitor tenant usage.
2.11 Sun Control
Horizontal venetian blinds with 1" wide painted (building standard color)
aluminum slats shall be provided at all exterior office window surfaces mounted
at the window head.
2.12 Telephone
The building contains a centralized communications system complete with
its own private PABX with voice, data, and video transmission capabilities. This
offers the tenant single point of contact through on site personnel for
installation, repairs, long distance and local service. Available features
include the following:
- Least cost call routing
- Monthly detail billing data
- Client billing capability
- Message center
- Equipment lease options
- Equipment upgrade capability
- Immediate availability
00/00 Xxxxxxxxxxx Xxxxxx
Exhibit E Page 7 of 11
A complete presentation on the building communications system is
available through the building vendor.
3.0 TENANT ABOVE STANDARD IMPROVEMENTS
Landlord further agrees to perform, through its Contractor, upon
submission by Tenant of necessary plans and specifications prepared by
Architect, any additional or nonstandard work over and above that specified
herein. Such work shall be performed by Landlord at Tenant's sole expense as
defined herein.
Such items include but not limited to the following:
1. Above standard quantities
2. Cabinetwork
3. Wallcoverings
4. Decorative trim
5. Vision panels
6. Nonstandard lighting
7. Special electrical circuitry
8. Floor outlets
9. Floor finishes other than carpet
10. Curved or angular partitions
11. Sound attenuation in partitions
12. Plumbing
13. Special HVAC
4.0 BUILDING STANDARD IMPROVEMENTS FOR MULTI-TENANT FLOORS
For multiple tenant occupancy floors the Building Standard Improvements
will be modified to include the following:
4.1 Common Areas.
(a) Landlord will provide elevator lobby and common corridor areas
in accordance with the building standard design and finishes for this work.
4.2 Partitions.
(a) Landlord will provide and install demising partitions between
tenant spaces as well as between Tenant premise and corridor space. Construction
shall be 2 l/2" metal drywall studs l6" o.c. continuous to the underside of slab
above with 2 layers of 5/8" gypsum board each side and sound attenuation
blankets to 1'-0" above the ceiling.
4.3 Doors, frames, and hardware.
(a) One Tenant entrance door per premise shall be cherry full height
flush solid core door 3'-0" wide mounted in a cherry frame with glazed full
height sidelight up to 3'-0" wide. Entrance door shall be furnished with
building standard hardware consisting of mortise
00/00 Xxxxxxxxxxx Xxxxxx
Exhibit E Page 8 of 11
style lock set with lever handle, 1 l/2 pair hinges, door closer, and door stop;
polished brass finish. Keying shall be tenant specific plus building
masterkeyed.
(b) For premise area in excess of 3000 square feet, one second means
of egress door same as interior door per paragraph 2.2 above but provided with
lock set and closer.
4.4 Floor Signage.
One building standard typical floor lobby area directional sign listing
all tenants located on the floor limited to one line per tenant.
4.5 Electrical Panels.
Electrical circuit breaker panels and step down transformers on
multi-tenant floors will be located within the individual tenant space with
separate metering in the core electrical closet.
5.0 OTHER TENANT IMPROVEMENTS
The Tenant shall furnish and install improvements noted below at Tenant's
sole expense consistent with the procedures enumerated in Article 7.00 of the
lease:
5.1 Tenant telephone and communications equipment including all wiring
necessary from the core area telephone closet. Tenant is advised that the area
above the ceiling is utilized a return air plenum which by code necessitates
conduit or Teflon coated wiring.
If Tenant requires a separate telephone system independent of the building
system the tenant's separate PBX shall be located in the tenant area with
cabling run to the local telephone company service entry point in the garage
levels.
5.2 Tenant data processing systems and equipment or other special
installations normally performed by specialty subcontractors or vendors.
5.3 Furnishings, furniture systems, and equipment normally performed by
specialty subcontractors or vendors.
5.4 It is the tenants responsibility to coordinate work of this nature
with the general construction of the building standard tenant improvements
furnished and installed by the Landlord.
6.0 THE PROCESS
6.1 It is the intent of the Landlord to establish a standard of procedure
and construction to assure satisfactory execution of tenant improvements,
consistent to quality of materials and constructions and convenient service and
maintenance. Tenants are encouraged to develop plans that fit their specific
needs. Where necessary, additional or modified materials may be approved based
on their compatibility of the Building Standards.
6.2 After the Lease is signed:
00/00 Xxxxxxxxxxx Xxxxxx
Exhibit E Page 9 of 11
(a) After the lease is signed, completion of architectural
construction documents in accordance with the lease is Tenant's responsibility.
These shall be complete documents showing all necessary dimensions, locations,
special construction, details, and finish selections.
(b) In order to expedite the mechanical design process, ten days
(10) before drawing submission date outlined in the lease, Tenant's designer
must provide the mechanical engineer with one set of final drawings showing all
information needed to design mechanical and electrical systems including, but
not limited to the following:
HVAC:
1. Areas requiring special temperature and/or humidity
requirements.
2. Heat emission of equipment (including catalogue cuts), such as
CRT's, copy machines, etc.
3. Special exhaust requirements - conference rooms, pantry,
toilets, etc.
4. Overtime requirements.
ELECTRICAL:
1. Special lighting requirements.
2. Power requirements and special outlet requirements of equipment.
3. Security requirements.
4. Supplied telephone equipment, and the necessary space allocation
for same.
PLUMBING:
1. Remote toilets.
2. Pantry equipment requirements.
3. Remote water and/or drain requirements such as for sinks, ice
makers, etc.
4. Special drainage requirements such as those requiring holding or
dilution tanks.
COMPUTERS:
Computers spaces are always handled as special areas. The Mechanical
Engineers will need equipment cuts, power requirements, heat emissions, raised
floor requirements, fire protection requirements, security requirements,
emergency power and U.P.S. requirements, etc.
00/00 Xxxxxxxxxxx Xxxxxx
Exhibit E Page 10 of 11
(c) Structural:
Some furniture or equipment configurations may require supplemental
structural reinforcing. If it is determined that supplemental structural
reinforcing or alterations to the base building structure are required, the
Tenant and Tenant's Designer will be referred to the Owner's Structural
Engineer, the cost of whose services will be born by the Tenant. Construction of
the building consists of cast-in-place reinforced concrete except at the roof
construction in structural steel framing with lightweight concrete on metal
deck.
For the information of the design architect the building is designed as
follows:
Structural Design Loads
Design Load
(A) Weight of Building Components....................
(b) Typical Office Floor Partitions Allowance........ 20 PSF
Live Loads
(A) Parking Garage................................... 50 PSF
(B) Typical Office Floor............................. 50 PSF
(C) Ground Floor..................................... 100 PSF
(D) Typical Office Floor Interior Drop Panels
at Columns....................................... 200 PSF
(E) Mechanical Equipment Room........................ 150 PSF
or equip wt.
(G) Roof Snow Load................................... 30 PSF
plus drift
No coring of slabs may be done without approval of the owner in writing.
(d) By the submission date as outlined in the lease, the Tenant is to
provide the Landlord's contractor with one set of complete construction
documents for pricing. Approximately ten (10) days thereafter, a final cost
statement shall be submitted to the Tenant for review, including both the
Mechanical Engineer's and the Landlord's Contractor's prices.
(e) Assuming the estimate submitted is satisfactory to the Tenant, we
will request written authorization from the Tenant to proceed based upon said
final cost statement. An advance payment of 50% of the final cost statement must
be received prior to commencement of construction. Should the final cost
statement not be acceptable to the Tenant, Tenant shall, within one (1) week
after receiving Landlord's final cost statement, revise and resubmit the final
construction documents for re-pricing. The Landlord's contractor shall
immediately re-price the revised drawings and resubmit one (1) week thereafter.
Should agreement not be reached on the re-submitted price, the provisions of
Article 19 of the lease shall come into effect.
Xxx 00/00 Xxxxxxxxxxx Xxxxxx Tenant Coordinator shall be available to consult
with the Tenant to assist in reviewing the estimate. Upon initial submittal of
the final cost statement, a detailed
00/00 Xxxxxxxxxxx Xxxxxx
Exhibit E Page 11 of 11
project schedule along with a list of long-lead time items shall be submitted.
Approval to release certain long-lead time items will be requested at this time
in order to assure occupancy on the agreed upon date. If, because of Tenant
selection of certain non-standard long-lead time items, the occupancy date
cannot be met, temporary construction might have to be made to assure occupancy
on the agreed upon date at the cost of the Tenant.
6.3 The Final Cost Statement:
(a) When the final cost statement is submitted for Tenant's
approval, it shall consist of two (2) parts. First, there will be a listing of
the Building Standard items contained in the workletter, along with a
calculation of the actual versus allowable quantities, and the cost for any
overages. Secondly, there will be a separate listing of all non-Building
Standard items with costs associated with same.
(b) In order to expedite the estimating process, we request that no
changes be made on the construction documents prior to receipt of the final cost
statement. In addition, any changes made during the course of construction shall
be estimated changes made during the course of construction shall be estimated
on the basis of time and materials. However, no changes shall be accepted during
the last four (4) weeks of construction. Any changes desired after that point
shall be authorized in writing by the Tenant's authorized representative, prior
to proceeding with this change. All communications between the Tenant and the
Landlord shall be in written form to the Tenant Coordinator for this project.
There shall be no direct orders given to any contractor's personnel by the
Tenant or his authorized representative.
6.4 Tenant Drawings.
(a) Building drawings shall be furnished by the Landlord to the
Tenant's Architect at the Tenant's expense. In the case of a multi-tenant floor,
the demised area will have been clearly delineated by the Landlord prior to
issuance to the Tenant Architect. Field measurements must be taken however, by
the Tenant's Architect in order to ensure exact measurements on the background
drawings.
(b) In order to expedite the space planning process, we have created
a design manual to provide all necessary information to the Tenant's Architect
in order to properly design the Tenant's space. Additional information as to
types and quantities of drawings required are enumerated therein.
END OF EXHIBIT E
Schedule to Exhibit E, page 1 of 1
SCHEDULE TO BUILDING STANDARD IMPROVEMENTS
The following are the dates for Tenant Improvements.
TASK TIME DATE
---- ---- ----
(days)
1. Preliminary layout to set space requirements 5
------------
2. Preliminary cost estimate budget 5
(unit costs) ------------
3. Lease signing 5
budget approval (order long-lead items) ------------
4. Design Development plan 5
(submission for engineering) ------------
5. Final Architectural/ 10 02/08/88
--------
**Engineering plans
6. Final pricing or lump sum bid 10 02/22/88
--------
7. Approval 5 03/07/88
--------
8. Start construction 2 03/08/88
--------
9. End Construction (Punch List) 6 07/29/88
--------
10. Move-In 08/05/88
--------
* Number of business days required for each task may vary depending upon the
size of the tenant Premises area, complexity of design, or tenant review
requirement.
** Engineering plans to be submitted by September 15, 1987 (refer to item 6 on
Amendment to Exhibit E).
XXXXXX XXXXX CORPORATION
AMENDMENT TO EXHIBIT E
1. The last sentence in the opening paragraph of Exhibit E is to be deleted
and replaced with the following: "Tenant shall pay fifty percent (50%) of
the estimated cost of Tenant extra improvements upon the commencement of
Tenant construction and the balance at substantial completion of Tenant
construction."
2. Exhibit E, Section 1.1: At the end add: "Landlord shall contribute an
amount equal to $1.50 per rentable square foot in the Premises to the cost
of preparing Tenant's Architectural plans and Tenant engineering plans.
Tenant will submit these bills and Landlord will pay these bills on a
monthly basis.
3. Exhibit E, Section 1.6: In the last sentence delete the word "Contractors"
and replace with "Sub-contractors".
4. Exhibit E, Section 1.7(b): Add: "A credit for dry wall partitioning may be
applied only against the cost of another drywall partition. All credits
given shall include markups by contractors."
5. Exhibit E, Section 2.0: Add at the end: "Landlord to provide unlimited
reasonable quantities of building standards provided that the ratio of
private office space (defined as conference rooms and individually
occupied offices) does not exceed twenty-five percent (25%) of total
rentable area.
6. Exhibit E, Section 2.1: Add: partitions to penetrate the ceiling by
approximately two inches (2").
7. Exhibit E, Section 2.4: Add at the end: "Four inch straight base shall be
supplied in carpeted areas, and four inch cove base shall be supplied in
non-carpeted areas."
At the end of the section, delete everything after "Landlord's Architect's
approval" in the fourth to last line, and replace with "which approval
shall not be unreasonably withheld and Tenant shall be allowed a credit of
$1.33 per rentable square foot in the premises for all Tenant Extra floor
finishes."
8. Exhibit E, Section 2.5: Add after "core walls", "all door frames."
9. Exhibit E, Sections 2.8(b) and 2.8(c): Add at the end: "Outlets shall
either be in the floor or in the walls. If, however, Tenant's space plans
and Tenant's engineering plans shall not be completed by September 15,
1987 for the second floor and October 1, 1987 for the third and fourth
floors, the cost of locating the outlets either in the floors or in the
walls shall be a Tenant Extra Expense."
10. Exhibit E, Section 3.0, Item (8): "floor outlets", insert "other than
those referred to in Section 2.8(b) and (c) above, and in Item 9 add
"other than as provided in Section 4 above."
11. Add the following to Section 3.0: "Landlord will solicit bids from three
Subcontractors for Tenant Extra Improvements. If Tenant so elects, Tenant
shall submit to Landlord the names of the Subcontractors from whom it
proposes to solicit bids.
Landlord shall promptly approve or reject any such Subcontractor. After
the identification of such approved Subcontractor, Tenant shall prepare
and submit for Landlord's approval a bid package for submission to the
approved Subcontractors. All Subcontractors to whom Tenant shall elect to
submit bids shall be qualified, licensed and Subcontractors who will work
in harmony with Landlord's Contractors and Subcontractors for the
Building. Such Subcontractor shall also agree to comply with the
provisions of any applicable governmental regulations concerning
opportunity and employment.
Upon receipt of the bids which shall be addressed to the Landlord, the
bids shall be opened and Landlord shall accept the bid from the lowest
responsible Subcontractor or elect to perform the work at the price of the
lowest responsible Subcontractor.
12. Exhibit E, Section 2.8: Following: "(g) Electrical power is available at
480/277 volts in the electrical closet on each floor. Capacity is 6-l/2
xxxxx per square foot for lighting, receptacles, computer, and computer
air conditioning loads and includes this floors building air conditioning.
Each Tenant is a separate utility company customer.
13. Any additional materials such as standard building doors, door frames,
base, carpet, etc. required for Tenant extras will be provided by the
Landlord at the Landlord's cost. Landlord will not place a xxxx up on
these materials.
14. Landlord agrees to provide at their expense in an area designated by the
Landlord between floors 2 and 3, and 3 and 4, a metal pan stair, concrete
filled, which will allow for the application of a carpet, properly
sprinkler, with building standard lighting and appropriate safety hand
rails according to code.
Any changes, if required, to the stairs between floors 3 and 4 as a result
of code requirements by the City of Boston or other governmental agencies,
because of the initial stair connection between floors 2 and 3, will be a
cost to the tenant.
EXHIBIT F
ESTOPPEL CERTIFICATE
_______________________, 1986
and
---------------------------------
---------------------------------
---------------------------------
---------------------------------
Re: Lease dated ___________________________ 198___ (the "Lease")
for Space on the _____________________ Floor (s) of the
Building Known As and Numbered ____________________________,
Boston, Massachusetts (the "Premises")________________________
Gentlemen:
This letter is given to you pursuant to Article 18.02 of the Lease.
We do hereby certify to you, upon which certification you may and are
intended to rely, as follows:
(a) the Lease is in full force and effect;
(b) we have taken possession of the Premises and the obligation to pay
Rent, subject to any waiver of rent provided for in the Lease, has
accrued;
(c) our Rent is paid through ____________, and said payment was made on
_________, 198___;
(d) that $_____________ is held as security deposit under the Lease;
(e) Landlord is not in default of any of its obligations under the Lease
including, but without limitation, its obligations to prepare the
space and deliver the same;
(f) the Term of the Lease expires on _________________, 198__, and no
rights of extension or renewal exist other than as set forth in the
Lease, and
(g) we have (have not) exercised our rights of extension.
Very truly yours,
------------------------------------
F-1
EXHIBIT G
The undersigned Landlord and Tenant under a certain Lease dated
_________________, 198___, for space on the floor(s) of the Building known as
and numbered ___________________, Boston, Massachusetts, do hereby acknowledge
pursuant to Article 1.01(j) that the Commencement Date for all purposes of this
Lease is _____________________, 198___.
Landlord Tenant
By: By:
------------------------------- --------------------------------
G-1
EXHIBIT H
SQUARE FOOTAGE MEASUREMENT NOTIFICATION
(Insert Name of Tenant)
---------------------------------
---------------------------------
RE: Leased dated _______________________, 19 ___ (the "Lease") for
Space on the _______________ Floor(s) of the Building Known as
and Numbered _____________________, Boston, Massachusetts
Gentlemen:
In accordance with Section 3.01 of Exhibit B to the Lease, you are hereby
notified that Landlord's Architect has determined that there are ____ useable
and ___ rentable square feet of space in the Premises and ________ useable and
________ rentable square feet of space in the Building. All provisions of the
Lease wherein the number of useable or rentable square feet in the Premises or
the Building, as the case may be, are a factor, shall be amended and modified to
incorporate the accurate measurement of same as stated above, including without
limitation that (i) the Annual Rent shall be _____, and (ii) the Office Factor
and Tenant's agreed percentage is ____% determined as follows:
Square Feet in the Premises
---------------------------
Total rentable area of the Building = ________%
Very truly yours,
--------------------------------------
By:
----------------------------------
Title:
-------------------------------
H-1
H-2
FIRST AMENDMENT TO LEASE
Reference is made to a certain lease dated June 11, 1987 by and between
Jaymont (U.S.A.), Incorporated, and Xxxxxx Xxxxx Corporation, (the "Lease").
Reference is also made to the fact that Landlord's interest in the
Building and the Lease has been transferred to 20 Custom House Associates
Limited Partnership.
All capitalized terms used in this instrument shall have the meanings
ascribed to them in the Lease.
In consideration of these presents and other good and valuable
consideration, said Lease is hereby amended as follows:
1. Section 1.01(p): The Premises are increased by adding thereto
approximately 5,472 rentable square feet on the 5th floor of the Building (the
"Fifth Floor Premises"), as shown on Exhibit A attached hereto and incorporated
herein by reference, making a total of 53,594 rentable square feet, more or
less.
The Tenant's office factor set forth on page B-5 is increased to 36.97%
and the fraction set forth on said page B-5 is now to be 53,594
------
144970.
2. Section 1.01(c): The Commencement Date for the Fifth Floor Premises
shall be determined in accordance with Section 3.03 of the Lease, separately
from the determination of the Commencement Date for the remainder of the
Premises. The Commencement Date for the Fifth Floor Premises shall occur no
later than February 1, 1989 subject to Section 20.10 of the Lease and Tenant's
Delay.
Tenant shall deliver Engineering Plans and final Space Plans not later
than December 1, 1988.
If (i) Tenant shall not deliver said Engineering Plans and Space Plans on
or before December 1, 1988; and (ii) the work to be done by Landlord as shown on
the Engineering Plans and Space Plans shall not be substantially completed on or
before February 1, 1989 (so that the Commencement Date occurs on or before
February 1, 1989), then notwithstanding that the work to be done by Landlord has
not been substantially completed, the Commencement Date will be deemed to have
occurred on February 1, 1989 unless the failure of Landlord to substantially
complete the work is attributable to Landlord's act or to a cause described in
Section 20.10 of this Lease.
Any delay caused by Tenant's changes after the delivery of the plans shall
similarly not delay the occurrence of the Commencement Date.
3. Section 1.01(t): The Term with respect to the Fifth Floor Premises
shall commence on the Commencement Date for the Fifth Floor Premises and shall
end on the date of expiration or earlier termination of the Term for the
original Premises.
-1-
4. Section 1.01(a): The Annual Rent with respect to the Fifth Floor
Premises shall be $186,048.00 during years 1-5 at the rate of $34.00 per
rentable square foot and $202,464.00 during years 6-10 at the rate of $37.00 per
rentable square foot. Tenant shall not be obligated to pay the first
twenty-three (23) monthly installments of Annual Rent with respect to the Fifth
Floor Premises.
5. Section 1.01(s): The amount of the Security Deposit shall be increased
from $126,345.66 to $141,849.66.
6. Section 3.05 shall not apply to the Fifth Floor Premises.
7. Section 20.15: Tenant shall have the Option to Expand the Premises in
accordance with Section 20.15 by including the remainder of the fifth (5th)
floor, consisting of approximately 7,260 rentable square feet measured by
Landlord as provided in Exhibit B, Section 3.00 in lieu of the current Expansion
Option for the entire fifth floor.
8. Section 20.17: Tenant shall be entitled to one additional undesignated
parking space in the Building garage.
9. All of the provisions of the Lease applicable to Tenant improvements
and the preparation of the Premises for Tenant's use shall apply equally with
respect to the 5th floor space, except for Section 3.05.
Except as herein expressly set forth, the Lease shall be and remain in
full force and effect and the Fifth Floor Premises shall be governed by the
terms and conditions thereof..
Executed under seal this 11th day of October, 1988.
LANDLORD
20 Custom House Associates
Limited Partnership
By: Jaymont (U.S.A.) Incorporated,
General Partner
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Senior Vice President
TENANT
Xxxxxx Xxxxx Corporation
By: /s/Xxxxxxx Xxxxxxx
----------------------------------
-2-
EXHIBIT A
[FIFTH FLOOR: GRAPHIC OMITTED]
SECOND AMENDMENT TO LEASE
Reference is made to a certain Lease ("Lease") dated June 11, 1987 and
First Amendment to Lease dated October 11, 1988 by and between 20 Custom House
Associates Limited Partnership, Landlord, and Xxxxxx Xxxxx Corporation.
All capitalized terms used in this instrument shall have the meanings
ascribed to them in the Lease.
In consideration of these presents and other good and valuable
consideration the Lease is hereby amended as follows:
1 . The Lease Data Sheet is amended by changing the Building Factor from
36.97% to 36.89%.
2. Exhibit B - Schedule of Rent is amended to read as follows:
SCHEDULE OF RENT
The rentable square feet of the Building being agreed to be 145,271.
Office Factor: Tenant's agreed percentage is 36.89
determined as follows:
53,594 Square Feet in the Premises = 36.89%
------- ---------------------------------
145,271 Total rentable area of the Building
Except as herein expressly set forth, the Lease shall be and remain in
full force and effect.
Executed under seal this 14th day of September, 1989.
LANDLORD
20 CUSTOM HOUSE ASSOCIATES
LIMITED PARTNERSHIP
By: Jaymont (U.S.A.) Incorporated,
General Partner
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------
Senior Vice President
TENANT
XXXXXX XXXXX CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------
Title:
Hereunto Duly Authorized
THIRD AMENDMENT TO LEASE
Reference is made to a certain Lease ("Lease") dated June 11, 1987 by and
between Jaymont (U.S.A.) Incorporated ("Jaymont"), and Xxxxxx Xxxxx Corporation,
Tenant, as amended by First Amendment to Lease dated October 11, 1988*.
Jaymont's interest in the Building has been transferred to Aman, Inc.
("Landlord")
*and Second Amendment to Lease dated September 14, 1989.
All capitalized terms used in this instrument shall have the meanings
ascribed to them in the Lease.
In consideration of these presents and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
Lease is hereby amended as follows:
1. Tenant shall lease additional space (the "Expansion Space") consisting
of 10,940 rentable square feet on the 11th floor of the Building, and 8,483
rentable square feet on the 12th floor of the Building, as shown on Exhibit A-l
attached hereto.
2. The Projected Commencement Date for the inclusion of the Expansion
Space is December 1, 1990, or such earlier date as the Certificate of Occupancy
for the renovated Expansion Space is issued by the Inspectional Services
Department of the City of Boston. Landlord shall use all reasonable efforts to
deliver the Expansion Space to Tenant during the month of November 1990, but in
any event not later than February 1, 1991. If the Certificate of Occupancy has
not been received on or before February 1, 1991 but provided that such delay is
not attributable to Tenant or subject to the provisions of Section 20.10 of the
Lease, and further provided that Tenant has submitted architectural and
engineering drawings as well as cable plans on or before September 20, 1990,
Tenant shall have the right, as its sole and exclusive remedy, to terminate the
lease of the Expansion Space only and to have the additional security deposit
required hereunder promptly refunded. Landlord shall reimburse Tenant for the
actual costs incurred for the preparation of architectural and engineering
drawings by Xxxx Xxxxx. Landlord shall have no responsibility for, nor shall the
Commencement Date be affected by, delays in the delivery of Tenant's furniture,
computer equipment, communication equipment or other items not within Landlord's
control.
3. The Term of the lease of the Expansion Space shall be approximately
eight (8) years and one (1) month and shall commence on the Commencement Date
for the Expansion Space and shall end on the date of expiration or earlier
termination of the Term of the initially demised Premises.
4. The Annual Rent with respect to the Expansion Space shall be
$602,113.00 per annum, calculated at the rate of $31.00 per rentable square foot
within the Expansion Space and payable as provided in Section 4.01 of the Lease.
This amount is in addition to the Annual Rent payable with respect to the
initially demised Premises and the Fifth Floor Premises.
Notwithstanding the foregoing, with respect to the Expansion Space only
and specifically excluding the Annual Rent payable with respect to the initially
demised Premises and Fifth Floor Space, Tenant shall not be obligated to pay the
installments of Annual Rent attributable to the first nineteen (19) months of
the Term (the "Abatement Period"); provided, however, that the
entire Annual Rent otherwise due and payable for the Abatement Period (including
the expired portion of the Abatement Period and the unexpired portion of the
Abatement Period) shall become immediately due and payable upon termination of
the Lease for default by Tenant, taking into account the notice and cure periods
applicable under this Lease. The foregoing shall be applicable only during the
initial four (4) years from the Commencement Date of the Lease of the Expansion
Space.
5. The Office Factor shall be increased from 36.9% to 50.3%, which
includes the Premises, the Fifth Floor Space and the Expansion Space.
6. Landlord shall provide, at Landlord's sole cost and expense, all
architectural, mechanical, engineering and space planning services required for
the construction of the Expansion Space in accordance with Exhibit E and as
defined in the Lease. Above Building Standard Improvements will be provided in
reasonable quantities based upon the build-out of the Fifth Floor Space as
initially designed by IPA. Guidelines for floor layout of the Expansion Space
will be similar to those done by ADD, Inc. on a preliminary basis dated 5/25/90.
Landlord will construct the Expansion Space and all improvements thereto in
accordance with approved final construction drawings at Landlord's expense.
In addition, construction will include all necessary cabling,
communication wiring, interconnection between floors as outlined and priced by
Netcomm per proposal dated 7-25-90 (a copy of which is attached hereto), all
architectural drawings as outlined and submitted by Interior Planning Associates
per letter dated 18 July 1990 (a copy of which is attached hereto), engineering
drawings, upgraded kitchen area, special lighting and floor in-fill between
floors 11 and 12.
Tenant shall also have the use of existing leasehold improvements and
personal effects remaining in the Expansion Space, with the exception of those
items designated by Landlord.
7. Section 20.11. Tenant's security deposit shall be increased by
$50,176.08 from $141,849.66 to $192,025.74.
8. Section 20.16 of the Lease shall apply to the Expansion Space.
9. Add the following to Section 20.17. Tenant shall be entitled, at any
time during the term of the lease of the Expansion Space, upon sixty (60) days'
prior written notice to Landlord, to an additional seven (7) undesignated
parking spaces in the Building garage. The use of such spaces shall be subject
to reasonable rules and regulations promulgated by Landlord, or the operator of
such garage from time to time, provided that such rules and regulations do not
limit Tenant's use of the parking spaces, and shall be at such fees as may from
time to time be charged by Landlord or the operator of the garage, which fees
are additional Rent.
Tenant may, from time to time, elect to utilize any or all of the
additional seven (7) parking spaces, by giving Landlord sixty (60) days' notice
of its election. Tenant may change its election with respect to utilization of
any or all of the aforesaid seven (7) parking spaces at any time, from time to
time, upon sixty (60) days' prior notice to Landlord.
10. Add a new Section 20.18 as follows:
-2-
"20.18 OPTION TO EXPAND. Provided that:
(i) Tenant is not in default hereunder, either at the time of the
exercise of this Option or at the commencement date of the
inclusion of the Tenth Floor Expansion Space, as hereinafter
defined, within the Premises;
(ii) this Lease has not otherwise been terminated or cancelled; and
(iii) the Lease has not been assigned except with the permission of
Landlord nor have more than 10,000 rentable square feet of the
Premises (including the Fifth Floor Space and the Expansion
Space) been sublet, which subletting will remain in effect as of
the date upon which the Tenth Floor Expansion Space is to be
added to the Premises;
Tenant shall have the option to expand the Premises by leasing
approximately 4,987 rentable square feet on the tenth (10th) floor of the
Building (the "Tenth Floor Expansion Space") as shown on Exhibit A-l attached
hereto. The Tenth Floor Expansion Space shall be available to Tenant five (5)
years after the commencement of the lease of Space to another tenant excluding
the original lease of Space to DiCara, Selig, Xxxxxx & Xxxx. Landlord shall
advise Tenant of the expiration date of the lease to such other tenant (the
"Date of Availability") upon the execution of the lease with such other tenant
and again twelve (12) months prior to the Date of Availability. Tenant shall
exercise this Option to Expand by written notice to Landlord not later than
twelve (12) months prior to the Date of Availability of the Tenth Floor
Expansion Space. The lease of the Tenth Floor Expansion Space shall be
coterminous with the Lease of the initially demised Premises and the Annual Rent
for the Tenth Floor Expansion Space shall be at the market rate for space in the
Building at the time of inclusion of the Space within the Premises as determined
pursuant to Section 20.19, but not less than the Annual Rent then payable for
the Premises.
*Tenth Floor Expansion
If Tenant shall fail to exercise this Option to Expand at least twelve
(12) months prior to the Date of Availability, such Option shall lapse and be
void and without effect."
11. Add new Section 20.19 as follows:
"20.19 MARKET RENT. Wherever in this Lease the Rent is to be established
at market rent, the same shall be determined initially by Landlord who shall
furnish to Tenant Landlord's opinion for market rent for the premises within
thirty (30) days after Tenant shall exercise its option, together with a written
statement from a commercial real estate broker having not less than five (5)
years' experience in office leasing in the Central Business District of Boston
with established firms in a position of Vice President or higher.
If Tenant shall dispute Landlord's statement of market rent, Tenant may
submit to Landlord, within thirty (30) days, its statement of market rent
supported by an opinion from a commercial real estate broker having not less
than five (5) years' experience in office leasing in the Central Business
District of Boston with established firms in a position of Vice President or
higher.
-3-
Landlord and Tenant shall each have the right, reasonably exercised, to
disapprove the initial selection of the other party's broker, provided such
disapproval is based upon information concerning such broker's level of
expertise or honesty.
If the two (2) brokers are, within thirty (30) days, unable to agree upon
a market rent which shall be no higher than Landlord's statement and no lower
than Tenant's statement, then the two (2) brokers thus chosen shall select a
third broker having the same qualification as the other brokers who shall
establish the market rent, which shall be conclusive and binding upon the
parties, except that if market rent as so determined is greater than Tenant's
broker's opinion by more than $1.00 per rentable square foot or if market rent
as so determined is less than the Annual Rent payable during the year of
exercise, or the last year of the term then concluding, whichever is applicable
to the option exercised*, Tenant shall have the right to withdraw its exercise
of the option by notice to Landlord sent within ten (10) business days after
receipt of the market rent determination, failing which the determination of
market rent shall be conclusive and binding upon the parties, and the rental
under the option shall be the greater of such determination or the Annual Rent
payable during the year of exercise of the option, or the last year of the term
then concluding, whichever is applicable to the option exercised.
Notwithstanding the market rent so determined by the brokers, in no event shall
the rental under the option be less than the Annual Rent payable during the year
of exercise of the option or the last year of the term then concluding whichever
is applicable to the option exercised."
*by more than $1.00 per rentable square foot
12. Exhibit B - SCHEDULE OF RENT ESCALATORS is amended by adding the
following, which shall be applicable to the Expansion Space only:
"Notwithstanding the provisions of Articles 1.01, 4.02 and 4.02 and
Exhibit B of and to the Lease, Tenant shall pay those portions of Tax Cost
as defined in Exhibit B, Section 2.01(a) and all other Occupancy Costs as
defined in Exhibit B, in excess of those sums set forth below, unless the
same would otherwise be attributable to the Premises under applicable
provisions of the Lease.
Occupancy Costs Base Tax Cost Base
-------------------- -------------
$6.49 per rentable $4.32 per rentable
square foot square foot
With respect to the original Premises and the Fifth Floor Space, the
Occupancy Costs Base shall remain $4.00 per rentable square foot, and the
Tax Cost Base shall remain $4.00 per rentable square foot."
13. Exhibit B - SCHEDULE OF RENT is amended to read as follows:
SCHEDULE OF RENT
The rentable square feet of the Building being agreed to be 145,271.
Office Factor: Tenant's agreed percentage is 50.3%
determined as follows:
-4-
determined as follows:
73,017 Square Feet in the Premises = 50.3%
------- -----------------------------------
145,271 Total rentable area of the Building
Except as herein expressly set forth, the Lease shall be and remain in
full force and effect and the terms and provisions of the Lease shall be
applicable to the Expansion Space.
Executed under seal this 19th day of Sept, 1990.
LANDLORD:
AMAN, INC.
By: /s/ Xxxxx Xxxxxxx
--------------------------------
Title: VP, Citibank as agent
TENANT:
XXXXXX XXXXX COPRORATION
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------
Title: Exec VP
-5-
EXHIBIT A-1
[12TH FLOOR - GRAPHIC OMITTED]
[11TH FLOOR: GRAPHIC OMITTED]
[10TH FLOOR: GRAPHIC OMITTED]
FOURTH AMENDMENT TO LEASE
Reference is made to a certain Lease ("Lease") dated June 11, 1987 by and
between Jaymont (U.S.A.) Incorporated (" Jaymont"), and Xxxxxx Xxxxx
Corporation, Tenant, as amended by First Amendment to Lease dated October 11,
1988; Second Amendment to Lease dated September 14, 1989; and Third Amendment to
Lease dated September 19, 1990. Jaymont's interest in the Building and the Lease
has been transferred to Aman, Inc. ("Landlord").
All capitalized terms used in this instrument shall have the meanings
ascribed to them in the Lease.
In consideration of these presents and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
Lease is hereby amended as follows:
1. Tenant shall lease additional space (the "First Floor First Floor
Expansion Space") consisting of approximately 2,748 rentable square feet on the
1st floor of the Building as shown on Exhibit A-l attached hereto.
2. The Projected Commencement Date for the inclusion of the First Floor
Expansion Space is April 1, 1994, or such earlier or later date as the First
Floor Expansion Space has been renovated in accordance with the provisions of
this Fourth Amendment to Lease, ("Effective Date"). Landlord shall use all
reasonable efforts to deliver the First Floor Expansion Space to Tenant not
later than April 1, 1994. Landlord shall have no responsibility for, nor shall
the Effective Date be affected by, delays in the delivery of Tenant's furniture,
computer equipment, communication equipment or other items not within Landlord's
control.
3. The Term of the lease of the First Floor Expansion Space shall be
approximately four (4) years and nine (9) months and shall commence on the
Effective Date and shall end on the date of expiration or earlier termination of
the Term of the initially demised Premises.
4. The Annual Rent with respect to the First Floor Expansion Space shall
be as follows:
$54,960.00 for the twelve (12) month period commencing on the
Effective Date, at the rate of $20.00 per square foot;
$57,708.00 for the next twelve (12) months, at the rate of $21.00 per
rentable square foot;
$60,456.00 for the next twelve (12) months, at the rate of $22.00 per
rentable square foot;
$63,204.00 for the next twelve (12)months, at the rate of $23.00 per
rentable square foot; and
$65,952.00 for the next twelve (12) months, or until the termination
of this Lease, at the rate of $24.00 per rentable square foot.
The foregoing amounts are in addition to the Annual Rent payable with
respect to the balance of the Premises.
5. The Office Factor shall be increased from 50.3% to 52.15% as of the
Effective Date.
6. Landlord shall provide all architectural, mechanicals, engineering and
space planning services required for the construction of the First Floor
Expansion Space in accordance with Exhibit E as set forth on the plan attached
hereto as Exhibit A-l (the "Plan"). Landlord will construct the First Floor
Expansion Space and all improvements thereto in accordance with approved final
construction drawings. Landlord shall expend in connection with the renovation
of the space, not more than $40.00 per rentable square foot, or $109,920.00,
plus all architectural and engineering fees (the "Allowance"). If and to the
extent that less than the Allowance shall be expended, the same shall be
credited to Tenant's obligation to pay Annual Rent for the First Floor Expansion
Space. If and to the extent that the cost of the renovations exceeds the
Allowance, Tenant shall be responsible for and shall pay all such excess
amounts. Said Excess amounts shall be paid monthly to Landlord upon requisition
by the Landlord.
Landlord shall pay Tenant's architect's fees in accordance with Landlord's
standard architectural fee schedule.
7. Section 20.16 of the Lease shall apply to the First Floor Expansion
Space as part of the Premises.
8. The Parties represent to each other that the only brokers involved in
this transaction are the brokers designated on the Lease Data Sheet. All fees
for such brokers shall be paid by Landlord if, but only if, this Fourth
Amendment to Lease is executed and Tenant takes possession of the First Floor
Expansion Space as provided herein.
9. Exhibit B - Schedule of Rent Escalators is amended by adding the
following, which shall be applicable to the First Floor Expansion Space only:
"Notwithstanding the provisions of Articles 1.01, 4.02 and 4.02 and
Exhibit B of and to the Lease, Tenant shall pay those portions of Tax Cost
as defined in Exhibit B, Section 2.01(a) and all other Occupancy Costs as
defined in Exhibit B, in excess of those sums set forth below, unless the
same would otherwise be attributable to the Premises under applicable
provisions of the Lease.
OCCUPANCY COSTS BASE TAX COST BASE
The Actual Occupancy Cost for The Actual Real Estate tax
calendar year 1993 per rentable for fiscal year 1994 per
square foot rentable square foot
With respect to the Premises other than the First Floor Expansion Space,
the Occupancy Cost Base and Tax Cost Base shall remain as they presently
are."
-2-
13. Exhibit B - Schedule of Rent is amended to read as follows:
SCHEDULE OF RENT
The rentable square feet of the Building being agreed to be 145,271.
Office Factor: Tenant's agreed percentage is 52.15%
determined as follows:
75,765 Square Feet in the Premises = 52.15%
145,271 Total rentable area of the
Building
Except as herein expressly set forth, the Lease shall be and remain in
full force and effect and the terms and provisions of the Lease shall be
applicable to the First Floor Expansion Space.
Executed under seal this 23 day of February, 1994.
LANDLORD:
AMAN, INC.
By: /s/ [Illegible]
------------------------------
Title: Vice President
TENANT:
XXXXXX XXXXX CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------
Title: President
-3-
EXHIBIT A
[FLOORPLAN: GRAPHIC OMITTED]
FIFTH AMENDMENT TO LEASE
Reference is made to a certain Lease ("Lease") dated June 11, 1987 by and
between Jaymont (U.S.A.) Incorporated whose interest has been transferred to
Aman, Inc. ("Landlord"), and Xxxxxx Xxxxx Corporation ("Tenant") as amended by
First Amendment to Lease dated October 11, 1988, Second Amendment to Lease dated
September 14, 1989; Third Amendment to Lease dated September 19, 1990, and
Fourth Amendment to Lease dated February 23, 1994.
All capitalized terms used in this Fifth Amendment shall have the meanings
ascribed to them in the Lease, or in this Fifth Amendment.
This Fifth Amendment to Lease shall take effect upon the execution hereof
by both parties except as otherwise specifically herein stated.
In consideration of these presents and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
Lease is hereby further amended as follows:
1. The Lease Data Sheet and Section 1.01 (p) are amended to reflects that
as of January 1, 1999 the Premises shall consist of 77,265 rentable square feet
comprised by 4,248 rentable square feet on the first floor, the entire 2nd, 3rd,
4th, 11th and 12th floors, and 5,472 rentable square feet on the 5th floor of
the Building. As of September 1, 1999, an additional 7,360 square feet on the
5th floor of the Building will be added to the Premises ("Must Take Space")
making a total of 84,625 rentable square feet.
2. The Lease Data Sheet and Section 1.01(t), is hereby amended by
providing that the Term is extended for a period ten (10) years commencing
January l, 1999 and expiring December 31, 2008 (the "Extended Term").
3. The Lease Data Sheet and Section 1.01(a) are amended to provide that
commencing on January 1, 1999 and during the continuance of the Extended Term,
Annual Rent shall be as follows:
YEAR PER R.S.F. ANNUAL RENT
---- ---------- -----------
1999 $27.75 $2,178,143.75
(77,265 rentable square feet from January 1, 1999
through and including October 31, 1999, and 84,625
rentable square feet from November 1, 1999 through and
including December 31, 1999), provided that the Must
Take Space is delivered on or before September 1, 1999.
If such shall not be the case, there shall be a pro rata
deduction of Annual Rent until the Must Take Space shall
have been delivered.
2000 $28.00 $2,369,500.00
2001 $28.75 $2,432,968.75
2002 $29.75 $2,517,593.75
2003 $29.75 $2,517,593.75
2004 $31.00 $2,623,375.00
2005 $31.75 $2,686,843.75
2006 $31.75 $2,686,843.75
2007 $32.50 $2,750,312.50
2008 $33.75 $2,856,093.75
4. The Lease Data Sheet is amended by DELETING THE DESCRIPTION OF THE
OPTION TO EXPAND and replacing the same with: "On September 1, 1999, the Must
Take Space, approximately 7,360 rentable square feet on the fifth floor of the
Building shall be added to the Premises."
5. Section 20.15 of the Lease, is replaced with the following "On
September 1, 1999 Landlord shall deliver the Must Take Space containing
approximately 7,360 rentable square feet on the 5th floor of the Building as
shown on the attached floor plan. Upon completion of the Tenant's improvements,
Landlord shall reimburse Tenant for Tenant's costs incurred in remodeling,
renovating and altering the Must Take Space up to, but not in excess of $25.00
per rentable square foot, $184,000.00 in the aggregate. Annual Rent shall
commence on the Must Take Space sixty (60) days after the Must Take Space shall
have been delivered. Said improvements shall be made in accordance with Section
7.03 and Exhibit E of the Lease and all plans and work shall be subject thereto.
6. Exhibit B, Schedule of Rent Escalators, shall be amended as of January
1, 1999 so that the Tax Cost Base shall be the actual tax expense for fiscal
1999 per rentable square foot, and the All Other Occupancy Costs Base shall be
the actual costs incurred by Landlord per rentable square foot for 1998.
7. As of January 1, 1999, the Office Factor shall be 53.30%, and the
numerator of the fraction shall be 77,265 equaling 53.30%. As of September 1,
1999, the Office Factor shall be 58.37% and the numerator of the fraction shall
be 84,625, equaling 58.37%.
8. There is hereby added to the Lease several new sections as follows:
"Section 20.20. RIGHT OF FIRST OFFER. Tenant shall have the right to lease
any space in the Building now under lease or hereafter subject to a lease, at
the expiration of respective lease terms subject to rights contained in such
leases for renewal or extension options, if any, and any
-2-
other space in the Building which becomes available prior to the expiration of
the term of any Lease or by termination of a tenancy at will ("RFR Space").
Landlord has delivered to Tenant herewith Schedule A which indicates the
current expiration date of leased and occupied Premises in the Building. Said
Schedule also indicates current options to extend.
If a tenant under lease shall fail to exercise an Option to Extend or
renew on a timely basis, Landlord shall notify Tenant in writing of such fact,
or if any tenancy at will shall be terminated, or if any space in the Building
shall become available for occupancy, Landlord shall give written notice to
Tenant of such availability. Within thirty (30) days after Landlord shall have
advised Tenant in writing that a tenant having an option to extend or renew has
failed to do so, Tenant shall advise Landlord in writing whether or not it
elects to have such RFR Space included in the Premises. Within sixty (60) days
from the date upon which Landlord shall notify Tenant in writing of the
termination of a tenancy at will or other availability of space, Tenant shall
notify Landlord in writing whether it elects to have such RFR Space included
within the Premises.
Upon such election, as such RFR Space becomes available, it shall be
included in the Premises.
In each chase when RFR Space shall be included within the Premises, the
Schedule of Rent Escalators and office factor shall be amended to reflect such
inclusion. The Tax Cost Base and the Other Occupancy Cost Base for such RFR
included Space shall be the tax year in which the inclusion shall occur for Tax
Cost Base, and the actual operating expense for the calendar year in which such
RFR Space shall be included in the Premises for Other Occupancy Cost Base.
The Annual Rent for each RFR Space, included shall be deemed at market as
provided in Section 20.19.
Said RFR Space shall be delivered to Tenant "broom clean" in the condition
it is then in on a fully "as is" basis with no obligation on the part of the
Landlord to make any improvements thereto.
If Tenant shall fail to exercise its right to have any RFR Space included
in the Premises, Landlord shall be free to lease or rent the same for any period
of time as Landlord in its sole discretion shall determine. If such RFR Space
shall thereafter become available, the provisions of this Section 20.20 shall
apply.
9. The Option to Extend referred to in Section 20.16 of the Lease is
expressly preserved and shall remain in effect to be exercised as provided in
Section 20.16 not later than twelve (12) months prior to the expiration of this
Lease as extended hereby, and at the expiration of the extended term of this
Lease.
"Section 20.21. COOLING TOWER. Landlord, at its cost and expense, shall as
soon as possible after the execution of this Amendment, install a cooling tower
for the exclusive use of Tenant's computer facilities. Said cooling tower shall
include two (2) twenty ton dry coolers with pumps and conduits of sufficient
size to accommodate Tenant's current needs and
-3-
reasonable expansion as outlined in option C to Landlord by letter dated
December 5, 1996, copy of which is attached hereto."
"Section 20.22. STORAGE SPACE. Promptly after the execution of this
amendment, Landlord shall provide approximately 250 square feet of storage space
in the basement of the Building for the sole use of Tenant. Said storage space
shall be delivered "as is" and no Rent or other charges shall be chargeable on
account of said storage space. In addition, Landlord has made available to the
Tenant approximately 100 square feet in the basement of 00 Xxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx, which building is owned by the Landlord. Tenant shall pay rent
with respect to this 00 Xxxxx Xxxxxx storage space, the sum of Eighty and 00/100
Dollars ($80.00) per month. Either Landlord or Tenant shall have the right upon
thirty (30) days' notice, to terminate the Tenants rights and obligations with
respect to the 00 Xxxxx Xxxxxx storage space.
"Section 20.23. INDUCEMENT. On January 2, 1997 Landlord shall pay to
Tenant the sum of One Million and 00/100 Dollars ($1,000,000.00) as an
inducement payment and to pay for redecoration, renovation and upgrading of the
Premises ("Upgrading"). Tenant shall expend not less than Five Hundred Thousand
and 00/100 ($500,000.00) for the Upgrading ("Upgrading Costs"). Tenant shall
certify to Landlord the Upgrading Costs, which shall include all work, labor,
materials and supplies incorporated in the Premises as part of the Upgrading.
Tenant shall commence the Upgrading as soon after January 1, 1997 as is
practical. All of the Upgrading work shall be accomplished as provided in this
Lease including, but without limitation, Section 7.03 and Exhibit E. $500,000.00
of the inducement shall be placed in an interest bearing escrow account to be
held by Xxxxxxxxx & Xxxx as Escrow Agent. All interest shall be for the benefit
of the Landlord as Tenant shall complete provisions of the Upgrading and shall
deliver paid invoices to Landlord. Landlord shall release from the escrow amount
the Upgrading Costs reflected by said paid invoices. The balance of $500,000.00
shall be released to Tenant on January 2, 1997 and may be used by Tenant for any
purpose including real estate consulting fees and need not be accounted for to
Landlord."
"Section 20.24. RESTRICTION. Landlord agrees that it will not during the
term of this Lease, so long as the Tenant named herein shall be in occupancy,
lease first floor space ("First Floor Space") in the Building or in the Building
known as and numbered 00 Xxxxx Xxxxxx to retail insurance users."
"Section 20.25. ELECTRICITY AND OTHER UTILITIES. Landlord and Tenant
acknowledge that the manner for provision of electricity and other utilities is
about to change, due to Deregulation. Presently, Boston Edison Company provides
electricity services for the Building. At such time as alternate service
providers become able to provide electricity or other utility services to the
Building, Landlord shall have the right at any time, and from time to time, to
select the company or companies to provide electricity and other utility
services to the Building. Landlord shall seek competitive bids from such service
providers. Landlord shall exercise good faith business judgment in making such
selections, having in mind the best interest of the Tenant, as well as the
Building and the other occupants thereof. If Landlord shall select a service
provider other than the lowest bidder, Landlord shall consult with Tenant and
explain Landlord's reasons for choosing a service provider other than the lowest
bidder.
-4-
The following are added to the Addenda to Lease:
54. Section 7.06 of the Lease is hereby amended by adding thereto the
following: "Subject to obtaining all permits and approvals from the City of
Boston, and subject to the approval of Landlord as to design, size, and manner
of affixation, Tenant may install a sign indicating the Tenant's presence in the
Building on the exterior of the Building at the Custom House and Broad Street
entrance of the Building. Said sign may indicate the named Tenant or any of its
trade names including Safety Insurance."
55. Section 1.01(u) is hereby amended so that it reads: "Use means the
conduct of an insurance business and with the approval of Landlord any use
consistent with first class office buildings in the financial district of
Boston".
56. Section 4.04 is amended by adding after the word "set-off" in line 7,
"except as herein expressly set forth".
51. Section 7.03(d) line 2, delete "in its sole discretion".
58. Item 27 of the Addenda, the reference to Section 9.01(a) and (b) is
changed to Section 9.02(a) and (b).
59. Section 11.01B delete the word "sole" in the second line.
60. Section 11.02 lines 2 and 4, delete the word "sole".
61. Section 16.05 is amended by adding at the end thereof: "unless and to
the extent Landlord actually receives rent insurance carried by Tenant pursuant
to this Lease".
62. Section 19.01 is amended by adding after the word "instituted" in the
4th line from the bottom "and successfully concluded".
63. Section 19.02 is amended by adding the same proviso contained in Item
22 of the Addenda as applicable here.
Except as herein expressly set forth, the Lease shall be and remain in
full force and effect.
EXECUTED under seal this 20th day of December 1996.
LANDLORD:
AMAN, INC.
By: /s/ [Illegible]
---------------------
Title:
-5-
TENANT:
XXXXXX XXXXX CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------
Title: Pres.
-6-
SCHEDULE A
ATTACHED TO AND FORMING PART OF 5TH AMENDMENT TO LEASE
BETWEEN AMAN, INC. AND XXXXXX XXXXX CORPORATION
LEASE EXPIRATION SUMMARY
Floor 12: TBC
Floor 11: XXX
Xxxxx 00: 2,297 RSF LED l/01
2,690 RSF LED 5/00
3,699 RSF LED 6/99
2,464 RSF LED 9/00
Floor 9: 11,155 RSF LED 4/00
This tenant has option to extend to 4/05.
Floor 8: 3,497 RSF LED 2/02
4,003 RSF LED 2/02
1,545 RSF LED 3/01
2,128 RSF LED 5/97
Floor 7: 5,112 RSF LED l/99
This tenant has option to extend.
6,038 RSF LED l/00
This tenant has a subordinate option to extend and
a ROFO on the 5,112 RSF if the other tenant on the
floor does not exercise its right.
Floor 6: 11,147 RSF LED 7/99
Tenant has option to terminate on 7/98 and an
option to extend lease for 5 years.
Floor 5: 5,391 RSF Must take space for TBC.
1,963 RSF Must take space for TBC.
Floor 4: TBC
Floor 3: TBC
Floor 2: TBC
