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EXHIBIT 10.18
LEASE OF
NATIONAL FIRE PROTECTION ASSOCIATION
HEADQUARTERS BUILDING
BATTERYMARCH PARK, QUINCY, MA
TABLE OF CONTENTS
ARTICLE
NUMBER CAPTION PAGE
I. BASIC LEASE PROVISIONS 3
II. PREMISES AND APPURTENANT RIGHTS 5
III. BASIC RENT 7
IV. TERM OF LEASE 8
V. USE OF PREMISES 8
VI. ASSIGNMENT AND SUBLETTING 10
VII. RESPONSIBILITY FOR REPAIRS AND CONDITIONS
OF PREMISES: SERVICES TO BE 11
FURNISHED BY LANDLORD
VIII. REAL ESTATE TAXES 15
IX. OPERATING EXPENSES 16
X. INDEMNITY AND PUBLIC LIABILITY INSURANCE 17
XI. LANDLORD'S ACCESS TO PREMISES 18
XII. FIRE, EMINENT DOMAIN, ETC. 19
XIII. DEFAULT 20
XIV. MISCELLANEOUS PROVISIONS 23
14.1 Extra Hazardous Use 23
14.2 Waiver 23
14.3 Covenant of Quiet Enjoyment 24
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14.4 Landlord's Liability 24
14.5 Notice to Mortgagee 24
14.6 Assignment of Rents and Transfer of Title 25
14.7 Rules and Regulations 25
14.8 Additional Charges 26
14.9 Invalidity of Particular Provisions 26
14.10 Provisions Binding, Etc. 26
14.11 Recording 26
14.12 Notices 26
14.13 When Lease Becomes Binding 27
14.14 Paragraph Headings 27
14.15 Rights of Mortgagee 27
14.16 Status Report 27
14.17 Security Deposit 27
14.18 Remedying Defaults 27
14.19 Holding Over 28
14.20 Waiver of Subrogation 28
14.21 Surrender of Premises 28
14.22 Brokerage 29
14.23 Substitute Space 29
14.24 First Right of Refusal 29
14.25 Exhibits 29
14.26 Governing Law 29
XV. OPTION TO EXTEND 29
EXHIBIT D RULES AND REGULATIONS
EXHIBIT OC OPERATING COSTS
EXHIBIT CS CLEANING SPECIFICATIONS
EXHIBIT FP FLOOR PLAN
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Lease Agreement
THIS INSTRUMENT IS A LEASE, dated as of ____________________________,
in which the Landlord and the Tenant are the parties hereinafter named, and
which relates to space in a building (the "Building") known as the National Fire
Protection Association Headquarters Building located in Batterymarch Park,
Quincy, MA. The parties to this instrument hereby agree with each other as
follows:
ARTICLE I
BASIC LEASE PROVISIONS
1.1 INTRODUCTION
The following sets forth basic data and, where appropriate, constitutes
definitions of the terms hereinafter listed. This Lease supersedes and
upon occupancy hereunder, cancels a lease between the parties dated
February 1, 1991.
1.2 BASIC DATA
Landlord: National Fire Protection Association (NFPA)
Landlord's Original Address: Xxx Xxxxxxxxxxxx Xxxx, Xxxxxx, XX 00000
Attention: Xxxx X. Xxxxx.
Tenant: Atlantic Data Services, Inc.
Tenant's Original Address: Xxx Xxxxxxxxxxxx Xxxx, Xxxxxx, XX
Guarantor: N/A
Basic Rent: $18.50 per square foot of the Premises Rentable Area per
annum as the same may be adjusted and/or abated pursuant to
Sections 2.3, 3.2, 3.3 and 12.1.
Premises Rentable Area: 21,192 rentable square feet (subject to
adjustment pursuant to Section 2.3) located on the Third floor of the
Building as measured in accordance with the Measurement Method.
Permitted Uses: Administrative offices, clerical offices, non-retail
sales and statistical offices.
Escalation Factor: 14.98 as computed in accordance with the
Escalation Factor Computation.
Construction Completion Date: N/A
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Plan Approval Date:
Initial Term: Five (5) years commencing on April 1, 1995 and expiring
at the close of the day immediately preceding the Fifth anniversary of
the Commencement Date, except that if the Commencement Date shall be
other than the first day of a calendar month, the expiration of the
Initial Term shall be at the close of the day on the last day of the
calendar month on which such anniversary shall fall.
Security Deposit: none
Base Operating Expenses: Actual 1995 Operating Expenses
Base Taxes: Actual Fiscal Year 1995 Real Estate Taxes
Public Liability Insurance: 500,000 per occurrence (combined single
limit) for property damage, personal injury or death.
Usable Floor Area: Premises Rentable Area multiplied by 82%.
1.3 ADDITIONAL DEFINITIONS
Agent:
Building Rentable Area: 152,096 square feet measured in accordance
with the Measurement Method.
Business Days: All days except Sunday, New Year's Day, Xxxxxx Xxxxxx
Xxxx Day, Washington's Birthday, Memorial Day, Independence Day, Labor
Day, Columbus Day, Veteran's Day, Thanksgiving Day, Christmas Day (and
the following day when any such day occurs on Sunday) and such other
days that Landlord presently or in the future recognizes as holidays
for Landlord's general office staff.
Commencement Date: As defined in Section 4.1.
Default of Tenant: As defined in Section 13.1.
Escalation Charges: The amounts prescribed in Sections 8.1 and 9.2.
Escalation Factor: Computation: Premises Rentable Area divided by 93%
of Building Rentable Area.
Landlord's Work: As defined in Section 4.2.
Measurement Method: "Standard Method of Floor Measurement for Office
Buildings," effective April 16, 1968, approved by the Real Estate Board
of New York, Inc. Without
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limitation, such computation includes common areas of the Building
notwithstanding the fact that such common areas are not contained
within the Premises.
Operating Expenses: As determined in accordance with Section 9.1.
Operating Year: As defined in Section 9.1.
Premises: A portion of the Building as shown on Exhibit FP annexed
hereto.
Property: The Building and the land parcels on which it is located
(including adjacent sidewalks).
Tax Year: As defined in Section 8.1.
Taxes: As determined in accordance with Section 8.1.
Tenant's Delay: As defined in Section 4.2.
Tenant's Plans: As defined in Section 4.2.
Tenant's Removable Property: As defined in Section 5.2.
Term of this Lease: The Initial Term and any extension thereof in
accordance with the provisions hereof.
ARTICLE II
PREMISES AND APPURTENANT RIGHTS
2.1 LEASE OF PREMISES
Landlord hereby demises and leases to Tenant for the Term of this Lease
and upon the terms and conditions hereinafter set forth, and Tenant
hereby accepts from Landlord, the Premises.
2.2 APPURTENANT RIGHTS AND RESERVATIONS
a. Tenant shall have, as appurtenant to the Premises, the
non-exclusive right to use, and permit its invitees to use in
common with others, public or common lobbies, hallways,
stairways, and elevators and common walkways necessary for
access to the Building, and if the portion of the Premises on
any floor includes less than the entire floor, the common
toilets, corridors and elevator lobby of such floor; but such
rights shall always be subject to reasonable rules and
regulations from time to time established by Landlord pursuant
to Section 14.7 and to the right of Landlord to designate and
change from time to time areas and facilities so to be used.
The Premises shall be designated a non-smoking area and Tenant
will comply with Building regulations regarding non-smoking
areas. Tenant will be permitted to rent conference facilities
in the Building so long as such are available
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and subject to the Landlord's then prevailing rules,
regulations and fees, which the Landlord may change from time
to time without notice.
b. Excepted and excluded from the Premises are the ceiling, floor
and all perimeter walls of the Premises, except the inner
surfaces thereof, but the entry doors to the Premises are a
part thereof; and Tenant agrees that Landlord shall have the
right to place in the Premises (but in such manner as to
reduce to a minimum interference with Tenant's use of the
Premises) utility lines, pipes and the like, in, over and upon
the Premises. Tenant shall install and maintain, as Landlord
may require, proper access panels in any hung ceilings or
walls as may be installed by Tenant in the Premises to afford
access to any facilities above the ceiling or within or behind
the walls.
2.3 ADJUSTMENT TO PREMISES RENTABLE AREA
a. Either party hereto, not later than sixty (60) days after the
Commencement Date, may request that an exact measurement of
the Premises be made in accordance with the Measurement
Method. Such measurement shall be made by Xxxxxx Associates
(or other architect or engineer acceptable to both parties) at
the cost and expense of the requesting party.
b. If the Premises Rentable Area as so measured is more than 102%
or less than 98% of Premises Rentable Area as set forth in
Section 1.2:
i. Basic Rent shall, retroactively to the Commencement
Date, be recomputed by multiplying the Basic Rent set
forth in Section 1.2 by a fraction, the numerator of
which shall be premises Rentable Area as determined
by such measurement and the denominator of which
shall be the Premises Rentable Area set forth in
Section 1.2: and
ii. The Escalation Factor shall be recomputed to be the
percentage determined by dividing the Premises
Rentable Area as determined by such measurement by
93% of Building Rentable Area.
Any payment due either party as a result of such
recomputations shall, if due from Tenant, be paid within
fifteen (15) days of such recomputation, or if due from
Landlord, be credited against the first amounts of Basic Rent
due after such recomputation.
c. If:
i. Neither Landlord nor Tenant requests any adjustment
as herein provided within the time limit prescribed,
or
ii. Such adjustment is requested, but the Premises
Rentable Area as so measured is between 98% and 102%
of the Premises Rentable Area set
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forth in Section 1.2, then Landlord and Tenant shall
be deemed to have consented to such Premises Rentable
Areas as set forth in Section 1.2 and shall be deemed
to have waived any and all right to any adjustment or
adjustments pursuant to the provisions of this
Section.
d. In the event of any adjustment pursuant to this Section,
Landlord and Tenant shall promptly execute a written statement
setting forth the recomputed Premises Rentable Area, Basic
Rent and Escalation Factor.
ARTICLE III
BASIC RENT
3.1 BASIC RENT
a. Tenant agrees to pay to Landlord, or as directed by Landlord,
commencing on the Commencement Date without offset, abatement
(except as provided in Article 12.1), deduction or demand, the
Basic Rent. Such Basic Rent shall be payable in equal monthly
installments, in advance, on the first day of each and every
calendar month during the Term of this Lease, at Landlord's
Original Address, or at such other place as Landlord shall
from time to time designate by notice. Until notice of some
other designation is given, Basic Rent and all other charges
for which provision is herein made shall be paid by remittance
payable to the Agent, and all remittances so received as
aforesaid, or by any subsequently designated recipient, shall
be treated as a payment to Landlord.
b. Basic Rent for any partial month shall be prorated on a daily
basis, and if the Term of this Lease commences on a day other
than the first day of a calendar month, the first payment
which Tenant shall make to Landlord shall be payable on the
Commencement Date and shall be equal to a proportionate part
of the monthly installment of Basic Rent for the partial month
from the Commencement Date to the last day of the month in
which such Date occurs plus the installment of Basic Rent for
the succeeding calendar month. In addition to any charges
pursuant to Section 14.18, Tenant shall pay a late charge
equal to 5% of the amount of any Basic Rent payment not paid
when due.
3.2 ADJUSTMENT
Effective as of the second and each subsequent anniversary of the
Commencement Date thereafter, the Basic Rent shall be a sum computed by
adding to the Basic Rent less Base Operating Expenses (rentable sq.
ft.) and Base Taxes (rentable sq. ft.) set forth in Section 1.2 an
amount determined by multiplying such Basic Rent by 33 1/3% of the
percentage increase in the United States Department of Labor Consumer
Price Index, Boston, for Urban Consumers (CPI-U), all item (1967 = 100)
between the point at which such Index stood when last published prior
to the Commencement Date and the point at which such Index stood when
last published prior to the second and each subsequent anniversary of
the Commencement Date thereafter. If such Index is discontinued, its
successor shall be used and if there is no successor, an index
designated by Landlord shall be used.
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ARTICLE IV
TERM OF LEASE
4.1 COMMENCEMENT DATE
The Commencement Date shall be April 1, 1995.
4.2 PREPARATION OF THE PREMISES
Item Deleted
4.3 TENANT ALLOWANCE
Landlord will provide Tenant with a tenant allowance of $105,960 for
interior improvements, which improvements are only to be undertaken in
conformance with the provisions of Section 5.2 and any other applicable
sections hereof.
ARTICLE V
USE OF PREMISES
5.1 PERMITTED USE
a. Tenant agrees that the Premises shall be used and occupied by
Tenant only for Permitted Uses and for no other purpose.
b. Tenant agrees to conform to the following provisions during
the Term of this Lease:
i. Tenant shall cause all freight to be delivered to or
removed from the Building and the Premises in
accordance with reasonable rules and regulations
established by Landlord therefor;
ii. Tenant will not place on the exterior of the Premises
(including both interior and exterior surfaces of
windows and doors) or on any part of the Building
outside the Premises, any sign, symbol, advertisement
or the like visible to public view outside of the
Premises without the prior consent of Landlord.
Landlord will not unreasonably withhold consent for
signs or lettering on the entry doors to the Premises
provided such signs conform to building standards
adopted by Landlord and Tenant has submitted to
Landlord a plan or sketch of the sign to be placed on
such entry doors. Landlord agrees, however, to
maintain a tenant directory in the lobby of the
Building in which will be placed Tenant's name and
the location of the Premises in the Building.
iii. Tenant shall not perform any act or carry on any
practice which may injure the Premises, or any other
part of the Building, or cause any offensive odors or
loud noise or constitute a nuisance or a menace to
any other tenant or tenants or other persons in the
Building;
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iv. Tenant shall not operate any cooking apparatus
(except for coffee making equipment), or locate any
vending machines, in the Premises; and
v. Tenant shall continuously throughout the Term of this
Lease occupy the Premises for Permitted Uses.
5.2 INSTALLATIONS AND ALTERATIONS BY TENANT
a. Tenant shall make no alterations, additions, (including, for
the purposes hereof, wall-to-wall carpeting), or improvements
in or to the Premises without Landlord's prior written
consent. Any such alterations, additions or improvements
shall:
i. Be performed in a good and workmanlike manner and in
compliance with all applicable laws;
ii. Be made only by contractors or mechanics approved by
Landlord;
iii. Be made at Tenant's sole expense and at such times
and in such manner as Landlord may from time td time
designate; and
iv. Become part of the Premises and the property of
Landlord. Tenant agrees not to employ or permit the
use of any labor or otherwise take any action which
might result in a labor dispute involving personnel
providing services in the Building pursuant to
arrangements made by Landlord.
b. All articles of personal property and all business fixtures,
machinery and equipment and furniture owned or installed by
Tenant solely at its expense in the Premises ("Tenant's
Removable Property") shall remain the Property of Tenant and
may be removed by Tenant at any time prior to the expiration
of this Lease, provided that Tenant, at its expense, shall
repair any damage to the Building caused by such removal.
c. Notice is hereby given that Landlord shall not be liable for
any labor or materials furnished or to be furnished to Tenant
upon credit, and that no mechanic's or other lien for any such
labor or materials shall attach to or affect the reversion or
other estate or interest of Landlord in and to the Premises.
Whenever and as often as any mechanic's lien shall have been
filed against the Property based upon any act or interest of
Tenant or of anyone claiming through Tenant, Tenant shall
forthwith take such action by bonding, deposit or payment as
will remove or satisfy the lien.
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ARTICLE VI
ASSIGNMENT AND SUBLETTING
6.1 PROHIBITION
a. 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 and that neither the Premises nor any
part thereof will be encumbered in any manner by reason of any
act or omission on the part of Tenant, or used or occupied or
permitted to be used or occupied, by anyone other than Tenant,
or for any use or purpose other than a Permitted Use, or be
sublet (which term, without limitation, shall include granting
of concessions, licenses and the like) in whole or in part,
without, in each instance, having first received the express
written consent of Landlord which, in the case of any
subletting (except to another tenant in the Building or other
buildings owned by Landlord or its beneficiaries), will not be
unreasonably withheld. The foregoing restrictions shall not be
applicable to an assignment of this Lease or a subletting of
the Premises by Tenant to a subsidiary wholly-owned by Tenant,
a controlling corporation (which owns all of the outstanding
stock of Tenant, or any other corporation, the stock in which
is wholly-owned by the stockholders of Tenant. It shall be a
condition of the validity of any assignment, whether with the
consent of Landlord or to a subsidiary or controlling
corporation, that the assigned agrees directly with Landlord,
by written instrument in form satisfactory to Landlord, to be
bound by all the obligations of Tenant hereunder including,
without limitation, the covenant against further assignment
and subletting. No assignment or subletting shall relieve
Tenant from its obligations hereunder and Tenant shall remain
fully and primarily liable therefor.
b. If this Lease be assigned, or if the Premises or any part
thereof be sublet or occupied by anyone other than Tenant,
Landlord may, at any time and from time to time, collect rent
and other charges from the assignee, subtenant or occupant,
and apply the net amount collected to the rent and other
changes herein reserved, 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 its obligations hereunder. The
consent by Landlord to an assignment or subletting shall in no
way be construed to relieve Tenant or any successor from
obtaining the express consent in writing of Landlord to any
further assignment or subletting. No assignment or subletting
and no use of the Premises by a subsidiary wholly-owned by
Tenant or controlling corporation of Tenant shall affect
Permitted Uses.
6.2 EXCESS PAYMENTS
If:
i. The rent and other sums received by Tenant on account
of a sublease of all or any portion of the Premises
exceeds the Basic Rent and Escalation Charges
allocable to the space subject to the sublease (in
the proportion of
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the area of such space to the entire Premises) plus
actual out-of-pocket expenses incurred by Tenant in
connection with Tenant's subleasing of such space,
including brokerage commissions to a licensed broker
and the cost of preparing such space for occupancy by
the subtenant, Tenant shall pay to Landlord, as an
additional charge, 75% of such excess, monthly as
received by Tenant; or
ii. Any payment received by Tenant on account of any
assignment of this Lease exceeds the actual
out-of-pocket expenses incurred by Tenant in
connection with such assignment, including brokerage
commissions to a licensed broker and the cost of
preparing space for the assignee, Tenant shall pay to
Landlord, as an additional charge, 75% of such excess
when received by Tenant.
6.3 TERMINATION
Notwithstanding any other provision of this Article VI, if Tenant shall
intend to assign this Lease or intend (except with respect to
subletting described in the second sentence of Paragraph a. of this
Section 6.1) to enter into a sublease which, together with any other
subleases then in effect, cover more than 50% of Premises Rentable
Area, Landlord may elect to terminate this Lease by giving notice to
Tenant of such election not later than thirty (30) days after receiving
notice of such subletting or assignment whereupon this Lease shall
terminate thirty (30) days after the giving of such notice by Landlord
with the same force and effect as if such date where the date
originally established as the expiration date hereof.
ARTICLE VII
RESPONSIBILITY FOR REPAIRS AND CONDITIONS OF PREMISES;
SERVICES TO BE FURNISHED BY LANDLORD
7.1 LANDLORD REPAIRS
a. Except as otherwise provided in this Lease, Landlord agrees to
keep in good order, condition and repair the roof, public
areas, exterior walls and structure of the Building (including
plumbing, mechanical and electrical systems), all insofar as
they affect the Premises, except that Landlord shall in no
event be responsible to Tenant for the condition of glass in
and about the Premises or for the doors leading to the
Premises, or for any condition in the Premises or the Building
caused by any act or neglect of Tenant, its invitees or
contractors. Landlord shall not be responsible to make any
improvements or repairs to the Building other than as
expressly in this Section 7.1 provided, unless expressly
provided otherwise in this Lease.
b. Landlord shall never be liable for any failure to make repairs
which, under the provisions of this Section 7.1 or elsewhere
in this Lease, Landlord has undertaken to make unless Tenant
has given notice to Landlord of the need to make such repairs,
and Landlord has failed to continence to make such repairs
within a
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reasonable time after receipt of such notice, or fails to
proceed with reasonable diligence to complete such repairs.
7.2 TENANT'S AGREEMENT
a. Tenant will keep neat and clean and maintain in good order,
condition and repair the Premises and every part thereof,
excepting only those repairs for which Landlord is responsible
under the terms of this Lease, reasonable wear and tear of the
Premises, and damage by fire or other casualty and as a
consequence of the exercise of the power of eminent domain;
and shall surrender the Premises, at the end of the term, in
such condition. Without limitation, Tenant shall maintain and
use the Premises in accordance with all directions, rules and
regulations of the proper officers of governmental agencies
having jurisdiction, and shall, at Tenant's own expense,
obtain all permits, licenses and the like required by
applicable law. Tenant shall be responsible for the cost of
repairs which may be made necessary by reason of damage to
common areas in the Building by Tenant, Tenant's independent
contractors, or Tenant's invitees.
b. If repairs are required to be made by Tenant pursuant to the
terms hereof, Landlord may demand that Tenant make the same
forthwith, and if Tenant refuses or neglects to commence such
repairs and complete the same with reasonable dispatch, after
such demand, Landlord may (but shall not be required to do so)
make or cause such repairs to be made and shall not be
responsible to Tenant for any loss or damage that may accrue
to Tenant's stock or business by reason thereof. If Landlord
makes or causes such repairs to be made, Tenant agrees that
Tenant shall forthwith, on demand, pay to Landlord the cost
thereof as an additional charge.
7.3 FLOOR LOAD - HEAVY MACHINERY
a. Tenant shall not place a load upon any floor in the Premises
exceeding 100 lbs. (live load) per square foot of Usable Floor
Area. 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 consent, which consent may include a
requirement to provide insurance in such amounts as Landlord
may deem reasonable.
b. If any 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 such
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
exonerate, indemnify and save Landlord
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harmless against and from any liability, loss, injury, claim
or suit resulting directly or indirectly from such moving.
7.4 BUILDING SERVICES
a. Landlord shall, on Business Days from 8:00 a.m. to 6:00 p.m.
(except on Saturdays only from 9:00 a.m. to 1:00 p.m.),
furnish heating and cooling as normal seasonal changes may
require to provide reasonably comfortable space temperature
and ventilation for occupants of the Premises under normal
business operation at an occupancy of not more than one person
per 150 square feet of Usable Floor Area and an electrical
load not exceeding 3.0 xxxxx per square foot of Usable Floor
Area. If Tenant shall require air conditioning, heating or
ventilation outside the hours and days above specified,
Landlord shall furnish such service and Tenant shall pay
therefor such charges as may from time to time be in effect.
In the event Tenant introduces into the Premises personnel or
equipment which overloads the capacity of the Building system
or in any other way interferes with the system's ability to
perform adequately its proper functions, supplementary systems
may, if and as needed, at Landlord's option, be provided by
Landlord, at Tenant's expense.
b. Landlord shall also provide:
i. Hot water for lavatory purposes and cold water (at
temperatures supplied by the City of Quincy) for
drinking, lavatory and toilet purposes. If Tenant
uses water for any purpose other than for ordinary
lavatory and drinking purposes, Landlord may asses a
reasonable charge for the additional water so used,
or install a water meter and thereby measure Tenant's
water consumption for all purposes. In the latter
event, Landlord shall pay the cost of the meter and
the cost of installation thereof and shall keep such
meter and installation equipment in good working
order and repair. Tenant agrees to pay for water
consumed, as shown on such meter, together with the
sewer charge based on such meter changes, as and when
bills are rendered, and in default in making such
payment Landlord may pay such charges and collect the
same from Tenant as an additional charge. All piping
and other equipment and facilities required for use
of water outside the Building core will be installed
and maintained by Landlord at Tenant's sole cost and
expense.
ii. Cleaning and janitorial services to the Premises,
provided the same are kept in order by Tenant, in
accordance with the cleaning standards set forth in
Schedule CS attached hereto.
iii. Passenger elevator service from the existing
passenger elevator system in common with Landlord and
other tenants of the Building.
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7.5 ELECTRICITY
a. Landlord shall supply electricity to the Premises to supply a
requirement not to exceed 3.0 xxxxx per square foot of Usable
Floor Area for standard single-phase 120 volt alternating
current and Tenant agrees in its use of the Premises not to
exceed such requirement and that its total connected lighting
load will not exceed the maximum from time to time permitted
under applicable governmental regulations. Landlord shall
purchase and install all lamps, tubes, bulbs, starters and
ballasts. For all original fluorescent tubes within the
Premises all other bulbs, tubes and lighting fixtures for the
Premises shall be provided and installed by Landlord at
Tenant's cost and expense. In order to assure that the
foregoing requirements are not exceeded and to avert possible
adverse affect on the Building's electric system, Tenant shall
not, without Landlord's prior consent, connect any fixtures,
appliances or equipment to the Building's electric
distribution system other than typewriters, pencil sharpeners,
adding machines, hand-held or desk-top calculators and
dictaphones.
b. From time to time during the Term of this Lease, Landlord
shall have the right to have an electrical consultant selected
by Landlord make a survey of Tenant's electric usage, the
result of which survey shall be conclusive and binding upon
Landlord and Tenant. In the event that such survey shows that
Tenant has exceeded the requirements set forth in Paragraph
a., in addition to any other rights Landlord may have
hereunder, Tenant shall, upon demand, reimburse Landlord for
the cost of such survey and the cost, as determined by such
consultant, of electricity usage in excess of such
requirements as additional charges.
c. Landlord shall have the right to discontinue furnishing
electric power to the Premises at any time upon not less than
thirty (30) days' notice to Tenant provided Landlord shall
first have arranged for the supply of power for Tenant's use
to be provided to the Premises by the public utility company
furnishing electric service to the Building and shall, at
Landlord's expense, separately meter the Premises. If Landlord
exercises such right, from and after the effective date of
such termination, Landlord shall not be obligated to furnish
electricity to the Premises, and
i. The Basic Rent shall be reduced by the product of
ninety cents ($.90) multiplied by Premises Rentable
Area;
ii. Base Operating Expenses shall be reduced to $610,000;
and
iii. In the computation of Operating Costs, only the cost
of electricity supplied to those portions of the
Building other than those intended to be leased to
tenants for their exclusive use and occupancy, or
used by the Building for its own offices, i.e., only
those areas which are so-called common areas, shall
be included.
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ARTICLE VIII
REAL ESTATE TAXES
8.1 PAYMENTS ON ACCOUNT OF REAL ESTATE TAXES
a. For the purposes of this Article, the term "Tax Year" shall
mean the twelve (12) month period commencing on the July 1
immediately preceding the Commencement Date and each twelve
(12) month period thereafter during the Term of this Lease;
and the term "Taxes" shall mean real estate taxes assessed
with respect to the Property for any Tax Year.
b. In the event that for any reason, Taxes shall be greater
during any Tax Year than Base Taxes, Tenant shall pay to
Landlord, as an Escalation Charge, and amount equal to:
i. The excess of Taxes over Base Taxes, multiplied by,
ii. The Escalation Factor, such amount to be apportioned
for any fraction of a Tax Year in which the
Commencement Date falls or the Term of this Lease
ends.
c. Estimated payments by Tenant on account of real estate taxes
shall be made monthly and at the time and in the fashion
herein provided for the payment of Basic Rent. The monthly
amount so to be paid to Landlord shall equal to one-twelfth
(1/12) of the amount required to be paid (if any) by Tenant
pursuant to Paragraph b. above for the preceding Tax Year.
Promptly after receipt by Landlord of bills for such taxes,
Landlord shall advise Tenant of the amount thereof and the
computation of Tenant's payment on account thereof. If
estimated payments theretofor made by Tenant for the Tax Year
covered by such bills exceed the required payments on account
thereof for such Year, Landlord shall credit the amount of
overpayment against subsequent obligations of Tenant on
account of real estate taxes (or refund such overpayment if
the Term of this Lease has ended and Tenant has no further
obligation to Landlord); but if the required payments on
account thereof for such Year are greater than estimated
payments theretofor made on account thereof for such Year,
Tenant shall make payment to Landlord within thirty (30) days
after being so advised by Landlord. Landlord shall have the
same rights and remedies for the nonpayment by -Tenant of any
payments due on account of such taxes as Landlord has
hereunder for the failure of Tenant to pay Basic Rent.
8.2 ABATEMENT
If Landlord shall receive any tax refund or reimbursement of taxes or
sum in lieu thereof with respect to any Tax Year, then out of any
balance remaining thereof after deducting Landlord's expenses
reasonably incurred in obtaining such refund, Landlord shall pay to
Tenant, provided there does not then exist a Default of Tenant, an
amount equal to such refund or reimbursement or sum in lieu thereof
(exclusive of interest) multiplied by the
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Escalation Factor; provided, that in no event shall Tenant be entitled
to receive more than the amount of any payments made by Tenant on
account of real estate tax increases for such Year pursuant to
Paragraph b. of Section 8.1 or to receive any payment if Taxes for any
Tax Year are less than Base Taxes. No refund shall be due to the Tenant
if the basis for the refund or reimbursement shall be the tax free
status of the Landlord.
8.3 ALTERNATE TAXES
a. If some method or type of taxation shall replace the current
method of assessment of real estate taxes, or the type
thereof, the Tenant agrees that Tenant shall pay an equitable
share of the same computed in a fashion consistent with the
method of computation herein provided, to the end that
Tenant's share thereof shall be, to the maximum extent
practicable, comparable to that which Tenant would bear under
the foregoing provisions.
b. If a tax (other than a Federal or State net income tax) is
assessed on account of the rents or other charges payable by
Tenant to Landlord under this Lease, Tenant agrees to pay the
same within ten (10) days after billing therefor, unless
applicable law prohibits the payment of such tax by Tenant.
Landlord shall have the same rights and remedies for
nonpayment by Tenant of any such amounts as Landlord has
hereunder for the failure of Tenant to pay Basic Rent.
ARTICLE IX
OPERATING EXPENSES
9.1 DEFINITIONS
For the purposes of this Article, the following terms shall have the
following respective meanings:
Operating Year: Each calendar year in which any part of the Term of
this Lease shall fall.
Operating Expenses: The aggregate costs or expenses reasonably incurred
by Landlord with respect to the operation, administration, cleaning,
repair, maintenance and management of the Property including, without
limitation, those items enumerated in Exhibit OC annexed hereto,
provided that, if during any portion of the Operating Year for which
Operating Expenses are being computed, less than 93% of the building
rentable area was occupied by Tenants, actual operating expenses
incurred shall be reasonably extrapolated by Landlord on an item basis
to the estimated operational expenses that would have incurred if the
building were 93% occupied for such Year, and such extrapolated amount
shall, for the purposes hereof, be deemed to be the Operating Expenses
for such Year.
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9.2 TENANT'S PAYMENT
a. In the event that Operating Expenses for any Operating Year
shall be greater than Base Operating Expenses, Tenant shall
pay to Landlord, as an Escalation Charge, an amount equal to:
i. The excess of the Operating Expenses for such Year
over and above Base Operating Expenses, multiplied
by,
ii. The Escalation Factor, such amount to be apportioned
for any Operating Year in which the Commencement Date
falls or the Term of this Lease ends.
b. Estimated payments by Tenant on account of Operating Expenses
shall be made monthly and at the time and in the fashion
herein provided for the payment of Basic Rent. The monthly
amount so to be paid to Landlord shall be sufficient to
provide Landlord by the end of each Operating Year a sum equal
to Tenant's required payments (if any) on account of Operating
Expenses for the preceding Operating Year. Promptly after the
end of each Operating Year, Landlord shall submit to Tenant a
reasonably detailed accounting of Operating Expenses for such
Year, and Landlord shall certify the accuracy thereof. If
estimated payments theretofor made for such Year by Tenant
exceed Tenant's required payment on account thereof for such
Year, according to such statement, Landlord shall credit the
amount of overpayment against subsequent obligations of Tenant
with respect to Operating Expenses (or refund such overpayment
if the Term of this Lease has ended and Tenant has no further
obligation to Landlord); but, if the required payments on
account thereof for such Year are greater than the estimated
payments (if any) theretofor made on account thereof for such
Year, Tenant shall make payment to Landlord within ten (10)
days after being so advised by Landlord. Landlord shall have
the same rights and remedies for the nonpayment by Tenant of
any payments due on account of Operating Expenses as Landlord
has hereunder for the failure of Tenant to pay Basic Rent.
ARTICLE X
INDEMNITY AND PUBLIC LIABILITY INSURANCE
10.1 TENANT'S INDEMNITY
To the maximum extent this Agreement may be made effective according to
law, Tenant agrees to indemnify and save harmless Landlord from and
against all claims of whatever nature arising from any act, omission or
negligence of Tenant or Tenant's contractors, licensees agents,
servants or employees or arising from any accident, injury or damage
whatsoever caused to any person, or to the property of any person,
occurring after the date of this Lease until the end of the Term of
this Lease and thereafter, so long as Tenant is in occupancy of any
part of the Premises, in or about the Premises, or arising from any
accident, injury or damage occurring outside of the Premises but on the
Property, where such accident, damage or injury results or is claimed
to have resulted from an act or
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omission on the part of Tenant or Tenant's agents or employees or
independent contractors. This indemnity and hold harmless agreement
shall include indemnity against all costs, expenses and liabilities
incurred in or in connection with any such claim or proceeding brought
thereon, and the defense thereof.
10.2 PUBLIC LIABILITY INSURANCE
Tenant agrees to maintain in full force from the date upon which Tenant
first enters the Premises for any reason, throughout the Term of this
Lease, and thereafter so long as Tenant is in occupancy of any part of
the premises, a policy of general liability and property damage
insurance under which Landlord (and such other persons are in privity
of estate with Landlord as may be set out in notice from time to time)
and Tenant are named as insureds, and under which the insurer agrees to
indemnify and hold Landlord, and those in privity of estate with
Landlord, harmless from and against all cost, expense and/or liability
arising out of or based upon any and all claims, accidents, injuries
and damages set forth in Section 10.1. Each such policy shall be
non-cancellable and non-amendable with respect to Landlord and
Landlord's said designees without twenty (20) days prior notice to
Landlord and shall be in at least the amounts of the Public Liability
Insurance specified in Section 1.2, and a duplicate original or
certificate thereof evidencing broad form contractual liability,
independent contractor's hazard and completed operation coverage and
waiver of subrogation shall be delivered to Landlord.
10.3 TENANT'S RISK
To the maximum extent this Agreement may be made effective according to
law, Tenant agrees to use and occupy the Premises and to use such other
portions of the Building as Tenant is herein given the right to use at
Tenant's own risk; and Landlord shall have no responsibility or
liability for any loss of or damage to Tenant's Removable Property. The
provisions of this Section shall be applicable from and after the
execution of this Lease and until the end of the Term of this Lease,
and during such further period as Tenant may use or be in occupancy of
any part of the Premises or of the Building.
10.4 INJURY CAUSED BY THIRD PARTIES
To the maximum extent this Agreement may be made effective according to
law, Tenant agrees that Landlord shall not be responsible or liable to
Tenant, or to those claiming by, through or under Tenant, for any loss
or damage that may be occasioned by or through the acts or omissions of
persons occupying adjoining premises or any part of the premises
adjacent to or connecting with the Premises or any part of the Property
or otherwise.
ARTICLE XI
LANDLORD'S ACCESS TO PREMISES
11.1 LANDLORD'S RIGHTS
Landlord shall have the right to enter the Premises at all reasonable
hours for the purpose of inspecting or making repairs to the same, and
Landlord shall also have the right to make access available at all
reasonable hours to prospective or existing mortgages, purchasers or
tenants of any part of the Property.
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ARTICLE XII
FIRE, EMINENT DOMAIN, ETC.
12.1 ABATEMENT OF RENT
If the Premises shall be damaged by fire, casualty or other material
defect in the Building, Basic Rent and Escalation Charges payable by
Tenant shall xxxxx proportionately for the period in which, by reason
of such damage, there is substantial interference with Tenant's use of
the Premises, having regard to the extent to which Tenant may be
required to discontinue Tenant's use of all or a portion of the
Premises, but such abatement or reduction shall end if and when
Landlord shall have substantially restored the Premises to the
condition in which they were prior to such damage. If the Premises
shall be affected by any exercise of the power of eminent domain, Basic
Rent and Escalation Charges payable by Tenant shall be justly and
equitably abated and reduced according to the nature and extent of the
loss of use thereof suffered by Tenant.
12.2 LANDLORD'S RIGHT OF TERMINATION
If the Premises or the Building are substantially damaged by fire or
casualty (the term "substantially damaged" meaning damage of such a
character that the same cannot, in ordinary course, reasonably be
expected to be repaired within sixty (60) days from the time that
repair work would commence), or if any part of the Building is taken by
any exercise of the right of eminent domain, then Landlord shall have
the right to terminate this Lease (even if Landlord's entire interest
in the Premises may have been divested) by giving notice of Landlord's
election so to do within ninety (90) days after the occurrence of such
casualty or the effective date of such taking, whereupon this Lease
shall terminate thirty (30) days after the date of such notice with the
same force and effect as if such date were the date originally
established as the expiration date hereof.
12.3 RESTORATION
If this Lease shall not be terminated pursuant to Section 12.2,
Landlord shall thereafter use due diligence to restore the Premises to
proper condition for Tenant's use and occupation, provided that
Landlord's obligation shall be limited to the amount of insurance
proceeds available therefor. If, for any reason, such restoration shall
not be substantially completed within six (6) months after the
expiration of the ninety (90) day period referred to in Section 12.2
(which six (6) month period may be extended for such periods of time as
Landlord is prevented from proceeding with or completing such
restoration for any cause beyond Landlord's reasonable control, but in
no event for more than an additional three (3) months), Tenant shall
have the right to terminate this Lease by giving notice to Landlord
thereof within thirty (30) days after the expiration of such period (as
to extended). Upon the giving of such notice, this Lease shall cease
and come to an end without further liability or obligation on the part
of either party unless, within such thirty (30) day period, Landlord
substantially completes such restoration. Such right of termination
shall be Tenant's sole and exclusive remedy at law or in equity for
Landlord's failure so to complete such restoration.
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12.4 AWARD
Landlord shall have and hereby reserves and excepts, and Tenant hereby
warrants and assigns to Landlord, all rights to recover for damages to
the Property and the leasehold interest hereby created, and to
compensation accrued or hereafter to accrue by reason of such taking,
damage or destruction, and by way of confirming the foregoing, Tenant
hereby grants and assigns, and covenants with Landlord to grant and
assign to Landlord, all rights to such damages or compensation. Nothing
contained herein shall be construed to prevent Tenant from prosecuting
in any condemnation proceedings a claim for the value of any of
Tenant's Removable Property installed in the Premises by Tenant at
Tenant's expense and for relocation expenses, provided that such action
shall not affect the amount of compensation otherwise recoverable by
Landlord from the taking authority.
ARTICLE XIII
DEFAULT
13.1 TENANT'S DEFAULT
a. If at any time subsequent to the date of this Lease any one or
more of the following events (herein referred to as a "Default
of Tenant") shall happen:
i. Tenant shall fail to pay the Basic Rent, Escalation
Charges or other charges hereunder when due and such
failure shall continue for three (3) full Business
Days after notice to Tenant from Landlord; or
ii. Tenant shall neglect or fail to perform or observe
any other covenant herein contained on Tenant's part
to be performed or observed and Tenant shall fail to
remedy the same within thirty (30) days after notice
to Tenant specifying such neglect or failure, or if
such failure is of such a nature that Tenant cannot
reasonably remedy the same within such thirty (30)
day period, Tenant shall fail to commence promptly to
remedy the same and to prosecute such remedy to
completion with diligence and continuity; or
iii. Tenant's leasehold interest in the Premises shall be
taken on execution or by other process of law
directed against Tenant; or
iv. Tenant shall make an assignment for the benefit of
creditors or shall file a voluntary petition in
bankruptcy or shall be adjudicated bankrupt or
insolvent, or shall file any petition or answer
seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar
relief for itself under any present or future
Federal, State or other statute, law or regulation
for the relief of debtors, or shall seek or consent
to or acquiesce in the appointment of any trustee,
receiver or liquidator of Tenant or of all or any
substantial part of its properties, or shall admit in
writing its inability to pay its debts generally as
they become due; or
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v. A petition shall be filed against Tenant in
bankruptcy or under any other law seeking any
reorganization, arrangement, composition,
readjustment, liquidation, dissolution, or similar
relief under any present or future Federal, State or
other statute, law or regulation and shall remain
undismissed or unstayed for an aggregate of sixty
(60) days (whether or not consecutive), or if any
debtor in possession (whether or not Tenant) trustee,
receiver or liquidator of Tenant or of all or any
substantial part of its properties or of the Premises
shall be appointed without the consent or
acquiescence of Tenant and such appointment shall
remain unvacated or unstayed for an aggregate of
sixty (60) days (whether or not consecutive);
vi. Then in any such case:
(1) If such Default of Tenant shall occur prior
to the Commencement Date, this Lease shall
ipso facto, and without further act on the
part of Landlord, terminate; and
(2) If such Default of Tenant shall occur after
the commencement Date, Landlord may
terminate this Lease by notice to Tenant,
specifying a date not less than ten (10)
days after the giving of such notice on
which this Lease shall terminate and this
Lease shall come to an end on the date
specified therein as fully and completely as
if such date were the date herein originally
fixed for the expiration of the Term of this
Lease (Tenant hereby waiving any rights of
redemption under M.G.L.A. c. 186, K), and
Tenant will then quit and surrender the
Premises to Landlord, but Tenant shall
remain liable as hereinafter provided.
b. If this Lease shall have been terminated as provided in this
Article, or if any execution or attachment shall be issued
against Tenant or any of Tenant's property whereupon the
Premises shall be taken or occupied by someone other than
Tenant, then Landlord may, without notice, re-enter the
Premises, either by force, summary proceedings, ejectment or
otherwise, and remove and dispossess Tenant and all other
persons and any and all property from the same, as if this
Lease had not been made, and Tenant hereby waives the service
of Notice if intention to re-enter or to institute legal
proceedings to that end.
c. In the event of any termination, Tenant shall pay the Basic
Rent, Escalation Charges and other sums payable hereunder up
to the time of such termination, and thereafter Tenant, until
the end of what would have been the Term of this Lease in the
absence of such termination, and whether or not the Premises
shall have been relet, shall be liable to Landlord for, and
shall pay to Landlord, as liquidated current damages, the
Basic Rent, Escalation Charges and other sums which would be
payable hereunder if such termination had not occurred, less
the net proceeds, if any, of any reletting of the Premises.
after deducting all expenses in connection
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with such reletting, including, without limitation, all
repossession costs, brokerage commissions, legal expenses,
attorneys' fees, advertising, expenses of employees,
alteration costs and expenses of preparation for such
reletting. Tenant shall pay such current damages to Landlord
monthly on the days which the Basic Rent would have been
payable hereunder if this Lease had not been terminated.
d. At any time after such termination, whether or not Landlord
shall have collected any such current damages, as liquidated
final damages and in lieu of all such current damages beyond
the date of such demand, Tenant shall pay to Landlord an
amount equal to the excess, if any, of the Basic Rent,
Escalation Charges and other sums as hereinbefore provided
which would be payable hereunder from the date of such demand
(assuming that, for the purposes of this paragraph, annual
payments by Tenant on account of real estate taxes and
Operating Expenses would be the same as the payments required
for the immediately preceding Operating or Tax Year) for what
remained in effect, over the Term of this Lease if the same
remained in effect, over the then fair net rental value of the
Premises for the same period.
e. In case of any Default by Tenant, re-entry, expiration and
dispossession by summary proceedings or otherwise, Landlord
may:
i. Re-let the Premises or any part or parts thereof,
either in the name of Landlord or otherwise, for a
term or terms which may at Landlord's option be equal
to or less than or exceed the period which would
otherwise have constituted the balance of the Term of
this Lease and may grant concessions or free rent to
the extent that Landlord considers advisable and
necessary to re-let the same; and
ii. May make such reasonable alterations, repairs and
decorations in the Premises as Landlord in its sole
judgment considers advisable and necessary for the
purpose of reletting the Premises; and the making of
such alterations, repairs and decorations shall not
operate or be construed to release Tenant from
liability hereunder as aforesaid. Landlord shall in
no event to be liable in any way whatsoever for
failure to relet the Premises, or, in the event that
the Premises are re-let, for failure to collect the
rent under such re-letting. Tenant hereby expressly
waives any and all rights of redemption granted by or
under any present or future laws in the event of
Tenant being evicted or dispossessed, or in the event
of Landlord obtaining possession of the Premises, by
reason of the violation by Tenant of any of the
covenants and conditions of this Lease.
f. If a Guarantor of this Lease is named in Section 1.2, the
happening of any of the events described in Paragraphs a.iv or
a.v of this Section 13.1 with respect to the Guarantor shall
constitute a Default of Tenant hereunder.
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g. The specified remedies to which Landlord may resort hereunder
are not intended to be exclusive of any remedies or means of
redress to which Landlord may at any time be entitled
lawfully, and Landlord may invoke any remedy (including the
remedy of specific performance) allowed at law or in equity as
if specific remedies were not herein provided for.
h. All costs and expenses incurred by or on behalf of Landlord
(including, without limitation, attorneys' fees and expenses)
in enforcing its rights hereunder or occasioned by any Default
of Tenant shall be paid by Tenant.
13.2 LANDLORD'S DEFAULT
Landlord shall in no event be in Default in the performance of any of
Landlord's obligations hereunder unless and until Landlord shall have
failed to perform such obligations within thirty (30) days, or such
additional time as is reasonably required to correct any such default,
after notice by Tenant to Landlord specifying wherein Landlord has
failed to perform any such obligations.
ARTICLE XIV
MISCELLANEOUS PROVISIONS
14.1 EXTRA HAZARDOUS USE
Tenant covenants and agrees that Tenant will not do or permit anything
to be done in or upon the Premises, or bring in anything or keep
anything therein, which shall increase the rate of property or
liability insurance on the Premises or of the Building above the
standard rate applicable to premises occupied for Permitted Uses; and
Tenant further agrees that, in the event that Tenant shall do any of
the foregoing, Tenant will promptly pay to Landlord, on demand, any
such increase resulting therefrom, which shall be due and payable as an
additional charge hereunder.
14.2 WAIVER
a. Failure on the part of Landlord or Tenant to complain of any
action or non-action on the part of the other, no matter how
long the same may continue, shall never be a waiver by Tenant
or Landlord, respectively, of any of the other's rights
hereunder. Further, no waiver at any time of any of the
provisions hereof by Landlord or Tenant shall be construed as
a waiver of any of the other provisions hereof, and a waiver
at any time of any of the provisions hereof shall not be
construed as a waiver at any subsequent time of the same
provisions. The consent or approval of Landlord or Tenant to
or of any action by the other requiring such consent or
approval shall not be construed to waive or render unnecessary
Landlord's or Tenant's consent or approval to or of any
subsequent similar act by the other.
b. No payment by Tenant, or acceptance by Landlord, of a lesser
amount than shall be due from Tenant to Landlord shall be
treated otherwise than as a payment on account. The acceptance
by Landlord of a check for a lesser amount with an
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endorsement or statement thereon, or upon any letter
accompanying such a check, that such lesser amount is payment
in full, shall be given no effect, and Landlord may accept
such check without prejudice to any other rights or remedies
which Landlord may have against Tenant.
14.3 COVENANT OF QUIET ENJOYMENT
Tenant, subject to the terms and provisions of this Lease, on payment
of the Basic Rent and Escalation charges and observing, keeping and
performing all of the other terms and provisions of this Lease on
Tenant's part to be observed, kept and performed, shall lawfully,
peaceably and quietly have, hold, occupy and enjoy the Premises during
the term hereof, without hindrance or ejection by any persons lawfully
claiming under Landlord to have title to the Premises superior to
Tenant; the foregoing covenant of quiet enjoyment is in lieu of any
other covenant, express or implied.
14.4 LANDLORD'S LIABILITY
a. Tenant specifically agrees to look solely to Landlord's then
equity interest in the Property at the time owned, for
recovery of any judgment from Landlord; it being specifically
agreed that Landlord (original or successor) shall never be
personally liable for any such judgment, or for the payment of
any monetary obligation to Tenant. The provision contained in
the foregoing sentence is not intended to, and shall not,
limit any right that Tenant might otherwise have to obtain
injunctive relief against Landlord or Landlord's successors in
interest, or to take any action not involving the personal
liability of Landlord (original or successor) to respond in
monetary damages from Landlord's assets other than Landlord's
equity interest in the Property.
b. With respect to any services or utilities to be furnished by
Landlord to Tenant, Landlord shall in no event be liable for
failure to furnish the same when prevented from doing so by
strike, lockout, breakdown, accident, order or regulation of
or by any governmental authority, or failure of supply, or
inability by the exercise of reasonable diligence to obtain
supplies, parts or employees necessary to furnish such
services, or because of war or other emergency, or for any
cause beyond Landlord's reasonable control, or for cause due
to any act or neglect of Tenant or Tenant's servants, agents,
employees, licensees or any person claiming by, through or
under Tenant.
c. In no event shall Landlord ever be liable to Tenant for any
indirect or consequential damages suffered by Tenant from
whatever cause.
14.5 NOTICE TO MORTGAGEE
After receiving notice from any person, firm or other entity that it
holds a mortgage which includes the Premises as part of the mortgaged
premises, no notice from Tenant to Landlord shall be effective unless
and until a copy of the same is given to such holder (provided Tenant
shall have been furnished with the name and address of such holder),
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and the curing of any of Landlord's defaults by such holder shall be
treated as performance by Landlord.
14.6 ASSIGNMENT OF RENTS AND TRANSFER OF TITLES
a. With reference to any assignment by Landlord of Landlord's
interest in this Lease, or the rents payable hereunder,
conditional in nature or otherwise, which assignment is made
to the holder of a mortgage on property which includes the
Premises, Tenant agrees that the execution thereof by
Landlord, and the acceptance thereof by the holder of such
mortgage shall never be treated as an assumption by such
holder of any of the obligations of Landlord hereunder unless
such holder shall, by notice sent to Tenant, specifically
otherwise elect and that, except as aforesaid, such holder
shall be treated as having assumed Landlord's obligations
hereunder only upon foreclosure of such holder's mortgage and
the taking of possession of the Premises.
b. In no event shall the acquisition of title to the Property by
a purchaser which, simultaneously therewith, leases the entire
Property back to the seller thereof be treated as an
assumption by operation of law or otherwise, of Landlord's
obligations hereunder, but Tenant shall look solely to such
seller-lessee, and its successors from time to time in title,
for performance of Landlord's obligations hereunder. In any
event, this Lease shall be subject and subordinate to the
lease to such purchaser. For all purposes, such seller-lessee,
and its successors in title, shall be the Landlord hereunder
unless and until Landlord's position shall have been assumed
by such purchaser-lessor.
c. Except as provided in paragraph b. of this Section, in the
event of any transfer of title to the Property by Landlord,
Landlord shall thereafter be entirely freed and relieved form
the performance and observance of all covenants and
obligations hereunder.
d. Tenant hereby agrees not to look to the mortgagee, as
mortgagee, mortgagee in possession, or successor in title to
the property, for accountability for any security deposit
required by the Landlord hereunder, unless said sums have
actually been received by said mortgagee as security for the
tenant's performance of this Lease.
14.7 RULES AND REGULATIONS
Tenant shall abide by rules and regulations established by Landlord
from time to time. It being agreed that such rules and regulations will
be established and applied by Landlord in a non-discriminatory fashion,
such that all rules and regulations shall be generally applicable to
other tenants, of similar nature to the Tenant named herein, of the
Building. Landlord agrees to use reasonable efforts to insure that any
such rules and regulations are uniformly enforced, but Landlord shall
not be liable to Tenant for violation of the same by any other tenant
or occupant of the Building, or persons having business with them.
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14.8 ADDITIONAL CHARGES
If Tenant shall fail to pay when due any sum under this Lease
designated as an additional charge, Landlord shall have the same rights
and remedies as Landlord has hereunder for failure to pay Basic Rent.
14.9 INVALIDITY OF PARTICULAR PROVISIONS
If any term or provision of this Lease, or the application thereof to
any person or circumstance shall, to the extent, be invalid or
unenforceable, the remainder of this Lease, or the application of such
term or provision to persons or circumstances other than those as to
which it is held invalid or unenforceable, shall not be affected
thereby, and each term and provision of this Lease shall be valid and
be enforced to the fullest extent permitted by law.
14.10 PROVISIONS BINDING, ETC.
Except as herein otherwise provided, the terms hereof shall be binding
upon and shall inure to the benefit of the successors and assigns,
respectively, of Landlord and Tenant and, if Tenant shall be an
individual, upon and to his heirs, executors, administrators,
successors and assigns. Each term and each provision of this Lease to
be performed by Tenant shall be construed to be both a covenant and a
condition. The reference contained to successors and assigns of Tenant
is not intended to constitute a consent to assignment by Tenant, but
has reference only to those instances in which Landlord may later give
consent to a particular assignment as required by those provisions of
Article VI hereof.
14.11 RECORDING
Tenant agrees not to record this Lease, but each party hereto agrees,
on the request of the other, to execute a so-called Notice of Lease in
form recordable and complying with applicable law and reasonably
satisfactory to Landlord's attorneys. In no event shall such document
set forth the rent or other charges payable by Tenant under this Lease;
and any such document shall expressly state that it is executed
pursuant to the provisions contained in this Lease, and is not intended
to vary the terms and conditions of this Lease.
14.12 NOTICES
Whenever, by the terms of this Lease, notices shall or may be given
either to Landlord or to Tenant, such notice shall be in writing and
shall be sent by registered or certified mail, postage prepaid:
If Intended for Landlord:
Address to Landlord at Landlord's Original Address (or to such other
address or addresses as may from time to time hereafter be designated
by Landlord by like notice).
If Intended for Tenant:
Address to Tenant at Tenant's Original Address (or to such other
address or addresses as may from time to time hereafter be designated
by Landlord by like notice).
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All such notices shall be effective when deposited in the United States
Mail within the Continental United States, provided that the same are
received in ordinary course at the address to which the same were sent.
14.13 WHEN LEASE BECOMES BINDING
The submission of this document for examination and negotiation does
not constitute an offer to lease, or a reservation of, or option for,
the Premises, and this document shall become effective and binding only
upon the execution and delivery hereof by both Landlord and Tenant. All
negotiations, considerations, representations and understandings
between Landlord and Tenant are incorporated herein and this Lease
expressly supersedes any proposals or other written documents relating
hereto. This Lease may be modified or altered only by written agreement
between Landlord and Tenant, and no act or omission of any employee or
agent of Landlord shall alter, change or modify any of the provisions
hereof.
14.14 PARAGRAPH HEADINGS
The paragraph headings throughout this instrument are for convenience
and reference only, and the words contained therein shall in no way be
held to explain, modify, amplify or aid in the interpretation,
construction or meaning of the provisions of this Lease.
14.15 RIGHTS OF MORTGAGEE
This Lease shall be subordinate to any mortgage from time to time
encumbering the Premises, whether executed and delivered prior to or
subsequent to the date of this Lease, if the holder of such mortgage
shall so elect. Tenant agrees to execute such instruments of
Subordination in confirmation of the foregoing agreement as such holder
may request, and Tenant hereby appoints such holder as Tenant's
attorney-in-fact to execute such subordination agreement upon default
of Tenant in complying with such holder's request.
14.16 STATUS REPORT
Recognizing that both parties may find it necessary to establish third
parties, such as accountants, banks, mortgagees or the like, the
then-current status of performance hereunder, either party, on the
request of the other made from time to time, will promptly furnish to
Landlord, or the holder of any mortgage encumbering the Premises, or to
Tenant, as the case may be, a statement of the status of any matter
pertaining to this Lease, including, without limitation,
acknowledgments that (or the extent of which) each party is in
compliance with its obligations under the terms of this Lease.
14.17 SECURITY DEPOSIT
No security deposit is required under this lease.
14.18 REMEDYING DEFAULTS
Landlord shall have the right, but shall not be required, to pay such
sums or do any act which requires the expenditure of monies which may
be necessary or appropriate by reason of the failure or neglect of
Tenant to perform any of the provisions of this Lease, and in the event
of the exercise of such right by Landlord, Tenant agrees to pay to
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Landlord forthwith upon demand all such sums, together with interest
thereon at a rate equal to 3% over the prime rate in effect from time
to time at the Bank of Boston (but in no event less than 18% per
annum), as an additional charge. Any payment as Basic Rent, Escalation
Charges or other sums payable herewith not paid when due shall, at the
option of Landlord, bear interest at a rate equal to 3% over the prime
rate in effect from time to time at the Bank of Boston (but in no event
less than 18% per annum) from the due date thereof, forthwith upon
demand by Landlord.
14.19 HOLDING OVER
Any holding over by Tenant after the expiration of the term of this
Lease shall be treated as a daily tenancy at sufferance at a rate equal
to 1 1/2 times the Basic Rent plus Escalation Charges and other charges
therein provided (prorated on a daily basis) and shall otherwise be on
the terms and conditions set forth in this Lease as far as applicable.
14.20 WAIVER OF SUBROGATION
Insofar as, and to the extent that, the following provision may be
effective without invalidating or making it impossible to secure
insurance coverage obtainable from responsible insurance companies
doing business in the locality in which the Property is located (even
though extra premium may result therefrom) Landlord and Tenant mutually
agree that, with respect to any hazard, the loss from which is covered
by insurance then being carried by them, respectively, the one carrying
such insurance and suffering such loss releases the other of and from
any and all claims with respect to such loss to the extent of the
insurance proceeds paid with respect thereto; and they further mutually
agree that their respective insurance companies shall have no right of
subrogation against the other on account thereof.
14.21 SURRENDER OF PREMISES
Upon the expiration or earlier termination of the Term of this Lease,
Tenant shall peaceably quit and surrender to Landlord the Premises in
neat and clean condition and in good order, condition and repair,
together with all alterations, additions and improvements which may
have been made or installed in, on or to the Premises prior to or
during the Term of this Lease, 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 Tenant's Removable Property and, to the
extent specified by Landlord, all alterations and additions made by
Tenant and all partitions wholly within the Premises unless installed
initially by Landlord in preparing the Premises for Tenant's occupancy
pursuant to Article IV; and shall repair any damages to the Premises or
the Building caused by such removal. Any Tenant's Removable Property
which shall remain in the Building or on the Premises after the
expiration or termination of the Term of this Lease shall be deemed
conclusively to have been abandoned, and either may be retained by
Landlord as its property or may be disposed of in such manner as
Landlord may see fit, at Tenant's sole cost and expense.
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14.22 BROKERAGE
Tenant warrants and represents that Tenant has dealt with no broker in
connection with the consummation of this Lease and, in the event of any
brokerage makes claim against Landlord predicated upon dealings with
Tenant in consummation hereof, Tenant agrees to defend the same and
indemnify Landlord against any such claim.
14.23 SUBSTITUTE SPACE
Item deleted.
14.24 RIGHT OF FIRST REFUSAL
Provided that at the time of exercise there exists no Default of Tenant
and that this Lease is still in full force and effect, the Tenant shall
have a first right of refusal to lease under the terms hereof, for a
term coincident with this lease, any tenant space which shall become
available on the third floor of the Building. In order to exercise this
right, Landlord shall notify tenant in writing of the availability or
imminent availability of the space and Tenant shall within thirty days
of such notice agree to add the available space to its leasehold
pursuant to the terms hereof. If the tenant fails to add the space
within the said thirty days, the tenant shall have no further rights in
regards that particular space.
14.25 EXHIBITS
Exhibits OC, CS, and FP attached hereto are hereby incorporated by
reference as fully as if set forth herein in full.
14.26 GOVERNING LAW
This Lease shall be governed exclusively by the provisions hereof and
by the Laws of the Commonwealth of Massachusetts, as the same may from
time to time exist.
ARTICLE XV
OPTION TO EXTEND
15.1 TENANT'S OPTION
Provided that at the time of exercise there exists no Default of Tenant
and that this Lease is still in full force and effect, Tenant shall
have the right and option to extend the Term of this Lease of one
extended term of five years (the Extended Term) commencing on the day
immediately succeeding the expiration date of the Initial Term and
ending at the close of the day on the last day of the sixtieth calendar
month thereafter. Tenant shall exercise such option to extend by giving
written notice to Landlord not later than nine months prior to the
expiration of the Initial Term. The giving of such notice by Tenant
shall automatically extend the Term of this Lease for the Extended Term
and no instrument of renewal need to be executed. In the event that
Tenant fails to give such notice to Landlord, this Lease shall
automatically terminate at the end of the Initial Term and Tenant shall
have no further option to extend the Term of this Lease. The Extended
Term shall be on all the terms and conditions of this Lease except that
the provisions of the Section 15.1 shall not be applicable and Basic
Rent shall be as determined pursuant to paragraph 15.2 hereof.
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15.2 EXTENDED TERM RENT
The Basic Rent for the Extended Term shall be the greater of:
a. The fair market rental value of the Premises as of the
commencement of the Extended Term, determined without regard
to Tenant's right to extend, as agreed by the parties; or
b. A sum computed by adding to the Basic Rent during, the Initial
Term and amount determined by multiplying such Basic Rent by
33 1/3% of the percentage increase in the United States
Department of Labor Consumer Price Index, Boston, for Urban
Consumers (CPI-U), all items (1967=100) between the point at
which such Index stood when last published prior to the
Commencement Date and the point at which such Index stood when
last published prior to the first day of the Extended Term. In
the event that Landlord and Tenant are unable to agree on a
fair-market rental value at least three (3) months prior to
the commencement of the Extended Term, such value shall be
determined by arbitration in accordance with the commercial
arbitration rules of the American Arbitration Association,
except that there shall be only one arbitrator and such
arbitrator shall have at least ten (10) years' experience as a
real estate broker or appraiser in the Boston area. If such
Index is discontinued its successor shall be used and if there
is no successor, an index designated by Landlord shall be
used.
IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be
duly executed, under seal, by persons hereunto duly authorized, in multiple
copies, each to be considered an original hereof, as of the date first set forth
above.
LANDLORD TENANT
NATIONAL FIRE PROTECTION ASSOCIATION
By: /s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------ ----------------------------
Title: Vice President and General Counsel Title: President
By: /s/ Xxxxx X. Xxxxxx
----------------------------
Title: Treasurer
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EXHIBIT OC
ITEMS INCLUDED IN OPERATING EXPENSES
Without limitation, Operating Expenses shall include:
1. All expenses incurred by Landlord or Landlord's agents which shall be
directly related to employment of personnel, including amounts incurred
for wages, salaries and other compensation for services, payroll,
social security, unemployment and similar taxes, workmen's compensation
insurance, disability benefits, pensions, hospitalization, retirement
plans and group insurance, uniforms and working clothes and the
cleaning thereof, and expenses imposed on Landlord or Landlord's agents
pursuant to any collective bargaining agreement for the services of
employees of Landlord or Landlord's agents in connection with the
operation, repair, maintenance, cleaning, management and protection of
the Property, and its mechanical systems including, without limitation,
day and night supervisors, property manager, accountants, bookkeepers,
janitors, carpenters, engineers, mechanics, electricians and plumbers
and personnel engaged in supervision of any of the persons mentioned
above; provided that, if any such employee is also employed on other
property of Landlord, such compensation shall be suitably prorated
among the Property and such other properties.
2. The cost of services, materials and supplies furnished to the building
or tenants thereof or used in the operation, repair, maintenance,
cleaning, management and protection of the Property.
3. The cost of replacements for tools and other similar equipment used in
the repair, maintenance, cleaning and protection of the Property,
provided that, in the case of any such equipment used jointly on other
property of Landlord, such costs shall be suitably prorated among the
Property and such other properties and of establishment of reasonable
reserves relating to operation and maintenance of the Property.
4. Where the Property is managed by Landlord or an affiliate of Landlord,
a sum equal to the amounts customarily charged by management firms in
the Boston area for similar properties, but in no event more than five
percent (5%) of gross annual income, whether or not actually paid, or
where otherwise managed, the amounts accrued for management, together
with amounts accrued for legal and other professional fees relating to
the Property, but excluding such fees and commissions paid in
connection with services rendered for securing or renewing leases and
for matters not related to the normal administration and operation of
the Building.
5. Premiums for insurance against damage or loss to the Building from such
hazards as shall from time to time be generally required by
institutional mortgages in the Quincy area for similar properties,
including, but not by way of limitation, insurance covering loss of
rent attributable to any such hazards, and public liability insurance.
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6. If, during the Term of this Lease, Landlord shall make a capital
expenditure which is not otherwise properly includable in Operating
Expenses for the Operating Year in which it was made, there shall
nevertheless be included in such Operating Expenses for the Operating
Year in which it was made and in Operating Expenses for each succeeding
Operating Year during the useful life of the capital expenditure the
annual charge-off of such capital expenditure. Annual charge-off shall
be determined by dividing the original capital expenditure plus an
interest factor, reasonably determined by Landlord, as being the
interest rate then being charged for long-term mortgages by
institutional lenders on like properties within the locality in which
the Building is located, by the number of years of useful life of the
capital expenditure; and the useful life shall be determined reasonably
by Landlord in accordance with generally accepted accounting principles
and practices in effect at the time of making such expenditure.
7. Costs for electricity, water and sewer use charges, and other utilities
supplied to the Property and not paid for directly by Tenants.
8. Betterment assessments provided the same are apportioned equally over
the longest period permitted by law.
9. Amounts paid to independent contractors for services, materials and
supplies furnished for the operation, repair, maintenance, cleaning and
protection of the Property.
Initiated for Identification
LANDLORD: /s/ Xxxxx X. Xxxxxxx TENANT: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------ -------------------------
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EXHIBIT CS
(CLEANING SPECIFICATIONS)
A. PREMISES
Daily on Business Days:
1. Empty and clean all waste receptacles and ash trays and remove
waste material from the Premises; wash receptacles as necessary.
2. Sweep and dust mop all uncarpeted areas using a dust-treated mop.
3. Spot vacuum all rugs and carpeted areas.
4. Hand dust and wipe clean with treated cloths all horizontal
surfaces including furniture, office equipment, window xxxxx, door
ledges, chair rails and counter tops, within normal reach.
5. Wash clean all water fountains.
6. Clean glass on building floor directories.
7. Upon completion of cleaning, all lights will be turned off and
doors locked, leaving the Premises in an orderly condition.
Weekly: Vacuum all rugs and carpeted areas.
Quarterly:
Render high dusting not reached in daily cleaning to include:
1. Dusting all pictures, frames, charts, graphs and similar
wall hangings.
2. Dusting all vertical surfaces, such as walls, partitions,
doors and ducts.
3. Dusting all pipes and high moldings.
B. LAVATORIES
Daily on Business Days:
1. Sweep and damp mop floors.
2. Clean all mirrors, powder shelves, dispensers and receptacles,
bright work, flushmeters, pipes and toilet seat hinges.
3. Wash both sides of all toilet seats.
4. Wash all basins, bowls and urinals.
5. Dust and clean all powder room fixtures.
6. Empty and clean paper towel and sanitary disposal receptacles.
7. Remove waste paper and refuse.
8. Refill tissue holders, soap dispensers, towel dispensers, vending
sanitary dispensers; materials to be furnished by Landlord.
9. A sanitizing solution will be used in all lavatory cleaning.
Monthly:
1. Machine scrub lavatory floors.
2. Wash all partitions and tile walls in lavatories.
3. Clean air return grills.
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EXHIBIT FP
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FIRST AMENDMENT OF LEASE
AMENDMENT OF LEASE, dated as of July 31, 1995, by and between the
NATIONAL FIRE PROTECTION ASSOCIATION (hereinafter, "Landlord"), a Massachusetts
not-for-profit corporation, and ATLANTIC DATA SERVICES, a Massachusetts
corporation (hereinafter, "Tenant").
A. Landlord and Tenant are parties to a Lease dated as of April 1, 1995
(hereinafter, the "Lease"), covering certain premises located on the
third floor of the National Fire Protection Headquarters Building
(hereinafter, the "Building") located at Batterymarch Park, Quincy, MA.
B. Landlord and Tenant desire to further amend the Lease to provide for
the addition to the premises demised thereunder of 1,337 rentable
square feet located on the third floor of the Building (hereinafter
called the Additional Space).
NOW THEREFORE, in consideration of Ten Dollars ($10.00) and other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Landlord and Tenant hereby agree as follows:
1. The following definitions contained in Section 1.2 of the
Lease are hereby amended as follows:
a. BASIC RENT: no changes
b. PREMISES RENTABLE AREA: Delete from the definition of
Premises Rentable Area the number 21,192 and insert
in lieu thereof the number 22,529.
c. ESCALATION FACTOR: Delete from the definition of
Escalation Factor the percentage 14.98 and insert in
lieu thereof the percentage 15.93.
2. Exhibit FP to the Lease is hereby amended by the addition to
the space therein described of the space shown as "Xxxxx
Space" on AMENDMENT EXHIBIT 1, attached hereto.
3. The tenant shall be responsible for all improvements to the
space including obtaining all permits. Such improvements shall
be in accordance with the plan attached hereto as AMENDMENT
EXHIBIT 2. Tenant shall indemnify and hold harmless the
landlord from any loss, cost, injury or damage as a result of
the improvements to the premises. In all additional ways, the
improvements shall comply with the provisions of Section 5.2
of the Lease.
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4. The provisions of this First Amendment to Lease unless
otherwise stated shall be effective as of September 15, 1995,
or sooner upon substantial completion of the build-out of the
premises.
5. The Lease, as hereby modified, shall continue in full force
and effect and is hereby confirmed, approved and ratified.
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment
of Lease to be executed as a sealed instrument as of the date first written
above.
LANDLORD TENANT
NATIONAL FIRE PROTECTION ASSOCIATION
By: /s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------- -----------------------------
Vice President, General Counsel President
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AMENDMENT EXHIBIT 1
[Map]
3
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SECOND AMENDMENT OF LEASE
AMENDMENT OF LEASE, dated as of January 15, 1997, by and between the
NATIONAL FIRE PROTECTION ASSOCIATION (hereinafter, "Landlord"), a Massachusetts
not-for-profit corporation, and ATLANTIC DATA SERVICES, a Massachusetts
corporation (hereinafter, "Tenant").
A. Landlord and Tenant are parties to a Lease dated as of April 1, 1995
(hereinafter, the "Lease"), and a First Amendment of Lease dated July
31, 1995 covering certain premises located on the third floor of the
National Fire Protection Headquarters Building (hereinafter, the
"Building") located at Batterymarch Park, Quincy, MA.
B. Landlord and Tenant desire to further amend the Lease to provide for
the addition to the premises demised thereunder of one thousand two
hundred thirteen (1,213) rentable square feet located on the third
floor of the Building (hereinafter called the Additional Space).
NOW THEREFORE, in consideration of Ten Dollars ($10.00) and other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Landlord and Tenant hereby agree as follows:
1. The following definitions contained in Section 1.2 of the
Lease as Amended by the First Amendments, are hereby amended
as follows:
a. BASIC RENT: no changes
b. PREMISES RENTABLE AREA: Delete from the definition of
Premises Rentable Area the number 22,529 and insert
in lieu thereof the number 23,742.
c. ESCALATION FACTOR: Delete from the definition of
Escalation Factor the percentage 15.93 and insert in
lieu thereof the percentage 16.78.
2. Exhibit FP to the Lease is hereby amended by the addition to
the space therein described of the space shown as ADS SECOND
AMENDMENT EXPANSION SPACE, on AMENDMENT EXHIBIT 1, attached
hereto.
3. The tenant shall be responsible for all improvements to the
space including obtaining all permits. Tenant shall indemnify
and hold harmless the landlord from any loss, cost, injury or
damage as a result of the improvements to the premises. In all
additional ways, the improvements shall comply with the
provisions of Section 5.2 of the Lease. Tenant shall, as part
of the approval required under said Section 5.2, submit plans
for all improvements to be undertaken.
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4. The provisions of this Second Amendment to Lease unless
otherwise stated shall be effective as of substantial
completion of the improvements referenced above, but under no
circumstances later than March 1, 1997.
5. Landlord shall provide to the Tenant an allowance of $3.00 per
rentable square foot of space for such improvements.
6. The Lease, as hereby modified, shall continue in full force
and effect and is hereby confirmed, approved and ratified.
IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment of Lease to be executed as a sealed instrument as of the date first
written above.
LANDLORD TENANT
NATIONAL FIRE PROTECTION ASSOCIATION
By: /s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------- -----------------------------
Vice President, General Counsel President
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AMENDMENT EXHIBIT 1
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3
