EXHIBIT 10.35
SUBLEASE AGREEMENT
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THIS SUBLEASE AGREEMENT is entered into as of the 22nd day of July, 1998,
by and between EQUITY OFFICE PROPERTIES TRUST, a Maryland Real Estate
Investment Trust (hereinafter called the "Sublandlord") and THE XXXXXXXX
GROUP, a Delaware corporation, (hereinafter called the "Subtenant").
WITNESSETH:
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WHEREAS, Sublandlord is presently the lessee (or tenant) of the premises
containing 27,484 square feet of Total Rentable Area on the sixth (6th) floor
of the building located at 00 Xxxxx Xxxxx (the "Building") and 281 square
feet of Net Rentable Area on lower level 4 of the building located at 00
Xxxxx Xxxxx pursuant to that certain lease dated October 1, 1995 entered into
by and between Rowes Wharf Associates, a Massachusetts general partnership
(hereinafter called "Overlandlord") and Beacon Properties Corporation (said
lease is hereinafter called the "Primary Lease"). Such Primary Lease
incorporates by reference that certain lease dated March 1, 1987 by and
between Overlandlord and TBC Holdings Limited Partnership, formerly known as
The Beacon Companies, as amended by a first amendment dated May 12, 1987, a
second amendment dated February 1, 1988 and a third amendment dated December
31, 1990 (the "Other Lease"). A copy of the Primary Lease (inclusive of the
Other Lease that is incorporated therein) is attached hereto as Exhibit "D"
and is by this reference incorporated herein. The Primary Lease is subject to
that certain ground lease dated July 25, 1985, as amended (the "Ground
Lease") by and between The Boston Redevelopment Authority, as "Ground Lessor"
and Overlandlord, as tenant; and
WHEREAS, Sublandlord is desirous of subletting to Subtenant office space
on the 6th floor of the Building as shown on Exhibit A attached hereto and
made a part hereof (hereinafter called the "Sub-Premises") and Subtenant is
desirous of subletting same from Sublandlord. For purposes hereof,
Sublandlord and Subtenant hereby agree that the square footage of the
Sub-Premises shall be deemed to be 17,853 square feet.
NOW, THEREFORE, for and in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, and intending to be legally bound,
Sublandlord and Subtenant agree as follows:
1. SUB-PREMISES. Sublandlord hereby sublets the Sub-Premises to
Subtenant and Subtenant hereby sublets the Sub-Premises from
Sublandlord. The Sub-Premises shall be used by Subtenant for general
office purposes and no other use. Subtenant shall not have the right
to exercise or cause Sublandlord to exercise any extension, renewal
or expansion options provided to Sublandlord under the Primary Lease.
2. TERM. The term of this Sublease shall commence on September 1, 1998
(the "Commencement Date") and end on September 30, 2002, unless
sooner terminated due to the provisions hereof. Sublandlord and
Subtenant acknowledge and agree that the Term, and Subtenant's
obligation to pay Base Rental, shall commence on the Commencement
Date notwithstanding the fact that Subtenant may not have started or
completed any improvements to the Sub-Premises prior to such date.
3. BASE RENTAL.
A. Subtenant shall pay Sublandlord Base Rental for the
Sub-Premises in accordance with the following schedule:
Annual Rate Per Square
Period Monthly Installment Foot
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9/1/98 - 8/31/99 $55,046.75 $37.00
9/1/99 - 8/31/00 $56,534.50 $38.00
9/1/00 - 8/31/01 $58,022.25 $39.00
9/1/01 - 9/30/02 $59,510.00 $40.00
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All such Base Rental shall be paid by Subtenant on or before the
first day of each month without offset or deduction and without
notice or demand.
C. Subtenant shall also pay for all supplementary services ordered
by it and provided by Overlandlord. If Subtenant is billed for such
services directly by Overlandlord, Subtenant shall pay Overlandlord
for the cost thereof within the time period required by
Overlandlord. If Subtenant is billed for such services by
Sublandlord, Subtenant shall pay Sublandlord for such services
within ten (10) days after demand.
D. Rental payments shall be made payable to Equity Office
Properties Trust at 00 Xxxxx Xxxxx, 0xx Xxxxx, Xxxxxx, XX 00000,
Attention: General Manager or to such other place as the Sublandlord
may from time to time designate.
4. ADDITIONAL RENTAL
A. With respect to each Operating Year (as defined in the Other
Lease) during the term of this Sublease, Subtenant shall, commencing
on the Commencement Date, pay to Sublandlord, as additional rent,
sixty-four and 96/100ths percent (64.96%) of the excess, if any
("Subtenant's Operating Expense Excess"), of the amount of Operating
Expense Excess payable by Sublandlord pursuant to Article 9 of the
Other Lease for such Operating Year over the actual amount of
Operating Expense Excess payable by Sublandlord pursuant to said
Article 9 for calendar year 1998. Payment of Subtenant's Operating
Expense Excess shall be made to Sublandlord within twenty (20) days
from the date that Sublandlord shall furnish to Subtenant a copy of
the information submitted by Overlandlord to Sublandlord as the
basis for Sublandlord's payments on account of Operating Expense
Excess for the Operating Year in question.
B. Whereas Sublandlord is required to pay estimated monthly
payments on account of Operating Expense Excess for any Operating
Year calculated on the basis of the most recent Operating Cost data
or budget available, Subtenant shall pay to Sublandlord, at the same
time and in the same manner that Base Rental is due, estimated
monthly payments on account of Subtenant's Operating Expense Excess
for any Operating Year, calculated on the basis of the most recent
Operating Cost data or budget available, as billed to Sublandlord by
Overlandlord. If, at the expiration of any Operating Year in respect
of which monthly installments of Subtenant's Operating Expense
Excess shall have been made as aforesaid, the total of such monthly
remittances is greater than the actual amount of Subtenant's
Operating Expense Excess for such year, Sublandlord shall credit any
such excess payments against the next installment(s) of any monies
due to Sublandlord hereunder; if the total of such remittances is
less than the actual amount of Subtenant's Operating Expense Excess
for such year. Subtenant shall pay the difference to Sublandlord
within twenty (20) days of billing therefor.
C. Electrical consumption in the Sub-Premises is currently
measured by an electrical submeter serving the entire Premises
leased by Sublandlord under the Primary Lease. During the Term of
this Sublease, Subtenant, on a monthly basis, shall pay to
Sublandlord, as additional rent, sixty-four and 96/100ths percent
(64.96%) of the total electricity xxxx with respect to the Premises
under the Primary Lease. Payment of Subtenant's share of the
electrical xxxx shall be made to Sublandlord within twenty (20) days
from the date that Sublandlord shall furnish to Subtenant a copy of
the electrical xxxx for the entire Premises and Subtenant's share
thereof with respect to the Sub-Premises. Sublandlord, at its sole
cost and expense, shall have the right to install a submeter, check
meter or similar device to measure the consumption of electricity by
Subtenant in the Sub-Premises. If Sublandlord elects to install such
submeter, check meter or other
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device. Subtenant shall pay for electricity with respect to the
Sub-Premises based upon the actual electricity consumed by Subtenant
in the Sub-Premises, as measured by such submeter, check meter or
other device.
5. REPRESENTATIONS, ETC.
A. Sublandlord hereby warrants and represents that the Primary
Lease is presently in full force and effect and without default on
the part of either the Sublandlord or the Overlandlord.
B. Sublandlord warrants and represents that Exhibit "D" attached
hereto is a true, correct and complete copy of the Primary Lease and
all amendments thereto.
C. Sublandlord represents, warrants and covenants that, provided
Subtenant is not in default hereunder beyond all applicable notice
and grace periods, it will not cause a termination of the Primary
Lease or Ground Lease, nor enter into any agreement that will modify
or amend the Primary Lease or Ground Lease so as to adversely affect
Subtenant's right to use and occupy the Sub-Premises or any other
rights of Subtenant under this Sublease Agreement, or increase or
materially affect the obligations of Subtenant under this Sublease
Agreement. Sublandlord agrees to indemnify, defend and hold
Subtenant harmless from and against any third party claim arising
from Sublandlord's use of the Sub-Premises or the conduct of its
business or from any activity, work or thing done by Sublandlord on
or about the Sub-Premises; except to the extent arising from
Subtenant's access to and/or use of the Sub-Premises or the conduct
of its business or from any activity, work or thing done, permitted
or suffered by Subtenant on or about the Sub-Premises, arising from
any breach of Subtenant's obligations hereunder, or from any claim
for injury or damage to person or property during the Term of this
Sublease Agreement while on or about the Sub-Premises; and except to
the extent resulting from or caused by the negligence or willful
misconduct of Subtenant or Subtenant's employees or agents. Provided
Subtenant is not in default of its obligations hereunder beyond the
expiration of any applicable notice and grace periods in the Lease,
Sublandlord shall also indemnify and hold Subtenant harmless from
and against any and all claims brought against Sublandlord and/or
Subtenant for the termination of the Primary Lease or Sublandlord's
and/or Subtenant's right to possession thereunder by reason of any
breach or default on the part of Sublandlord of the terms of the
Primary Lease, including, without limitation, the failure to pay
Rent on or before the date when due.
D. Sublandlord hereby warrants and represents to Subtenant that
(i) the execution of this Sublease will not result in a default of
the Ground Lease, and (ii) the approval or consent of Ground Lessor
is not required with respect to this Sublease or as a condition to
the effectiveness of this Sublease.
6. PRIMARY LEASE.
A. Except as set forth herein to the contrary, all the obligations
contained in the Primary Lease conferred and imposed upon
Sublandlord (as lessee or tenant therein) are hereby conferred and
imposed upon Subtenant. Except as provided herein, any rights
granted to Sublandlord (as lessee or tenant under the Primary Lease)
are hereby granted to Subtenant, which rights shall include the
right to receive all of the services to be provided to Sublandlord
under the Primary Lease. Notwithstanding the foregoing, the
following provisions of the Primary Lease are hereby specifically
excluded from the Sublease: Exhibit 1; Articles 2.2.1*; 4, as
amended, other than Article 4.9; 5.1-5** (provided that Subtenant
shall have the right to install kitchen equipment such as a
microwave and refrigerator); 6.6*; and 9 (except to the extent
necessary to define the amount and manner in which Sublandlord is
required to pay Operating Expense Excess to Overlandlord);
Ex. 3-37*; the Rider to the Other Lease; and the first, second and
third amendments to the Other Lease. Subtenant covenants and agrees
to fully and
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faithfully perform the terms and conditions of the Primary Lease and
the Sublease on its part to be performed. Subtenant shall not do or
cause to be done or suffer or permit any act to be done which would
or might cause the Primary Lease, or the rights of Sublandlord, as
lessee or tenant, under the Primary Lease, to be endangered,
canceled, terminated, forfeited or surrendered, or which would or
might cause Sublandlord to be in default thereunder or liable for
any damage, claim or penalty. Subtenant agrees, as an express
inducement for Sublandlord's executing this Sublease, that if
there is any conflict between the provisions of this Sublease and
the provisions of the Primary Lease which would permit Subtenant to
do or cause to be done or suffer or permit any act or things to be
done which is prohibited by the Primary Lease, then the provisions
of the Primary Lease shall prevail. If the Primary Lease terminates
or is terminated for any reason whatsoever, then this Sublease shall
terminate simultaneously therewith, whereupon (i) if Subtenant is
not in default under the terms and conditions of this Sublease, such
termination shall be without liability between Sublandlord and
Subtenant; or (ii) if Subtenant is in default under the terms and
conditions of this Sublease, the default provisions contained herein
shall control as to Subtenant's liability.
B. Sublandlord shall have no duty to perform any obligations of
the Overlandlord and shall under no circumstances be responsible for
or liable to Subtenant for any default, failure or delay on the part
of the Overlandlord in the performance of any obligations under the
Primary Lease, nor shall such default of the Overlandlord affect
this Sublease or waive or defer the performance of any of
Subtenant's obligations hereunder except as expressly set forth in
the Primary Lease; provided, nevertheless, that in the event of any
such default or failure of performance by Overlandlord, Sublandlord
agrees, upon notice from Subtenant, to make demand upon
Overlandlord to perform its obligations under the Primary Lease and,
provided that Subtenant specifically agrees to pay all costs of
Sublandlord, to take reasonable and appropriate legal action to
enforce the Primary Lease.
C. All services to the Sub-Premises shall be furnished by
Sublandlord hereunder only to the extent that such services are
furnished to Sublandlord, as lessee or tenant, under the Primary
Lease.
D. This Agreement of Sublease and all the rights of the Subtenant
hereunder are subject and subordinate to the Primary Lease.
Subtenant covenants and agrees to observe and perform all of the
covenants and obligations of the Sublandlord as tenant under the
Primary Lease. The failure of Subtenant to observe and perform the
covenants and obligations of the Primary Lease shall be a default
hereunder.
E. Provided Subtenant is not in default hereunder beyond all
applicable notice and grace periods; Sublandlord agrees not to do or
cause to be done or suffer or permit any act to be done which would
or might cause the Primary Lease, or the rights of Sublandlord, as
lessee or tenant, under the Primary Lease, to be endangered,
canceled, terminated, forfeited or surrendered, or which would or
might cause Sublandlord to be in default thereunder.
7. DEFAULT
A. If Subtenant defaults in the payment of any sums payable
hereunder when due and fails to cure such default within ten (10)
days after written notice thereof to Subtenant, then Sublandlord
may, at its option, terminate this Sublease and/or Subtenant's right
to possession of the Sub-Premises, in which event neither the
Subtenant nor any person claiming through or under the Subtenant by
virtue of any statute or an order of any court shall be entitled to
possession or to remain in possession of the Sub-Premises but shall
forthwith quit and surrender the Sub-Premises. If Subtenant defaults
in the performance of any of the non-monetary obligations imposed
upon it hereunder directly or by reference to the Primary Lease and
such failure continues for thirty (30) days after written notice
thereof to
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Subtenant, then Sublandlord may, at its option, terminate this
Sublease and/or Subtenant's right to possession of the Sub-Premises,
in which event neither the Subtenant nor any person claiming through
or under the Subtenant by virtue of any statute or an order of any
court shall be entitled to possession or to remain in possession of
the Sub-Premises but shall forthwith quit and surrender the
Sub-Premises.
B. In the event that the Subtenant shall default under this Sublease
and such default shall entitle the Sublandlord to terminate this
Sublease and/or take possession of the Sub-Premises as hereinabove
provided, the Sublandlord shall have the right to enter the
Sub-Premises by any legal means, remove the Subtenant's property and
effects, take and hold possession thereof, with or without
terminating this Sublease (at Sublandlord's option) and without
releasing the Subtenant, in whole or in part, from Subtenant's
obligations to pay rent and additional rent and all its other
obligations hereunder for the full term, relet the Sub Premises or
any part thereof, either in the name or for the account of the
Subtenant, for such rent and for such term or terms as the
Sublandlord may see fit. The Sublandlord shall not be required to
accept any tenant offered by the Subtenant or to observe any
instructions given by the Subtenant about such reletting. In any such
case, the Sublandlord may make such repairs, alterations and additions
in and to the Sub-Premises and redecorate the same as it sees fit. The
Subtenant shall pay the Sublandlord any deficiency between the rent
hereby reserved and covenanted to be paid and the net amount of the
rents, if any, collected on such reletting, for the balance of the
term of this Sublease, as well as any reasonable expenses incurred by
the Sublandlord in such reletting including, but not limited to
broker's fees, attorney's fees, the expense of repairing, altering
and redecorating the Sub-Premises and otherwise preparing the same
for re-rental. All such expenses shall be paid by the Subtenant as
additional rent upon demand by the Sublandlord. Any deficiency in
rental shall be paid in monthly installments, upon statements
rendered by the Sublandlord to the Subtenant. For the purpose of
determining the deficiency in rent, the rent reserved shall be deemed
to be the guaranteed minimum rental herein provided for, as reduced
by any rent collected by reletting. Any suit brought to collect the
amount of the deficiency for any one or more months shall not
preclude any subsequent suit to collect the deficiency for any
subsequent months.
C. If the Subtenant is in default of its obligations under this
Sublease, Sublandlord may cure the default and Subtenant shall
forthwith pay to Sublandlord, as additional rent, a sum of money
equal to all amounts expended by Sublandlord in curing such default.
If suit is brought by Sublandlord on account of any default of
Subtenant and if such default is established, Subtenant shall pay
to Sublandlord all expenses of such suit including without limitation
reasonable attorney's fees. Any payment by Subtenant of a sum of money
less than the entire amount due Sublandlord at the time of such payment
shall be applied to the obligations of Subtenant then furthest in
arrears. No endorsement or statement on any check or accompanying any
payment shall be deemed an accord and satisfaction and any payment
accepted by Sublandlord shall be without prejudice to Sublandlord's
right to obtain the balance due or pursue any other remedy available
to Sublandlord both in law and in equity.
D. If Subtenant defaults in any payment of rent or additional rent, or
any other payments to be made by Subtenant hereunder, interest shall
accrue thereon from the due date until paid at a fluctuating rate equal
to five (5%) percent over and above the Prime Rate, as hereinafter
defined. The term Prime Rate when used herein shall mean the
fluctuating annual rate of interest published by the largest national
bank in Boston, Massachusetts from time to time during the term of this
Agreement. Any change in such rate shall take effect on the date of such
change
E. If, at any time during the term of this Sublease, there shall be
filed by or against the Subtenant in any court pursuant to any statute
either of the United States or any state, a petition in bankruptcy or
insolvency or for the reorganization or for the appointment of a
receiver, trustee or liquidator of all or any portion of the
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Subtenant's property or if the Subtenant makes an assignment for the
benefit of creditors, or if the Subtenant admits in writing its
inability to pay its debts, and if, within sixty (60) days
thereafter, the Subtenant fails to secure a discharge thereof, this
Sublease, at the option of the Sublandlord, may be canceled and
terminated, in which event neither the Subtenant nor any person
claiming through or under the Subtenant by virtue of any statute or
an order of any court shall be entitled to possession or to remain
in possession of the Sub-Premises but shall forthwith quit and
surrender the Sub-Premises.
F. In addition to any and all remedies set forth herein.
Sublandlord shall have all remedies available at law or in equity,
and any and all remedies shall be cumulative and nonexclusive.
8. CONDITION OF THE SUB-PREMISES. Sublandlord makes no representations
with respect to this transaction or the Sub-Premises, except as
specifically set forth herein. Subtenant takes the Sub-Premises in
as "AS IS" condition, except that Sublandlord agrees to remedy any
existing violation in the Sub-Premises of any law, code or ordinance
of any governmental entity on the date hereof.
9. Access. Subtenant shall permit Sublandlord to have access to the
Sub-Premises at any time during the term hereof: (i) for the purpose
of inspecting the same, and (ii) to the extent Subtenant fails to
perform such obligations, for the purpose of performing Sublandlord
obligations under the Primary Lease. Notwithstanding the foregoing,
except in the event of an emergency, Sublandlord will provide
Subtenant with reasonable prior notice of such entry (which notice
may be given orally to an authorized representative of Subtenant).
Subtenant shall have the right to have a representative present
during any such entry. The foregoing, however, shall not be
construed as to limit Overlandlord's access rights to the
Sub-Premises under the Primary Lease.
10. ALTERATIONS.
A. Subtenant shall not make or cause to be made, either prior to
or during the term hereof, any alterations, installations (other
than office equipment), changes, replacements, additions or
improvements (structural or otherwise) in or to the Sub-Premises
without the prior written consent of Sublandlord (which consent will
not be unreasonably withheld, delayed or conditioned) and of
Overlandlord pursuant to the Primary Lease. Subject to the
conditions below, the cost of any alteration or other change in the
Sub-Premises shall be borne entirely by Subtenant. Upon the
termination of this Sublease, all alterations, installations and
trade fixtures made or installed by Subtenant may be removed, to the
extent permitted by Overlandlord under the Primary Lease, by
Subtenant, and any damage to the Sub-Premises caused by such removal
shall be repaired by Subtenant at its expense, and to the extent
required under the Primary Lease, the Sub-Premises shall be restored
to the condition existing prior to said alterations, installations or
trade fixtures, ordinary wear and tear excepted. If Subtenant does
not remove its property of every kind and description from the
Sub-Premises prior to the end of the Term, however ended, Subtenant
shall be conclusively presumed to have conveyed the same to
Sublandlord under this Sublease as a xxxx of sale without further
payment or credit by Sublandlord to Subtenant, and Sublandlord may
remove the same and Subtenant shall pay the expense of such removal
to Sublandlord upon demand. Subtenant's obligation to observe or
perform this covenant shall survive the expiration of the Term.
Sublandlord hereby agrees that Subtenant shall not be required to
remove the Initial Alterations to the Sub Premises, or any portion
thereof, unless Sublandlord advises Subtenant of such removal
obligation prior to or simultaneously with Sublandlord's approval of
Subtenant's plans for the Initial Alterations.
B. Upon the full and final execution of this Sublease by
Sublandlord and Subtenant and the Consent to Sublease by
Sublandlord, Subtenant and Overlandlord, Subtenant, subject to the
terms and conditions of Section 10.A. above, shall have the right to
occupy and perform alterations and improvements in
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the Sub-Premises (the "Initial Alterations"). Subtenant shall be
responsible for all elements of the design of Subtenant's plans
(including, without limitation, compliance with law, functionality
of design, the structural integrity of the design, the configuration
of the Sub-Premises and the placement of Subtenant's furniture,
appliances and equipment), and Sublandlord's and Overlandlord's
approval of Subtenant's plans shall in no event relieve Subtenant of
the responsibility for such design. Subtenant's occupancy of the
Sub-Premises for the period prior the Commencement Date shall be
subject to all of the terms and conditions of the Sublease, provided
that Subtenant shall not be required to pay Base Rental or
additional rental with respect to the period of time prior to the
Commencement Date.
C. Provided Subtenant is not in default, Sublandlord agrees to
contribute the sum of One Hundred Seventy-Eight Thousand Five
Hundred Thirty and 00/100 Dollars ($178,530.00) (the "Allowance")
toward the cost of performing the initial Alterations in the
Sub-Premises. The Allowance may only be used for the cost of
preparing design and construction documents and mechanical and
electrical plans for the Initial Alterations, for hard costs in
connection with the Initial Alterations, for costs incurred by
Subtenant in connection with its move into the Sub-Premises and for
the cost of installing telephone and computer cable and wire in the
Sub-Premises. The Allowance, less a 10% retainage (which retainage
shall be payable as part of the final draw), shall be paid to
Subtenant or, at Sublandlord's option, to the order of the general
contractor that performs the Initial Alterations, in periodic
disbursements within thirty (30) days after receipt of the following
documentation. (i) an application for payment and sworn statement of
contractor substantially in the form of AIA Document G-702 covering
all work for which disbursements is to be made to a date specified
therein: (ii) a certification from an AIA architect substantially in
the form of the Architect's Certificate for Payment which is located
on AIA Document G702, Application and Certificate of Payment; (iii)
Contractor's, subcontractor's and material supplier's waivers of
liens which shall cover all Initial Alterations for which
disbursement is being requested and all other statements and forms
required for compliance with the mechanics' lien laws of the State
of Massachusetts; (iv) a cost breakdown for each trade or
subcontractor performing the Initial Alterations; (v) plans and
specifications for the Initial Alterations, together with a
certificate from an AIA architect that such plans and specifications
comply in all material respects with all laws affecting the
Building, Property and Sub-Promises: (vi) copies of all construction
contracts for the Initial Alterations, together with copies of all
change orders, if any; and (vii) a request to disburse from
Subtenant containing an approval by Subtenant of the work done and a
good faith estimate of the cost to complete the Initial Alterations.
Upon completion of the Initial Alterations, and prior to final
disbursement of the Allowance, Subtenant shall furnish Sublandlord
with: (1) general contractor and architect's completion affidavits,
(2) full and final waivers of lien, (3) receipted bills covering all
labor and materials expended and used, (4) as-built plans of the
Initial Alterations, and (5) the certification of Subtenant and its
architect that the Initial Alterations have been installed in a good
and workmanlike manner in accordance with the approved plans, and in
accordance with applicable laws, codes and ordinances. In no event
shall Sublandlord be required to disburse the Allowance more than
one time per month. If the Initial Alterations exceed the Allowance,
Subtenant shall be entitled to the Allowance in accordance with the
terms hereof, but each individual disbursement of the Allowance shall
be disbursed in the proportion that the Allowance bears to the total
cost for the Initial Alterations, less the 10% retainage referenced
above. Notwithstanding anything herein to the contrary, Sublandlord
shall not be obligated to disburse any portion of the Allowance
during the continuance of an uncured default under the Lease, and
Sublandlord's obligation to disburse shall only resume when and if
such default is cured. In the event Subtenant does not use the
entire Allowance by December 31, 1999, any unused amount shall
accrue to the sole benefit of Sublandlord, it being understood that
Subtenant shall not be entitled to any credit, abatement or other
concession in connection therewith. Subtenant shall be responsible
for all applicable state sales or use taxes, if any, payable in
connection with the Initial Alterations and/or Allowance.
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11. INSURANCE. Subtenant agrees to purchase and maintain during the term
of this Sublease the insurance required under Article 15 of
the document dated March 1, 1987 and to name Overlandlord and
Sublandlord as additional insureds on said insurance. Copies of the
certificates for such insurance shall be delivered to Sublandlord
upon the execution of this Sublease.
12. SECURITY DEPOSIT.
A. A Security Deposit in the amount of one hundred twenty-five
thousand and 00/100 dollars ($125,000.00) shall be delivered to
Sublandlord upon the execution of this Sublease by Subtenant. Such
Security Deposit shall be held by Sublandlord without liability for
interest and as security for the performance of Tenant's obligations
under this Sublease. The Security Deposit shall be in the form of
cash or in the form of a letter of credit. If Subtenant elects to
provide the Security Deposit in the form of a letter of credit, such
letter of credit shall (a) be in the form and substance of the
sample letter of credit attached hereto as Exhibit C, (b) name
Sublandlord as its beneficiary, (c) expire no earlier than thirty
(30) days after the Termination Date, and (d) be drawn on an
FDIC-insured financial institution satisfactory to Sublandlord. If
the initial term of the letter of credit will expire prior to thirty
(30) days after the termination date of this Sublease, Subtenant
shall from time to time, as necessary, renew or replace the original
and any subsequent letter of credit not less than thirty (30) days
prior to its stated expiration date so that it will remain in full
force and effect until thirty (30) days after the termination date
of the Sublease. If Subtenant fails to furnish such renewal or
replacement at least thirty (30) days prior to the stated expiration
date of the letter of credit then held by Sublandlord, Sublandlord
may draw upon such letter of credit and hold the proceeds thereof
(and such proceeds need not be segregated) as a Security Deposit
pursuant to the terms of this Article 12. Following any such draw
upon the letter of credit, however, Subtenant shall have the right
to substitute a letter of credit meeting the requirements set forth
herein for the cash Security Deposit then held by Sublandlord. Any
renewal of or replacement for the original or any subsequent letter
of credit shall meet the requirements for the original letter of
credit as set forth above, except that such replacement or renewal
shall be issued by a national bank reasonably satisfactory to
Sublandlord at the time of the issuance thereof.
B. Sublandlord may, from time to time, without prejudice to any
other remedy, use all or a portion of the Security Deposit to cure
any default by Subtenant that remains uncured after the expiration
of any applicable grace periods, including, without limitation, any
uncured default in connection with any arrearages of Rent, costs
incurred by Sublandlord to repair damages to the Sub-Premises caused
by Subtenant, and any costs incurred by Sublandlord to clean (other
than normal wear and tear) the Sub-Premises upon termination of this
Lease. Following any such application of the Security Deposit,
Subtenant shall, upon demand, either (i) restore the letter of
credit (if applicable) to its full amount, or (ii) provide
Sublandlord with an additional cash security deposit in an amount
equal to the amount of Security Deposit applied by Sublandlord. If
Subtenant is not in default at the termination of this Sublease,
Sublandlord shall return the Security Deposit, or the balance
thereof, to Subtenant within thirty (30) days after the later to
occur of the expiration of the Sublease or the date Subtenant
surrenders the Sub-Premises to Sublandlord in accordance with this
Sublease. If Sublandlord transfers its interest in the Sub-Premises
during the Lease Term, Sublandlord shall assign the Security Deposit
to the transferee and, provided the transferee accepts such
assignment and assumes Sublandlord's obligations with respect to the
return of the Security Deposit, Sublandlord shall thereafter
have no further liability for the return of such Security Deposit.
Upon request by Subtenant, Sublandlord shall provide Subtenant with
a copy of the assignment and assumption or other written
documentation that was entered into to effectuate the transfer of
the Security Deposit. Sublandlord shall not be required to segregate
the Security Deposit from its other accounts.
8
13. SUBLEASE AND ASSIGNMENT. Subtenant shall not assign or further
sublease the Sub-Premises without the written consent of Sublandlord
(which consent shall not be unreasonably withheld, conditioned or
delayed) and the Overlandlord in accordance with the Primary Lease.
14. INDEMNITY. Subtenant hereby agrees to defend, indemnify and hold
Sublandlord harmless from and against any and all expense, loss,
claims or liability including reasonable attorneys' fees arising out
of or in connection with any act or omission of Subtenant, its
agents, contractors or employees including, but not limited to,
claims as a result of injury to or death of any person, property
damage, claims of employees of Subtenant or arising out of or in
connection with Subtenant's use and possession of the Sub-Premises,
or its breach of this Sublease (including the terms of the Primary
Lease).
15. NOTICES. All notices and demands of any kind which Sublandlord or
Subtenant may require to be served upon the other, shall be given by
depositing one copy of same in the United States mail, postage
prepaid, certified mail, return receipt requested, addressed as
follows:
To Sublandlord.
Equity Office Properties Management Corp.
Xxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxx, XX 00000
Attention: Property Manager
With a copy to:
Equity Office Properties Trust
Two Xxxxx Xxxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Vice President--Legal
To Subtenant:
The Xxxxxxxx Group
00 Xxxxx Xxxxx
Xxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxxx, President and CEO
With a copy of any default notices to:
Xxxx Xxxxxxx Xxxxxxxxx, Esq.
Xxxxxx, Hall & Xxxxxxx
Exchange Place, 00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
The place to which said notice shall be sent may be changed by
written notice given as hereinafter provided. All such mailed
notices shall become effective on the third day after the date of
postmark.
16. BROKER. Subtenant represents and warrants to Sublandlord that it
dealt with no broker or other person entitled to claim fees for such
services in connection with the negotiation, execution and delivery
of this Sublease, other than CB Commercial/Whittier Partners L.P.,
whose fees shall be paid by the Sublandlord. Subtenant agrees to
defend, indemnify and hold Sublandlord harmless from and against any
and all claims for finders' fees or brokerage or other commission
(other than a claim by CB Commercial/Whittier Partners L.P.) which may
at any time be asserted against Sublandlord founded upon the claim
that the substance of the
9
aforesaid representation of Subtenant is untrue, together with any
and all losses, damages, costs and expenses (including reasonable
attorneys' fees) relating to such claims or arising therefrom or
incurred by Sublandlord in connection with the enforcement of this
indemnification provision.
Sublandlord represents and warrants to Subtenant that it dealt with
no broker or other person entitled to claim fees for such services
in connection with the negotiation, execution and delivery of this
Sublease, other than CB Commercial/Whittier Partners L.P. whose fees
shall be paid by the Sublandlord. Sublandlord agrees to defend,
indemnify and hold Subtenant harmless from and against any and all
claims for finders' fees or brokerage or other commission (including
a claim by CB Commercial/Whittier Partners L.P) which may at any
time be asserted against Subtenant founded upon the claim that the
substance of the aforesaid representation of Sublandlord is untrue,
together with any and all losses, damages, costs and expenses
(including reasonable attorneys' fees) relating to such claims or
arising therefrom or incurred by Subtenant in connection with the
enforcement of this indemnification provision.
17. WAIVER. One or more waivers of any covenant or condition by
Sublandlord shall not be construed as a waiver of a subsequent
breach of the same or any other covenant or condition, and the
consent or approval by Sublandlord to or of any act by Subtenant
requiring Sublandlord's consent or approval shall not be construed
to waive or render unnecessary Sublandlord's consent or approval to
or of any subsequent similar act by Subtenant.
18. EFFECT. This Agreement shall be binding upon the parties hereto,
their heirs, executors, legal representatives, successors and
permitted assigns, and may not be altered, amended, terminated or
modified except by written instrument executed by each of the
parties hereto.
19. GOVERNING LAW. This Agreement shall be governed by the laws of the
State of Massachusetts.
20. RECORDING. This Agreement shall not be recorded in the Office of the
Recorder of Deeds or in any other office or place of public record,
and if Subtenant shall record this Agreement or cause or permit the
same to be recorded, Sublandlord may, at its option, elect to treat
such act as a breach of this Agreement.
21. HEADINGS. The headings for the various Paragraphs herein are for
reference only and are not part of this Agreement.
22. SEPARABILITY OF PROVISIONS. If any term or provision of this
Agreement or any application thereof shall be invalid or
unenforceable, the remainder of this Agreement and any other
application of such term or provision shall not be affected thereby.
All words used shall be understood and construed of such gender or
number as circumstances may require.
23. PARKING.
A. Subtenant hereby agrees to lease from Sublandlord up to five
(5) of the non-reserved parking spaces in the Building parking
garage (the "Garage") that are provided to Sublandlord under the
Primary Lease. Tenant may exercise its right to lease up to five (5)
of the non-reserved parking spaces by providing advance written
notice thereof to Sublandlord on or before August 30, 1999 (the
"Parking Option Date"), it being understood that Subtenant's right
to lease the spaces shall expire on the Parking Option Data. Such
notice of Sublandlord shall specify the number of spaces which
Subtenant elects to lease. If Subtenant's notice specifies less than
the maximum number of spaces made available to Subtenant hereunder,
Subtenant may elect to lease additional spaces (up to a maximum
aggregate of five (5) spaces) by providing subsequent notices to
Sublandlord, so long as each notice is delivered to Sublandlord
prior to the Parking Option Date.
10
At the request of Sublandlord, Subtenant shall lease any
such spaces directly from the Overlandlord or the operator
of the Garage (the "Operator"). In such event, Subtenant
shall enter into a direct lease with Overlandlord or Operator
for such spaces.
B. Subtenant shall pay Sublandlord (or, at Sublandlord's
option, to Overlandlord or the Operator) Rent for each
non-reserved parking space at the initial rate of Three
Hundred Five and NO/100 Dollars ($305.00) per space per
month, plus any applicable tax imposed thereon. Such
monthly rate shall be subject to increase by Overlandlord
from time to time.
24. EFFECTIVE DATE. This Sublease shall only be effective upon
the execution and delivery hereof by the undersigned and
upon the consent thereto by the Overlandlord on the form
attached hereto as Exhibit B.
IN WITNESS WHEREOF, the parties have hereunto affixed their
hands and seals the day and year first above written.
SUBLANDLORD: EQUITY OFFICE PROPERTIES
TRUST, a Maryland real estate investment trust
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxx
------------------------------------------
Title: Vice President
------------------------------------------
SUBTENANT: THE XXXXXXXX GROUP,
a Delaware corporation
By: /s/ Xxxxx Xxxxxxxxx
------------------------------------------
Name: Xxxxx Xxxxxxxxx
------------------------------------------
Title: CEO
------------------------------------------
11
EXHIBIT "A"
SUB-PREMISES
[GRAPHIC]
12
EXHIBIT "B"
LANDLORD CONSENT TO SUBLEASE
This Consent is entered into as of this 22nd day of July, 1998 by and
among Rowes Wharf Associates, a Massachusetts general partnership
("Landlord"), Equity Office Properties Trust, a Maryland real estate
investment trust ("Sublandlord"), and The Xxxxxxxx Group, a Delaware
corporation ("Subtenant").
RECITALS:
A. Landlord and Sublandlord, as tenant, are parties to that certain lease
agreement dated October 1, 1995 (the "Lease") pursuant to which Landlord
has leased to Sublandlord certain premises containing approximately
27,484 square feet of Total Rentable Area on the sixth (6th) floor of the
building located at 00 Xxxxx Xxxxx (the "Building") and 281 square feet
of Net Rentable Area on lower level 4 of the building located at 00
Xxxxx Xxxxx (the "Premises").
B. Sublandlord and Subtenant have entered into (or are about to enter into)
that certain sublease agreement dated July 22, 1998 (the "Sublease
Agreement") pursuant to which Sublandlord has agreed to sublease to
Subtenant certain premises described as follows: approximately 17,853
rentable square feet on the 6th floor of the Building (the "Sublet
Premises") constituting a part of the Premises.
C. Sublandlord and Subtenant have requested Landlord's consent to the
Sublease Agreement.
D. Landlord has agreed to give such consent upon the terms and conditions
contained in this Consent.
NOW THEREFORE, in consideration of the foregoing preambles which by this
reference are incorporated herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged. Landlord hereby consents to the Sublease Agreement
subject to the following terms and conditions, all of which are hereby
acknowledged and agreed to by Sublandlord and Subtenant:
1. Sublease Agreement. Sublandlord and Subtenant hereby represent that
a true and complete copy of the Sublease Agreement hereto and made a
part hereof as Exhibit A.
2. Representations. Sublandlord hereby represents and warrants that
Sublandlord (i) has full power and authority to sublease the Sublet
Premises to Subtenant, (ii) has not transferred or conveyed its
interest in the Lease to any person or entity collaterally or
otherwise, and (iii) has full power and authority to enter into the
Sublease Agreement and this Consent. Subtenant hereby represents and
warrants that Subtenant has full power and authority to enter into the
Sublease Agreement and this Consent.
3. Indemnity and Insurance. Subtenant hereby assumes, with respect to
Landlord, all of the indemnity and insurance obligations of the
Sublandlord under the Lease with respect to the Sublet Premises,
provided that the foregoing shall not be construed as relieving or
releasing Sublandlord from any such obligations.
4. No Release. Nothing contained in the Sublease Agreement or this
Consent shall be construed as relieving or releasing Sublandlord from
any of its obligations under the Lease, it being expressly understood
and agreed that Sublandlord shall remain liable for such obligations
notwithstanding anything contained in the Sublease Agreement or this
Consent or any subsequent assignment(s), sublease(s) or transfers(s)
of the interest of the tenant under the Lease. Sublandlord shall be
responsible for the collection of all rent due it from Subtenant, and
for the performance of all the other terms and conditions of the
Sublease Agreement, it being understood that Landlord is not a party
to the Sublease Agreement and,
13
notwithstanding anything to the contrary contained in the Sublease
Agreement is not bound by any terms or provisions contained in the
Sublease Agreement and is not obligated to Sublandlord or Subtenant
for any of the duties and obligations contained therein.
5. No Transfer. Subtenant shall not further sublease the Sublet Premises,
assign its interest as the Subtenant under the Sublease Agreement or
otherwise transfer its interest in the Sublet Premises or the Sublease
Agreement to any person or entity without the written consent of
Landlord, which Landlord may withhold in its sole discretion.
6. Lease. In no event shall the Sublease Agreement or this Consent be
construed as granting or conferring upon the Sublandlord or the
Subtenant any greater rights than those contained in the Lease nor
shall there be any diminution of the rights and privileges of the
Landlord under the Lease. Without limiting the scope of the preceding
sentence, any construction or alterations performed in or to the Sublet
Premises shall be performed with Landlord's prior written approval and
in accordance with the terms and conditions of the Lease.
7. Signage. Landlord, at Subtenant's expense, agrees to provide Subtenant
with building standard identification signage in the multi-tenant
directory sign on the floor on which the Sub-Premises are located. In
addition, Landlord shall provide Subtenant, at Subtenant's expense, with
three (3) lines on the Building lobby directory to identify Subtenant
and two (2) of Subtenant's officers.
8. Counterparts. This Consent may be executed in counterparts and shall
constitute an agreement binding on all parties notwithstanding that all
parties are not signatories to the original or the same counterpart
provided that all parties are furnished a copy or copies thereof
reflecting the signature of all parties.
14
IN WITNESS WHEREOF, Landlord, Sublandlord and Subtenant have executed
this Consent as of this 22nd day of July, 1998
LANDLORD:
ROWES WHARF ASSOCIATES, a Massachusetts
general partnership
By: Rowes Wharf Limited Partnership, a
Massachusetts limited partnership, a general partner
By: RWLP Corp., a Massachusetts corporation,
its general partner
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------------------
Name: Xxxxxx X. Xxxxx
-------------------------------------------------
Title: Vice President
-------------------------------------------------
SUBLANDLORD: EQUITY OFFICE PROPERTIES
TRUST, a Maryland real estate investment trust
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------------------
Name: Xxxxxx X. Xxxxx
-------------------------------------------------
Title: Vice President
-------------------------------------------------
SUBTENANT: THE XXXXXXXX GROUP,
a Delaware corporation
By: /s/ Xxxxx Xxxxxxxxx
-------------------------------------------------
Name: Xxxxx Xxxxxxxxx
-------------------------------------------------
Title: President
-------------------------------------------------
15
EXHIBIT C
-------------------------------
[Name of Financial Institution]
Irrevocable Standby
Letter of Credit
No. __________________________
Issuance Date:________________
Expiration Date:______________
Applicant:____________________
Beneficiary
-----------
EQUITY OFFICE PROPERTIES TRUST
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xx 00000
Ladies/Gentlemen:
We hereby establish our Irrevocable Standby Letter of Credit in your
favor for the account of the above referenced Applicant in the amount of
$___________ available for payment at sight by your draft drawn on us when
accompanied by the following documents:
1. An original copy of this Irrevocable Standby Letter of Credit.
2. Beneficiary's dated statement purportedly signed by one of its officers
reading: "This draw in the amount of ________________ U.S. Dollars
($_______) under your Irrevocable Standby Letter of Credit No. ___________
represents funds due and owing to us as a result of the Applicant's
failure to comply with one or more of the terms of that certain lease by
and between _______________, as landlord, and ____________, as tenant."
It is a condition of this Irrevocable Standby Letter of Credit that it
will be considered automatically renewed for a one year period upon the
expiration date set forth above and upon each anniversary of such date for a
period up until October 31, 2002 (i.e. thirty (30) days after the expiration
of the term), unless at least sixty (60) days prior to such expiration date
or applicable anniversary thereof, we notify you in writing by certified
mail, return receipt requested, that we elect not to so renew this
Irrevocable Standby Letter of Credit. A copy of any such notice shall also be
sent to: Equity Office Properties, L.I.C., 0 Xxxxx Xxxxxxxxx Xxxxx, Xxxxx
0000, Xxxxxxx, XX 00000, Attention: Vice President Corporate Operations.
In addition to the foregoing, we understand and agree that you shall be
entitled to draw upon this Irrevocable Standby Letter of Credit in accordance
with 1. and 2. above in the event that we elect not to renew this Irrevocable
Standby Letter of Credit and, in addition, you provide us with a dated
statement purportedly signed by one of Beneficiary's officers stating that
the Applicant has failed to provide you with an acceptable substitute
irrevocable standby letter of credit in accordance with the terms of the
above referenced lease. We further acknowledge and agree that: (a) upon
receipt of the documentation required herein, we will honor your draws
against this Irrevocable Standby Letter of Credit without inquiry into the
accuracy of Beneficiary's signed statement and regardless of whether
Applicant disputes the content of such statement; (b) this Irrevocable
Standby Letter of Credit shall permit partial draws and, in the event you
elect to draw upon less than the full stated amount hereof, the stated amount
of this Irrevocable Standby Letter of Credit shall be automatically reduced
by the amount of such partial draw; and (c) you shall be entitled to assign
your interest in this Irrevocable Standby Letter of Credit from time to time
in accordance with our standard practices and procedures for the assignment
of letters of credit. In the event of an assignment, we reserve the right to
require reasonable evidence of such assignment as a condition to any draw
hereunder.
16
EXHIBIT D
PRIMARY LEASE
Atlantic Xxxxxx Xxxxxxxx Xxxxx - 00 Xxxxx Xxxxx
Atlantic Avenue Building South - 00 Xxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
(the "Building")
FOURTH AMENDMENT
AND
ASSIGNMENT AND ASSUMPTION OF LEASE AND SUBLEASE
As of October 1, 1995
LANDLORD: Rowes Wharf Associates
TENANT: TBC Holdings Limited Partnership,
formerly known as The Beacon Companies
EXISTING
PREMISES: The entire sixth (6th) floor (south and
north) of the Building, substantially as
shown on Lease Plan, Exhibit 2, Sheet 1
dated March 1, 1987, and a storage area
on Lower Xxxxx 0 xx Xxxxxxxx Xxxxxx
Xxxxxxxx Xxxxx, substantially as shown
on Lease Plan, Exhibit 2, Second
Amendment, dated February 1, 1988
("Storage Premises").
LEASE
EXECUTION
DATE: Xxxxx 0, 0000
XXXXXXXXXXX
DATE: September 30, 2002
PREVIOUS
LEASE
AMENDMENTS: First Amendment dated May 12, 1987
Second Amendment dated February 1, 1988
Third Amendment dated December 31, 1990
DELETED
PREMISES: An area on the sixth floor of the
Atlantic Avenue Building South
containing 27,484 square feet of Total
Rentable Area, substantially as shown on
Lease Plan, Exhibit 2, Fourth Amendment
dated as of October 1, 1995, a copy of
which is attached hereto and
incorporated by reference herein, and
the Storage Premises, and the right to
use the mechanical room above the
Deleted Premises.
-1-
REMAINDER
PREMISES: The Existing Premises, less the Deleted
Premises, containing 22,815 square feet
of Total Rentable Area, substantially as
shown on Lease Plan, Exhibit 2, Fourth
Amendment dated as of October 1, 1995.
WHEREAS, Tenant desires (i) to assign its interest in the Lease to
Landlord and (ii) to terminate the term of the Lease in respect of the
Deleted Premises;
WHEREAS, Landlord is willing (i) to assume Tenant's obligations under
the Lease and (ii) to agree to terminate the term of the Lease in respect of
the Deleted Premises;
NOW THEREFORE, the parties hereto hereby agree that the above-referenced
lease, as previously amended (the "Lease"), is hereby further amended as
follows:
1. ASSIGNMENT AND ASSUMPTION OF LEASE
Effective as of October 1, 1995, Tenant hereby assigns all of its
right, title and interest in the Lease to Landlord, and Landlord hereby
assumes all of the obligations of Tenant under the Lease and Landlord agrees
to perform and keep all covenants, conditions and agreements of Tenant under
the Lease. By execution of this Amendment, the parties hereto expressly
acknowledge that they do not intend that there be a merger of the Landlord's
interest and the Tenant's interest by reason of this Assignment. The parties
further expressly acknowledge that they intend that the Sublease, as defined
in Paragraph 2 hereof, not be affected by reason of this Assignment.
2. ASSIGNMENT AND ASSUMPTION OF SUBLEASE
A. Reference is made to sublease dated as of November 1, 1991, as
amended by a First Amendment to Sublease dated November 10, 1994 by and
between Tenant, as landlord, and Peabody & Xxxxxx, as tenant (collectively,
the "Sublease"). Effective as of October 1, 1995, Tenant hereby assigns all
of its right, title and interest in the Sublease to Landlord, and Landlord
hereby assumes all of the obligations of Tenant under the Sublease and
Landlord agrees to perform and keep all covenants, conditions and agreements
of Tenant under the Sublease.
B. Tenant shall deliver to Landlord any rent or other payments
received by Tenant from Peabody & Xxxxxx pursuant to the Sublease with
respect to any time period from and after October 1, 1995, in the form
received, duly endorsed to Landlord.
-2-
2. TERMINATION OF LEASE IN RESPECT OF DELETED PREMISES
The term of the Lease in respect of the Deleted Premises is hereby
terminated effective as of September 30, 1995 ("Effective Termination Date").
Yearly Rent and other charges due under the Lease in respect or the Deleted
Premises shall be apportioned as of the Effective Termination Date.
3. BACK-RENT
Reference is made to the fact that Tenant owes Landlord Yearly Rent
and other charges due under the Lease in respect of the period from February
1, 1995 through the Effective Termination Date, as more particularly set
forth on Exhibit A, attached hereto and incorporated herein by reference
("Back Charges"). Tenant shall, on the date that Tenant executes and delivers
this Fourth Amendment to Landlord, pay to Landlord the Back Charges.
4. TERMINATION PAYMENT
In consideration of Landlord's agreement to terminate the term of
the Lease in respect of the Deleted Premises as of the Effective Termination
Date, Tenant shall, on the date that Tenant executes and delivers this
Fourth Amendment to Landlord, pay to Landlord One Million Two Hundred Fifty
Thousand and 00/100 ($1,250,000.00) Dollars ("Termination Payment").
5. GENERAL RELEASE
A. Tenant does hereby waive, release, relinquish, remise and
forever discharge Landlord, its successors and assigns, from all debts,
demands, actions, causes of action, suits, accounts, covenants, contracts,
agreements, damages and liabilities ("Claims") whatsoever of every name and
nature, in law and in equity which the Tenant or its successors or assigns
have presently or have had against Landlord, and its successors and assigns
through the date of this Fourth Amendment arising out of or in connection
with the Lease, other than Claims of third parties not known to Tenant as of
the date of this Fourth Amendment.
B. Landlord does hereby waive, release, relinquish, remise and
forever discharge Tenant, its successors and assigns, from all Claims
whatsoever of every name and nature, in law and in equity which Landlord or
its successors or assigns have presently or have had against Tenant and its
successors and assigns through the date of this Fourth Amendment arising out
of or in connection with the Lease, other than the payment of the Back
Charges and Termination Payment, and the Claims of third
-3-
parties not known to Landlord as of the date of this Fourth Amendment.
As hereby amended, the Lease is ratified, confirmed and approved in all
respects.
EXECUTED under seal as of the date first above-written
LANDLORD: TENANT:
ROWES WHARF ASSOCIATES TBC HOLDINGS LIMITED PARTNERSHIP
By: The Equitable Life Assurance By: TBC Holdings, Inc.,
Society of the United States General Partner
By: /s/ By: /s/
------------------------- --------------------------
Its Investment Officer Name:
Title: Pres.
-4-
[LETTERHEAD]
STATEMENT DATE
10/01/95 -
THE BEACON COMPANIES LEASE ID
00 XXXXX XXXXX 000000
XXXXX 000
XXXXXX, XX 00000
-------------------------------------------------------------------------------
DATE CODE DESCRIPTION AMOUNT DUE ITEMS PAID
02/01/95 OR XXX'L OPER EXCESS 8,608.55
02/01/95 BR RENTAL INCOME OFFICE 105,036.50
02/01/95 OC MTHLY OPERTNG EXCESS 15,059.00
03/01/95 BR RENTAL INCOME OFFICE 105,036.50
03/01/95 OC MTHLY OPERTNG EXCESS 15,059.00
04/01/95 BR RENTAL INCOME OFFICE 105,036.50
04/01/95 OC MTHLY OPERTNG EXCESS 15,059.00
05/01/95 BR RENTAL INCOME OFFICE 105,036.50
05/01/95 OC MTHLY OPERTNG EXCESS 15,059.00
06/01/95 BR RENTAL INCOME OFFICE 105,036.50
06/01/95 OC MTHLY OPERTNG EXCESS 15,059.00
07/01/95 BR RENTAL INCOME OFFICE 105,036.50
07/01/95 OC MTHLY OPERTNG EXCESS 15,059.00
08/01/95 BR RENTAL INCOME OFFICE 105,036.50
08/01/95 OC MTHLY OPERTNG EXCESS 15,059.00
/01/95 BR RENTAL INCOME OFFICE 105,036.50
/01/95 OC MTHLY OPERTNG EXCESS 15,059.00
-----------
$969,372.55
-----------
-----------
[GRAPHIC]
OTHER LEASE
EXHIBIT 1. SHEET 0
Xxxxxxxx Xxxxxx Xxxxxxxx Xxxxx - 00 Xxxxx Wharf
Atlantic Avenue Building South - 00 Xxxxx Xxxxx
(xxx "Xxxxxxxx")
Xxxxxx, Xxxxxxxxxxxxx
REFERENCE DATA
Execution Date: Xxxxx 0, 0000
Xxxxxx: The Beacon Companies
----------------------------------------------------------
(name)
a Massachusetts Limited Partnership
----------------------------------------------------------
(description of business organization)
Xxx Xxxx Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000
----------------------------------------------------------
(principal place of business mailing address)
LANDLORD: ROWES WHARF ASSOCIATES, a joint venture by and between The
EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES (a
New York Corporation) and ROWES WHARF LIMITED PARTNERSHIP
(a Massachusetts limited partnership). Landlord is the
Tenant under a Ground Lease of the Project Site, as
hereinafter defined, dated July 25, 1985 by and between
the Boston Redevelopment Authority, as Landlord, and Rowes
Wharf Associates, as Tenant, notice of which is recorded
at Book 11846, Page 173 in the Suffolk Registry of Deeds;
and Landlord is the Tenant under an Office/Retail Unit
Lease of the Unit, as hereinafter defined, dated as of
July 25, 1985 by and between the Boston Redevelopment
Authority, as Landlord, and Rowes Wharf Associates, as
Tenant, notice of which is recorded at Book 11846, Page
180, in said Deeds. Whenever the term "Ground Lease" is
used in this Lease, such term shall mean the
above-referenced Ground Lease, during the term of said
Ground Lease, and shall then mean the above referenced
Official Retail Unit Lease during the term of said
official Retail Unit Lease.
PROJECT SITE: Premises situated on Atlantic Avenue, Boston
Massachusetts, constituting both land and water area, as
more particularly described in the Master Deed hereinafter
referenced.
PROJECT: The multi-use project (to be) constructed on the Project
Site.
UNIT: The Office/Retail Unit in that certain condominium
("Condominium") know as The Condominium at Rowes Wharf (to
be) created by the Master Deed referred to in the Ground
Lease, as more particularly described in the Office/Retail
Unit Lease. The Unit is located on the Project Site. The
portion of the Building in which the Premises are located
is contained within the Unit.
EXHIBIT 1, SHEET 0
Xxxxxxxx Xxxxxx Xxxxxxxx Xxxxx - 00 Xxxxx Wharf
Atlantic Avenue Building South - 00 Xxxxx Xxxxx
(xxx "Xxxxxxxx")
Xxxxxx, Xxxxxxxxxxxxx
REFERENCE DATA
Tenant: The Beacon Companies
Execution Date: March 1, 1987
Art. 2 Premises: The entire sixth (6th) floor (south and north) of the
Building, substantially as shown on Lease Plan, Exhibit
2, Sheet 1.
Art. 3.1 Specified Commencement Date: SEPTEMBER 1, 1987
Art. 3.2 Termination Date: FIFTEEN (15) YEARS AFTER THE TERM COMMENCEMENT
DATE
Art. 4.3 Final Plans Date: FEBRUARY 20, 1987
Art. 5 Use of Premises: GENERAL BUSINESS OFFICES
Art. 6 Yearly Rent:
LEASE YEARLY
YEAR* RENT
----- ------
1** through 3 Thirty-Four ($34.00)
Dollars per square foot of
Total Rentable Area of the
premises per annum
4 through 5 Thirty-Six ($36.00)
Dollars per square foot of
Total Rentable Area of the
premises per annum
6 through 10 Forty-Five ($45.00)
Dollars per square foot of
Total Rentabe Area of the
premises per annum
-----------------
*For the purposes hereof, "Lease Year" shall be defined as any twelve (12)
month period commencing on the Term Commencement Date or on any anniversary
of the Term Commencement Date.
**Subject to Article 6-6* of the Lease.
EXHIBIT 0, XXXXX 0
Xxxxxxxx Xxxxxx Xxxxxxxx Xxxxx - 00 Xxxxx Wharf
Atlantic Avenue Building South - 00 Xxxxx Xxxxx
(xxx "Xxxxxxxx")
Xxxxxx, Xxxxxxxxxxxxx
REFERENCE DATA
Tenant: The Beacon Companies
Execution Date: Xxxxx 0, 0000
(Xxx. 6 continued)
Lease Yearly
Year* Rent
----- -----
11 through 15 Fifty ($50.00) Dollars
per square foot of Total
Rentable Area of the
premises per annum
Art. 7 Total Rentable Area: Sixth floor: 50,299 square feet
Art. 8 Electric current will not be furnished by Landlord to Tenant.
Art. 9 Operating Expense Escalation:
Operating Costs in the Base Year: The product of (x)
$10.00 multiplied by (y) the sum total (aggregate) of the Total
Rentable Areas of the Unit, excluding any areas designated by
Landlord for retail use.
Tenant's Proportionate Share: A fraction, the
numerator of which is the Total Rentable Area of the premises
and the denominator of which is the sum total (aggregate) of the
Total Rentable Areas of the Unit, excluding any areas designated
by Landlord for retail use.
Art. 12:
13(d);
15.2;
18 Additional Insured Parties: Boston Redevelopment Authority; The
Board of Managers of The Condominium at Rowes Wharf
---------------------------------------
For the purposes hereof, "Lease Year" shall be defined as any twelve (12)
month period commencing on the Term Commencement Date or on any anniversary
of the Term Commencement Date.
EXHIBIT 1. SHEET 0
Xxxxxxxx Xxxxxx Xxxxxxxx Xxxxx - 00 Xxxxx Wharf
Atlantic Avenue Building South - 00 Xxxxx Xxxxx
(xxx "Xxxxxxxx")
Xxxxxx, Xxxxxxxxxxxxx
REFERENCE DATA
Tenant: The Beacon Companies
Execution Date: March 1, 1987
Art. 29.3 Broker: THE BEACON COMPANIES
Art. 29.5 Arbitration: MASSACHUSETTS: SUPERIOR COURT
Exhibit Dates: LEASE PLAN, EXHIBIT 2, SHEETS 1, 2 AND 3 DATED
MARCH 1, 1987
LANDLORD: TENANT:
ROWES WHARF ASSOCIATES THE BEACON COMPANIES
c/o Rowes Wharf Limited Partnership One Xxxx Xxxxxx Xxxxxx
Xxx Xxxx Xxxxxx Xxxxxx Xxxxxx, Xxxxxxxxxxxxx 00000
Xxxxxx, Xxxxxxxxxxxxx 00000
/s/ /s/
By--------------------------------- By-----------------------------------
General Partner of (Name) (Title)
Rowes Wharf Limited Partnership Hereunto Duly Authorized
Date Signed: 4/8/87 Date Signed: 4/8/87
----------------------- -----------------------
[GRAPHIC]
[GRAPHIC]
[GRAPHIC]
THIS INDENTURE OF LEASE made and entered into on the Execution Date as
stated in Exhibit 1 and between the Landlord and the Tenant named in
Exhibit 1.
Landlord does hereby demise and lease to Tenant, and Tenant does hereby hire
and take from Landlord, the premises hereinafter mentioned and described
(hereinafter referred to as "premises"), upon and subject to the covenants,
agreements, terms, provisions and conditions of this Lease for the term
hereinafter stated:
1. REFERENCE DATA
Each reference in this Lease to any of the terms and titles contained in
any Exhibit attached to this Lease shall be deemed and construed to
incorporate the date stated under that term or title in such Exhibit.
2. DESCRIPTION OF DEMISED PREMISES
2.1 DEMISED PREMISES. The premises are that portion of the Building
(being constructed) as described in Exhibit 1 (as the same may from time to
time be constituted after changes therein, additions thereto and eliminations
therefrom pursuant to rights of Landlord hereinafter reserved) and is
hereinafter referred to as "Building", substantially as shown hatched or
outlined on the Lease Plan (Exhibit 2) hereto attached and incorporated by
reference as a part hereof.
2.2 APPURTENANT RIGHTS. Tenant shall have, as appurtenant to the
premises, rights to use in common, with others entitled thereto, subject to
reasonable rules from time to time made by Landlord of which Tenant is given
notice: (a) the common lobbies, hallways, stairways and elevators of the
portion of the Building which is located within the Unit, serving the
premises in common with others, (b) common walkways necessary for access to
the Building, and (c) if the premises include less than the entire rentable
area of any floor, the common toilets and other common facilities of such
floor; and no other appurtenant rights or easements.
2.2-1 In addition, Tenant shall have the right to use the
mechanical room above the south wharf portion of the
premises. Tenant shall have the right to use said
mechanical room on all of the same terms and
conditions applicable to the other premises demised
to Tenant under this Lease, except:
A. No Yearly Rent or Operating Expense Excess shall be
payable in respect of such area.
B. Landlord shall have no obligation to provide any services
(other than repairs as required under Article 8.7) to
such area.
C. Tenant shall take such area "as-is", without any
obligation on the part of Landlord to construct or
prepare such area for Tenant's use and occupancy.
2.3 EXCLUSIONS AND RESERVATIONS. All the perimeter walls of the
premises except the inner surfaces thereof, any balconies (except to the
extent same are shown as part of the premises on the Lease Plan (Exhibit 2)
in which event, however, Tenant's sole right with respect to such balconies
shall be the right to use such balconies), terraces or roofs adjacent to the
premises, and any space in or adjacent to the premises used for shafts,
stacks, pipes, conduits, wires and appurtenant fixtures, fan rooms, ducts,
electric or other utilities, sinks or other Building, Project, or Unit
facilities, and the use thereof, are expressly excluded from the premises and
reserved to Landlord. Landlord hereby reserves a right of access through the
premises for the purposes of operation, maintenance, decoration and repair.
2.3-1 Tenant shall have the nonexclusive right, without payment of
additional rent, but subject to obtaining the written
consent of the Board of Managers of the Condominium, on a
"first come-first serve" basis to use the shafts,
conduits, ducts and other core structural facilities
available (after meeting Landlord's Building requirements)
for such purposes as running its own internal telephone
and computer lines and other such lines, wires and
conduits. Landlord shall advise Tenant at the earliest
possible date of the availability of such space, if any,
in order to implement such right, as aforesaid, to Tenant.
3. TERM OF LEASE
3.1 DEFINITIONS. As used in this Lease the words and terms which
follow mean and include the following:
1
(a) "Specified Commencement Date" -- The date (as stated in Exhibit 1)
on which it is estimated that the premises will be ready for Tenant's
occupancy for its use as stated in Exhibit 1.
(b) "Term Commencement Date" -- If the "Term Commencement Date" is a
date certain agreed upon by the parties at the time of the execution of this
Lease, such date shall be inserted in Exhibit 1; otherwise, the "Term
Commencement Date" is the date on which the premises are ready for Tenant's
occupancy (as defined in Article 4.2) for use as set forth in Exhibit 1. If
the premises are not ready for such occupancy but if, pursuant to permission
therefor duly given by Landlord, Tenant takes possession of the whole or any
part of the premises for use as set forth in Exhibit 1, "Term Commencement
Date" shall be the date on which Tenant takes such possession.
3.2 HABENDUM. TO HAVE AND TO HOLD the premises for a term of years
commencing on the Term Commencement Date and ending on the Termination Date
as stated in Exhibit 1 or on such earlier date upon which said term may
expire or be terminated pursuant to any of the conditions of limitation or
other provisions of this Lease or pursuant to law (which date for the
termination of the term hereof will hereafter be called "Termination Date").
Notwithstanding the foregoing, if the Termination Date as stated in Exhibit 1
shall fall on other than the last day of a calendar month, said Termination
Date shall be deemed to be the last day of the calendar month in which said
Termination Date occurs.
3.3 DECLARATION FIXING TERM COMMENCEMENT DATE. As soon as may be after
the execution date hereof, each of the parties hereto agrees, upon demand of
the other party, to join in the execution, in recordable form, of a statutory
notice, memorandum, etc. of lease and/or written declaration in which shall
be stated such Term Commencement Date and (if need be) the Termination Date.
If this Lease is terminated before the term expires, the parties shall
execute, deliver and record an instrument acknowledging such fact and the
date of termination of this Lease; and Tenant hereby appoints Landlord its
attorney-in-fact in its name and behalf to execute such instrument if Tenant
shall fail to execute and deliver such instrument after Landlord's request
therefor within ten (10) days.
4. READINESS FOR OCCUPANCY -- ENTRY BY TENANT PRIOR TO TERM COMMENCEMENT
DATE
4.1 COMPLETION DATE -- DELAYS. Subject to delay by causes beyond the
reasonable control of Landlord or caused by the action or inaction of Tenant,
Landlord shall use reasonable speed and diligence in the construction of the
Building and to have the premises ready for Tenant's occupancy on the
Specified Commencement Date. The failure to have the premises ready for
Tenant's occupancy on the Specified Commencement Date shall in no way affect
the validity of this Lease or the obligations of Tenant hereunder nor shall
the same be construed in any way to extend the term of this Lease. If the
premises are not ready for Tenant's occupancy within the meaning of Article
4.2 hereof on the Specified Commencement Date, Tenant shall not have any
claim against Landlord, and Landlord shall have no liability to Tenant, by
reason thereof.
4.2 WHEN PREMISES DEEMED READY. The premises shall be conclusively
deemed ready for Tenant's occupancy as soon as the initial installations and
painting to be done by Landlord (referred to the Exhibit 3, "Memorandum of
Work and Installations to be Initially Performed and Furnished in the
Premises", annexed hereto and made a part hereof) in the premises have been
substantially completed by Landlord insofar as is practicable in view of
delays or defaults, if any, of Tenant or its contractors, as hereinafter
specified, and the elevator, plumbing, air conditioning and electric
facilities are initially substantially available to Tenant, in accordance
with the obligations assumed
2
4.4 PREPARATION OF PREMISES.
(a) By Landlord. Except as is otherwise herein provided or as may be
otherwise approved by the Landlord, all work necessary to prepare the
premises for Tenant's occupancy, including work to be performed at Tenant's
expense, shall be performed by contractors employed by Landlord.
1. Tenant shall have the right, subject to the provisions of
Articles 12 and 13 of the Lease, to engage its own
contractor to perform Over-Building-Standard-Work. In such
event, Landlord shall take all necessary reasonable
measures to the end that Landlord's contractors shall
cooperate in all ways with Tenant's contractors to avoid
any delay to the work being performed by Landlord's
contractors or conflict in any other way with the
performance of such work.
2. Landlord agrees to cause Landlord's contractor to
competitively bid each portion of
Over-Building-Standard-Work performed by Landlord's
contractor.
3. In the event that Tenant enters into a construction
contract with Beacon Construction Company Inc. for the
purpose of performing Over-Building-Standard-Work, any
such Over-Building-Standard-Work performed by Beacon
Construction Company Inc. pursuant to such contract shall
be, for all purposes of this Lease, treated as if such
work is work to be performed by Landlord in the initial
preparation of the premises for Tenant.
(b) By Tenant. Subject always to the provisions of Articles 4.2 and
4.3, if other than building standard work is to be performed in preparing the
premises for Tenant's occupancy by contractors other than those employed by
Landlord, Landlord will give Tenant reasonable advance notice of the date on
which the premises will be ready for such other contractors and a reasonable
time will be allowed from such date for doing the work to be performed by
such other contractors. Tenant acknowledges and agrees that all work
performed in the construction of the Project shall be performed in accordance
with the requirements of Section 33.2 of the Ground Lease, a copy of which is
attached hereto as Exhibit 6. In the event that Tenant engages any separate
contractors in the initial construction of the premises, Tenant and Tenant's
contractors shall comply with the provisions of the plan submitted by
Landlord to the Boston Redevelopment Authority as set forth in said Section
33.2. Tenant shall incorporate the requirement for such compliance in its
agreement with any contractor engaged by Tenant in the initial construction
of the premises.
(c) If any work, including but not by way of limitation, installation
of built-in equipment by the manufacturer or distributor thereof, shall be
performed by contractors not employed by Landlord, Tenant shall take all
necessary reasonable measures to the end that such contractor shall cooperate
in all ways with Landlord's contractors to avoid any delay to the work being
performed by Landlord's contractors or conflict in any other way with the
performance of such work.
4.5 QUALITY AND COST OF MATERIALS. If the premises shall not have been
constructed for a prior tenant, all materials and workmanship to be furnished
and installed by Landlord shall be in accordance with building standard as
detailed and defined in Exhibit 3 hereof. Any construction or finish of
previously constructed premises, whether by Landlord or Tenant, shall equal
or exceed the specifications and quantities provided in Exhibit 3. Subject to
Ex. 3-37*, Tenant shall bear all other costs of preparing the premises for
its occupancy in accordance with the final plans including, without
limitation, the cost of substitutes for any items specified in Exhibit 3.
4.6 TENANT'S DELAY -- ADDITIONAL COSTS. If Tenant fails or omits to
make timely submission to Landlord of the plans referred to in Article 4.3,
or other pertinent information, or delays in submitting any other plans or
specifications, or in supplying information, or in approving plans,
specifications or estimates, or in giving authorizations or fails to comply
with Section 4.4(c) hereof, or otherwise fails to honor or perform its
obligations under this Lease, any additional cost to Landlord in connection
with the completion of the premises in accordance with the terms of this
Lease and Exhibit 3 shall be promptly paid by Tenant to Landlord if such
additional cost is in whole or in part the result of such failure, omission
or delay of Tenant. For the purposes of the next preceding sentence, the
expression "additional cost to Landlord" shall mean the cost over and above
such cost as would have been the aggregate cost to Landlord of completing the
premises in accordance with the terms of this Lease and Exhibit 3 had there
been no such failure, omission or delay. Nothing contained in this Article
4.6 shall limit or qualify or prejudice any other covenants, agreements,
terms, provisions and conditions contained in this Lease, including, but not
limited to Article 4.2.
4.7 ENTRY BY TENANT PRIOR TO TERM COMMENCEMENT DATE. With Landlord's
prior written consent, which shall not be unreasonably withheld, Tenant shall
have the right to enter the premises prior to the Term Commencement Date,
during normal business hours and without payment of rent, to perform such
work or decoration as is to be performed by, or under the direction or
control of, Tenant
4
and as is otherwise in compliance with the terms of this Lease. Such right of
entry shall be deemed a license from Landlord to Tenant, and any entry
thereunder shall be at the risk of Tenant.
4.8 CONCLUSIVENESS OF LANDLORD'S PERFORMANCE. Tenant shall be
conclusively deemed to have agreed that Landlord has performed all of its
obligations under this Article 4 unless not later than the end of the
calendar month next beginning after the Term Commencement Date Tenant shall
give Landlord written notice specifying the respects in which Landlord has
not performed any such obligation.
4.9 TENANT PAYMENTS OF CONSTRUCTION COST. Landlord shall have the same
rights and remedies which Landlord has upon the nonpayment of Yearly Rent and
other charges due under this Lease for nonpayment of any amounts which Tenant
is required to pay to Landlord or Landlord's contractor in connection with
the construction and initial preparation of the premises (including, without
limitation, any amounts which Tenant is required to pay in accordance with
Articles 4.5 and 4.6 hereof) or in connection with any construction in the
premises performed for Tenant by Landlord, Landlord's contractor or any other
person, firm or entity after the Term Commencement Date.
5. USE OF PREMISES
5.1 PERMITTED USE. only for the purposes as stated in Exhibit 1 and
for no other purposes. Service and utility areas (whether or not a part of
the premises) shall be used only for the particular purpose for which they
were designed. Without limiting the generality of the foregoing, Tenant
agrees that it shall not use the premises or any part thereof, or permit the
premises or any part thereof to be used for the preparation or dispensing of
food. Notwithstanding the foregoing, but subject to the other terms and
provisions of this Lease, Tenant may, with Landlord's prior written consent,
which consent shall not be unreasonably withheld. Tenant hereby acknowledging
that the Building or the Project is not engineered to provide any such
special venting.
5.2 PROHIBITED USES. Notwithstanding any other provision of this
Lease, Tenant shall not use, or suffer or permit the use or occupancy of, or
suffer or permit anything to be done in or anything to be brought into or
kept in or about the premises or the Building or any part thereof (i) which
would violate any of the covenants, agreements, terms, provisions and
conditions of this Lease, of the Ground Lease or otherwise applicable to or
binding upon the premises; (ii) for any unlawful purposes or in any unlawful
manner; (iii) which, in the reasonable judgment of Landlord shall in any way
(a) impair the appearance or reputation of the Project or (b) impair,
interfere with or otherwise diminish the quality of any of the Building or
Project services or the proper and economic heating, cleaning, air
conditioning or other servicing of the Building or premises, or with the use
or occupancy of any of the other areas of the Building, or occasion
discomfort, inconvenience or annoyance to, any of the other tenants or
occupants of the Building or of the Project; or (iv) which is inconsistent
with the maintenance of the Building and the Unit as an office building
complex of the first class in the quality of its maintenance, use, or
occupancy. Tenant shall not install or use any electrical or other equipment
of any kind which, in the reasonable judgment of Landlord, might cause any
such impairment, interference, discomfort, inconvenience or
annoyance.
5.3 LICENSES AND PERMITS. If any governmental license or permit shall
be required for the proper and lawful conduct of Tenant's business, and if
the failure to secure such license or permit would in any way affect
Landlord, the premises, the Building, the Project or Tenant's ability to
perform any of its obligations under this Lease, Tenant, at Tenant's expense,
shall duly procure and thereafter maintain
5
such license and submit the same to inspection by Landlord. Tenant, at
Tenant's expense, shall at all times comply with the terms and conditions of
each such license or permit. Tenant shall furnish all data and information to
Governmental authorities and Landlord as requested in accordance with legal,
regulatory, licensing or other similar requirements as they relate to
Tenant's use or occupancy of the premises or the Building.
6. RENT
During the term of this Lease the Yearly Rent and other charges at the
rate stated in Exhibit 1, shall be payable by Tenant to Landlord by monthly
payments, as stated in Exhibit 1, in advance and without demand on the first
day of each month for and in respect of such month. The rent and other
charges reserved and convenanted to be paid under this Lease shall commence
on the date ("Rent Commencement Date") ten (10) months after the Term
Commence Date. If, by reason of any provisions of this Lease, the rent
reserved hereunder shall commence or terminate on any day other than the first
day of a calendar month, the rent for such calendar month shall be prorated.
The rent shall be payable to Landlord or, if Landlord shall so direct in
writing, to Landlord's agent or nominee, in lawful money of the United States
which shall be legal tender for payment of all debts and dues, public and
private, at the time of payment, at the office of Landlord or such place as
Landlord may designate, and the rent and other charges in all circumstances
shall be payable without any setoff or deduction whatsoever except as
otherwise expressly herein set forth. Rental and any other sums due hereunder
not paid within ten (10) days after the date due shall bear interest for each
month or fraction thereof from the due date until paid computed at the annual
rate of two percentage points over the so-called prime rate then currently
from time to time charged to its most favored corporate customers by the
largest national bank (N.A.) located in the city in which the Building is
located, or at any applicable lesser maximum legally permissible rate for
debts of this nature.
7. RENTABLE AREA -- ADJUSTMENT OF RENT
Total Rentable Area and Net Rentable Area of the premises shall be
determined in accordance with Exhibit 5.
8. SERVICES FURNISHED BY LANDLORD
8.1 ELECTRIC CURRENT.
(a) Landlord will require Tenant to contract with the company
supplying electric current for the purchase and obtaining by Tenant of
electric current directly from such company to be billed directly to, and
paid for by, Tenant.
6
(d) Whether or not Landlord is furnishing electric current to
Tenant, if Tenant shall require electric current for use in the premises in
excess of such reasonable quantity to be furnished for such use as
hereinabove provided and if (i) in Landlord's reasonable judgment the
Project's facilities are inadequate for such excess requirements or (ii) such
excess use shall result in an additional burden on the Project's air
conditioning system and additional cost to Landlord on account thereof then,
as the case may be, (x) Landlord upon written request and at the sole cost
and expense of Tenant, will furnish and install such additional wire,
conduits, feeders, switchboards and appurtenances as reasonably may be
required to supply such additional requirements of Tenant if current therefor
be available to Landlord, provided that the same shall be permitted by
applicable laws and insurance regulations and shall not cause damage to the
Building, the Unit, or the Project or the premises or cause or create a
dangerous or hazardous condition or entail excessive or unreasonable
alterations or repairs or interfere with or disturb other tenants or
occupants of the Building, the Unit, or the Project or (y) Tenant shall
reimburse Landlord for such additional cost, as aforesaid.
7
(e) Landlord, at Tenant's expense and upon Tenant's request, shall
purchase and install all replacement lamps of types generally commercially
available (including, but not limited to, incandescent and fluorescent) used
in the premises. (See Exhibit 3 in respect of initial xxxxxxx.)
(f) Landlord shall not in any way be liable or
responsible to Tenant for any loss, damage or expense which Tenant may
sustain or incur if the quantity, character, or supply of electrical energy
is changed or is no longer available or suitable for Tenant's requirements.
(g) Tenant agrees that it will not make any material alteration
or material addition to the electrical equipment and/or applicances in the
premises without the prior written consent of Landlord in each instance first
obtained, which consent will not be unreasonably withheld, and will promptly
advise Landlord of any other alteration or addition to such electrical
equipment and/or appliances.
8.2 WATER. Landlord shall furnish hot and cold water for ordinary
premises cleaning, toilet, lavatory and drinking purposes. All piping and
other equipment and facilities for use of water outside the Building core
will be installed and maintained by Landlord at Tenant's sole cost and
expense.
8.3 ELEVATORS, HEAT, CLEANING.
(a) Landlord at its expense shall: (i) provide necessary elevator
facilities (which may be manually or automatically operated, either or both,
as Landlord may from time to time elect) on Mondays through Fridays,
excepting legal holidays, from 8:00 a.m. to 6:00 p.m. and on Saturdays,
excepting legal holidays, from 8:00 a.m. to 1:00 p.m. (called "business
days") and have one elevator in operation available for Tenant's use,
non-exclusively, together with others having business in the Building, at
all other times; (ii) furnish heat (substantially equivalent to that being
furnished in comparably aged similarly equipped office buildings in the same
city) to the premises during the normal heating season on business days; and
(iii) cause the office areas of the premises to be cleaned on business days
(except on Saturdays) shall represent substantially the extent and scope of
the cleaning by Landlord referred to in this Article 8.3.
(b) The parties agree and acknowledge that, despite reasonable
precautions in selecting cleaning and maintenance contractors and personnel,
any property or equipment in the premises of a delicate, fragile or
vulnerable nature may nevertheless be damaged in the course of cleaning and
maintenance services being performed. Accordingly, Tenant shall take
reasonable protective precautions with such property and equipment
(including, without limitation, computers or other data processing components
or equipment and optical or electronic equipment, etc.), e.g., housing the
property and equipment in a separate, locked room, so as to render it
inaccessible to the Building's cleaning personnel.
8.4 AIR CONDITIONING. Landlord shall through the air conditioning
equipment of the Project furnish to and distribute in the premises air
conditioning as normal seasonal changes may require on
8
business days during the hours as aforesaid in Article 8.3 when air
conditioning may reasonably be required for the comfortable occupancy of the
premises by Tenant. Tenant agrees to lower and close the blinds or drapes
when necessary because of the sun's position, whenever the air conditioning
system is in operation, and to cooperate fully with Landlord with regard to,
and to abide by all the reasonable regulations and requirements which Landlord
may prescribe for the proper functioning and protection of the air
conditioning system. The air conditioning system referred to in this Article
8.4 shall be capable of providing 76 DEG. F dry bulb and 50% relative
humidity with outside conditions of 88 DEG. F dry bulb and 71 DEG. F
wet bulb. The foregoing design conditions shall be based upon an occupancy
within each separately partitioned area in the premises of not more than one
person per 100 square feet of Net Rentable Area and upon a combined lighting
and standard electrical load not to exceed 2 1/2 xxxxx per square foot of Net
Rentable Area. The quality and level of air-conditioning service provided
hereunder by Landlord to the premises shall be substantially equivalent to
that provided by other first-class office buildings in Boston.
8.4A Landlord will furnish all electric current to operate base-building
service equipment such as fans, air-handling equipment (not Tenant's special
HVAC), elevators and lighting in core areas.
8.5 ADDITIONAL HEAT, CLEANING AND AIR CONDITIONING SERVICES.
(a) Landlord will use reasonable efforts upon reasonable advance
written notice from Tenant of its requirements in that regard, to furnish
additional heat, cleaning or air conditioning services to the premises on days
and at times other than as above provided.
(b) Tenant will pay to Landlord a reasonable charge, based upon
Landlord's actual cost of such service, including any overhead factor, but
not including any profit for Landlord, (i) for any such additional heat,
cleaning or air conditioning service required by Tenant, (ii) for any extra
cleaning of the premises required because of the carelessness or indifference
of Tenant or because of the nature of Tenant's business, and (iii) for any
cleaning done at the request of Tenant of any portions of the premises which
may be used for storage, shipping room or other non-office purposes. If the
cost to Landlord for cleaning the premises shall be increased due to the
installation in the premises, at Tenant's request, of any materials or finish
other than those which are building standard, Tenant shall pay to Landlord an
amount equal to such increase in cost. Landlord agrees to arrange for Tenant
to obtain such additional cleaning services from the Building's cleaning
contractor at the same rates at which Landlord can obtain such additional
services under the terms of Landlord's contract with said Building cleaning
contractor.
8.6 ADDITIONAL AIR CONDITIONING EQUIPMENT. In the event Tenant requires
additional air conditioning for business machines, meeting rooms or other
special purposes, or because of occupancy or excess electrical loads, any
additional air conditioning units, chillers, condensers, compressors, duets,
piping and other equipment, such additional air conditioning equipment will
be installed and maintained by Landlord at Tenant's sole cost and expense,
but only if, Tenant has obtained Landlord's prior written consent, which
consent shall not be unreasonably withheld and if the same will not cause
damage or injury to the Project or create a dangerous or hazardous condition
or entail excessive or unreasonable alterations, repairs or expense or
interfere with or disturb other tenants; and Tenant shall reimburse Landlord
in such an amount as will compensate it for the cost incurred by it in
operating such additional air conditioning equipment.
8.7 REPAIRS. Except as otherwise provided in Articles 18 and 20, and
subject to Tenant's obligations in Article 14, Landlord shall keep and
maintain the roof, exterior walls, structural floor slabs, columns,
elevators, public stairways and corridors, lavatories, equipment (including,
without limitation, sanitary, electrical, heating, air conditioning, or other
systems, and the plate glass windows of the Building at the perimeter of the
Demised Premises [except that, subject to Tenant's rights under Article 19
hereof, such repair shall be Tenant's responsibility if the damage is due to
the negligence of Tenant, its agents, servants, contractors, invitees or
licensees]) and other common facilities of the Project in good condition and
repair. Notwithstanding the foregoing provisions of this Article 8.7, but
subject to Articles 18 and 20 hereof, the public lobbies, public corridors,
public bathrooms and other public areas serving Tenant shall be maintained in
a first-class condition and Landlord shall make all repairs including
interior and non-structural repairs which are necessitated by the wrongful,
unjustified or negligent actions of Landlord or its servants, employees or
agents.
8.8 INTERRUPTION OR CURTAILMENT OF SERVICES. When necessary by reason of
accident or emergency, or for repairs, alterations, replacements or
improvements which in the reasonable judgment of Landlord are desirable or
necessary to be made, or of difficulty or inability in securing supplies or
labor, or of strikes, or of any other cause beyond the reasonable control of
Landlord, whether such other cause be similar or dissimilar to those
hereinabove specifically mentioned until said cause has been removed,
Landlord reserves the right to interrupt, curtail, stop or suspend (i) the
furnishing of heating, elevator, air conditioning, and cleaning services and
(ii) the operation of the plumbing and electric
9
systems. Landlord shall exercise reasonable diligence to eliminate the cause
of any such interruption, curtailment, stoppage or suspension, but, subject
to the provisions of the next sentence hereof, there shall be no diminution
or abatement of rent or other compensation due from Tenant to Landlord
hereunder, nor shall this Lease be affected or any of the Tenant's
obligations hereunder reduced, and the Landlord shall have no responsibility
or liability for any such interruption, curtailment, stoppage, or suspension
of services or systems. In the event that at any time more than 20% of the
premises lack heat or air conditioning when required hereunder or lack
lavatory facilities, water, electricity or elevator service and if such lack
continues for five (5) days consecutively and such lack is not caused by the
fault or neglect of Tenant, then rent and additional rent hereunder shall
xxxxx proportionately with the impact of the deprivation on the fair rental
value of the premises with due consideration being given to the fact of
whether Tenant has actually removed its employees from such area and is not
using the same, such abatement to commence effective as of the inception of
such lack of service and shall continue until such service is restored.
8.9 ENERGY CONSERVATION. Notwithstanding anything to the contrary in
this Article 8 or in this Lease contained, Landlord may institute, and Tenant
shall comply with, such reasonable policies, programs and measures as may be
necessary, required, or expedient for the conservation and/or preservation of
energy or energy services, or as may be reasonably necessary or required to
comply with applicable codes, rules, regulations or standards, provided
however, this clause shall not be construed to allow the Landlord voluntarily
to comply with energy conservation programs which increase the heat in the
Building in the summer and increase the cold in the Building in the winter,
except to the extent that any such voluntary measures are substantially
uniformly adopted and followed in first-class office buildings in Boston.
8.10 MISCELLANEOUS. Other than air conditioning, all services provided
by Landlord to Tenant are based upon an assumed maximum premises population
of one person per one hundred fifty (150) square feet of Total Rentable Area,
which limit Tenant shall in no event exceed.
8.11 PERFORMANCE OF LANDLORD'S OBLIGATIONS. Wherever in this Article 8
or in Articles 18, 19, and 20 Landlord has an affirmative obligation or a
right to take discretionary action in connection with the performance of
services, maintenance, repairs, or insurance, Landlord shall either perform
such obligation or such obligation or discretionary action may be performed
by the responsible party.
8.12 SECURITY. Without making any guaranty, warranty or assurance of
the efficacy of its efforts under this paragraph, Landlord agrees to provide
a person to act as a full-time security guard for the Building on a
seven-day, 24-hours-per-day basis, and Landlord agrees to provide at least
one security guard in the lobby of the Building at all times between the
hours of 6:00 P.M. and midnight on business days.
9. ESCALATION
9.1 DEFINITIONS. As used in this Article 9, the words and terms
which follow mean and include the following:
(a) "Operating Year" shall mean a calendar year in which occurs
any part of the term of this Lease.
(b) "Operating Costs in the Base Year" shall be the amount as
stated in Exhibit 1.
(c) "Tenant's Proportionate Share" shall be the figure as stated
in Exhibit 1.
(d) "Operating Costs" shall mean all costs incurred and
expenditures of whatever nature made by Landlord or an Underlying Party, as
defined in Paragraph (a) of Article 23 of this Lease, in the operation and
management, for repair and replacements, cleaning and maintenance of the Unit
and the grounds of the Project, including, without limitation, vehicular and
pedestrian passageways included within the common areas of the Condominium,
related equipment, facilities and appurtenances, elevators, cooling and
heating equipment (not including, however, mortgage charges, brokerage
commissions, salaries of executives and owners not directly employed in the
management/operation of the Unit, the cost of work done by Landlord or an
Underlying Party for a particular tenant which is properly chargeable to such
tenant and such portion of expenditures as are not properly chargeable
against income), provided, however, that:
(i) If, during the term of this Lease, Landlord shall replace
a capital item which has worn out or become functionally
obsolete and make a capital expenditure(s), the total
amount of which is not properly includible in Operating
Costs for the Operating Year in which it was made, there
shall nevertheless be included in such Operating Costs and
in Operating Costs for each succeeding Operating Year the
amount, if any, by which the annual charge-off (determined
as hereinafter provided) of such expenditure (less insurance
proceeds, if any, collected by Landlord by reason of damage
to, or destruction of, the capital item being replaced)
exceeds the annual charge-off of the original cost of such
item being replaced; and
(ii) If a capital expenditure is made for (a) a new capital item
which does not replace another capital item which was worn
out, become functionally obsolete, etc., or (b) a capital
item that in whole or in part replaces another capital item
that has not yet worn out or become functionally obsolete,
then and in either such event there shall be included in
Operating Costs for each Operating Year after such
expenditure is made the annual charge-off of any such
capital expenditure. However, any such capital expenditure
under this clause (ii) (and the annual charge-off with
respect thereto) shall not be included in Operating Costs
unless such new capital item is (a) required by applicable
law or regulation; or (b) is reasonably projected to reduce
the cost of operating the Building, e.g.,
energy-conservation measures.
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(Annual charge-off shall be determined by (i) dividing the original cost of
the capital expenditure by the number of years of useful life thereof (The
useful life shall be reasonably determined by Landlord in accordance with
generally accepted accounting principles and practices in effect at the time
of acquisition of the capital item.); and (ii) adding to such quotient an
interest factor computed on the unamortized balance of such capital
expenditure at an annual rate of either one percentage point over the XX Xxxx
rate (Standard & Poor's corporate composite or, if unavailable, its
equivalent) as reported in the financial press at the time the capital
expenditure is made or, if the capital item is acquired through third-party
financing, then the actual (including fluctuating) rate paid by Landlord in
financing the acquisition of such capital item.) Operating Costs (and any
capital expenditure component thereof) shall not include costs of correcting
defects in the design or construction of the Building; any improvement in
respect of an area or service of which Tenant has no use, benefit or
enjoyment in common with other tenants in the Building provided that this
clause shall not apply to Common Area Charges as defined in Article 9.1(g);
all leasing costs including legal, advertising, brokerage, construction
costs, takeover, etc.; nor any item or type of service provided to another
tenant which is of a type or quantity which if provided to Tenant would be
paid for by Tenant as an additional charge (i.e. rather than being included
in Operating Costs) nor any expense properly chargeable to another tenant;
nor the costs of litigation to enforce lease terms; nor any expenses of the
managing agent's home office operation (which are intended to be covered by
the management fee, which is included in Operating Costs).
Wages (as stated below) shall not include any costs relating to or
accrued or incurred in respect of a time prior to the Term Commencement Date,
e.g., any unfunded past-service liability under ERISA.
At the request of the Tenant made within one (1) year after the receipt
by Tenant of the xxxx setting forth the actual amount of Operating Expense
Excess for any Operating Year, the Landlord shall provide a statement of
Operating Costs for such Operating Year, which statement shall include line
items for each Operating Cost category in accordance with Landlord's standard
accounting practice and procedures (and capital expenditure component
thereof) claimed by the Landlord for such year and for each capital
expenditure component claimed shall state sufficient information for the
Tenant to determine the validity thereof under this Section 9.1(d)-11*, and
which shall be certified as to accuracy by the chief financial officer of the
Landlord, or a general partner of the Landlord so long as the Landlord is a
general or limited partnership.
Operating Costs shall include, but not be limited to, the following:
Real Estate Taxes: The product of; (i) a fraction, the numerator of
which is the Total Rentable Area of the Unit, excluding the portions of the
Unit designated by Landlord for retail use, and the denominator of which is
the Total Rentable Area of the Unit, multiplied by (ii) the Real Estate Taxes
and other taxes, levies and assessments imposed upon the Unit and upon any
personal property of Landlord used in the operation thereof, or Landlord's
interest in the Unit or such personal property; charges, fees and assessments
for transit, housing, police, fire or other governmental services or
purported benefits to the Unit; service or user payments in lieu of taxes;
and any and all other taxes, levies, betterments, assessments and charges
arising from the ownership, leasing, operating, use or occupancy of the Unit
or based upon rentals derived therefrom, which are or shall be imposed by
National, State, Municipal or other authorities. As of the Execution Date,
Real Estate Taxes shall not include any franchise, rental, income or profit
tax, capital levy or excise, provided, however, that any of the same and any
other tax, excise, fee, levy, charge or assessment, however described, that
may in the future be levied or assessed as a substitute for or an addition
to, in whole or in part, any tax, levy or assessment which would otherwise
constitute Real Estate Taxes, whether or not now customary or in the
contemplation of the parties on the Execution Date of this Lease, shall
constitute Real Estate Taxes, but only to the extent calculated as if the
Landlord's interest in the Unit is the only real estate owned by Landlord.
Real Estate Taxes shall also include expenses of tax abatement or other
proceedings contesting assessments or levies. Until the fiscal/tax year in
which the Unit is assessed as a separate tax parcel by the City of Boston,
the real estate taxes allocable to the Unit shall be determined for any
fiscal/tax year as the product of forty-seven percent (47%) of the assessed
value of the Project, multiplied by the tax rate applicable to commercial
property in the City of Boston in respect of such fiscal/tax year.
Appropriate credit against Real Estate Taxes shall be given for any
refund obtained by reason of a reduction in any Real Estate Taxes by the
Assessors or the administrative, judicial or other governmental agency
responsible therefor. The original computations, as well as reimbursement or
payments of additional charges, if any, or allowances, if any, under the
provisions of Article 9.2 shall be based on the original assessed valuations
with adjustments to be made at a later date when
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the tax refund, if any, shall be paid to Landlord by the taxing authorities.
Expenditures for legal fees, court costs, reasonable survey, appraisal and
accounting fees and for other reasonable costs and expenses incurred in
obtaining the tax refund may be charged against the tax refund before the
adjustments are made for the Tax Period.
Upon request made by tenants in the Building occupying a total of at
least fifty percent (50%) of the Total Rentable Area of the unit and upon the
furnishing by such tenants of sufficient funds to adequately prosecute a tax
abatement proceeding, the Landlord will commence and prosecute such
proceeding and any abatements, adjustments or refunds secured will be treated
in accordance with the foregoing paragraph except that the tenants that shall
have contributed to the expenditures incurred by reason of such proceedings
shall first be entitled to credit or reimbursement to the extent of such
contribution, but not to exceed the amount of such abatement, adjustment or
refund.
TAXES (OTHER THAN REAL ESTATE TAXES): Sales, Federal Social Security,
Unemployment and Old Age Taxes and contributions and State Unemployment taxes
and contributions accruing to and paid by the Landlord on account of all
employees of Landlord who are employed in, about or on account of the Unit,
except that taxes levied upon the net income of the Landlord and taxes
withheld from employees, and "Taxes" as defined in Article 9.1 (d) shall not
be included herein.
WATER: All charges and rates connected with water supplied to the Unit and
related sewer use charges.
HEAT: All charges connected with heat supplied to the Unit.
WAGES: Wages and cost of employee benefits of all employees of the Landlord
who are employed in, about or on account of the Unit.
CLEANING: The cost of labor and material for cleaning the Unit, including
the interior of windows.
ELEVATOR MAINTENANCE: All expenses for or on account of the upkeep and
maintenance of all elevators in the Unit.
ELECTRICITY: The cost of all electric current for the operation of any
machine, appliance or device used for the operation of the premises and the
Unit, including the cost of electric current for the elevators,lights, air
conditioning and heating, but not including electric current which is paid
for directly to the utility by the user/tenant in the Unit. (If and so long
as Tenant is billed directly by the electric utility for its own consumption
as determined by its separate meter, then Operating Costs shall include only
Unit and public area electric current consumption and not any demised
premises electric current consumption. Wherever separate metering is
unlawful, prohibited by utility company regulation or tariff or is otherwise
impracticable, relevant consumption figures for the purposes of this Article
9 shall be determined by fair and reasonable allocations and engineering
estimates made by Landlord, Furthermore, if and to the extent that the
Operating-Costs-in-the-Base-Year figure shall include any component
representing the cost to the Landlord of electric current supplied to any
tenant's premises under so-called "rent-inclusion" lease arrangements then if
such cost is eliminated from Operating Costs in an Operating Year in
accordance with the foregoing provisions, the figure for Operating Costs in
the Base Year for the purposes of this Article 9 shall likewise be reduced by
the amount of such cost component.)
INSURANCE, ETC: Fire, casualty, liability and such other insurance as may
from time to time be required by lending institutions on first-class office
buildings in the City or Town wherein the Project is located, excluding,
however those insurance coverages which are included in Common Area Charges,
as hereinafter set forth, and all other expenses customarily incurred in
connection with the operation and maintenance of first-class office buildings
in the City or Town wherein the Project is located.
COMMON AREA CHARGES: Whereas the Unit is part of the Condominium, Operating
Costs shall include any common area and any other charges which Landlord is
required to pay to The Board of Managers of the Condominium ("Common Area
Charges"). Common Area Charges include, without limitation, the following
costs: all charges and rates connected with water supplied to the Unit and
related sewer use charges; all charges connected with air conditioning
supplied to the Unit, the costs of labor and material for cleaning the
grounds and paved areas of the Project and the
12
exterior of windows; fire, causality, liability, and such other insurance as
may be required under the Underlying Instruments, as defined in Paragraph
(a) of Article 23. Capital expenditures which are included in Common Area
Charges shall be included in Operating Costs, subject to the following: (i)
if such capital expenditure is allocable solely to the Unit, then only the
annual charge-off in respect of such capital expenditure shall be included in
any Operating Year, as set forth above; (ii) if such capital expenditure is
borne by more than one unit owner in the Project, then, unless the capital
expenditure is being amortized by the Underlying Party, only the annual
charge-off in respect of such capital expenditure shall be included in any
Operating year, as set forth above; and (iii) capital expenditures, amortized
by an Underlying Party, are includible in Operating Costs in the Operating
Year in which they are included in Common Area Charges. Notwithstanding the
foregoing, Operating Costs shall not include the following Common Area
Charges: the costs of operating and maintaining the maritime facilities of
the project (as provided in Section 1(a)(5) of Article VI of the By-Laws of
the Condominium), the costs of operating and maintaining the parking garage
within the Project (as provided in Section 1(a)(2) of Article VI of the
By-Laws of the Condominium), and Development Impact Project Exactions
assessed by the City of Boston (as provided in Section 1(b) of Article VI of
the By-Laws of the Condominium).
REDUCTIONS IN OPERATING COSTS ON ACCOUNT OF RETAIL AREAS OF THE UNIT:
Operating Costs for any Operating Year shall be reduced by: (i) the product
of: (x) a fraction, the numerator of which is the Total Rentable Area of the
portion of the Unit designated by Landlord for retail use, and the
denominator of which is the Total Rentable Area of the Unit, multiplied by
(y) those Common Area Charges payable by Landlord in such Operating Year, and
(ii) the cost of any services not included in Common Area Charges rendered by
Landlord to such retail areas of the Unit.
9.2 Operating Expense Excess. If the Operating Costs in any Operating
year exceed the Operating Costs in the Basic Year, Tenant shall pay to
Landlord Tenant's Proportionate Share of such excess, such amount being
hereinafter referred to as "Operating Expense Excess." Operating Expense
Excess shall be due when billed by landlord. In implementation and not in
limitation of the foregoing, Tenant shall remit to Landlord pro rata monthly
installments on account of projected Operating Expense Excess, calculated by
LandLord on the basis of the most recent Operating Costs data or budget
available. If the total of such monthly remittances on account of any
Operating Year is greater than the actual Operating Expense Excess for such
Operating Year, Tenant may credit the difference against the next installment
of rent or other charges due to Landlord hereunder. If the total of such
remittances is less than actual Operating Expense Excess for such Operating
Year, Tenant shall pay the difference to Landlord when billed therefor.
9.3 Part Years. If the Term commencement Date or the Termination Date
occurs in the middle of an Operating Year, Tenant shall be liable for only
the portion of the Operating Expense Excess, in respect of such Operating
Year, represented by a fraction the numerator of which is the number of days
of the herein term which falls within the Operating Year and the denominator
of which is three hundred sixty-five (365).
9.4 Disputes, etc. Any disputes arising under this Article 9 may, at the
election of either party, be submitted to arbitration as hereinafter
provided. Any obligations under this Article 9 which shall not have been paid
at the expiration or sooner termination of the term of this Lease shall
survive such expiration and shall be paid when and as the amount of same
shall be determined to be due.
10. CHANGES OR ALTERATIONS BY LANDLORD
Landlord reserves the right, exercisable by itself, its nominee, or by
any Underlying Party, at any time and from time to time without the same
constituting an actual or constructive eviction and without incurring any
liability to Tenant therefor or otherwise affecting Tenant's obligations under
13
this Lease, to make such changes, alterations, additions, improvements,
repairs or replacements in or to the Project (including the premises) and the
fixtures and equipment thereof, as well as in or to the street entrances,
halls, passages, elevators, escalators, and stairways thereof, as it may deem
necessary or desirable, and to change the arrangement and/or location of
entrances or passageways, doors and doorways, and corridors, elevators,
stairs, toilets, or other public parts of the Unit or of the Project,
provided, however, that there be no unreasonable obstruction of the right of
access to, or unreasonable interference with the use of the premises by
Tenant. Nothing contained in this Article 10 shall be deemed to relieve
Tenant of any duty, obligation or liability of Tenant with respect to making
any repair, replacement or improvement or complying with any law, order or
requirement of any governmental or other authority. Landlord reserves the
right to adopt and at any time and from time to time to change the name or
address of the Building and the Project. Neither this Lease nor any use by
Tenant shall give Tenant any right or easement for the use of any door or any
passage or any concourse connecting with any other building or to any public
convenience, and the use of such doors, passages and concourses and of such
conveniences may be regulated or discontinued at any time and from time to
time by Landlord without notice to Tenant and without affecting the
obligation of Tenant hereunder or incurring any liability to Tenant therefor,
provided, however, that there be no unreasonable obstruction of the right of
access to, or unreasonable interference with the use of the premises by
Tenant.
If at any time any windows of the premises are temporarily closed or
darkened for any reason whatsoever including but not limited to, Landlord's
own acts, Landlord shall not be liable for any damage Tenant may sustain
thereby and Tenant shall not be entitled to any compensation therefor nor
abatements of rent nor shall the same release Tenant from its obligations
hereunder nor constitute an eviction. "Temporary" as used herein means the
period reasonably required to effect a repair or alteration necessitating
such closing or darkening.
11. FIXTURES, EQUIPMENT AND IMPROVEMENTS -- REMOVAL BY TENANT
All fixtures, equipment, improvements and appurtenances attached to or
built into the premises prior to or during the term, whether by Landlord at
its expense or at the expense of Tenant (either or both) or by Tenant shall
be and remain part of the premises and shall not be removed by Tenant during
or at the end of the term unless otherwise expressly provided in this Lease.
All electric, telephone, telegraph, communication, radio, plumbing, heating
and sprinkling systems, fixtures and outlets, vaults, paneling, molding,
shelving, radiator enclosures, cork, rubber, linoleum and composition floors,
ventilating, silencing, air conditioning and cooling equipment, shall be
deemed to be included in such fixtures, equipment, improvements and
appurtenances, whether or not attached to or built into the premises.
Notwithstanding the foregoing, all communications equipment, all of Tenant's
free-standing air-conditioning units, carpets, drinking or tap water
facilities, food preparation equipment, furniture, trade fixtures or business
equipment may be removed by Tenant upon the condition that such removal shall
not materially damage the Building and on the further condition that any
damage to the premises caused by installation or such removal may be repaired
by the Landlord at the expense of Tenant if Landlord in fact repairs the
damage to make the same improvement available to a subsequent tenant of the
premises.
12. ALTERATIONS AND IMPROVEMENTS BY TENANT
Tenant shall make no structural or mechanical alterations in the
premises and shall perform no construction, without Landlord's prior written
consent, which consent shall not be unreasonably withheld or delayed.
Notwithstanding anything to the contrary herein contained, Tenant shall have
the right, without obtaining Landlord's consent, to decorate the premises
(i.e., carpeting, painting, wallpapering and similar surface treatments) upon
prior notice to Landlord. All contractors and mechanics doing any work in the
premises, including decoration, must be reasonably acceptable to Landlord.
Except in the case of structural alterations and alterations of the
mechanical system (other than the relocation of convectors and their
appurtenant ducts in small areas), Landlord shall not impose any supervision
charge on Tenant or its contractors and mechanics. Any such work, decoration,
additions and improvements shall be done at Tenant's sole cost and expense
and at such times and in such manner as Landlord may reasonably designate.
Tenant's contractors and mechanics will be given reasonable access to the
service elevator to bring materials to and from the premises.
14
No installations or work shall be undertaken or begun by Tenant until: (i)
Landlord has approved written plans and specifications and a time schedule
therefor; (ii) Tenant has made provision for either written waivers of liens
from all contractors, laborers and suppliers of materials for such
installations or work, the filing of xxxx xxxxx on behalf of such
contractors, laborers and suppliers, or other appropriate protective measures
approved by Landlord. No amendments or additions to such plans and
specifications shall be made without the prior written consent of Landlord.
Landlord's consent and approval required under this Article 12 shall not be
unreasonably withheld. Tenant shall pay, as an additional charge, the entire
increase in real estate taxes on the Unit which shall, at any time prior to
or after the Term Commencement Date, result from or be attributable to any
alteration, addition or improvement to the premises made by or for the
account of Tenant in excess of the specifications and quantities provided in
Exhibit 3.
13. TENANT'S CONTRACTORS -- MECHANICS' AND OTHER LIENS -- STANDARD OF
TENANT'S PERFORMANCE -- COMPLIANCE WITH LAWS
Whenever Tenant shall make any alterations, decorations, installations,
removals, additions or improvements in or to the premises -- whether such
work be done prior to or after the Term Commencement Date -- Tenant will
strictly observe the following covenants and agreements:
(a)
(b) Any mechanic's lien filed against the premises or the Project
for work claimed to have been done for, or materials claimed to have been
furnished to, Tenant shall be discharged by Tenant within ten (10) days
thereafter, at Tenant's expense, by filing the bond required by law or
otherwise. If Tenant fails so to discharge any lien, Landlord may do so at
Tenant's expense and Tenant shall reimburse Landlord for any expense or cost
incurred by Landlord in so doing within fifteen (15) days after rendition of
a xxxx therefor.
(c) All installations or work done by Tenant shall be at its own
expense and shall at all times comply with (i) laws, rules, orders and
regulations of governmental authorities having jurisdiction thereof; (ii)
orders, rules and regulations of any Board of Fire Underwriters, or any other
body hereafter constituted exercising similar functions, and governing
insurance rating bureaus; (iii) Rules and Regulations of Landlord; and (iv)
plans and specifications prepared by and at the expense of Tenant theretofore
submitted to and approved by Landlord.
15
(d) Tenant shall procure all necessary permits before undertaking
any work in the premises; do all of such work in a good and workmanlike
manner, employing materials of good quality and complying with all
governmental requirements; and defend, save harmless, exonerate and indemnify
Landlord, and the Additional Insured Parties (if any) listed on Exhibit 1,
from all injury, loss or damage to any person or property occasioned by or
growing out of such work. Tenant shall cause contractors employed by Tenant
to carry Worker's Compensation Insurance in accordance with statutory
requirements. Automobile Liability Insurance, and Comprehensive General
Liability Insurance, (which General Liability Insurance shall name Landlord
and the Additional Insured Parties (if any) listed on Exhibit 1 as additional
insured parties), covering such contractors on or about the premises in the
amounts stated in Article 15 hereof or in such other reasonable amounts as
Landlord shall require and to submit certificates evidencing such coverage to
Landlord prior to the commencement of such work.
14. REPAIRS BY TENANT -- FLOOR LOAD
14.1 REPAIRS BY TENANT. Tenant shall keep all and singular the premises
neat and clean (including periodic rug shampoo and waxing of tiled floors and
cleaning of blinds and drapes) and in such repair, order and condition as the
same are in on the Term Commencement Date or may be put in during the term
hereof, reasonable use and wearing thereof and damage by fire or by other
casualty excepted. Tenant shall make, as and when needed as a result of
misuse by, or neglect or improper conduct of, Tenant or Tenant's servants,
employees, agents, contractors, invitees, or licensees or otherwise, all
repairs in and about the premises necessary to preserve them in such repair,
order and condition, which repairs shall be in quality and class equal to the
original work. Landlord may elect, at the expense of Tenant, to make any such
repairs or to repair any damage or injury to the Building or the premises
caused by moving property of Tenant in or out of the Building, or by
installation or removal of furniture or other property, or by misuse by, or
neglect or improper conduct of, Tenant or Tenant's servants, employees,
agents, contractors, or licensees.
14.2 FLOOR LOAD -- HEAVY MACHINERY. Tenant shall not place a load upon
any floor of the premises exceeding the floor load per square foot of area
which such floor was designed to carry and which is allowed by law. Landlord
reserves the right to prescribe the weight and position of all business
machines and mechanical equipment, including safes, which shall be placed so
as to distribute the weight. Business machines and mechanical equipment shall
be placed and maintained by Tenant at Tenant's expense in settings sufficient
in Landlord's judgment to absorb and prevent vibration, noise and annoyance.
Tenant shall not move any safe, heavy machinery, heavy equipment, freight,
bulky matter, or fixtures into or out of the Building without Landlord's
prior written consent. If such safe, machinery, equipment, freight, bulky
matter or fixtures requires special handling, Tenant agrees to employ only
persons holding a Master Rigger's License to do said work, and that all work
in connection therewith shall comply with applicable laws and regulations.
Any such moving shall be at the sole risk and hazard of Tenant and Tenant
will defend, indemnify and save Landlord harmless against and from any
liability, loss, injury, claim or suit resulting directly or indirectly from
such moving. Proper placement of all such business machines, etc., in the
premises shall be Tenant's responsibility.
15. INSURANCE, INDEMNIFICATION, EXONERATION AND EXCULPATION
15.1 GENERAL LIABILITY INSURANCE. Tenant shall procure, keep in force
and pay for Comprehensive General Liability Insurance insuring Tenant on an
occurrence basis against all claims and demands for personal injury liability
(including, without limitation, bodily injury, sickness, disease, and death)
or damage to property which may be claimed to have occurred from and after
the time Tenant and/or its contractors enter the premises in accordance with
Article 4 of this Lease, of not less than Two Million ($2,000,000) Dollars in
the event of personal injury to any number of persons or
16
damage to property, arising out of any one occurrence, and from time to time
thereafter shall be not less than such higher amounts, if procurable, as may
be reasonably required by Landlord and are customarily carried by responsible
office tenants in the City or Town wherein the Project is located.
15.2 CERTIFICATES OF INSURANCE. Such insurance shall be effected with
insurers approved by Landlord, authorized to do business in the State wherein
the Project is situated under valid and enforceable policies wherein Tenant
names Landlord and the Additional Insured Parties (if any) as are listed on
Exhibit 1 as additional insureds. Such insurance shall provide that it shall
not be cancelled or modified without at least thirty (30) days' prior written
notice to each insured named therein. On or before the time Tenant and/or its
contractors enter the premises in accordance with Articles 4 and 14 of this
Lease and thereafter not less than fifteen (15) days prior to the expiration
date of each expiring policy, original copies of the policies provided for in
Article 15.1 issued by the respective insurers, or certificates of such
policies setting forth in full the provisions thereof and issued by such
insurers together with evidence satisfactory to Landlord of the payment of
all premiums for such policies, shall be delivered by Tenant to Landlord and
certificates as aforesaid of such policies shall upon request of Landlord, be
delivered by Tenant to the holder of any mortgage affecting the premises.
15.3 GENERAL. Tenant will save Landlord and the Additional Insured
Parties (if any) as are listed on Exhibit 1 harmless, and will exonerate,
defend and indemnify Landlord and said Additional Insured Parties, from and
against any and all claims, liabilities or penalties asserted by or on behalf
of any person, firm, corporation or public authority arising from the
Tenant's breach of the Lease or:
(a) On account of or based upon any injury to person, or loss of or
damage to property, sustained or occurring on the premises on account of or
based upon the act, omission, fault, negligence or misconduct of any person
whomsoever (other than Landlord, or Landlord's agents, employees, or
contractors);
(b) On account of or based upon any injury to person, or loss of or
damage to property, sustained or occurring elsewhere (other than on the
premises) in or about the Building, the Unit, or the Project (and, in
particular, without limiting the generality of the foregoing, on or about the
elevators, stairways, public corridors, sidewalks, concourses, arcades,
malls, galleries, vehicular tunnels, approaches, areaways, roof, or other
appurtenances and facilities used in connection with the Building, the Unit,
or the Project, or premises) arising out of the use or occupancy of the
Building, the Unit, or the Project, or premises by the Tenant, or by any
person claiming by, through or under Tenant, or on account of or based upon
the act, omission, fault, negligence or misconduct of Tenant, its agents,
employees or contractors; and
(c) On account of or based upon (including monies due on account of)
any work or thing whatsoever done (other than by Landlord or its contractors,
or agents or employees of either) on the premises during the term of this
Lease and during the period of time, if any, prior to the Term Commencement
Date that Tenant may have been given access to the premises.
(d) Tenant's obligations under this Article 15.3 shall be insured
either under the Comprehensive General Liability Insurance required under
Article 15.1, above, or by a contractual insurance rider or other coverage;
and certificates of insurance in respect thereof shall be provided by Tenant
to Landlord upon request.
15.4 PROPERTY OF TENANT. In addition to and not in limitation of the
foregoing. Tenant covenants and agrees that all Tenant's merchandise,
furniture, fixtures and property of every kind, nature and description
related to or arising out of Tenant's leasehold estate hereunder, which may
be in or upon the premises or Building, in the public corridors, or on the
sidewalks, areaways and approaches adja-
17
cent thereto, shall be at the sole risk and hazard of Tenant, and that if the
whole or any part thereof shall be damaged, destroyed, stolen or removed from
any cause or reason whatsoever no part of said damage or loss shall be
charged to, or borne by, Landlord. Provided that Tenant shall insure its
property against loss or damage by fire with extended coverage and any other
perils as are generally commercially insurable from time to time in an amount
as will avoid application of co-insurance, and subject to Article 19 hereof,
Landlord shall repair or replace any damaged or destroyed property where
such damage or loss is caused by the negligence or misconduct of Landlord,
its agents, servants and employees, it being understood and agreed that
Landlord's liability hereunder shall be limited to typical, usual, standard
and ordinary types of office furniture and equipment and Landlord shall in no
event have any liability or responsibility for any unusually valuable, rare
or exotic property, works of art and the like; and in no event shall Landlord
be responsible for any consequential damages, particularly (without
limitation) in the event of any such damage to or destruction of computer or
electronic data processing equipment, in which event Landlord's
responsibility shall be limited to the repair or replacement of the
equipment. Provided Landlord is given notice thereof, Tenant may elect to
self-insure by means of a reasonable "so-called" deductible in which event
Tenant shall be deemed to have obtained the insurance specified above and
Tenant will itself absorb any such damage or loss to the extent of such
self-insurance.
15.5 BURSTING OF PIPES, ETC. Landlord shall not be liable for any injury
or damage to persons or property resulting from fire, explosion, falling
plaster, steam, gas, electricity, electrical or electronic emanations or
disturbance, water, rain or snow or leaks from any part of the Building or
from the pipes, appliances, equipment or plumbing works or from the roof,
street or sub-surface or from any other place or caused by dampness,
vandalism, malicious mischief or by any other cause of whatever nature,
unless caused by or due to the negligence of Landlord, its agents, servants
or employees, and then only after (i) notice to Landlord of the condition
claimed to constitute negligence and (ii) the expiration of a reasonable time
after such notice has been received by Landlord without Landlord having taken
all reasonable and practicable means to cure or correct such condition,
provided, however, that no such notice shall be required in instances where
Landlord had actual knowledge or should have known of the condition resulting
in such injury, damage, etc. In no event shall Landlord be liable for any
loss, the risk of which is covered by Tenant's insurance or is required to be
so covered by this Lease; nor shall Landlord or its agents be liable for any
such damage caused by other tenants or persons in the Project or caused by
operations in construction of any private, public, or quasi-public work; nor
shall Landlord be liable for any latent defect in the premises, the Building,
the Unit, or in the Project, with respect to which Landlord is not negligent,
subject, however, to Landlord's obligations under Article 8.7.
15.6 REPAIRS AND ALTERATIONS -- NO DIMINUTION OF RENTAL VALUE. Except as
otherwise provided in Article 18, there shall be no allowance to Tenant for
diminution of rental value by reason of inconvenience, annoyance or injury to
Tenant arising from any repairs, alterations, additions, replacements or
improvements made by Landlord or any related work, Tenant or others in or to
any portion of the Building or premises or any property adjoining the
Building, or in or to fixtures, appurtenances, or equipment thereof, or for
failure of Landlord or others to make any repairs, alterations, additions or
improvements in or to any portion of the Building, of the Unit, of the
Project, or of the premises, or in or to the fixtures, appurtenances or
equipment thereof.
A. Landlord covenants that it will not permit any tenant to make
repairs or alterations which could reasonably be expected to
inconvenience, annoy or injure Tenant and that Landlord will take
any action to obtain a temporary restraining order and further
injunctive relief, if necessary, against any other tenant creating
such conditions. The foregoing sentence is not intended to reach the
usual and typical incidents of any repair/renovation work being
carried on elsewhere in the Building, e.g., the presence of workmen,
a minimal amount of construction materials, etc., and minor
inconveniences normally attendant to even a well-managed
construction project.
B. If Landlord's repair of the premises or the Building makes any
portion of the premises thereof untenantable for more than five (5)
consecutive business days and if Tenant does not in fact occupy and
utilize more than twenty-five percent (25%) of such untenantable
area of the premises, rent shall xxxxx proportionately with respect
to the portion of the premises so rendered untenantable. Landlord
covenants that it will make all repairs to the premises or the
Building expeditiously and in a manner reasonably designed to
minimize inconvenience or annoyance to Tenant. Any ducts, flues and
shafts running through the premises shall be furred in (enclosed in
drywall, plaster, etc.) walls and ceilings and no other changes may
be made in the premises without the Tenant's prior written consent,
which consent shall not be unreasonably withheld, so long as the
change does not impact, except insubstantially, on executive
offices, reception areas or electronic or office equipment essential
to maintaining the Tenant's business.
16. ASSIGNMENT, MORTGAGING AND SUBLETTING
Tenant covenants and agrees that neither this Lease nor the term and
estate hereby granted, nor any interest herein or therein, will be assigned,
mortgaged, pledged, encumbered or otherwise transferred, voluntarily, by
operation of law or otherwise, and that neither the premises, nor any part
thereof will be encumbered in any manner by reason of any act or omission on
the part of Tenant, or used or occupied, or permitted to be used or occupied,
or utilized for desk space or for mailing privileges, by anyone other than
Tenant, or for any use or purpose other than as stated in Exhibit 1, or be
sublet, or offered or advertised for subletting. Notwithstanding anything to
the contrary in this Article 16 contained, provided that Tenant shall first
have given Landlord written notice of the proposed term for which it desires
to sublet the premises (or any portion thereof) and provided further that
Tenant shall first have offered in writing either to suspend the Lease PRO
XXXXX for the period and with respect to the space involved in the proposed
subletting, or if such proposed subletting will be for the entire term of the
Lease, to terminate the Lease with respect to the space involved in the
proposed subletting and Landlord shall not, within thirty (30) days of
receipt of such offer, have accepted the same, Landlord agrees not to
unreasonably withhold its consent to a subletting of all or part of the
premises by Tenant to a person, firm, or corporation which, in Landlord's
reasonable opinion, is (i) financially responsible and of good reputation,
and (ii) is engaged in a business, the functional aspects of which, with
respect to the premises, are substantially similar to the use of other
premises made by other office space tenants in the Project. No such
subletting shall in any way decrease Tenant's primary liability as
party-tenant under the Lease. Notwithstanding the foregoing, it is hereby
expressly understood and agreed, however, that the assignment or transfer of
this Lease by operation of law or otherwise, and the term and estate hereby
granted to any entity into which Tenant is merged, or with which Tenant is
consolidated, or to which all of the assets are transferred, which entity
shall have a net worth at least equal to that of Tenant immediately prior to
such merger, consolidation, or transfer (such entity being hereinafter called
"Assignee"), shall not be deemed to be prohibited hereby if, and upon the
express condition that Assignee and Tenant shall promptly execute,
acknowledge and deliver to Landlord an agreement in form and substance
satisfactory to Landlord whereby Assignee shall agree to be independently
bound by and upon all the covenants, agreements, terms, provisions and
conditions set forth in this Lease on the part of Tenant to be performed, and
whereby Assignee shall expressly agree that the provisions of this Article
16 shall, notwithstanding such assignment or transfer, continue to be binding
upon it with respect to all future assignments and transfers.
18
Subject to Article 26-32 hereof, if Tenant is an individual who uses
and/or occupies the premises with partners, or if Tenant is a partnership,
then:
(i) Each present and future partner shall be personally bound by and
upon all of the covenants, agreements, terms, provisions and conditions set
forth in this Lease on the part of Tenant to be performed; and
(ii) In confirmation of the foregoing, Landlord may (but without being
required to do so) request (and Tenant shall duly comply) that Tenant, at the
time that Tenant admits any new partner to its partnership, shall require
each such new partner to execute an agreement in form and substance
satisfactory to Landlord whereby such new partner shall agree to be
personally bound by and upon all of the covenants, agreements, terms,
provisions and conditions of this Lease on the part of Tenant to be
performed, without regard to the time when such new partner is admitted to
partnership or when any obligations under any such covenants, etc., accrue.
The listing of any name other than that of Tenant, whether on the doors
of the premises or on the Building directory, or otherwise, shall not operate
to vest in any such other person, firm or corporation any right or interest
in this Lease or in the premises or be deemed to effect or evidence any
consent of Landlord. Landlord shall provide a Building Directory on which
there shall be listed Tenant, other entities affiliated with Tenant,
subtenants, assignees and/or their officers or key employees.
If this Lease be assigned, or if the premises or any part thereof be
sublet or occupied by anybody other than Tenant, Landlord may, at any time
and from time to time, collect rent and other charges from the assignee,
subtenant or occupant, (provided that Landlord shall have no right to collect
any amounts from subtenants unless Tenant is in default of its obligations
under the Lease beyond applicable grace periods) and apply the net amount
collected to the rent and other charges herein reserved, then due and
hereafter becoming due, but no such assignment, subletting, occupancy or
collection shall be deemed a waiver of this covenant, or the acceptance of
the assignee, subtenant or occupant as a tenant, or a release of Tenant from
the further performance by Tenant of covenants on the part of Tenant herein
contained. Any consent by Landlord to a particular assignment or subletting
shall not in any way diminish the prohibition stated in the first sentence of
this Article 16 or the continuing liability of the Tenant named on Exhibit 1
as the party Tenant under this Lease. No assignment or subletting or use of
the premises by an affiliate of Tenant shall affect the purpose for which the
premises may be used as stated in Exhibit 1.
17. MISCELLANEOUS COVENANTS
Tenant covenants and agrees as follows:
17.1 RULES AND REGULATIONS. Tenant will faithfully observe and comply
with the Rules and Regulations, if any, annexed hereto and such other and
further reasonable Rules and Regulations as Landlord hereafter at any time or
from time to time may make and may communicate in writing to Tenant, which in
the reasonable judgment of Landlord shall be necessary for the reputation,
safety, care or appearance of the Building or the Project, or the
preservation of good order therein, or the operation of maintenance of the
Building or the Project, or the equipment thereof, or the comfort of tenants
or others in the Building or the Project, provided, however, that in the case
of any conflict between the provisions of this Lease and any such
regulations, the provisions of this Lease shall control, and provided further
that nothing contained in this Lease shall be construed to impose upon
Landlord, any liability in the event it is unable to enforce the rules and
regulations or the terms, covenants and conditions in any other lease as
against any other tenant, provided, however, that Landlord shall make
reasonable efforts by court proceedings and otherwise to enforce such
obligations, and Landlord shall, having made such efforts, not be liable to
Tenant for violation of the same by any other tenant, its servants,
employees, agents, contractors, visitors, invitees or licensees. Should
Tenant dispute the reasonableness of any future rule or regulation, such
dispute will be resolved by arbitration pursuant to Article 29 hereof.
19
17.2 ACCESS TO PREMISES - SHORING. Tenant shall: (i) permit Landlord
and any Underlying Party to erect, use and maintain pipes, ducts and conduits
in and through the premises, provided the same do not materially reduce the
floor area or materially adversely affect the appearance thereof; (ii) upon
prior oral notice (except that no notice shall be required in emergency
situations), permit Landlord and any Underlying Party, and its
representatives, to have free and unrestricted access to and to enter upon
the premises at all reasonable hours for the purpose of inspection or of
making repairs, replacement or improvements in or to the premises or the
Project or equipment (including, without limitation, sanitary, electrical,
heating, air conditioning or other systems) or of complying with all laws,
orders and requirements of governmental or other authority or of exercising
any right reserved to Landlord by this Lease (including the right during the
progress of any such repairs, replacements or improvements or while
performing work and furnishing materials in connection with compliance with
any such laws, orders or requirements to take upon or through, or to keep and
store within, the premises all necessary materials, tools and equipment); and
(iii) permit Landlord, at reasonable times, to show the premises during
ordinary business hours to any existing or prospective Underlying Party,
space lessee, or purchaser of the Unit or any portion of the Project other
than individual dwelling units, or of the interest of Landlord therein, and
during the period of 12 months next preceding the Termination Date to any
person contemplating the leasing of the premises or any part thereof. In
cases of emergency where there is an imminent danger to person or property,
if Tenant shall not be personally present to open and permit an entry into
the premises at any time when for any reason an entry therein shall be
necessary or permissible, Landlord, Landlord's agents, or any Underlying
Party may enter the same by a master key, or may forcibly enter the same,
without rendering Landlord or such agents liable therefor (if during such
entry Landlord or Landlord's agents shall accord reasonable care to Tenant's
property), and without in any manner affecting the obligations and covenants
of this Lease. Landlord shall exercise its rights of access to the premises
permitted under any of the terms and provisions of this Lease in such manner
as to minimize to the extent practicable interference with Tenant's use and
occupation of the premises. If an excavation shall be made upon land adjacent
to the premises or shall be authorized to be made, Tenant shall afford to the
person causing or authorized to cause such excavation, license to enter upon
the premises for the purpose of doing such work as said person shall deem
necessary to preserve the Building and the Project from injury or damage and
to support the same by proper foundations without any claims for damages or
indemnity against Landlord, or diminution or abatement of rent.
Notwithstanding anything to the contrary contained in this Article 17.2:
(a) Landlord, its employees, representatives, servants, agents and
licensees may not enter the premises to perform any of the work referred to
in this Section 17.2 without having given Tenant reasonable advance written
notice describing the work to be done and stating the estimated commencement
and completion dates. The reasonableness of notice period shall be determined
by the nature of adjustment to Tenant's business operations which will be
necessitated by the work or the change but in no event shall be less than ten
(10) days except that in an emergency situation where the work or the change
must commence immediately to avoid or lessen an immediate danger to person or
property, the notice requirement shall be waived to the extent of or so long
as the emergency persists.
(b) Except in cases of emergency where there is an imminent danger to
life, limb or property:
(i) No such work may be performed within any security area
determined from time to time by Tenant without the continuous presence of an
authorized employee of Tenant. Tenant shall reasonably cooperate with
Landlord to enable Landlord to observe these restrictions.
(ii) Without first having obtained Tenant's written consent in each
instance, Landlord may not itself enter or allow, permit or invite others to
the premises for the purposes of inspecting, showing or viewing the premises
as contemplated and described in Section 17.2, except during Tenant's
business hours. Tenant shall have the right to require that any person
entering the premises for such purposes shall be continuously accompanied by
Tenant's representative.
17.3 DEFECTIVE CONDITIONS.
(a) ACCIDENTS TO SANITARY AND OTHER SYSTEMS. After becoming aware of
such facts, Tenant shall give to Landlord prompt notice of any fire or
accident in the premises or in the Building and of any damage to, or
defective conditioning in, any part or appurtenance of the Building
including, without limitation, sanitary, electrical, heating and air
conditioning or other systems located in, or passing through, the premises.
Except as otherwise provided in Articles 18 and 20, and subject to Tenant's
obligations in Article 14, such damage or defective condition shall be
remedied by Landlord with reasonable diligence, but if such damage or
defective condition was caused by Tenant or by the employees, licensees,
contractors or invitees of Tenant, the cost to remedy the same shall be paid
by Tenant.
(b) CONSTRUCTIVE EVICTION; NOTICE TO UNDERLYING PARTIES. Tenant shall
not be entitled to claim any eviction from the premises or any damages
arising from any such damage or defect unless the same (i) shall have been
occasioned by the negligence of the Landlord, its agents, servants or
employees and (ii) shall not, after notice to Landlord of the condition
claimed to constitute
20
negligence, have been cured or corrected within a reasonable time after such
notice has been received by Landlord; and in case of a claim of eviction
unless such damage or defective condition shall have rendered the premises
untenantable and they shall not have been made tenantable by Landlord within
a reasonable time. In the event of any failure by Landlord to perform, fulfill
or observe any agreement by Landlord herein, in no event will the Landlord be
deemed to be in default under this Lease until Tenant shall have given
written notice of such failure to any Underlying Party of which Tenant shall
have been advised in writing and until a reasonable period of time shall have
elapsed following the giving of such notice, during which such Underlying
Party shall have the right, but shall not be obligated, to remedy such
failure.
17.4 SIGNS, BLINDS AND DRAPES. Tenant shall put no signs in any part of
the Building. Not signs or blinds may be put on or in any window or elsewhere
if visible from the exterior of the Building, nor may the building standard
drapes or blinds be removed by Tenant. Tenant may hang its own drapes,
provided that they shall not in any way interfere with the building standard
drapery or blinds or be visible from the exterior of the Building and that
such drapes are so hung and installed that when drawn, the building standard
drapery or blinds are automatically also drawn. Any signs or lettering in the
public corridors or on the doors shall conform to Landlord's building
standard design. Neither Landlord's name, nor the name of the Building or the
Project, or the name of any other structure erected therein shall be used
without Landlord's consent in any advertising material (except on business
stationery or as an address in advertising matter), nor shall any such name,
as aforesaid, be used in any undignified, confusing, detrimental or
misleading manner.
17.5 ESTOPPEL CERTIFICATE. Tenant shall at any time and from time to
time upon not less than ten (10) days' prior notice by Landlord to Tenant,
execute, acknowledge and deliver to Landlord a statement in writing
certifying that this Lease is unmodified and in full force and effect (or if
there have been modifications, that the same is in full force and effect as
modified and stating the modifications), and the dates to which the Yearly
Rent and other charges have been paid in advance, if any, stating whether or
not Landlord is in default in performance of any covenant, agreement, term,
provision or condition contained in this Lease and, if so, specifying each
such default and such other facts as Landlord may reasonably request, it
being intended that any such statement delivered pursuant hereto may be
relied upon by any prospective purchaser of the Project or of the Unit or of
any interest of Landlord therein, any mortgagee or prospective mortgagee
thereof, any lessor or prospective lessor thereof, any lessee or prospective
lessee thereof, or any prospective assignee of any mortgage thereof. Time is
of the essence in respect of any such requested certificate. Tenant hereby
acknowledging the importance of such certificates in mortgage financing
arrangements, prospective sale and the like. Tenant hereby appoints Landlord
Tenant's attorney-in-fact in its name and behalf to execute such statement if
Tenant shall fail to execute such statement within such ten-(10)-day period.
Landlord shall at any time and from time to time upon not less than ten (10)
days' prior notice by Tenant to Landlord, execute, acknowledge and deliver to
Tenant a statement in writing certifying that this Lease is unmodified and in
full force and effect (or if there have been modifications, that the same is
in full force and effect as modified and stating the modifications), and the
dates to which the Yearly Rent and other charges have been paid in advance,
if any, and stating whether or not to the best knowledge of the signer of
such certificate Tenant is in default in performance of any covenant,
agreement, term, provision or condition contained in this Lease and, if so,
specifying each such default of which the signer may have knowledge, it being
intended that any such statement delivered pursuant hereto may be relied upon
by any transferee of the interest of Tenant in this Lease, any subtenant or
assignee thereof, or Tenant's independent accountants.
17.6 PROHIBITED MATERIALS AND PROPERTY. Tenant shall not bring or permit
to be brought or kept in or on the premises or elsewhere in the Building (i)
any inflammable, combustible or explosive fluid, material, chemical or
substance (except for standard office supplies stored in proper containers),
(ii) any unique, unusually valuable, rare or exotic property, work of art or
the like unless the same is fully insured under all-risk coverage or (iii)
any data processing, electronic, optical or other equipment or property of a
delicate, fragile or vulnerable nature unless the same are housed, shielded
and protected against harm and damage, whether by cleaning or maintenance
personnel, radiations or emanations from other equipment now or hereafter
installed in the Building, or otherwise. Nor shall Tenant cause or permit any
odors of cooking or other processes, or any unusual or other objectionable
odors to emanate from or permeate the premises. These restrictions shall not
apply to ordinary cleaning fluids used in business offices, provided they are
stored in suitable containers. No odor shall be deemed objectionable unless
it can be smelled outside the premises, e.g., in the premises demised to
another tenant or in any public or common area, etc.
21
17.7 REQUIREMENTS OF LAW--FINES AND PENALTIES. Tenant at its sole
expense shall comply with all laws, rules, orders, and regulations,
including, without limitation, all energy-related requirements of Federal,
State, County and Municipal Authorities and with any direction of any public
officer or officers, pursuant to law, which shall impose any duty upon
Landlord or Tenant with respect to or arising out of Tenant's use of the
premises. If Tenant receives notice of any violation of law, ordinance, order
or regulation applicable to the premises, it shall give prompt notice thereof
to Landlord.
17.8 TENANT'S ACTS--EFFECT ON INSURANCE. Tenant shall not do or permit
to be done any act or thing upon the premises or elsewhere in the Building,
the Unit or the Project which will invalidate or be in conflict with any
insurance policies covering the Building, the Unit, or the Project and the
fixtures and property therein and shall not do, or permit to be done, any act
or thing upon the premises which shall subject Landlord to any liability or
responsibility for injury to any person or persons or to property by reason
of any business or operation being carried on upon said premises or for any
other reason. Tenant at its own expense shall comply with all rules, orders,
regulations and requirements of the Board of Fire Underwriters, or any other
similar body having jurisdiction, and shall not (i) do, or permit anything to
be done, in or upon the premises, or bring or keep anything therein, except
as now or hereafter permitted by the Fire Department, Board of Underwriters,
Fire Insurance Rating Organization, or other authority having jurisdiction,
and then only in such quantity and manner of storage as will not increase the
rate for any insurance applicable to the Building, the Unit, or the Project
or (ii) use the premises in a manner which shall increase such insurance
rates on the Building, the Unit, or the Project or on property located
therein, over that applicable when Tenant first took occupancy of the
premises hereunder. If by reason of the failure of Tenant to comply with the
provisions hereof the insurance rate applicable to any policy of insurance
shall at any time thereafter be higher than it otherwise would be, the Tenant
shall reimburse Landlord for that part of any insurance premiums thereafter
paid by Landlord, which shall have been charged because of such failure by
Tenant.
17.9 MISCELLANEOUS. Tenant shall not suffer or permit the premises or
any fixtures, equipment or utilities therein or serving the same, to be
overloaded,. Tenant shall not suffer or permit any employee,
contractor, business invitee or visitor to violate any covenant, agreement or
obligation of the Tenant under this Lease.
18. DAMAGE BY FIRE, ETC.
During the entire term of this Lease, and adjusting insurance coverages
to reflect current values from time to time: --(i) Landlord shall keep the
Building (excluding work, installations, improvements and betterments in the
premises which exceed the specifications provided in Exhibit 3,
[called "Over-Building-Standard Property"] and any other property installed
by or at the expense of Tenant) insured against loss or damage caused by any
peril covered under fire, extended coverage and all risk insurance in an
amount equal to at least eighty percent (80%) of the full insurable value
thereof above foundation walls; and (ii) Tenant shall keep its personal
property in and about the premises and the Over-Building-Standard Property
insured against loss or damage caused by any peril covered under fire,
extended coverage and all risk insurance in an amount equal to at least
eighty percent (80%) of the full insurable value thereof. Such Tenant's
insurance shall insure the interests of Landlord, the Additional Insured
Parties (if any) listed on Exhibit 1, and Tenant as their respective
interests may
22
appear from time to time and shall name Landlord and the Additional Insured
Parties (if any) listed on Exhibit 1, as additional insured parties; and the
proceeds thereof shall be used only for the replacement or restoration of
such personal property and the Over-Building-Standard Property unless the
Lease is terminated by reason of such casualties.
If any portion of the premises required to be insured by Landlord under
the preceding paragraph shall be damaged by fire or other insured casualty,
Landlord shall proceed with diligence, subject to the then applicable
statutes, building codes, zoning ordinances, and regulations of any
governmental authority, and at the expense of Landlord (but only to the
extent of insurance proceeds made available to Landlord) to repair or cause
to be repaired such damage, provided, however, in respect of any
Over-Building-Standard Property as shall have been damaged by such fire or
other casualty and which (in the judgment of Landlord) can more effectively
be repaired as an integral part of Landlord's repair work on the premises,
that such repairs to Over-Building-Standard Property shall be performed by
Landlord but at Tenant's expense (provided however that if Landlord performs
such work, Landlord's fee for performing such work shall be comparable to the
fees charged by other contractors in Boston, Massachusetts performing
comparable work and Landlord shall competitively bid subcontracted portions
of the work, if possible to do so) in all other respects, all repairs to and
replacements of Tenant's property and Over-Building-Standard Property shall
be made by and at the expense of Tenant, except that to the extent that the
initial construction of the premises are covered by Landlord's insurance,
such repairs, etc., shall be at Landlord's expense payable out of Landlord's
insurance proceeds. If the premises or any part thereof shall have been
rendered unfit for use and occupation hereunder by reason of such damage the
rent or additional rent or a just and proportionate part thereof, according
to the nature and extent to which the premises shall have been so rendered
unfit, shall be suspended or abated until the premises (except as to the
property which is to be repaired by or at the expense of Tenant provided
however that such abatement shall continue until such property is restored in
the event that Landlord performs the work to restore such property except for
long-lead time items required by Tenant) shall have been restored as nearly
as practicably may be to the condition in which they were immediately prior
to such fire or other casualty (Tenant shall cooperate with Landlord and
Landlord's mortgagee in obtaining any insurance proceeds available in respect
of any fire or casualty and Tenant shall take all reasonable actions
necessary to collect such insurance proceeds). Landlord shall not be liable
for delays in the making of any such repairs which are due to government
regulation, casualties and strikes, unavailability of labor and materials,
and other causes beyond the reasonable control of Landlord, nor shall
Landlord be liable for any inconvenience or annoyance to Tenant or injury to
the business of Tenant resulting from delays in repairing such damage. If (i)
the premises are so damaged by fire or other casualty (whether or not
insured) at any time during the last thirty months of the term hereof that
the cost to repair such damage is reasonably estimated to exceed one-third of
the total Yearly Rent payable hereunder for the period from the estimated
date of restoration until the Termination Date, or (ii) the Project (whether
or not including any portion of the premises) is so damaged by fire or other
casualty (whether or not insured) that substantial alteration or
reconstruction or demolition of the Project shall in Landlord's judgment be
required, then and in either of such events, this Lease and the term hereof
may be terminated at the election of Landlord by a notice in writing of its
election so to terminate which shall be given by Landlord to Tenant within
sixty (60) days following such fire or other casualty, the effective
termination date of which shall be not less than thirty (30) days after the
day on which such termination notice is received by Tenant. If the Building
(whether or not including any portion of the premises) is so damaged by fire
or other casualty (whether or not insured) that the premises or such part as
substantially affects the continued operation in the usual course of Tenant's
business in the premises is rendered reasonably unfit for the usual conduct
of the Tenant's business, then Tenant may terminate this Lease (i) if the
reasonably estimated time that will be required to put the premises or such
portion thereof into a reasonably fit condition for the usual conduct of the
Tenant's business shall exceed one hundred eighty (180) days or (ii) if the
premises or such portion thereof has not been put into a reasonably fit
condition for the usual conduct of the Tenant's business within one hundred
eighty (180) days after the date of such fire or other casualty. Notice of
Tenant's election to terminate this Lease shall be given to Landlord within
sixty (60) days of such fire or other casualty or within sixty (60) days
after the expiration of such one-hundred-eighty-(180)-day period, as the case
may be, which notice shall designate an effective termination date which may
not be less than thirty (30) days nor more than one hundred eighty (180) days
after such termination notice is received by Landlord; and provided that the
premises of such portion thereof has not been put into a reasonably fit
condition for the usual conduct of the Tenant's business on or before such
effective date, this Lease and the term hereof shall cease and terminate on
such effective date. In the event of any termination, this Lease and the term
hereof shall expire as of such effective termination date as though that were
the Termination Date as stated in Exhibit I and the Yearly Rent shall be
apportioned as of such date; and if the premises or any part thereof shall
have been rendered unfit for use and occupation by reason of such damage the
rent and additional rent for the period from the date of the fire or other
casualty to the effective termination date, or a just and proportionate part
thereof, according to the nature and extent to which the premises shall have
been so rendered unfit, shall be abated. If requested by Tenant after the
Term Commencement Date, Landlord shall furnish Tenant with copies of such
certificates of insurance pertaining to the Building as are furnished to any
mortgagee or ground lessor of the Building.
The phrase "substantial alteration or reconstruction" in clause (ii),
above, shall mean such alteration or reconstruction as requires any
expenditure in excess of thirty percent (30%) of the insurable or replacement
value of the Project above foundation.
19. WAIVER OF SUBROGATION
In any case in which Tenant shall be obligated to pay to Landlord any
loss, cost, damage, liability, or expense suffered or incurred by Landlord,
Landlord shall allow to Tenant as an offset against
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the amount thereof (i) the net proceeds of any insurance collected by
Landlord for or on account of such loss, cost, damage, liability or expense,
provided that the allowance of such offset does not invalidate or prejudice
the policy or policies under which such proceeds were payable, and (ii)
[RIDER MISSING]
In any case in which Landlord shall be obligated to pay to Tenant any
loss, cost, damage, liability or expense suffered or incurred by Tenant,
Tenant shall allow to Landlord as an offset against the amount thereof (i)
the net proceeds of any insurance collected by Tenant for or on account of
such loss, cost, damage, liability, or expense, provided that the allowance
of such offset does not invalidate the policy or policies under which such
proceeds were payable and (ii) the amount of any loss, cost, damage,
liability or expense caused by a peril covered by fire insurance with the
broadest form of property insurance generally available on property in
buildings of the type of the Project, whether or not actually procured by
Tenant.
The parties hereto shall each procure an appropriate clause in, or
endorsement on, any property insurance policy covering the premises and the
Project and personal property, fixtures, and equipment located thereon and
therein, pursuant to which the insurance companies waive subrogation or
consent to a waiver of right of recovery. Having obtained such clauses and/or
endorsements each party hereby agrees that it will not make any claim
against or seek to recover from the other for any loss or damage to its
property or the property of others resulting from fire or other perils
covered by such property insurance.
20. CONDEMNATION - EMINENT DOMAIN
In the event that the premises or any part thereof, or the whole or any
part of the Project, shall be taken or appropriated by eminent domain or
shall be condemned for any public or quasi-public use, or (by virtue of any
such taking, appropriation or condemnation) shall suffer any damage (direct,
indirect or consequential) for which Landlord or Tenant shall be entitled to
compensation, then (and in any such event) this Lease and the term hereof may
be terminated at the election of Landlord by a notice in writing of its
election so to terminate which shall be given by Landlord to Tenant within
sixty (60) days following the date on which Landlord shall have received
notice of such taking, appropriation or condemnation. In the event that a
substantial part of the premises or of the means of access thereto shall be
so taken, appropriated or condemned, then (and in any such event) this Lease
and the term hereof may be terminated at the election of Tenant by a notice
in writing of its election so to terminate which shall be given by Tenant to
Landlord within sixty (60) days following the date on which Tenant shall have
received notice of such taking, appropriation or condemnation.
Upon the giving of any such notice of termination (either by Landlord or
Tenant) this Lease and the term thereof shall terminate the date on which
Tenant shall be required to vacate any part of the premises or shall be
deprived of a substantial part of the means of access thereto. In the event
of any such termination, this Lease and the term hereof shall expire as of
such effective termination date as though that were the Termination Date as
stated in Exhibit I, and the Yearly Rent shall be apportioned as of such
date. If neither party (having the right so to do) elects to terminate
Landlord will, with reasonable diligence and at Landlord's expense (but only
to the extent of taking proceeds made available to Landlord), restore the
remainder of the premises, or the remainder of the means of access, as nearly
as practicably may be to
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the same condition as obtained prior to such taking, appropriation or
condemnation in which event (i) the Total Rentable Area shall be adjusted as
in Exhibit 5 provided, (ii) a just proportion of the rent and additional
rent, according to the nature and extent of the taking, appropriation or
condemnation and the resulting permanent injury to the premises and the means
of access thereto, shall be permanently abated, and (iii) a just proportion
of the remainder of the Yearly Rent, according to the nature and extent of
the taking, appropriation or condemnation and the resultant injury sustained
by the premises and the means of access thereto, shall be abated until what
remains of the premises and the means of access thereto shall have been
restored as fully as may be for permanent use and occupation by Tenant
hereunder. Except for any award specifically reimbursing Tenant for moving or
relocation expenses, there are expressly reserved to Landlord all rights to
compensation and damages created, accrued or accruing by reason of any such
taking, appropriation or condemnation, in implementation and in confirmation
of which Tenant does hereby acknowledge that Landlord shall be entitled to
receive all such compensation and damages, grant to Landlord all and whatever
rights (if any) Tenant may have to such compensation and damages, and agree
to execute and deliver all and whatever further instruments of assignment as
Landlord may from time to time request. In the event of any taking of the
premises or any part thereof for temporary use: (ie., a taking for a period
of less than one hundred eighty (180) days) (i) this Lease shall be and
remain unaffected thereby, and (ii) Tenant shall be entitled to receive for
itself any award made for such use, provided, that if any taking is for a
period extending beyond the term of this Lease, such award shall be
apportioned between Landlord and Tenant as of the Termination Date or earlier
termination of this Lease.
(a) For the purposes of this Article 20-24, the following terms shall
have the following meanings:
"AWARD BALANCE" shall be the amount, if any, by which the total
compensation and damages awarded in respect of a permanent taking exceeds the
total of the portion of award allocable to the land on which the Building is
situated (i.e., as if the land were not improved but as encumbered by, for
example, all title matters) and all amounts payable in such event under bona
fide ground leases or underlying leases and under all bona fide mortgages or
other encumbrances which may now or hereafter be placed on, encumber or
affect the real property of which the premises are a part, or any part of
such real property.
"AREA RATIO" shall be a fraction having as numerator the number of
square feet of Total Rentable Area comprising the premises as of the date of
such taking and as denominator the total floor area of the entire Building
including office, commercial and public areas.
"PREMISES AWARD BALANCE" shall be that amount of the Award Balance
allocable to the premises determined by multiplying the Award Balance by the
Area Ratio.
"TENANT'S IMPROVEMENTS" shall be the unamortized portion, (calculated on
a straight-line basis over the remainder of the then current term of this
Lease, including any extension terms, the option for which Tenant has
exercised as of the date of such taking) of Tenant's costs of such Tenant's
improvements as may not be removed by Tenant under the terms of Article 11 of
this Lease, determined as of the date of the eminent domain taking.
"BUILDING BOOK VALUE" shall be the unamortized cost of the Building and
related facilities (calculated on a straight-line basis over a 40-year
period), determined as of the date of the eminent domain taking.
"PREMISES BOOK VALUE" shall be the product of Area Ratio multiplied by
Building Book Value.
21. DEFAULT
21.1 CONDITIONS OF LIMITATION -- RE-ENTRY -- TERMINATION. This Lease and
the herein term and estate are, upon the condition that if (a) subject to the
provisions of Article 21.7, Tenant shall neglect or fail to perform or
observe any of the Tenant's covenants or agreements herein, including
(without limitation) the covenants or agreements with regard to the payment
when due of rent, additional charges, reimbursement for increase in
Landlord's costs, or any other charge payable by Tenant to Landlord (all of
which shall be considered as part of Yearly Rent for the purposes of invoking
Landlord's statutory or other rights and remedies in respect of payment
defaults); or (b) Tenant shall desert or abandon the premises or the same
shall become vacant (whether or not the keys shall have been surrendered or
the rent shall have been paid); or (c) Tenant shall be involved in financial
difficulties as evidenced by an admission in writing by Tenant of Tenant's
inability to pay its debts generally as they become due, or by the making or
offering to make a composition of its debts with its creditors; or (d) Tenant
shall make an assignment or trust mortgage, or other conveyance or transfer
of like nature, of all or a substantial part of its property for the benefit
of its creditors, or (g) the leasehold hereby created shall be taken on
execution or by other process of law and shall not be revested in Tenant
within rent and additional rent days thereafter; or (h) a receiver,
sequesterer, trustee or similar officer shall be appointed by a court of
competent jurisdiction to take charge of all or any part of Tenant's property
and such appointment shall not be vacated within rent and additional rent
days; or (i) any proceeding shall be instituted by or against Tenant pursuant
to any of the provisions of any Act of Congress or State law relating to
bankruptcy, reorganizations, arrangements, compositions or other relief from
creditors, and, in the case of any proceeding instituted against it, if
Tenant shall fail to have such proceeding dismissed within days or if Tenant
is adjusted bankrupt or insolvent as a result of any such proceeding, or (j)
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any event shall occur or any contingency shall arise whereby this Lease, or
the term and estate thereby created, would (by operation of law or otherwise)
devolve upon or pass to any person, firm or corporation other than Tenant,
except as expressly permitted under Article 16 hereof -- then, and in any
such event (except as hereinafter in Article 21.2 otherwise provided)
Landlord may, by notice to Tenant, elect to terminate this Lease; and
thereupon (and without prejudice to any remedies which might otherwise be
available for arrears of rent or other charges due hereunder or preceding
breach of covenant or agreement and without prejudice to Tenant's liability
for damages as hereinafter stated), upon the giving of such notice, this
Lease shall terminate as of the date specified therein as though that were
the Termination Date as stated in Exhibit I. Without being taken or deemed to
be guilty of any manner of trespass or conversion, and without being liable
to indictment, prosecution or damages therefore, Landlord may, forcibly if
necessary, enter into and upon the premises (or any part thereof in the name
of the whole); repossess the same as of its former estate; and expel Tenant
and those claiming under Tenant. No default shall be deemed to have occurred
under subparagraphs (c), (d), (h) or (i) so long as the obligations of Tenant
under this Lease are being timely and duly paid or performed by or for the
account of Tenant.
21.2 DAMAGES -- ASSIGNMENT FOR BENEFIT OF CREDITORS. For the more
effectual securing to Landlord of the rent and other charges and payments
reserved hereunder, it is agreed as a further condition of this Lease that if
at any time Tenant shall make any transfer similar to or in the nature of an
assignment of its property for the benefit of its creditors, the term and
estate hereby created shall terminate ipso facto, without entry or other
action by Landlord; and notwithstanding any other provisions of this Lease,
Landlord shall forthwith upon such termination, without prejudice to any
remedies which might otherwise be available for arrears of rent or other
charges due hereunder or preceding breach of this Lease, be ipso facto
entitled to recover as liquidated damages the sum of (a) the amount described
in clause (x) of Article 21.3 and (b) (in view of the uncertainty of prompt
re-letting and the expense entailed in re-letting the premises) an amount
equal to the rent and other charges payable for and in respect of the
three-(3)-month period next preceding the date of termination, as aforesaid.
21.3 DAMAGES -- TERMINATION. Upon the termination of this Lease under the
provisions of this Article 21, then except as hereinabove in Article 21.2
otherwise provided, Tenant shall pay to Landlord the rent and other charges
payable by Tenant to Landlord up to the time of such termination, shall
continue to be liable for any preceding breach of covenant, and in addition,
shall pay to Landlord as damages, at the election of Landlord
either:
(x) the amount by which, at the time of the termination of this Lease
(or at any time thereafter if Landlord shall have initially elected damages
under subparagraph (y), below), (i) the aggregate of the rent and other
charges projected over the period commencing with such termination and ending
on the Termination Date as stated in Exhibit 1 which shall be discounted to
present value based upon a reasonable rate of interest exceeds (ii) the
aggregate projected rental value of the premises for such period which shall
be discounted to present value based upon a reasonable rate of interest.
or:
(y) amounts equal to the rent and other charges which would have been
payable by Tenant had this Lease not been so terminated, payable upon the due
dates therefor specified herein following such termination and until the
Termination Date as specified in Exhibit 1, provided, however, if Landlord
shall re-let the premises during such period, that Landlord shall credit
Tenant with the net
26
rents received by Landlord from such re-letting, such net rents to be
determined by first deducting from the gross rents as and when received by
Landlord from such re-letting the expenses incurred or paid by Landlord in
terminating this Lease, as well as the expenses of re-letting, including
altering and preparing the premises for new tenants, brokers' commissions,
and all other similar and dissimilar expenses properly chargeable against the
premises and the rental therefrom, it being understood that any such
re-letting may be for a period equal to or shorter or longer than the
remaining term of this Lease; and provided, further, that (i) in no event
shall Tenant be entitled to receive any excess of such net rents over the
sums payable by Tenant to Landlord hereunder and (ii) in no event shall
Tenant be entitled in any suit for the collection of damages pursuant to this
Subparagraph (y) to a credit in respect of any net rents from a re-letting
except to the extent that such net rents are actually received by Landlord
prior to the commencement of such suit. If the premises or any part thereof
should be re-let in combination with other space, then proper apportionment
on a square foot area basis shall be made of the rent received from such
re-letting and of the expenses of reletting.
In calculating the rent and other charges under Subparagraph (x), above,
there shall be included, in addition to the Yearly Rent, Tax Excess and
Operating Expense Excess and all other considerations agreed to be paid or
performed by Tenant, on the assumption that all such amounts and
considerations would have remained constant (except as herein otherwise
provided) for the balance of the full term hereby granted.
Suit or suits for the recovery of such damages, or any installments
thereof, may be brought by Landlord from time to time at its election, and
nothing contained herein shall be deemed to require Landlord to postpone suit
until the date when the term of this Lease would have expired if it had not
been terminated hereunder.
Nothing herein contained shall be construed as limiting or precluding
the recovery by Landlord against Tenant of any sums or damages to which, in
addition to the damages particularly provided above. Landlord may lawfully be
entitled by reason of any default hereunder on the part of Tenant. Landlord
shall make reasonable efforts to mitigate damages following breach or default
by Tenant and termination of this Lease by reason thereof. Furthermore, in
the reletting of the premises, Landlord will incur only reasonable costs and
expenses.
21.4 FEES AND EXPENSES.
(a) If Tenant shall default in the performance of any covenant on
Tenant's part to be performed as in this Lease contained, Landlord may after
reasonable advance written notice (except that no prior notice shall be
required in an emergency situation) perform the same for the account of
Tenant. If Landlord at any time is compelled to pay or elects to pay any sum
of money, or do any act which will require the payment of any sum of money,
by reason of the failure of Tenant to comply with any provision hereof, or if
Landlord is compelled to or does incur any expense, including reasonable
attorneys' fees, in instituting, prosecuting, and/or defending any action or
proceeding instituted by reason of any default of Tenant hereunder, Tenant
shall on demand pay to Landlord by way of reimbursement the sum or sums so
paid by Landlord with all costs and damages, plus interest computed as
provided in Article 6 hereof.
A. If Landlord shall default in the performance of its maintenance
obligations to be performed under this Lease, which maintenance
obligations, if performed by Tenant, would not affect the
Building structure or the Building systems, then Tenant may,
after having given reasonable advance written notice to Landlord
and, thereafter, having given Landlord a reminder notice, cure
such default, and Landlord shall reimburse Tenant on demand for
the fair and reasonable cost of such curative steps. Any work to
be performed by Tenant pursuant to this Article 21.4-27 shall be
performed in accordance with Articles 12 and 13 of the Lease.
B. Landlord shall pay, upon demand by Tenant, reasonable attorney's
fees incurred by Tenant in connection with any lawsuit between
Landlord and Tenant where judgment is entered (final, and beyond
appeal) in favor of Tenant.
(b) Tenant shall pay Landlord's cost and expense, including reasonable
attorney's fees, incurred (i) in enforcing any obligation of Tenant under
this Lease or (ii) as a result of Landlord, without its fault, being made
party to any litigation pending by or against Tenant or any persons claiming
through or under Tenant.
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21.6 LANDLORD'S REMEDIES NOT EXCLUSIVE. The specified remedies to which
Landlord may resort hereunder are cumulative and are not intended to be
exclusive of any remedies or means of redress to which Landlord may at any
time be lawfully entitled, and Landlord may invoke any remedy (including the
remedy of specific performance) allowed at law or in equity as if specific
remedies were not herein provided for.
TENANT'S REMEDIES NOT EXCLUSIVE. The specified remedies to which
Tenant may resort hereunder, unless otherwise expressly provided, i.e., a
sole remedy provision, are cumulative and are not intended to be exclusive of
any remedies or means of redress to which Tenant may at any time be lawfully
entitled, and Tenant may invoke any remedy (including the remedy of specific
performance) allowed at law or in equity as if specific remedies were not
herein provided for.
21.7 GRACE PERIOD. Notwithstanding anything to the contrary in this
section contained, Landlord shall have no right to take any action to
terminate this Lease (a) for default by Tenant in the payment when due of any
sum of money unless Tenant shall fail to cure such default within ten (10)
days after written notice thereof is given by Landlord to Tenant, (b) for
default by Tenant in the performance of any covenant other than the covenant
to pay the sum of money unless Tenant shall fail to cure such default within
a period of thirty (30) days after written notice thereof given by Landlord
to Tenant, except when the nature of the default is such that remedial action
both can and should appropriately take place sooner, as indicated in such
written notice, or within such additional period as may reasonably be
required to cure such default (if because of governmental restrictions or any
other cause beyond the reasonable control of Tenant) the default is of such a
nature that it cannot be cured within such thirty (30) day period, provided,
however, (1) that there shall be no extension of time beyond such thirty (30)
day period for curing of any such default unless, within ten (10) days after
Tenant has knowledge of the situation, fact or circumstance which
necessitates such extension of the grace period and after the receipt of the
notice of default, Tenant in writing (i) shall specify the cause on account
of which the default cannot be cured during such period and shall advise
Landlord of its intention duly to institute all steps necessary to cure the
default and (ii) shall as soon as reasonably may be possible duly institute
and thereafter diligently prosecute to completion all steps necessary to cure
such default, provided, further, however, that the extension of Tenant's
grace period to cure any such default that cannot be cured within such thirty
(30) days shall not be forfeited for failure to send such notice to Landlord
if:
(a) the situation, fact or circumstances which necessitates the extension
either is or should have been known by Landlord;
Notwithstanding anything to the contrary in this Article 21.7 contained;
all statutory notice and grace periods (including, without limitation, the
provisions of Section 11 of Chapter 186 of the General Laws of Massachusetts)
are hereby waived by Tenant.
22. END OF TERM -- ABANDONED PROPERTY
Upon the expiration or other termination of the term of this Lease, Tenant
shall peaceably quit and surrender to Landlord the premises and all
alterations and additions thereto, broom clean, in good order, repair and
condition (except as provided herein and in Articles 18, 20 and 8.7) excepting
only ordinary wear and use and damage by fire or other casualty for which,
under other provisions of this Lease, Tenant has no responsibility of repair
or restoration. Tenant shall remove all of its property and shall repair any
damages to the premises or the Building caused by their installation or by
such removal. Tenant's obligation to observe or perform this covenant shall
survive the expiration or other termination of the term of this Lease.
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Tenant will remove any personal property from the Building and the
premises upon or prior to the expiration or termination of this Lease and any
such property which shall remain in the Building or the premises thereafter
shall be conclusively deemed to have been abandoned, and may either be
retained by Landlord as its property or sold or otherwise disposed of in such
manner as Landlord may see fit. If any part thereof shall be sold, that
Landlord may receive and retain the proceeds of such sale and apply the same,
at its option, against the expenses of the sale, the cost of moving and
storage, any arrears of Yearly Rent, additional or other charges payable
hereunder by Tenant to Landlord and any damages to which Landlord may be
entitled under Article 21 hereof or pursuant to law.
If Tenant or anyone claiming under Tenant shall remain in possession of
the premises or any part thereof after the expiration or prior termination of
the term of this Lease without any agreement in writing between Landlord and
Tenant with respect thereto, then, prior to the acceptance of any payments
for rent or use and occupancy by Landlord, the person remaining in possession
shall be deemed a tenant at-sufferance. Whereas the parties hereby
acknowledge that Landlord may need the premises after the expiration or prior
termination of the term of the Lease for other tenants and that the damages
which Landlord may suffer as the result of Tenant's holding-over cannot be
determined as of the Execution Date hereof, in the event that Tenant so holds
over, Tenant shall pay to Landlord in addition to all rental and other
charges due and accrued under the Lease prior to the date of termination,
charges (based upon the fair market rental value of the premises) for use and
occupation of the premises thereafter and, in addition to such sums and any
and all other rights and remedies which Landlord may have at law or in
equity, an additional use and occupancy charge in the amount of fifty percent
(50%) of EITHER the Yearly Rent and other charges calculated (on a daily
basis) at the highest rate payable under the terms of this Lease, but
measured from the day on which Tenant's hold-over commenced and terminating
on the day on which Tenant vacates the premises OR the fair market rental
value of the premises for such period, WHICHEVER IS GREATER. Notwithstanding
the foregoing, Landlord shall have the right to elect to recover any other
damages which Landlord is permitted to recover under this Lease in lieu of
said liquidated damages by giving Tenant written notice of such election.
From and after the date on which Landlord gives Tenant such notice, said
liquidated damages shall cease to accrue and Tenant shall be liable to
Landlord for any damages recoverable under this Lease which accrue thereafter.
23. SUBORDINATION
(a) Subject to the election of any mortgagee, ground lessor, trustee,
or other underlying party-in-interest (collectively "Underlying Parties"), as
hereinafter provided for, this Lease is subject and subordinate in all
respects to all matters of record (including, without limitation, deeds and
land disposition agreements), ground leases and/or underlying leases,
including, without limitation, the Ground Lease, all mortgages, and any
condominium documents (including, without limitation, any master deed,
by-laws, rules and regulations, and any amendments or revisions thereto) any
of which may now or hereafter be placed on or affect such leases and/or the
Unit or Project of which the premises are a part, or any part of such real
property, and/or Landlord's interest or estate therein, and to each advance
made and/or hereafter to be made under any such mortgages, and to all
renewals, modifications, consolidations, replacements and extensions thereof
and all substitutions therefor (collectively "Underlying Instruments").
Notwithstanding anything to the contrary in this Lease contained, as to any
future mortgages, ground leases, or deeds of trust, the herein provided
subordination and attornment shall be effective only if the mortgagee, ground
lessor or trustee therein, as the case may be, agrees, by a written
instrument in the customary form of such mortgagee, ground lessor, or
trustee, which form shall be recordable ("Non-disturbance Agreement"), that,
so long as Tenant shall faithfully discharge the obligations of its part to
be kept and performed under the terms of this Lease, this Lease will not be
affected by any default in, termination, and/or foreclosure of, such mortgage,
ground lease, or deed of trust, as the case may be. This Article 23 shall be
self-operative and no further instrument or subordination shall be required. In
confirmation of such subordination, Tenant shall execute, acknowledge and
deliver promptly any certificate or instrument that Landlord and/or any
Underlying Party and/or its successor in interest may request. Tenant
acknowledges that, where applicable, any consent or approval hereafter given
by Landlord may be subject to the further consent or approval of Underlying
Parties; and the failure or refusal of an Underlying Party to give
29
such consent or approval shall, notwithstanding anything to the contrary in
this Lease contained, constitute reasonable justification for Landlord's
withholding its consent of approval.
(b) Any such Underlying Party may from time to time subordinate or revoke
any such subordination of the Underlying Instrument held by it to this Lease.
Such subordination or revocation, as the case may be, shall be effected by
written notice to Tenant and by recording an instrument of subordination or
of such revocation, as the case may be, with the appropriate registry of deeds
or land records and to be effective without any further act or deed on the
part of Tenant. In confirmation of such subordination or of such revocation,
as the case may be. Tenant shall execute, acknowledge and promptly deliver
any certificate or instrument that Landlord or any Underlying Party may
request.
(c) Without limitation of any of the provisions of this Lease, if any
Underlying Party shall succeed to the interest of Landlord by reason of the
exercise of its rights under an Underlying Instrument (or the acceptance of
voluntary conveyance in lieu thereof) or any third party (including, without
limitation, any foreclosure purchaser or mortgage receiver) shall succeed to
such interest by reason of any such exercise or the expiration or sooner
termination of such Underlying Instrument, however caused, then such
successor may, upon notice and request to Tenant (which, in the case of a
ground lease, shall be within thirty (30) days after such expiration or
sooner termination), succeed to the interest of Landlord under this Lease,
provided, however, that such successor shall not: (i) be liable for any
previous act or omission of Landlord under this Lease; (ii) be subject to any
offset, defense, or counterclaim which shall theretofore have accrued to
Tenant against Landlord; (iii) have any obligation with respect to any
security deposit unless it shall have been paid over or physically delivered
to such successor; or (iv) be bound by any previous modification of this
Lease or by any previous payment of Yearly Rent for a period greater than one
(1) month, made without the consent of such Underlying Party where such
consent is required by applicable Underlying Instrument. In the event of such
succession to the interest of the Landlord-and notwithstanding that any such
Underlying Interest may antedate this Lease-the Tenant shall attorn to such
successor and shall ipso facto be and become bound directly to such successor
in interest to Landlord to perform and observe all the Tenant's obligations
under this Lease without the necessity of the execution of any further
instrument. Nevertheless, Tenant agrees at any time and from time to time
during the term hereof to execute a suitable instrument in confirmation of
Tenant's agreement to attorn, as aforesaid.
(d) [MISSING RIDER] Tenant hereby irrevocably constitutes and appoints
Landlord or any such Underlying Party, and their respective successors in
interest, acting singly, Tenant's attorney-in-fact to execute and deliver any
such certificate or instrument for, on behalf and in the name of Tenant, but
only if Tenant fails to execute, acknowledge and deliver any such certificate
or instrument within ten (10) days after Landlord or such Underlying Party
has made written request therefor.
(e) Notwithstanding anything to the contrary contained in this Article
23, if all or part of Landlord's estate and interest in the Unit shall be a
leasehold estate held under a ground lease, then: (i) The foregoing
subordination provisions of this Article 23 shall not apply to any mortgages
of the fee interest in said real property to which Landlord's leasehold
estate is not otherwise subject and subordinate; and (ii) the provisions of
the Article 23 shall in no way waive, abrogate or otherwise affect any
agreement by any ground lessor (x) not to terminate this Lease incident to
any termination of such ground lease prior to its term expiring or (y) not to
name or join Tenant in any action or proceeding by such ground lessor to
recover possession of such real property or for any other relief.
(f) Notwithstanding anything to the contrary contained in this
Article 23, if all or part of Landlord's estate and interest in the real
property of which the premises are a part shall be a condo-
30
minium unit, then the provisions of this Article 23 shall in no way waive,
abrogate or otherwise affect any provision in the master deed to the effect
that (x) this Lease will not be terminated incident to any foreclosure by the
Board of Managers of the Condominium of the lien to secure common area
expenses or (y) Tenant shall not be named or joined in any action or
proceeding by said Board of Managers in connection with the collection of
common area expenses.
24. QUIET ENJOYMENT
Landlord covenants that if, and so long as, Tenant keeps and performs
each and every covenant, agreement, term, provision and condition herein
contained on the part and on behalf of Tenant to be kept and performed,
Tenant shall quietly enjoy the premises from and against the claims of all
persons claiming by, through or under Landlord subject, nevertheless, to the
covenants, agreements, terms, provisions and conditions of this Lease and to
the Underlying Instruments to which this Lease is subject and subordinate, as
hereinabove set forth.
Landlord warrants and represents to Tenant that Landlord has the right and
authority to enter into this Lease.
25. ENTIRE AGREEMENT -- WAIVER -- SURRENDER
25.1 ENTIRE AGREEMENT. This Lease and the Exhibits made a part hereof
contain the entire and only agreement between the parties and any and all
statements and representations, written and oral, including previous
correspondence and agreements between the parties hereto, are merged herein.
Tenant acknowledges that all representations and statements upon which it
relied in executing this Lease are contained herein and that the Tenant in no
way relied upon any other statements or representations, written or oral. Any
executory agreement hereafter made shall be ineffective to change, modify,
discharge or effect an abandonment of this Lease in whole or in part unless
such executory agreement is in writing and signed by the party against whom
enforcement of the change, modification, discharge or abandonment is sought.
25.2 WAIVER. The failure of to seek redress for violation, or to insist
upon the strict performance, of any covenant or condition of this Lease, or
any of the Rules and Regulations promulgated hereunder, shall not prevent a
subsequent act, which would have originally constituted a violation, from
having all the force and effect of an original violation. The receipt by
Landlord of rent with knowledge of the breach of any covenant of this Lease
shall not be deemed a waiver of such breach. The failure of Landlord to
enforce any of such Rules and Regulations against Tenant and/or any other
tenant in the Building shall not be deemed a waiver of any such Rules and
Regulations. No provisions of this Lease shall be deemed to have been waived
by unless such waiver be in writing signed by. No payment by Tenant or
receipt by Landlord of a lesser amount than the monthly rent herein
stipulated shall be deemed to be other than on account of the stipulated
rent, nor shall any endorsement or statement on any check or any letter
31
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 in this Lease provided.
25.3 SURRENDER. No act or thing done by Landlord during the term hereby
demised shall be deemed an acceptance of a surrender of the premises, and no
agreement to accept such surrender shall be valid, unless in writing signed
by Landlord. No employee of Landlord or of Landlord's agents shall have any
power to accept the keys of the premises prior to the termination of this
Lease. The delivery of keys to any employee of Landlord or of Landlord's
agents shall not operate as a termination of the Lease or a surrender of the
premises.
26. INABILITY TO PERFORM -- EXCULPATORY CLAUSE
Except as provided in Article 4.1, 4.2, 8.8-10 and 15.6-18 hereof, this
Lease and the obligations of Tenant to pay rent hereunder and perform all the
other covenants, agreements, terms, provisions and conditions hereunder on
the part of Tenant to be performed shall in no way be affected, impaired or
excused because Landlord is unable to fulfill any of its obligations under
this Lease or is unable to supply or is delayed in supplying any service
expressly or impliedly to be supplied or is unable to make or is delayed in
making any repairs, replacement, additions, alterations, improvements or
decorations or is unable to supply or is delayed in supplying any equipment
or fixtures if Landlord is prevented or delayed from so doing by reason of
strikes or labor troubles or any other similar or dissimilar cause whatsoever
beyond Landlord's reasonable control, including but not limited to,
governmental preemption in connection with a national emergency or by reason
of any rule, order or regulation of any department or subdivision thereof of
any governmental agency or by reason of the conditions of supply and demand
which have been or are affected by war, hostilities or other similar or
dissimilar emergency. In each such instance of inability of Landlord to
perform, Landlord shall exercise reasonable diligence to eliminate the cause
of such inability to perform. Except with respect to Tenant's obligations to
pay rental and other sums due under this Lease, the obligations of Landlord
to perform all the other covenants, agreements, terms, provisions and
conditions hereunder on the part of Landlord to be performed shall in no way
be affected, impaired or excused because Tenant is unable to fulfill any of
its obligations under this Lease or is unable to supply or is delayed in
supplying any service expressly or impliedly to be supplied or is unable to
make or is delayed in making any repairs, replacements, additions,
alterations, improvements or decorations or is unable to supply or is delayed
in supplying any equipment of fixtures if Tenant is prevented or delayed from
so doing by reason of strikes or labor troubles or any other similar or
dissimilar cause whatsoever beyond Tenant's reasonable control, including but
not limited to, governmental preemption in connection with a national
emergency or by reason of any rule, order or regulation of any department or
subdivision thereof of any governmental agency or by reason of the conditions
of supply and demand which have been or are affected by war, hostilities or
other similar or dissimilar emergency. In each such instance of inability of
Tenant to perform, Tenant shall exercise reasonable diligence to eliminate
the cause of such inability to perform.
Tenants shall neither assert nor seek to enforce any claim for breach of
this Lease against any of Landlord's assets other than Landlord's interest in
the Unit and in the uncollected rents, issues and profits thereof, and Tenant
agrees to look solely to such interest for the satisfaction of any liability
of Landlord under this Lease, it being specifically agreed that in no event
shall Landlord (or any of the officers, trustees, directors, partners,
beneficiaries, joint venturers, members, stockholders or other principals or
representatives, and the like, disclosed or undisclosed, thereof) ever be
personally liable for any such liability. This paragraph shall not limit any
right that Tenant might otherwise have to obtain injunctive relief against
Landlord or to take any other action which shall not involve the personal
liability of Landlord to respond in monetary damages from Landlord's assets
other than the Landlord's interest in the Unit, as aforesaid. In no event
shall Landlord (or any of the officers, trustees, directors, partners,
beneficiaries, joint venturers, members, stockholders or other principals or
representatives and the like, disclosed or undisclosed, thereof) ever be
liable for consequential damages. If by reason of Landlord's failure to
complete construction of the Project or premises, Landlord shall be held to
be in breach of this Lease, Tenant's sole and exclusive remedy shall be a
right to terminate this Lease. Notwithstanding anything to the contrary in
this Lease contained, Landlord shall neither assert nor seek to enforce any
claim for breach of this Lease against any of the personal assets of Tenant's
partners (i.e. other than the partnership assets of Tenant) for the
satisfaction of any liability of Tenant under this Lease, it being
specifically agreed that in no event shall Tenant's partners ever be
personally liable for any such liability. This paragraph shall not limit any
right that Landlord might otherwise have to obtain injunctive relief against
Tenant, to seek repossession of the premises in the event of the termination
of the Lease, or to take any other action which shall not involve the
personal liability of Tenant's partners.
32
29.3 BROKER. Tenant represents and warrants that it has not directly or
indirectly dealt, with respect to the leasing of office space in the Building
or any Center, Office Park or other complex of which it is a part (called
"Building, etc." in this Article 29.3) with any broker or had its attention
called to the premises or other space to let in the Building, etc. by anyone
other than the broker, person or firm, if any, designated in Exhibit 1.
29.5 ARBITRATION. Any disputes relating to provisions or obligations in
this Lease as to which a specific provision for a reference to arbitration is
made herein shall be submitted to arbitration in accordance with the
provisions of applicable state law (as identified on Exhibit 1) as from time
to time amended. Arbitration proceedings, including the selection of an
arbitrator, shall be conducted pursuant to the rules, regulations and
procedures from time to time in effect as promulgated by the American
Arbitration Association. Prior written notice of application by either party
for arbitration shall be given to the other at least ten (10) days before
submission of the application to the said Association's office in the City
wherein the Project is situated (or the nearest other city having an
Association office). The arbitrator shall hear the parties and their
evidence. The decision of the arbitrator shall be binding and conclusive, and
judgment upon the award or decision of the arbitrator may be entered in the
appropriate court of law (as identified on Exhibit 1); and the parties
consent to the jurisdiction of such court and further agree that any process
or notice of motion or other application to the Court or a Judge thereof may
be served outside the State wherein the Project is situated by registered
mail or by personal service, provided a reasonable time for appearance is
allowed. The costs and expenses of each arbitration hereunder and their
apportionment between the parties shall be determined by the arbitrator in
his award or decision. No arbitrable dispute shall be deemed to have arisen
under this Lease prior to (i) the expiration of the period of twenty (20)
days after the date of the giving of written notice by the party asserting
the existence of the dispute together with a description thereof sufficient
for an understanding thereof; and (ii) where a Tenant payment (e.g.,
Operating Expense Excess under Article 9 hereof) is in issue, the amount
billed by Landlord having been paid by Tenant.
29.6 GOVERNING LAW. This Lease is made pursuant to, and shall be
governed by, and construed in accordance with, the laws of the State wherein
the Project is situated and any applicable local municipal rules,
regulations, by-laws, ordinances and the like.
29.7 ASSIGNMENT OF RENTS. With reference to any assignment by Landlord
of its interest in this Lease, or the rents payable hereunder, conditional in
nature or otherwise, which assignment is made to or held by a bank, trust
company, insurance company or other institutional lender holding an
Underlying Instrument on the Unit, Tenant agrees:
34
(a) that the execution thereof by Landlord and the acceptance thereof
by such Underlying Party shall never be deemed an assumption by such
Underlying Party of any of the obligations of the Landlord thereunder, unless
such Underlying Party shall, by written notice sent to the Tenant,
specifically otherwise elect; and
(b) that, except as aforesaid, such Underlying Party shall be treated
as having assumed the Landlord's obligations thereunder only (i) upon and for
the period in respect of which such mortgagee and/or ground lessor is in
possession of the Building and receives rental payments hereunder, and in any
case, or (ii) upon foreclosure of such Underlying Party's mortgage or
termination of such Underlying Party's ground lease, as the case may be, and
the taking of possession of the demised premises after having given notice of
its exercise of the option stated in Article 23 hereof to succeed to the
interest of the Landlord under this Lease.
29.8 REPRESENTATION OF AUTHORITY. By his execution hereof each of the
signatories on behalf of the respective parties hereby warrants and
represents to the other that he is duly authorized to execute this Lease on
behalf of such party. If Tenant is a corporation, Tenant hereby appoints the
signatory whose name appears below on behalf of Tenant as Tenant's
attorney-in-fact for the purpose of executing this Lease for and on behalf of
Tenant.
IN WITNESS WHEREOF the parties hereto have executed this Indenture of
Lease in multiple copies, each to be considered an original hereof, as a
sealed instrument on the day and year noted in Exhibit 1 as the Execution
Date.
LANDLORD: ROWES WHARF ASSOCIATES TENANT: The Beacon Companies
By By
------------------------------- ----------------------------
A General Partner of (Name) (Title)
Rowes Wharf Limited Partnership Hereunto Duly Authorized
IF TENANT IS A CORPORATION, A SECRETARY'S OR CLERK'S CERTIFICATE OF THE
AUTHORITY AND THE INCUMBENCY OF THE PERSON SIGNING ON BEHALF OF TENANT SHOULD
BE ATTACHED.
COMMONWEALTH OF MASSACHUSETTS
COUNTY OF SUFFOLK
On the Execution Date stated in Exhibit 1, the person above signing this
Lease for and on behalf of the Tenant, to me personally known, did sign and
execute this Lease and, being by me duly sworn, did depose and say that is
the officer of the above named Tenant, as noted, and that he signed his name
hereto by order of the Board of Directors of said Tenant.
/s/
------------------------------
Notary Public
My Commission expires: 1/30/92
--------
00
XXXXXXXXXXXX XX XXXXXXXXXXXXX
XXXXXX XX XXXXXXX
Xx the Execution Date stated in Exhibit 1, the person above signing this
Lease for and on behalf of Landlord to me personally known, did sign and
execute this Lease and, being by me duly sworn, did depose and say that he is
the duly authorized representative of Landlord.
/s/
------------------------------
Notary Public
My Commission expires: 1/30/92
--------
36
EXHIBIT 3, SHEET 1
MEMORANDUM OF WORK AND INSTALLATIONS TO BE INITIALLY PERFORMED
AND FURNISHED IN THE PREMISES
A. Notwithstanding anything to the contrary in Article 4 or in Exhibit
3 contained, in addition to the quantities of materials set forth on Exhibit
3, Landlord shall provide and install up to Ten ($10.00) Dollars per square
foot of Total Rentable Area of the premises initially demised by Tenant of
additional quantities of items listed in Exhibit 3 in order to prepare the
premises in accordance with Tenant's final plans. In addition, Landlord shall
provide up to Ten ($10.00) Dollars per square foot of Total Rentable Area of
the premises initially demised by Tenant towards the cost of additional
leasehold improvements requested by Tenant in order to prepare the premises
in accordance with Tenant's final plans.
B. Tenant shall be entitled to a credit (i.e. against the cost of
constructing the premises or against Tenant's obligation to pay Yearly Rent
and other charges due under the Lease, at Tenant's election, equal to the sum
of: (i) the value of the Building standard items listed on Exhibit 3 (if any)
which are not used by Tenant, such value to be determined based upon the
quantities of such items set forth in Exhibit 3, plus (ii) any unused portion
of the above-referenced Ten ($10.00) Dollar per square foot of Total Rentable
Area construction contribution and (iii) the Ten ($10.00) Dollar per square
foot of Total Rentable Area construction contribution.
C. The Storage Premises shall be prepared in accordance with the
following specifications:
1. Smooth concrete floor.
2. Door with keyed lockset.
3. Adequate overhead lighting fixtures.
4. Demising walls.
D. Tenant shall, promptly upon request by Landlord, execute and deliver
to the City of Boston any affidavits and other documentation required to
obtain the Building permit allowing Landlord to perform Landlord's work on a
timely basis.
Landlord, at its expense shall furnish and install in accordance with
Tenant's plans, the following materials and work (or equal at Landlord's
election) -- all to be building standard unless otherwise expressly stated --
in the initial preparation of the premises for Tenant's occupancy.
A. EXTERIOR WALLS, LOBBY WALLS AND CORE WALLS
1. FINISH
The exposed surfaces are to receive a drywall finish. The toilet
rooms are to be finished with ceramic tile and drywall.
2. DOOR-FRAMES
Flush hollow metal doors 1-3/4" in thickness will be installed in
pressed metal door frames.
3. HARDWARE
Each swing door shall be provided with one and one-half pairs of
butts, a latch set, or lockset where required, and a doorstop where
required. A surface mounted door closer will be provided at such
locations as may be required by the local code. All hardware shall be
Xxxxxxx, Xxxxx, Schlage, Yale or equal.
B. PARTITIONS AND DOORS
1. PARTITIONS SEPARATING PREMISES (DEMISING)
a. PARTITIONS
Partitions separating premises shall be constructed of metal
studs with two layers of 5/8" wallboard on each side extending
above the ceiling, with one layer of wallboard on each side
extended to the underside of the floor construction above, or
equal.
b. PRINCIPAL TENANT ENTRANCE DOOR
Each Tenant premises will be provided with one teak full-height,
solid core wood entrance door and glass sidelight in teak wood
frame (with provision for a building standard entrance sign),
installed with (two pairs of ball bearing butts, a lockset,
doorstop and concealed door closer.
c. SECONDARY EGRESS DOORS (WHERE REQUIRED)
All doors shall have pressed metal door frames. The doors shall
be teak, full-height, solid core wood doors and shall be
installed with two pairs of ball bearing butts, a lockset, a
doorstop and a concealed door closer.
d. LOCKS
Each door will be provided with a building standard lockset
master keyed to the building system, and shall be Xxxxxxx, Xxxxx,
Schlage, Yale or equal.
37
EXHIBIT 3, SHEET 2
2. PARTITIONS SEPARATING OFFICES WITHIN SINGLE PREMISES
a. PARTITIONS
Partitions shall be constructed of metal studs with two layers of
5/8" wallboard, extending above the ceiling, on each side, or
equal
b. DOORS
The swing doors shall have pressed metal door frames. The doors
shall be teak full-height, solid core wood and shall be installed
with two pairs of ball bearing butts, a latch set and a doorstop.
The number of doors shall not exceed one door for each 25 linear
feet of allowed partitions (per Para. B.3. below). All hardware
shall be Xxxxxxx, Xxxxx, Yale, Schlage or equal.
3. STANDARD QUALITY OF PARTITIONS
The total lineal footage of partitions shall not exceed one lineal
foot for each 15 square feet of (i) Net Rentable Area* for multi-
tenant floors or (ii) Gross Area*, not including building core area,
for single-tenant floors, as the case may be.
C. CEILINGS
1. Mechanically suspended, concealed spline, acoustic tile ceilings
shall be mineral fiber, Class "A" (incombustible), 12" x 12", square
edged.
2. The mechanical suspension system shall be of the concealed type.
D. LIGHTING
1. Landlord shall provide recessed fluorescent lighting fixtures
(2' x 4') with a large cell aluminum parabolic louver and three (3)
35-watt rapid start tubes with supply and return air feature to the
extent of one such fixture per 85 square feet (average) of (i) Net
Rentable Area for multi-tenant floors or (ii) Gross Area, not
including building core area, for single-tenant floors, as the case
may be.
2. Miscellaneous fixtures, fluorescent and/or incandescent shall be
installed in mechanical spaces, toilet areas, stairwell and utility
areas to conform to building operation requirements and existing
codes.
3. Wall switches of the single pole, quiet type to the extent of one
switch for each ten lighting fixtures averaged shall be installed by
Landlord. Each private office must have at least one wall switch
(which will be counted in this allowance).
---------------
*The terms "Gross Area" and "Net Rentable Area" used in computing allowances
under this Exhibit 3 refer to definitions appearing in Exhibit 5 of the Lease.
38
EXHIBIT 3, SHEET 3
E. Electrical and Telephone
1. Duplex wall and floor receptacles (not to exceed one per 125 square
feet of (i) Net Rentable Area for multi-tenant floors or (ii) Gross
Area, not including building core area, for single-tenant floors, as
the case may be), shall be installed by Landlord. Not more than 10%
of the total number of such receptacles may be located in the floor.
2. Landlord will make the necessary provisions for wall and floor
telephone outlets (not to exceed one per 200 square feet of (i) Net
Rentable Area for multi-tenant floors or (ii) Gross Area, not
including building core area, for single-tenant floors, as the case
may be). Installation of the wiring and equipment by the telephone
company or other communication equipment supplier is the
responsibility of Tenant. Not more than 10% of the total number of
such outlets may be located in the floor.
3. Power wiring circuits, including terminal device (similar to the
208-volt, 30 AMP, 3-Phase, grounded) shall be made available to
Tenant in connection with Tenant's equipment at the rate of one per
6,000 square feet of (i) Net Rentable Area for multi-tenant floors or
(ii) Gross Area, not including core area, for single-tenant floors,
as the case may be.
F. Plumbing
1. Wet stacks are available on the typical office floor containing cold
water, waste, and vent piping. Tenant equipment can be connected at
these points by the Landlord at the Tenant's expense.
G. Painting and Wall Covering
1. All wall surfaces shall receive a finish coat of building standard
acrylic based spray applied, vinyl paint over one prime coat, or
equal. Door frames shall receive one coat of enamel over one prime
coat. Doors shall receive a natural finish of one coat of sealer and
one coat of varnish.
2. Paint colors shall be selected from a standard color chart with not
more than one accent color (flat paint) on one wall in each
individual office or room.
3. Where Tenant desires wall covering, Landlord shall initially prepare
walls to receive wall covering by application of sizing. Such wall
covering shall be furnished and installed at Tenant's expense. Wall
covering shall be subject to Landlord's approval prior to
installation.
4. Public areas, corridors and lobbies shall be finished in accordance
with the Landlord's Architect's finish schedule.
H. Sun-Control Blinds
Landlord shall furnish and install sun control blinds, including the
tracks therefore, in color selected by Landlord.
39
EXHIBIT 3, SHEET 4
I. FLOOR FINISHES
The Tenant will provide within his premises, and at his expense
(furnished and installed), all floor coverings and vinyl, wood,
carpet or any other baseboard moldings.
J. MECHANICAL
1. Landlord will install in the interior office area, one supply troffer
or diffuser with 6 feet of flexible hose for every 200 square feet of
(i) Net Rentable Area for multi-tenant floors or (ii) Gross Area, not
including building core area, for single-tenant floors, as the case
may be, in any premises served by the building interior air
distribution system.
2. Landlord will install a sprinkler system for the public areas and
tenant premises to the extent of one head per 225 square feet of (i)
Net Rentable Area for multi-tenant floors or (ii) Gross Area, not
including building core area, for single-tenant floors, as the case
may be. Such head shall be a semi-recessed chrome pendant head. Heads
will be installed in accordance with approved Tenant's final plans
and all other governing agencies and regulations.
3. Toilet exhaust ductwork is available on each office floor for
Tenant-installed executive toilets. Connections to this ductwork will
be by the Landlord at the Tenant's expense.
40
EXHIBIT 4, SHEET 1
BUILDING SERVICES
A. GENERAL CLEANING (MONDAY THROUGH FRIDAY -- EXCLUDING BUILDING HOLIDAYS)
1. All stone, ceramic, tile, marble, terrazzo and other unwaxed
flooring to be swept nightly, using approved dust-down preparation.
2. All wood, linoleum, vinyl-asbestos, vinyl and other similar types of
floors to be swept or dry mopped nightly, using dust-down
preparation; all carpeting and rugs in the main traffic areas
(corridors, reception areas, etc.) to be vacuumed nightly and all
other carpeted areas to be vacuumed at least once each week.
3. Wax all public areas monthly.
4. Hand dust all furniture, files and fixtures nightly.
5. Empty all waste receptacles nightly and remove waste paper and waste
materials, including folded paper boxes and cartons, to designated
area.
6. Empty and clean all ash trays and screen all sand urns nightly.
7. Wash and clean all water fountains and coolers nightly. Sinks and
floors adjacent to sinks to be washed nightly.
8. Hand dust all door and other ventilating louvers within reach, as
necessary, but not less often than monthly.
9. Dust all telephones as necessary.
10. Keep lockers and janitors sink rooms in a neat, orderly condition at
all times.
11. Wipe clean all bright metal work as necessary.
12. Check all stairwells throughout entire building nightly and keep in
clean condition.
13. Metal doors and trim of all public elevator cars to be properly
maintained and kept clean.
B. COMMON AREA LAVATORIES
1. Sweep and wash all lavatory floors nightly, using proper non-scented
disinfectants.
2. Clean all mirrors, powder shelves, bright work and enameled surfaces
in all lavatories nightly. Scour, wash and disinfect all basins,
bowls and urinals using non-scented disinfectants.
41
EXHIBIT 4, SHEET 2
3. Police lavatories during the day with matron or xxxxxx to pick up
waste and replenish materials.
4. Wash all toilet seats nightly.
5. Fill toilet tissue holders nightly.
6. Empty paper towel receptacles nightly.
7. Empty sanitary disposal receptacles nightly.
8. Thoroughly clean all wall tile and stall surfaces as necessary.
C. HIGH DUSTING
Do all high dusting (not reached in nightly cleaning) quarterly which
includes the following:
1. Dust all pictures, frames, charts, graphs, and similar wall hangings.
2. Dust exposed pipes, ventilation and air conditioning louvres, ducts
and high moldings.
D. WINDOW CLEANING
1. All exterior windows (except for any retail/commercial areas) from
the second floor and above will be cleaned inside and outside
by-monthly except when cleaning is rendered impracticable by
inclement weather.
2. Entrance doors and elevator lobby glass to be cleaned daily and kept
in a clean condition at all times during the day.
3. Wipe down all window frames as necessary but not less often than
bi-monthly.
E. BUILDING LOBBIES
1. Floors to be swept and washed or vacuumed nightly, and machine
scrubbed according to Building Standard frequency.
2. Carpeting in passenger elevators to be vacuumed nightly.
3. Lobby walls to be dusted as often as necessary, but not less than
weekly.
42
EXHIBIT 4, SHEET 3
4. Screen and clean sand urns nightly.
5. Clean all unpainted metal work in a manner appropriate to original
finish.
F. PORTERS
Necessary number of day porters under supervision will be assigned for
the following services:
1. Service all public and operating space throughout the Building.
2. Keep elevators clean and neat during the day.
3. Maintain lobbies clean and, during wet weather, mopped dry to the
extent practicable.
4. Dust and rub down all elevator doors, frames, telephone booths and
directories daily.
5. Sweep sidewalks, ramps, etc. daily.
6. Clean roofs and setbacks as often as necessary.
7. Maintain firehose and equipment clean.
8. Lay and remove lobby runners as necessary.
9. Replenish toilet tissue, towels and other supplies in lavatories.
10. Maintain fan rooms, motor rooms and air conditioning rooms in clean
condition.
11. Check stairways and keep same neat and clean during the day.
12. Clean exterior columns, exterior signs and metal work, standpipe and
sprinkler system, walkways and stairs as necessary.
13. If directed by superintendent, fill towel and soap dispensers and
perform any emergency cleaning required.
43
EXHIBIT 5, SHEET 1
RENTABLE AREA AND ADJUSTMENT OF RENT
(1) MEASUREMENT STANDARDS - SINGLE TENANCY FLOORS
Three steps, in sequence, are to be followed to determine the Total
Rentable Area: (i) Compute gross area; (ii) deduct certain areas; and
(iii) add applicable share of areas to be apportioned. (See below
paragraph (c).)
(a) GROSS AREA: The gross area of a floor shall be the entire area
within the exterior walls. If the exterior or demising wall consists
in whole or part of windows, fixed clear glass or other transparent
material, the measurement along the entire such wall shall be taken
to a line established by the horizontal plane of the inside of the
glass or other transparent material. If it consists solely of
non-transparent material, the measurement shall be taken to the
inside surface of the outer building wall. If a floor has no
exterior wall within the property line, measurements shall be taken
to the property line. If a floor has no full-height enclosing wall,
measurements shall be taken to the edge of the floor slab. All
shafts or penetrations, including their enclosing walls, containing
services only for non-office components shall not be included in the
gross area.
(b) DEDUCTIONS FROM GROSS AREA: The following non-rentable building
areas with on-half of their enclosing walls are to be deducted.
1. Public elevator shafts and associated elevator machine rooms.
2. Required egress stairways.
3. Areas within the gross area which are to be apportioned
pursuant to paragraph (c) below.
(c) AREAS TO BE APPORTIONED:
1. Common facilities including without limitation, all heating,
ventilating, air conditioning, mechanical, electrical, cooling
tower, telephone and other service floors, rooms or areas,
containing equipment or supplies (exclusive of any tenant's
special air conditioning or mechanical area or facilities) and
all public lobbies (including monumental stair and/or escalator),
loading and other common services areas, throughout and within the
Building including one-half of their enclosing walls, are to be
apportioned.
2. Whenever the height of any room or space used for a heating,
ventilating, air conditioning, mechanical, or electrical facility
above the ground floor shall exceed the average story height in
the Building by more than 25%, then the floor area of such room
or space shall be determined by multiplying the actual floor area
by the percentage that the height of the room or space exceeds
the average story height, and adding the area so determined to
the actual floor area of such room or space, however, if any
such rooms or spaces penetrate the next higher floor, then the
entire area of such room or space on both floors shall be
apportioned under this paragraph (c).
45
EXHIBIT 5, SHEET 2
(2) Measurement Standards - Multiple Occupancy Floors
The sum of the Total Rentable Area for two or more tenants on a floor
shall be the Total Rentable Area for that floor as computed in the
manner for single tenancy floors.
Three steps are to be followed to determine the Total Rentable Area for
each tenant on a multiple occupancy floor: (i) compute the Net
Rentable Area for such floor pursuant to (a) below; (ii) compute the
Net Rentable Area for each tenant pursuant to (b) below; and (iii)
multiply the Total Rentable Area of such floor by a fraction whose
numerator is the Net Rentable Area for such tenant and whose
denominator is the Net Rentable Area for such floor.
(a) NET RENTABLE AREA FOR ANY FLOOR: The Net Rentable Area shall
be the gross area as described for single tenancy floors less
the entire core area (measured to the finished enclosing walls
thereof, but excluding any part of the core rented to a tenant)
and public corridors measured to the corridor side of the
enclosing walls thereof.
(b) NET RENTABLE AREA FOR EACH TENANT: Exterior walls are to be
measured as described in the procedure for gross area.
Demising walls between tenants are to be equally divided.
Corridor walls to the finished corridor side are to be
included in the Net Rentable Area of each tenant.
(c) RETAIL AREA: The Total Rentable Area of a store or other
retail facility in the Building shall be computed in
accordance with the foregoing measurement standards for
multiple occupancy floors.
46
EXHIBIT 5, SHEET 3
(3) ADJUSTMENT OF TOTAL RENTABLE AREA AND RENT
(a) Either party, not later than the last day of the third calendar
month next beginning after the Term Commencement Date, may
request that a recomputation of the Total Rentable Area be made by
actual measurement of the premises in accordance with the standards
stated in Exhibit 5 and at that party's own cost and expense. If
the Total Rentable Area as so recomputed is more than or less than
the Total Rentable Area as originally stated in Exhibit 1 and the
Lease Plan, the Yearly Rent originally reserved hereunder shall be
recomputed by multiplying such Yearly Rent by a fraction which
shall have as the numerator the recomputed Total Rentable Area and
as the denominator the Total Rentable Area as originally stated in
Exhibit 1. The product of this multiplication shall be substituted
in Exhibit 1 for the Yearly Rent, retroactive to the date such rent
commenced. In addition, the Net Rentable Area and Total Rentable
Area figures stated in Exhibit 1 shall be appropriately changed.
Any payment due from either party to the other as a result of any
adjustments made hereunder shall be paid promptly upon rendition of
a statement by the party entitled to the additional rent, or rent
refund, as the case may be.
(b) If neither Landlord nor Tenant requests any adjustment as herein
provided within the time limits prescribed, then the Landlord and
Tenant shall be deemed to have consented to such Total Rentable
Areas as originally stated in Exhibit 1, and shall be deemed to
have waived any and all right to any adjustment or adjustments
pursuant to the provisions of this Exhibit 5.
(c) In the event of any adjustment pursuant to this Exhibit 5, Landlord
and Tenant shall promptly execute a lease amendment in recordable
form setting forth the recomputed figures resulting from such
adjustment.
(4) The measurement standards set forth on this Exhibit 5 are used for the
purpose of defining the area of the premises and do not uniformly
coincide with the boundaries of the Unit as set forth in the Master Deed
of the Condominium.
47
EXHIBIT 6, SHEET 1
Section 33.2 of the Ground Lease provides as follows (Rowes Wharf Associates
is the "Tenant" referred to in said Section 33.2 and the Boston Redevelopment
Authority is the "Landlord" referred to in said Section 33.2):
"33.2 Tenant has submitted and Landlord has approved a plan to ensure that
workers are employed in the construction of the Improvements so that the
worker hours on a craft-by-craft basis shall be performed as follows:
(a) at lease 50% of the total employee work hours in each trade by bona
fide City of Boston residents;
(b) at least 25% of the total employee work hours in each trade by
minorities;
(c) at least 10% of the total employee work hours in each trade by women.
For the purpose of this Section 33.2, worker hours shall include work
performed by persons filling apprenticeship and on-the-job training
positions. Such plan is as follows:
(a) Tenant shall incorporate in every general construction contract or
construction management agreement an enumeration of the foregoing
worker hour goals and shall impose a responsibility upon any such
general contractor or construction manager;
(i) to pursue the efforts enumerated in this Section 33.2 and
(ii) to incorporate such worker hour goals in all subcontracts and
impose upon all subcontractors the obligation to pursue such
efforts.
(b) Each Tenant, its contractor, and each subcontractor shall designate
an individual to serve as affirmative action officer for the purpose
of carrying out the efforts to achieve worker hour goals set forth
herein,
(c) Contemporaneously with the start of construction, the affirmative
action officers and other interested representatives of Tenant, its
Contractor and each subcontractor then selected shall hold a pre-job
conference with appropriate union representatives of the
construction trade unions for the purpose of reviewing the above
worker hour goals and the xxxxxxx requirements for construction
activity over the life of the construction period.
(d) Each request for qualified construction workers made by any person
involved in the construction of the Improvements to a union hiring
hall or business agent shall contain a recitation of such worker
hour goals and a request that qualified referees for construction
positions be selected in the same proportion as such goals;
provided, however, that if at the time of any such xxxxxxx request
the requesting party's workforce composition falls short of any one
or more of such goals, such xxxxxxx request shall seek qualified
referees in such proportion among such categories as would be
necessary to more fully achieve such goals. In the event that the
union hiring hall or business agent to which or whom such a xxxxxxx
request has been submitted fails to comply with such request, the
affirmative action officer of such requesting party shall seek to
verify that insufficient workers in the categories specified in
such request are then shown on the unemployed list maintained by
such union hiring hall or business agent by seeking to obtain an
affidavit from the union hiring hall representative or business
agent to such effect. Copies or any affidavit so obtained shall be
forwarded to Landlord's affirmative action officer.
49
EXHIBIT 6, SHEET 2
(c) All persons applying directly to the Contractor or any subcontractor
for employment in construction on the project who are not employed
by the party to whom application is made will be referred to
Landlord's affirmative action officer and a written record of such
referral shall be made, a copy of which shall be sent to such
officer.
Tenant, its contractors, and each subcontractor shall maintain records
reasonably necessary to ascertain compliance with the requirements of this
Section 33.2 for at least one year after the issuance of a Certificate of
Occupancy for the first premises to be occupied by a tenant under an
occupancy lease."
50
RIDER TO LEASE
LANDLORD: Rowes Wharf Associates
TENANT: The Beacon Companies
The subject Lease is hereby amended as follows:
1. PARKING
During the term of the Lease, the Landlord will make available, at
Tenant's request, which request must be made within sixty (60) days of the
Term Commencement Date, monthly parking passes to Tenant for use in the
garage ("Garage") in the Project at the rate of one (1) pass per 1,000 square
feet of the Total Rental Area of the premises initially demised by Tenant and
one (1) pass per 1,000 square feet of the Total Rentable Area of the premises
demised by Tenant pursuant to its expansion options under this Rider (if and
to the extent that Tenant exercises such expansion options). With respect to
parking passes to which Tenant is entitled based upon the exercise of any of
its expansion options, Tenant shall be required to request said parking
passes within sixty (60) days of the Term Commencement Date in respect of the
premises on which Tenant's right to obtain such parking passes is based.
Tenant shall have no right to sublet, assign, or otherwise transfer said
parking passes except to approved subtenants. If Tenant fails timely to make
such request for any of said parking passes, Tenant shall have no right to
obtain such parking passes under this Paragraph 1. Said parking passes shall
be paid for by Tenant at the then current prevailing rate in the Garage, as
such rate may vary from time to time. If, for any
-1-
reason. Tenant shall fail timely to pay the charge for any of said parking
passes, Tenant shall have no further right to such parking passes under this
Paragraph 1. Said parking passes will be on an unassigned, non-reserved basis,
and shall be subject to the rules and regulations from time to time in force.
2. TENANT'S EXPANSION OPTIONS
On the condition (which condition Landlord may waive, at its election, by
written notice to Tenant at any time) that Tenant is not in default (beyond
the expiration of any applicable grace periods) of its covenants and
obligations under the Lease as of the time of option exercise, Tenant shall
have the following options to lease additional premises in the Building from
Landlord:
A. Definition of Expansion Areas
Fifth and Tenth Anniversaries of
Initial Term Commencement Date
--------------------------------
For the purposes hereof, the Expansion Areas shall be defined as
follows:
Expansion Areas Location
--------------- ---------
Fifth Anniversary
Expansion Area: Approximately one-half of the fifth
(5th) floor of the Atlantic Avenue
Building North (i.e. 00 Xxxxx Xxxxx),
containing approximately 8,950 square
feet of Total Rentable Area,
substantially as shown on Lease Plan,
Exhibit 2, Sheet 2.
Tenth Anniversary
Expansion Area: The remainder of the fifth (5th) floor
of the Atlantic Avenue Building North,
containing approximately 8,950 square
feet of Total Rentable Area,
substantially as shown on Lease Plan,
Exhibit 2, Sheet 2.
-2-
(2) Landlord shall have no right to extend the term of the lease
of an Expansion Area Tenant after Tenant has given timely notice exercising
its right to lease the Expansion Area occupied by such tenant.
O. NOTICE DATES
The Notice Date in respect of each Expansion Area shall be defined
as follows:
(1) If, as of the date twelve (12) months prior to the first day of
the Expiration Period in question, any portion of the Expansion Area is
vacant, the Notice Date in respect of such Expansion Area shall be the date
twelve (12) months prior to the first day of the Expiration Period applicable
to such Expansion Area.
(2) If, as of the date twelve (12) months prior to the first day of
the Expiration Period in question, all of an Expansion Area is occupied by an
Expansion Area Tenant(s), then the Notice Date in respect of such Expansion
Area shall be twelve (12) months prior to the earliest expiration date of the
lease of the Expansion Area Tenant of such Expansion Area. Landlord shall
advise Tenant, upon request of Tenant from time to time, of the expiration
dates of the terms of the leases of the tenants of the fifth (5th) floor of
the Building.
(3) Landlord shall, upon written request of Tenant, advise Tenant
of the expiration dates of the leases of all Expansion Area Tenants and of
the corresponding Notice Dates, if applicable, and the location of the
portion of the Expansion Area
-4-
leased to such tenants. Notwithstanding anything to the contrary herein
contained, after Landlord has advised Tenant of a Notice Date in respect of
an Expansion Area, such Notice Date shall in no event occur earlier than the
date which Landlord has so advised Tenant.
E. LEASE PROVISIONS APPLYING TO EXPANSION AREAS
The leasing to Tenant of any Expansion Area shall be upon all the
same terms and conditions of the Lease (including, without limitation,
escalation bases) except as follows:
(1) TERM COMMENCEMENT DATE
If no tenants are occupying an Expansion Area, or any portion
thereof, during the applicable Expiration Period, the Term Commencement Date
in respect of such Expansion Area shall be the first day of the applicable
Expiration Period. Otherwise, the Term Commencement Date in respect of an
Expansion Area, or any portion thereof, shall be the later of: (i) the
expiration date of the lease of the tenant occupying such Expansion Area, or
portion thereof, and (ii) the date on which said tenant vacates such
Expansion Area or portion thereof. If said tenant holds over in an Expansion
Area after the expiration of the term of its Lease, then Landlord shall use
reasonable efforts (including commencing and diligently prosecuting summary
process proceedings) to cease possession of such Expansion Area.
(2) RENT COMMENCEMENT DATE
The Rent Commencement Date in respect of any Expansion Area, or
portion thereof, shall be the Term Commencement Date in respect of such
Expansion Area, or portion thereof.
-5-
(3) YEARLY RENT
(a) FIFTH ANNIVERSARY EXPANSION AREA
The Yearly Rent for the Fifth Anniversary Expansion Area
for the period from the Term Commencement Date in respect of the Fifth
Anniversary Expansion Area through the day immediately preceding the tenth
(10th) anniversary of the Term Commencement Date in respect of the premises
initially demised by Tenant shall be determined in accordance with the Yearly
Rent rental rate which Tenant pays, from time to time, for all premises
initially demised to Tenant. From and after the tenth (10th) anniversary of
the Term Commencement Date in respect of the premises initially demised by
Tenant, the Yearly Rent in respect of the Fifth Anniversary Expansion Area
shall be based upon the Fair Market Rental Value, as defined in Paragraph 5
of this Rider, of the Fifth Anniversary Expansion Area, as of the tenth
(10th) anniversary of the Term Commencement Date in respect of the premises
initially demised by Tenant.
(b) TENTH ANNIVERSARY EXPANSION AREA
The Yearly Rent payable in respect of the Tenth
Anniversary Expansion Area shall be based upon the Fair Market Rental Value,
as defined in Paragraph 5 of this Rider, of such Expansion Area, as of the
Term Commencement Date in respect of such Expansion Area.
(4) CONSTRUCTION OF EXPANSION AREAS
Each Expansion Area shall be delivered by Landlord and accepted
by Tenant "as is", in its then (i.e. as of the Term
-6-
Commencement Date in respect of such Expansion Area, or portion thereof)
state of construction, finish and decoration, without any obligation on the
part of Landlord to prepare or construct such Expansion Area for Tenant's
occupancy. In implementation of the foregoing, Landlord shall have no
obligation under Article 4, Ex. 3-37* and Exhibit 3 of the Lease in respect
of such Expansion Areas.
(6) EXECUTION OF LEASE AMENDMENTS
Notwithstanding the fact that Tenant's exercise of the
above-described expansion options shall be self-executing, as aforesaid, the
parties hereby agree promptly to execute a lease amendment reflecting the
addition of each such Expansion Area, adding the rental therefor, adjusting
Tenant's Proportionate Shares, and the other affected Exhibit 1 data, after
Tenant exercises its option in respect of such Expansion Area. The execution
of such lease amendments shall not be deemed to waive any of the conditions
to Tenant's exercise of the herein expansion options, unless otherwise
specifically provided in such lease amendments.
3. TENANT'S OPTIONS TO EXTEND THE TERM OF LEASE
A. On the condition (which condition Landlord may waive, at its
election, by written notice to Tenant at any time) that Tenant is not in
default (beyond the expiration of any applicable grace periods) of its
covenants and obligations under the Lease as of the time of option exercise,
Tenant shall have the option to extend the term of this Lease for two (2)
additional ten-(10)-year terms, the first such additional term commencing as
of the day
-7-
after the expiration of the initial term of the Lease, and the second such
additional term commencing as of the day after the expiration of the first
such additional term. Tenant may exercise such option to extend by giving
Landlord written notice on or before the date twenty-four (24) months prior
to the expiration date of the then current term of the Lease. Upon the timely
giving of such notice, the term of this Lease shall be deemed extended upon
all of the terms and conditions of this Lease, except that the Yearly Rent
and Operating Costs in the Base Year during such additional terms shall be as
hereinafter set forth. If Tenant fails to give timely notice, as aforesaid,
Tenant shall have no right to extend the term of this Lease, time being of
the essence of this Paragraph 3.
B. YEARLY RENT DURING ADDITIONAL TERMS
The Yearly Rent payable during each such additional term shall be
based upon the Fair Market Rental Value, as defined in Paragraph 5 of this
Rider, of the premises then demised to Tenant as of the commencement of such
additional term, but in no event shall the sum of the Yearly Rent plus
escalation and other charges payable during such additional term be less than
the sum of the Yearly Rent plus escalations and other charges payable
immediately preceding the commencement of such additional term.
C. Tenant shall have no further option to extend the term of the Lease
other than the two ten-(10)-year additional terms herein provided.
D. Notwithstanding the fact that upon Tenant's exercise of the herein
options to extend the term of the Lease such extensions
-8-
shall be self-executing, as aforesaid, the parties shall promptly execute a
lease amendment reflecting each such additional term after Tenant exercises
the herein options, except that the Yearly Rent payable in respect of each
such additional term and the Operating Costs in the Base Year during each
such additional term, shall not be set forth in said Amendment. Subsequently,
after such Yearly Rent and Operating Costs in the Base Year are determined,
the parties shall execute a written agreement confirming the same. The
execution of such lease amendments shall not be deemed to waive any of the
conditions to Tenant's exercise of its rights under this Paragraph 3, unless
otherwise specifically provided in such lease amendment.
4. TENANT'S RIGHT OF FIRST OFFER
On the condition (which condition Landlord may waive, at its
election, by written notice to Tenant at any time) that Tenant is not in
default (beyond the expiration of any applicable grace periods) of its
covenants and obligations under the Lease at the time that Landlord is
required to give Landlord's Notice, as hereinafter defined, Tenant shall have
the following right to lease RFO Premises, as hereinafter defined, when such
RFO Premises become available for lease to Tenant, as hereinafter defined.
A. DEFINITION OF RFO PREMISES
"RFO Premises" shall be defined as any separately demised area which
is contiguous, as hereinafter defined, to Tenant's premises and which becomes
available for lease to Tenant, as hereinafter defined, during the initial
term of this Lease. For the purposes of this Paragraph 4 "contiguous" shall
mean
-9-
directly adjacent (either vertically or horizontally). For the purposes of
this Paragraph 4, an area shall be deemed to be "available for lease to
Tenant" if, during the initial term of this Lease, Landlord, in its sole
judgment, determines that such area will become available for leasing to
Tenant (i.e. when Landlord determines that the then current tenant of such
RFO Premises will vacate such RFO Premises, or any portion thereof, and when
Landlord intends to offer such premises for lease). In no event shall Tenant
have any rights under this Paragraph 4 on or after the date twelve (12)
months prior to the termination of the term of the Lease, as it may be
extended, pursuant to Paragraph 3 of this Rider, (i.e. Landlord shall have no
obligation to give Landlord's Notice, as hereinafter defined, to Tenant on or
after the date twelve (12) months prior to the termination of the term of the
Lease, as extended).
B. EXERCISE OF RIGHT TO LEASE RFO PREMISES
If Tenant has, within one hundred eighty (180) days prior to the
date that an RFO Premises becomes available for lease to Tenant, given
Landlord a written request ("Tenant's Request") advising Landlord that Tenant
is interested in leasing any RFO Premises, then Landlord shall give Tenant
written notice ("Landlord's Notice") at the time that Landlord determines, as
aforesaid, that RFO Premises will become available for lease to Tenant.
Notwithstanding anything to the contrary herein contained, Landlord shall
have no obligation to give Tenant Landlord's Notice in respect of any RFO
Premises unless Tenant has, within one hundred eighty (180) days prior to the
date that
-10-
such RFO Premises become available for lease to Tenant, given Landlord
Tenant's Request. Tenant shall have the right to give Tenant's Request in
respect of any RFO Premises from time to time during the term of the Lease
until Tenant's right to lease such RFO Premises has lapsed. Landlord's Notice
shall set forth Landlord's designation of the Fair Market Rental Value (as
hereinafter defined) applicable to such RFO Premises, the Specified
Commencement Date in respect of such RFO Premises, the exact location of such
RFO Premises and the Termination Date in respect of such RFO Premises if such
Termination Date shall occur earlier than would otherwise have occurred
pursuant to Subparagraph C.(3)(A) of this Paragraph 4. Tenant shall have the
right, exercisable upon written notice ("Tenant's Exercise Notice") given to
Landlord within twenty (20) days after the receipt of Landlord's Notice, to
lease such RFO Premises. If Tenant fails timely to give Tenant's Exercise
Notice, Tenant shall have no further right to lease such RFO Premises
pursuant to this Paragraph 4. Upon the timely giving of such notice, Landlord
shall lease and demise to Tenant and Tenant shall hire and take from
Landlord, such RFO Premises, upon all of the same terms and conditions of the
Lease except as hereinafter set forth.
C. LEASE PROVISIONS APPLYING TO RFO PREMISES
The leasing to Tenant of any RFO Premises shall be upon all of the
same terms and conditions of the Lease, except as follows:
-11-
(1) TERM COMMENCEMENT DATE
The Term Commencement Date in respect of any RFO Premises shall be
the later of: (x) the Specified Commencement Date in respect of such RFO
Premises as set forth in Landlord's Notice, or (y) the date that Landlord
delivers such RFO Premises to Tenant.
(2) RENT COMMENCEMENT DATE
The Rent Commencement Date in respect of any RFO Premises shall be
the Term Commencement Date in respect of such RFO Premises.
(3) TERMINATION DATE
A. The Termination Date in respect of any RFO Premises shall
be the Termination Date in respect of the premises initially demised by
Tenant, or such earlier or later date on which the Lease shall terminate
pursuant to the provisions of the Lease. Notwithstanding the foregoing,
if the RFO Premises would subsequently become an Expansion Area, the
Termination Date in respect of such RFO Premises shall be the day
immediately preceding the earliest date that the Term Commencement Date
could occur in respect of such Expansion Area.
B. Notwithstanding anything to the contrary herein contained,
if Landlord sets forth, in Landlord's Notice, an earlier Termination Date
in respect of an RFO Premises then, in such event, the Termination Date
in respect of such RFO Premises shall be the Termination Date set forth
-12-
in Landlord's Notice, or such earlier date on which the Lease shall
terminate pursuant to the provisions of the Lease.
(4) YEARLY RENT
The Yearly Rent rental rate in respect of any RFO Premises shall be
based upon the Fair Market Rental Value, as defined in Paragraph 5 of
this Rider, of such RFO Premises as of the Term Commencement Date in
respect of such RFO Premises.
(5) CONDITION OF RFO PREMISES
Tenant shall take any RFO Premises "as-is" in its then (i.e. as of
the date of premises delivery) state of construction, finish, and
decoration, without any obligation on the part of Landlord to commence or
prepare any RFO Premises for Tenant's occupancy.
D. EXECUTION OF LEASE AMENDMENTS
Notwithstanding the fact that Tenant's exercise of the
above-described option to lease RFO Premises shall be self-executing, as
aforesaid, the parties hereby agree promptly to execute a lease amendment
reflecting the addition of any RFO Premises, except that the Yearly Rent
payable in respect of such RFO Premises and Operating Costs in the Base Year
in respect of such RFO Premises in respect of such RFO Premises may not be as
set forth in such Amendment. At the time that such Yearly rent and Operating
Costs in the Base Year are determined, the parties shall execute a written
agreement confirming the same. The Execution of such lease amendments shall
not be deemed to waive any of the conditions to Tenant's exercise of the
herein option to
-13-
lease RFO Premises, unless otherwise specifically provided in such lease
amendments.
5. DEFINITION OF FAIR MARKET RENTAL VALUE
For the purposes of this Rider:
A. "Fair Market Rental Value" shall be computed as of the date in
question at the then current annual rental charge (i.e., the sum of Yearly
rent plus escalation and other charges), including provisions for subsequent
increases and other adjustments for new leases then currently being
negotiated or executed in comparable space located in the Project, or if no
new leases are then currently being negotiated or executed in such Project,
the Fair Market Rental Value shall be determined by reference to new leases
then currently being negotiated or executed for comparable space located in
first-class office buildings located in downtown Boston. In determining Fair
Market Rental Value, the following factors, among others, shall be taken into
account and given effect: size, location of premises, lease term, condition
of Building, and services provided by the Landlord.
B. Notwithstanding anything to the contrary herein contained, the
parties hereby agree that upon the determination of any Fair Market Rental
Value, Landlord shall have the right, exercisable by written notice to Tenant
on or before the time that Landlord gives Tenant its initial designation of
Fair Market Rental Value: to change Operating Costs in the Base Year as
stated on exhibit 1 from the amount stated on Exhibit 1 to an amount
-14-
equal to the actual amount of Operating Costs for the immediately preceding
Operating Year.
If Landlord shall exercise such right, the amount of Yearly Rent payable
hereunder shall be commensurately adjusted to reflect such change in
Operating Costs in Base Year.
C. DISPUTE AS TO FAIR MARKET RENTAL VALUE
Landlord shall initially designate Fair Market Rental Value and
shall furnish data in support of such designation. If Tenant disagrees with
Landlord's designation of Fair Market Rental Value, Tenant shall have the
right, by written notice given within thirty (30) days after Tenant has been
notified of Landlord's designation, to submit such Fair Market Rental Value
to arbitration as follows: Fair Market Rental Value shall be determined by
impartial arbitrators, one to be chosen by the Landlord, one to be chosen by
Tenant, and a third to be selected, if necessary, as below provided. The
unanimous written decision of the two first chosen, without selection and
participation of a third arbitrator, or otherwise, the written decision of a
majority of three arbitrators chosen and selected as aforesaid, shall be
conclusive and binding upon Landlord and Tenant. Landlord and Tenant shall
each notify the other of its chosen arbitrator within ten (10) days following
the call for arbitration and, unless such two arbitrators shall have reached
unanimous decision within, thirty (30) days after their designation, they
shall so notify the then President of the Boston Bar Association (or such
organization as may succeed to said Boston Bar Association) and request him
to select an impartial third arbitrator, who shall be an office
-15-
building owner, a real estate counsellor or a broker dealing with like types
of properties, to determine Fair Market Rental Value as herein defined. Such
third arbitrator and the first two chosen shall, subject to commercial
arbitration rules of the American Arbitration Association, hear the parties
and their evidence and render their decision within thirty (30) days
following the conclusion of such hearing and notify Landlord and Tenant
thereof. Landlord and Tenant shall bear the expense of the third arbitrator
(if any) equally. The fifth (5th) grammatical sentence of Article 29.5 of the
Lease is hereby incorporated by reference in this Subparagraph C. If the
dispute between the parties as to a Fair Market Rental Value has not been
resolved before the commencement of Tenant's obligation to pay rent based
upon such Fair Market Rental Value, then Tenant shall pay Yearly Rent and
other charges under the Lease in respect of the premises in question based
upon the Fair Market Rental Value designated by Landlord until either the
agreement of the parties as to the Fair Market Rental Value, or the decision
of the arbitrators, as the case may be, at which time Tenant shall pay any
underpayment of rent and other charges to Landlord, or Landlord shall refund
any overpayment of rent and other charges to Tenant.
6. STORAGE PREMISES
Landlord hereby demises and leases to Tenant and Tenant hereby hires and
takes from Landlord storage Premises ("Storage Premises") containing 2,000
square feet of Net Rentable Area. The Storage Premises are located on the
subbasement of the Building and are as shown on Lease Plan, Exhibit 2, Sheet 3.
Said demise
-16-
of the Storage Premises shall be upon all of the same terms and
conditions of the Lease except:
A. The Term Commencement Date and the Rent Commencement Date in
respect of the Storage Premises shall be the Term Commencement Date in
respect of the premises initially demised to Tenant;
B. The Yearly Rent payable in respect of the Storage Premises shall be
as follows:
Lease Year Yearly Rent Monthly Payment
---------- ----------- ---------------
1 $39,999.96 $3,333.33
2 $41,199.96 $3,433.33
3 $42,435.96 $3,536.33
4 $43,709.04 $3,642.42
5 $45,020.28 $3,751.69
6 $46,370.88 $3,864.24
7 $47,762.04 $3,980.17
8 $49,194.96 $4,099.58
9 $50,670.84 $4,222.57
10 $52,191.00 $4,349.25
C. The Storage Premises shall be prepared by Landlord in accordance
with Paragraph C of Ex. 3-37;
D. Tenant shall have no obligation to pay Tax Excess or Operating
Expense Excess in respect of the Storage Premises;
E. Landlord shall have no obligation to provide any services to the
Storage Premises other than electricity for the electric lighting fixture in
the Storage Premises; and
F. Tenant shall use the Storage Premises for storage purposes in
connection with its use of the premises demised under the Lease and for no
other purpose whatsoever.
-00-
Xxxxxxxx Xxxxxx Xxxxxxxx Xxxxx - 00 Xxxxx Wharf
Atlantic Avenue Building South - 00 Xxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
("the Building")
FIRST AMENDMENT
May 12, 1987
LANDLORD: Rowes Wharf Associates
TENANT: The Beacon Companies
EXISTING
PREMISES: The entire sixth (6th) floor (south and
north) of the Building, substantially as
shown on Lease Plan, Exhibit 2, Sheet 1
dated March 1, 1987.
ORIGINAL LEASE
LEASE EXECUTION
DATA DATE: March 1, 1987
PREVIOUS
LEASE
AMENDMENTS: None
WHEREAS, the parties desire to redefine the Fifth Anniversary Expansion
Area and the Tenth Anniversary Expansion Area;
NOW THEREFORE, the parties hereby agree that the above-described lease
("the Lease") is hereby amended as follows:
1. REDEFINITION OF EXPANSION AREA
Subparagraph A of Paragraph 2 of the Rider to the Lease is hereby
deleted in its entirety and the following is substituted in its place:
A. For the purposes hereof, the Expansion Areas shall be defined
as follows:
EXPANSION AREA LOCATION
-------------- --------
Fifth Anniversary
Expansion Area: An area on the fifth (5th) floor
of the Atlantic Avenue Building
North (i.e. 00 Xxxxx Xxxxx),
containing approximately 5,467
square feet of Total Rentable Area,
substantially as shown on Lease Plan,
Exhibit 2, First
-1-
Amendment, Sheet 1 dated March 1,
1987, a copy of which is attached
hereto and incorporated herein by
reference.
Tenth Anniversary
Expansion Area: The remainder (i.e. other than the
Fifth Anniversary Expansion Area)
of the fifth (5th) floor of the
Atlantic Avenue Building North,
containing approximately 12,394
square feet of Total Rentable Area,
substantially as shown on Lease Plan,
Exhibit 2, First Amendment, Sheet 1
dated March 1, 1987.
2. INTERNAL SUBLET AREA
A. Notwithstanding anything to the contrary herein contained, Tenant
shall have the right, with Landlord's prior consent, which consent shall not
be unreasonably withheld or delayed, but without first offering to terminate
or suspend the Lease, in accordance with Article 16-18* of the Lease, to (1)
sublet an Internal Sublet Area, as hereinafter defined, to a person, firm, or
corporation which, in Landlord's reasonable opinion, satisfies the
requirements of clauses (i), (ii) and (iii) of said Article 16-18* and to (2)
sublease the premises, or any portion thereof, to an Affiliated Entity, as
hereinafter defined, so long as such entity remains in such relationship to
Tenant.
B. For purposes of clause (1) of Subparagraph A hereof, "Internal
Sublet Area" shall consist of a portion of the premises containing
approximately 2,500 square feet of Total Rentable Area, having access to the
common areas of the Building only through Tenant's reception area and a
secondary fire exit, substantially as shown on Lease Plan, Exhibit 2, First
Amendment, Sheet 2 dated May 12, 1987, a copy of which is attached hereto and
incorporated herein by reference.
C. For the purposes of clause (2) of Subparagraph A hereof, an
"Affiliated Entity" shall be defined as any entity which is controlled by, is
under common control with, or which controls Tenant. For the purposes hereof,
control shall mean the direct or indirect ownership of more than fifty (50%)
percent of the beneficial interest of the entity in question.
As herein amended, the Lease is ratified, approved, and confirmed in all
respects.
-2-
WHEREOF, the parties have hereunto set their hands and seals as of the
date first written above.
LANDLORD: TENANT:
ROWES WHARF ASSOCIATES THE BEACON COMPANIES
c/o Rowes Wharf Limited Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxxx Xxxxxx, Xxxxxxxxxxxxx 00000
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
By /s/ Illegible By /s/ Illegible
------------------------------ -------------------------------
General Partner (Name) (Title)
Rowes Wharf Limited Partnership Hereunto Duly Authorized
Date Signed: JUNE 5, 1987 Date Signed: JUNE 5, 1987
-------------------- ---------------------
[ROWES WHARF GRAPHIC]
LEASE PLAN
EXHIBIT 2
FIRST AMENDMENT
SHEET 1
TENANT: The Beacon
Companies
DATE: May 12, 1987
[ROWES WHARF GRAPHIC]
LEASE PLAN
EXHIBIT 2
FIRST AMENDMENT
SHEET 2
TENANT: The Beacon
Companies
DATE: May 12, 0000
Xxxxxxxx Xxxxxx Building North - 30 Rowes Wharf
Atlantic Avenue Building South - 00 Xxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
(the "Building")
SECOND AMENDMENT
February 1, 1988
--------------------------------------
LANDLORD: Rowes Wharf Associates
TENANT: The Beacon Companies
EXISTING
PREMISES: The entire sixth (6th) floor (south and north)
of the Building, substantially as shown on Lease
Plan, Exhibit 2, Sheet 1 dated March 1, 1987 and
an area ("Existing Storage Premises") on the
subbasement of the Building, substantially as
shown on Lease Plan, Exhibit 2, Sheet 3 dated
March 1, 1987.
ORIGINAL TERM
LEASE COMMENCEMENT
DATA DATE: September 21, 1987
TERMINATION
DATE: September 30, 2002
LEASE
EXECUTION
DATE: March 1, 1987
PREVIOUS
LEASE
AMENDMENTS: First Amendment dated May 12, 1987
--------------------------------------
RELOCATION
STORAGE
PREMISES: An area on Lower Xxxxx 0 xx Xxxxxxxx Xxxxxx
Xxxxxxxx Xxxxx, containing 281 square feet of
Net Rentable Area, substantially as shown on
Lease Plan, Exhibit 2, Second Amendment dated
February 1, 1988, a copy of which is attached
hereto and made a part hereof.
WHEREAS, Tenant desires to relocate from the Existing Storage Premises
to the Relocation Storage Premises
-1-
WHEREAS, Landlord is willing to demise the Relocation Storage Premises
to Tenant upon the terms and conditions hereinafter set forth;
NOW, THEREFORE, the above-described lease, as previously amended ("the
Lease"), is hereby further amended as follows:
1. DEMISE OF THE RELOCATION STORAGE PREMISES
Landlord hereby demises and leases to Tenant and Tenant hereby hires and
takes from Landlord, the Relocation Storage Premises for a term commencing as
of March 1, 1988 and terminating as of September 30, 2000. Said demise of the
Relocation Storage Premises shall be upon all of the same terms and
conditions of the Lease, except:
A. As of Xxxxx 0, 0000, Xxxxxxxxxxxx B of Paragraph 6 of the Rider
to the Lease is hereby deleted in its entirety and the following is
substituted in its place:
The Yearly Rent payable in respect of the Relocation Storage
Premises shall be as follows:
Period Yearly Rent Monthly Payment
------ ----------- ---------------
March 1, 1988 -
September 20, 1988 $5,619.96 $468.33
September 21, 1988 -
September 20, 1989 $5,788.56 $482.38
September 21, 1989 -
September 20, 1990 $5,962.20 $496.85
September 21, 1990 -
September 20, 1991 $6,141.12 $511.76
September 21, 1991 -
September 20, 1992 $6,325.32 $527.11
September 21, 1992 -
September 20, 1993 $6,515.04 $542.93
September 21, 1993 -
September 20, 1994 $6,710.52 $559.21
September 21, 1994 -
September 20, 1995 $6,911.88 $575.99
September 21, 1995 -
September 20, 1996 $7,119.24 $593.27
-2-
September 21, 1996 -
September 20, 1997 $7,332.84 $611.07
September 21, 1997 -
September 20, 1998 $7,552.80 $629.40
September 21, 1998 -
September 20, 1999 $7,779.36 $648.28
September 21, 1999 -
September 20, 2000 $8,012.76 $667.73
September 21, 2000 -
September 20, 2001 $8,253.12 $687.76
September 21, 2001 -
September 30, 2002 $8,500.68 $708.39
B. And any other provisions of the Lease inconsistent with this
Amendment or the state of facts contemplated hereby.
2. CONDITION OF RELOCATION PREMISES
Landlord shall, on or before March 1, 1988 prepare the Relocation
Storage Premises in accordance with the following specifications:
A. Smooth concrete floor.
B. Door with keyed lockset.
C. Adequate overhead lighting fixtures.
D. Demising walls.
3. TERMINATION OF LEASE IN RESPECT OF EXISTING PREMISES
The parties hereby agree that the term of the Lease in respect of the
Existing Storage Premises shall terminate effective as of February 29, 1988.
As of February 29, 1988 Landlord shall take back the Existing Storage
Premises from Tenant, and Tenant shall surrender the Existing Storage
Premises to Landlord. Yearly Rent due under the Lease in respect of the
Existing Storage Premises shall be apportioned as of February 29, 1988. On or
before February 29, 1988 Tenant shall vacate the Existing Storage Premises
and deliver the Existing Storage Premises to Landlord in the condition in
which Tenant is required pursuant to the Lease (including, without
limitation, Article 22 thereof) to deliver the premises at the expiration or
termination of the Lease.
4. As hereby amended, the Lease is ratified, confirmed and approved in
all respects.
-3-
[GRAPHIC]
Atlantic Xxxxxx Xxxxxxxx Xxxxx - 00 Xxxxx Xxxxx
Atlantic Avenue Building South - 00 Xxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
(the "Building")
THIRD AMENDMENT
December 31, 1990
--------------------------------------
LANDLORD: Rowes Wharf Associates
TENANT: The Beacon Companies
EXISTING
PREMISES: The entire sixth (6th) floor (south and north)
of the Building, substantially as shown on
Lease Plan, Exhibit 2, Sheet 1, dated
March 1, 1987, and a storage area on
Lower Xxxxx 0 xx Xxxxxxxx Xxxxxx Xxxxxxxx
Xxxxx, substantially as shown on Lease Plan,
Exhibit 2, Second Amendment, dated
February 1, 1988.
ORIGINAL LEASE
LEASE EXECUTION
DATA DATE: Xxxxx 0, 0000
XXXX
COMMENCEMENT
DATE: September 21, 1987
TERMINATION
DATE: September 30, 2002
PREVIOUS
LEASE
AMENDMENTS: First Amendment dated May 12, 1987
Second Amendment dated February 1, 1988
--------------------------------------
WHEREAS, Landlord has given Tenant an offer, pursuant to Paragraph 4 of
the Rider to the above-referenced lease, to lease certain space on the fifth
(5th) floor of Xxxxxxxx Xxxxxx Xxxxxxxx Xxxxx (00 Xxxxx Wharf);
WHEREAS, Tenant desires not to exercise its right to lease such space
and further desires to relinquish its expansion options as contained in the
above-referenced lease.
NOW THEREFORE, the parties hereby agree that the above-referenced lease,
as previously amended (collectively, the "Lease"), is hereby further amended
as follows:
1. RIGHT OF FIRST OFFER
Tenant hereby elects not to exercise its right, pursuant to
Paragraph 4 of the Rider to Lease, to lease an area containing 11,927 square
feet of Total Rentable Area on the fifth (5th) floor of Atlantic Avenue
Building North (30 Rowes Wharf), which area is substantially as shown on
Lease Plan, Exhibit 2, Third Amendment, dated December 31, 1990, a copy of
which is attached hereto and incorporated herein by reference.
2. EXPANSION OPTIONS
Landlord and Tenant hereby agree that Paragraph 2 of the Rider to
Lease is hereby deleted from the Lease in its entirety and shall be of no
further force or effect.
3. TITLES AND HEADINGS
Titles and paragraph headings are for reference purposes and the
convenience of the parties only and shall have no bearing upon nor force or
effect in respect of the interpretation and application of the substantive
provisions in this Amendment contained.
As hereby amended, the Lease is ratified, confirmed and approved in all
respects.
EXECUTED under deal as of the date first above-written.
LANDLORD: TENANT:
ROWES WHARF ASSOCIATES THE BEACON COMPANIES
By: /s/ Illegible By: /s/ Illegible
--------------------------------- -----------------------------
General Partner General Partner
Rowes Wharf Limited
Partnership
Date Signed: FEB 20, 1991 Date Signed: FEB 20, 1991
------------------------ --------------------
[GRAPHIC]
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