Exhibit 10.1
SUBLEASE
AGREEMENT OF SUBLEASE ("SUBLEASE) made this 28 day of August, 2003, between
LUMBERMENS MUTUAL CASUALTY COMPANY, an Illinois insurance company
("Sublandlord"), and THE J XXXX GROUP INC., a Delaware corporation
("Subtenant").
NOW, THEREFORE, in consideration of the premises and the mutual undertakings,
covenants, promises, and agreements of the parties, IT IS AGREED AS FOLLOWS:
1. SUBLEASE
1.1 National Fire Protection Association ("Landlord") and Sublandlord
entered into a lease ("Initial Lease") made the 27th day of April, 1999, as
amended by a commencement date agreement ("Commencement Agreement") dated
January 5, 2000 for certain premises containing approximately 29,305 rentable
square feet ("Leasehold") in the building located at Four Batterymarch Park,
Quincy, Massachussets ("Building"), [collectively, the Initial Lease and
Commencement Agreement as amended from time to time, are referred to herein as
the "Lease"] a copy of which Lease is attached hereto and made a part hereof as
EXHIBIT "A". Sublandlord hereby leases to Subtenant and Subtenant hereby leases
from Sublandlord the entire Leasehold ("Subleased Premises") along with the
appurtenant rights described in Section 2.2 of the Lease. For purposes of this
Sublease, all measurements stated herein shall be deemed accurate and binding
and conclusive.
1.2 This Sublease is expressly made subject and subordinate to all
the terms, covenants and conditions of said Lease which are incorporated herein
by reference. Except as expressly provided for to the contrary in this Sublease,
Sublandlord and Subtenant hereby agree that the incorporated provisions of the
Lease which refer to the "Landlord" shall in this Sublease be deemed to refer to
Landlord and Sublandlord, and which refer to "Tenant" shall in this Sublease be
deemed to refer to Subtenant, and that references to "Premises" in the Lease
shall in this Sublease be deemed to refer to the Subleased Premises. Subtenant
agrees to use the Subleased Premises in accordance with the terms, covenants and
conditions of said Lease, and not do or omit to do anything which will breach
any of the terms, conditions and covenants thereof. Subtenant further agrees to
assume during the Term hereof the obligation for performance of all
Sublandlord's obligations under the Lease, except as may be specifically
modified by this Sublease, with respect only to the Subleased Premises, and
except in respect to the amount of Base Monthly Rent (as defined below) to be
paid and Sections 4.1, 4.2, 4.3, 4.4, the 2nd paragraph of Section 10.3, Section
13.2, the parenthetical starting with "(provided however" to the end of the 2nd
sentence of Section 14.6(b) [with the exception that such provisions shall apply
as between Sublandlord and Subtenant for the benefit of Subtenant in the context
of obtaining non-disturbance protections, as applicable, in connection with any
Sublandlord leasehold financing encumbering Sublandlord's interest in the Lease
and/or Leasehold], Section 14.11, the words "provided that Tenant" through the
end of the 1st sentence of Section 14.15 [with the exception that such
provisions shall apply as between Sublandlord and Subtenant for the benefit of
Subtenant in the context of obtaining non-disturbance protections, as
applicable, in connection with any Sublandlord leasehold financing encumbering
Sublandlord's interest in the Lease and/or Leasehold], the words "in addition to
the SNDA" from the 2nd sentence of Section 14.15 [with the exception that such
provisions shall apply as between Sublandlord and Subtenant for the benefit of
Subtenant in the context of obtaining non-disturbance protections, as
applicable, in connection with any Sublandlord leasehold financing encumbering
Sublandlord's interest in the Lease and/or Leasehold], the 4th sentence of
Section 14.15 [with the exception that Sublandlord warrants and represents that,
as of the execution of this Sublease by Sublandlord, Sublandlord has not entered
into any leasehold financing encumbering
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Sublandlord's interest in the Lease and/or Leasehold], Sections 14.22, 14.24(b),
14.30, 14.31, 14.33, 14.34, 14.35 and 14.36 of the Lease as well as Exhibits
CDA, SP, TD, NOL and Schedule 10.2 and Attachment to Schedule 10.2 to the Lease
to which Subtenant shall have no rights, benefits or entitlements as between
Sublandlord and Subtenant pursuant to the assumption provisions of this
sentence. Sublandlord has not offered nor conveyed any rights not afforded
Sublandlord by Landlord under the Lease.
1.3 Subtenant has no authority to contact or make any agreement with
Landlord concerning the Subleased Premises or the Lease, and Subtenant shall not
make any payment of Rent or other charges to Landlord but only to Sublandlord
except as otherwise agreed in writing by Sublandlord, Subtenant and Landlord;
the Lease describes Landlord's duties; and Sublandlord is not obligated to
perform Landlord's duties. If Landlord fails to perform its duties, Subtenant
shall promptly provide notice to Sublandlord, then Sublandlord shall promptly
notify Landlord and demand that Landlord comply with the Lease. If following the
making of such demand, and the expiration of any applicable notice and cure
periods granted to the Landlord, Landlord shall fail to perform its obligations
under the Lease, then Subtenant shall have the right to take such action in its
own name against Landlord reasonably necessary to enforce Landlord's obligations
under the Lease, and if such action against Landlord in Subtenant's name is
barred by reason of lack of privity, non-assignability or otherwise, Subtenant
may bring such action, after prior written notice and consent not to be
unreasonably withheld, simultaneously in Subtenant's and in Sublandlord's name,
and Sublandlord shall execute all documents reasonably required in connection
therewith, provided (i) the same is without cost and expense to Sublandlord,
(ii) Subtenant shall indemnify, defend and hold harmless Sublandlord from any
claims, losses, damages, liabilities and expenses arising from such action, and
(iii) Subtenant shall use commercially reasonable and diligent efforts as soon
as reasonably possible in such action to withdraw Sublandlord as a party to such
action, whether by consent of the parties to the action or by judicial
determination so long as the Subtenant may maintain the action in its own name,
and in such event Sublandlord shall reasonably cooperate at no cost to
Sublandlord with Subtenant's efforts to pursue such action. In no event shall
Sublandlord incur any liability, be responsible nor shall there be any set-off,
deduction or abatement of Rent arising from Landlord's failure to comply with
its duties.
1.4 Provided Subtenant is not in default beyond all applicable
notice and cure periods under this Sublease, Sublandlord agrees, as follows: (a)
Sublandlord will not exercise its options contained in Sections 14.34 and 14.35
of the Lease, and (b) Sublandlord will not enter into any agreement with the
Landlord under the Lease which (x) materially adversely affects any of
Landlord's obligations under the Lease to the extent the same benefit Subtenant
hereunder, or any of Sublandlord's obligations as tenant under the Lease to the
extent the same are incorporated hereunder as obligations of Subtenant, or (y)
which terminates the Lease prior to the expiration date set forth therein with
respect to the Subleased Premises or any voluntary surrender of Sublandlord's
rights as tenant under the Lease that would affect a termination or expiration
thereof with respect to the Subleased Premises, without Subtenant's prior
written consent, which consent shall not to be unreasonably withheld conditioned
or delayed, provided however if Subtenant's rights under this Sublease are not
materially adversely affected then Subtenant's consent shall not be required and
Sublandlord shall provide Subtenant with a copy of the fully executed agreement
which affects any such agreement. Each party shall promptly upon receipt or
delivery thereof, using commercially reasonable and due diligence, provide the
other party with copies of all notices, demands, statements and other
communications it receives from or delivers to Landlord with respect to the
Lease to the extent they relate in any way to the Subleased Premises and/or
either party's rights under this Sublease.
2. TERM; POSSESSION.
2.1 The term ("Term") of this Sublease shall commence on August 15,
2003
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("Commencement Date") and shall expire on October 31, 2009 ("Expiration Date"),
unless sooner terminated pursuant to the terms hereof or the Lease.
Notwithstanding the foregoing, it is expressly understood and agreed by
Subtenant that this Sublease is subject to approval of Landlord pursuant to the
provisions of the Lease. In the event this Sublease is not approved by Landlord,
Sublandlord shall not be liable to Subtenant for any costs, expenses (including,
without limitation, attorneys fees and expenses) or for any damages in any
manner whatsoever, and this Sublease shall be null and void and of no force and
effect ab initio.
2.2 Subject to receipt of a fully executed Sublease agreement, the
Deposit, the Prepaid Rent, insurance certificates required by the Lease and this
Sublease and Landlord's consent to this Sublease including, without limitation,
execution by Landlord, Sublandlord and Subtenant of a written consent to this
Sublease, Sublandlord shall tender to Subtenant possession of the Subleased
Premises on the Commencement Date set forth in Section 2.1 above. If tender of
possession of the Subleased Premises by Sublandlord to Subtenant is delayed
through no fault of Sublandlord beyond the date stated in the preceding
sentence, including, without limitation, any delay occasioned by the approval by
Landlord and execution by all parties of a written consent to this Sublease, the
Sublease shall remain in full force and effect, except that Commencement Date
and Abatement Period (as hereinafter defined) only shall be extended on a day to
day basis for the period until possession shall be tendered to Subtenant unless
such delay is caused by act, omission or misconduct of Subtenant (it being
agreed that neither the dates applicable for calculation of the Monthly Base
Rent set forth in Section 3.1 below nor the Expiration Date shall be so
extended). If the Commencement Date is extended pursuant to this paragraph,
Sublandlord and Subtenant shall execute an addendum to this Sublease stating the
actual Commencement Date.
3. RENT; DEPOSIT; PREPAID RENT
3.1 Subtenant shall pay rent ("Base Monthly Rent") to Sublandlord in
monthly installments in advance on the first (1st) day of each month without
offset, deduction, or abatement and without notice, as follows: (a) for the
first thirty-six (36) months of the Term at the rate of $19.75 per rentable
square feet of the Subleased Premises, and (b) for months thirty-seven (37)
through the end of the Term at the rate of $20.75 per rentable square feet of
the Subleased Premises. For purposes of calculating Base Monthly Rent only, the
following measurements shall be applied for the Subleased Premises, as follows:
(a) commencing with the Commencement Date through and including February 2004,
the measurement of 9,700 rentable square feet, (b) commencing with March 1, 2004
through and including August 31, 2004, the measurement of 19,400 rentable square
feet, and (c) commencing with September 1, 2004 through the end of the Term, the
measurement of 29,305 rentable square feet, such measurements to be deemed
binding and conclusive for all purposes with respect to Subtenant. Base Monthly
Rent only shall be waived for the first full calendar month of the Term
("Abatement Period").
Commencing on the Commencement Date, Subtenant shall also pay as
Additional Rent hereunder one hundred percent of the amount of Operating
Expenses (as defined in the Lease) and Taxes (as defined in the Lease) which
shall be calculated pursuant to the provisions of Sections 8 and 9 of the Lease
as if Subtenant were the "Tenant" under the Lease, with the exception that the
definitions of Base Taxes and Base Operating Expenses applicable to calculation
of such amounts to be paid by Subtenant hereunder shall be, as follows: (a) Base
Taxes shall be the fiscal year July 1, 2003 through June 30, 2004 as opposed to
the definition stated in the Lease, and (b) Base Operating Expenses shall be
calendar year 2004 as opposed to the definition stated in the Lease. Subtenant
shall pay, as Additional Rent, along with each installment of Base Monthly Rent
hereunder, Taxes and Operating Expenses in monthly estimated payments as
provided for in the Lease, and within ten (10) days after demand any shortage
thereof due
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based upon Landlord's annual reconciliation statement. Subtenant agrees that
Sublandlord may rely upon Landlord's statement to Sublandlord setting forth the
itemization and calculation of all amounts of Operating Expenses and Taxes, a
copy of which shall be provided to Subtenant, which as between Sublandlord and
Subtenant shall be binding and conclusive upon Subtenant relating to the amounts
stated therein. Subtenant agrees that Sublandlord may rely upon Landlord's
statement to Sublandlord setting forth the itemization and calculation of all
amounts of the applicable Additional Rent pursuant to the Lease which shall as
between Sublandlord and Subtenant shall be binding and conclusive upon Subtenant
relating to the amounts stated therein, The failure of Sublandlord to render a
statement thereof shall not be construed as a waiver of any such charges, and
the obligations of Subtenant pursuant to this paragraph shall survive the
expiration or earlier termination of the Sublease. Notwithstanding anything to
the contrary in the foregoing, if Subtenant shall reasonably dispute any amounts
or the calculations set forth on Landlord's statements, then on condition
Subtenant fully and timely pays to Sublandlord the sums demanded as due and
owing by Landlord and Sublandlord, Subtenant shall have the right at its sole
cost and expense to enforce Sublandlord's review and audit rights pursuant to
Section 9.2(c) of the Lease, provided further Subtenant shall not cause any
default under the Lease in its efforts of enforcing such review and audit
rights, and further provided Subtenant shall not settle any such dispute without
Sublandlord's prior written consent. Subtenant shall, upon the giving and
receiving, as applicable, of all notices to and from Landlord with respect
thereto, deliver copies of all notice with respect to such review and audit
rights as well as any proposed agreements to Sublandlord. Sublandlord shall
reasonably cooperate at no cost to Sublandlord with Subtenant's enforcement of
such review and audit rights. If as a result of such review and audit performed
by Subtenant, a credit or refund is due from Landlord for overpayments by
"Tenant" under the Lease, then Sublandlord shall be entitled to all such credits
or refunds for periods prior to or after the Term of this Sublease, which
obligation shall survive the expiration or earlier termination of this Sublease.
Subtenant shall pay all sales tax on Rent, if any, with each monthly
installment of Rent (as hereinafter defined). All sums to be paid by Subtenant
other than Rent shall be payable on demand, or if some other time period is
expressly provided for in this Sublease or as incorporated herein in the Lease
within such period, as additional rent ("Additional Rent") (collectively herein
"Base Monthly Rent" and "Additional Rent" are referred to as "Rent"). If the
Commencement Date falls on a day other than the first (1st) day of a month, the
Rent for the month in which the Commencement Date occurs shall be prorated based
upon the number of days in such month. Subtenant shall pay all Rent to
Sublandlord at the address designated by Sublandlord as specified in Article 12
hereof or at such other location designated in writing by Sublandlord.
3.2 Subtenant shall, concurrently with execution of this Sublease,
deliver to Sublandlord a security deposit ("Deposit") in the amount of
$50,673.23, and the amount of $15,964.58 to be applied toward the second month's
Base Monthly Rent ("Prepaid Rent") as it becomes due. The Deposit shall be held
by Sublandlord to insure Subtenant's performance of all of its obligations under
the Sublease. Sublandlord shall have the right from time to time without
prejudice to any other remedy Sublandlord may have on account hereof, to apply
the Deposit, or any part thereof, to Sublandlord's damages arising from any
default beyond all applicable notice and cure periods on the part of Subtenant.
Provided Subtenant shall have fully and timely complied with all of the terms,
covenants and conditions of this Sublease, Sublandlord shall return the Deposit,
or remainder thereof not previously applied, to Subtenant on the expiration or
earlier termination of the Term and surrender by Subtenant of possession of the
Subleased Premises to Sublandlord. Sublandlord may hold the Deposit without any
obligation to pay interest thereon and may commingle the Deposit with
Sublandlord's other funds. If Sublandlord conveys Sublandlord's interest under
this Sublease, the Deposit, or any part thereof not previously applied, may be
turned over by
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Sublandlord to Sublandlord's grantee, whereupon, Subtenant agrees to look solely
to such grantee for application and return of the Deposit in accordance
herewith. At Subtenant's option, the Deposit may be provided by Subtenant in the
form of an irrevocable standby letter of credit ("Letter of Credit") in the
amount of $50,673.23 issued by a financial institution acceptable to Sublandlord
in its sole discretion naming Sublandlord as beneficiary in form acceptable to
Sublandlord containing terms, covenants and conditions including, without
limitation, the following: (a) upon default by Subtenant beyond all applicable
notice and cure periods by Subtenant under this Sublease, Sublandlord may draw
upon the Letter of Credit upon demand without any further notice or approval to
or by Subtenant, and (b) the Letter of Credit shall be for a term which is the
entire Term of this Sublease, provided however the Letter of Credit may be for a
term which is less than the entire Term of this Sublease on condition that the
Letter of Credit include a provision that such Letter of Credit shall
automatically renew for consecutive successive periods for the balance of the
Term of this Sublease unless the issuing lender shall provide Sublandlord
written notice at least thirty (30) days prior to the expiration of the then
current term of such Letter of Credit notifying Sublandlord that such Letter of
Credit shall not be automatically renewed at the expiration of the then
applicable term thereof, in which event Subtenant agrees to provide a
replacement Letter of Credit which satisfies all of the aforesaid terms,
covenants and conditions to Sublandlord on or before the expiration of the term
of the then applicable Letter of Credit.
4. SERVICES; UTILITIES. Subject to Section 1.3 above, Subtenant shall look
solely to Landlord to furnish services required under the Lease, and in no event
whatsoever shall Subtenant look to Sublandlord to furnish any services or shall
this Sublease be construed to create any obligation on Sublandlord to furnish
any services. Subtenant shall at all times cooperate with Landlord and
Sublandlord and abide by all regulations and requirements established from time
to time by Landlord for the proper functioning and protection of the heating,
ventilating and air conditioning systems, utilities and other services necessary
for the operation of the Subleased Premises and/or Building. Subtenant agrees to
provide access to the Subleased Premises to Landlord, its agents and contractors
for the performance of janitorial services, and to otherwise comply with the
provisions of the Lease. Subtenant shall not be entitled to any diminution,
reduction or abatement of Rent, or to any compensation, or to claim that this
Sublease or any obligation of Sublandlord hereunder has been affected,
diminished or terminated, due to any interruption, stoppage or curtailment of
any services to be provided by Landlord unless any of the foregoing is provided
to Sublandlord under the Lease, in which event Subtenant shall be entitled to
the foregoing hereunder to the same extent provided in the Lease, but only to
the extent received by Sublandlord and to the extent applicable to the Subleased
Premises only and further provided neither Subtenant nor its employees, agents,
invitees and/or contractors are at fault, directly or indirectly, for such
events which are the basis of such diminution, reduction, abatement or
compensation. Subtenant agrees to promptly notify Sublandlord of any
interruption, diminution, delay or discontinuance of services. Subtenant shall
pay within ten (10) days after demand by Sublandlord or Landlord, unless a
shorter time period is provided for in the Lease in which event such shorter
period shall apply, all charges related to any standard as well as additional
(non-standard) utilities and/or services to the Subleased Premises requested by
Subtenant for which extra costs are attributable. The provisions of this Section
4 shall survive the expiration or earlier termination of this Sublease.
5. USE. The Subleased Premises shall be used and occupied by Subtenant for
the use set forth in the Lease and for no other purposes. Subtenant shall fully
and promptly comply with the requirements of all present and future laws, rules,
orders, ordinances and regulations applicable to the Subleased Premises to the
same extent and in the same form as required of "Tenant" under the Lease. If
Subtenant receives any notice of violation of any of the foregoing, Subtenant
shall give prompt notice thereof to Sublandlord.
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6. CONDITION OF SUBLEASED PREMISES; SURRENDER; HOLDOVER.
6.1 Sublandlord warrants and represents that as of the Commencement Date,
to Sublandlord's actual knowledge, as follows: (a) the Lease is in full force
and effect, a copy of which is attached hereto as EXHIBIT "A", and (b) to
Sublandlord's actual knowledge, no default beyond all applicable notice and cure
periods exists on the part of any party to the Lease and that Sublandlord has
neither received from nor sent to Landlord notice in connection with a default
for which the cure period as of the execution by Sublandlord of this Sublease
has not yet expired. Subtenant accepts the Subleased Premises in their "AS-IS,
WHERE-IS" condition. Except as expressly provided for in this Sublease,
Subtenant acknowledges that it is not relying on any representation or warranty
whatsoever of Sublandlord or its agents and/or employees as to the condition,
sufficiency, size, measurement or permitted uses of the Subleased Premises. Upon
the expiration or earlier termination of the Term, Subtenant shall, at its sole
cost and expense, quit and surrender the Subleased Premises in as good a
condition as when possession was delivered to Subtenant including, without
limitation, removal of all Alterations (as defined below) made by or on behalf
of Subtenant, damage thereto by fire or other casualty and normal wear and tear
excepted, but only to the extent required or permitted, as applicable, under the
Lease. Subtenant shall have no obligation to remove any Alterations in the
Subleased Premises as of the Commencement Date no install by or on behalf of
Subtenant. Notwithstanding anything to the contrary in this Sublease, the
Subleased Premises shall be cleaned in accordance with the cleaning
specifications attached to the Lease by Sublandlord at its cost on or before the
Commencement Date, provided however Subtenant shall not be entitled to any delay
of the Commencement Date, abatement, reduction, offset, or diminution of rent,
or damages nor shall be any constructive or actual eviction arising from the
performance, lack of and/or any delay in performing such work.
6.2 Subtenant shall not holdover after the expiration of the Term,
such possession shall be construed a tenancy at sufferance and Subtenant shall
remain liable to Sublandlord for daily use and occupancy at the rate of two (2)
times the per diem Rent then in effect during the last month of the Term; and
shall save, protect, defend (by counsel acceptable to Sublandlord) and hold
Sublandlord harmless for all damages including, without limitation,
consequential damages, arising from such holdover.
7. REPAIRS; ALTERATIONS; MECHANIC'S LIENS.
7.1 Subtenant shall be responsible for the payment of all repair
costs in and to the Subleased Premises and the Building which would otherwise
have been the responsibility of Sublandlord, including, without limitation,
costs for any repairs due to work performed by Subtenant, the installation, use
or operation of the Subleased Premises by Subtenant, the moving of any property
of Subtenant in or out of the Subleased Premises and/or the Building, and/or any
act, omission, neglect or misuse of the Subtenant or any of its employees,
agents, contractors, invitees or licensees; and any fees due to Landlord under
the Lease in connection with the performance of such repairs.
7.2 Subtenant shall comply with all provisions of this Sublease and
the Lease governing alterations, additions and improvements made by or on behalf
of Subtenant to the Subleased Premises (collectively, "Alterations") and all
other work to be performed by or on behalf of Subtenant to the Subleased
Premises. All work to be performed by or for Subtenant and Alterations
including, without limitation, construction and preparation of the Subleased
Premises for Subtenant's occupancy ("Subtenant's Initial Improvements"), shall
be at Subtenant's sole cost and expense and subject to Sublandlord's and
Landlord's prior written consent, which consent shall be governed by the terms,
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covenants and conditions of the Lease. Subtenant acknowledges that neither
Landlord nor Sublandlord shall be responsible for performing or the cost of
Subtenant's Initial Improvements.
7.3 Subtenant shall keep the Subleased Premises, Building and all
parts thereof at all times free of mechanic's liens and any other lien for
labor, services, supplies, equipment or material purchased or procured, directly
or indirectly, by or for Subtenant. Subtenant further agrees that Subtenant
shall promptly pay, satisfy, bond against and/or discharge all liens of
contractors, subcontractors, mechanics, laborers, materialmen, and other items
of like character caused, directly or indirectly, by or for Subtenant, and will
indemnify, defend (by counsel acceptable to Sublandlord) and hold Sublandlord
harmless against all costs and expenses incurred in the defense of any suit in
discharging the Premises, Building or any part thereof from any liens,
judgments, or encumbrances caused by Subtenant. All materialmen, contractors,
mechanics and laborers are hereby charges with notice that they must look solely
to the Subtenant, and not to Sublandlord, Landlord or their interest in the
Subleased Premises, Leasehold or Building, to secure the payment of any xxxx for
work done or material furnished at the request or instruction of Subtenant.
8. INDEMNIFICATION; INSURANCE; CASUALTY.
8.1 Except to the extent arising from Sublandlord's or its agents',
employees', invitees', and/or contractors' acts, omissions, negligence or
misconduct, Subtenant shall indemnify, defend (by counsel acceptable to
Sublandlord) and hold Sublandlord harmless against any and all claims, losses,
damages, liabilities and expenses arising from Subtenant's use or occupancy of
the Subleased Premises or arising from any acts, omissions, neglect or fault of
Subtenant or Subtenant's agents, employees, contractors or invitees within the
Subleased Premises, or arising from Subtenant's failure to comply with the
terms, covenants and/or conditions of this Sublease, and to the extent
incorporated herein, the Lease. All personal property placed or moved into the
Subleased Premises or Building shall be at the risk of Subtenant or the owner
thereof, and Sublandlord shall not be liable to Subtenant for any damage to said
personal property, but only to the extent of the waiver of subrogation provided
for in Section 8.3 below. In the event Sublandlord shall be made a party to any
litigation commenced against Subtenant for which Subtenant is obligated to
indemnify Sublandlord as provided herein, then Subtenant shall save, indemnify,
defend (by counsel acceptable to Sublandlord) and hold Sublandlord harmless in
connection with such litigation and any appeal thereof.
8.2 Except to the extent arising from Subtenant's or its agents',
employees', invitees', and/or contractors' acts, omissions, negligence or
misconduct, Sublandlord shall indemnify, defend (by counsel acceptable to
Subtenant) and hold Subtenant harmless against any and all claims, losses,
damages, liabilities and expenses arising from Sublandlord's use or occupancy of
the Leasehold (excluding the Subleased Premises) or arising from any acts,
omissions, neglect or fault of Sublandlord or Sublandlord's agents, employees,
contractors or invitees within the Leasehold (excluding the Subleased Premises),
or arising from Sublandlord's failure to comply with the terms, covenants and/or
conditions of this Sublease and/or (to the extent not assumed by Subtenant
pursuant to this Sublease) the Lease. In the event Subtenant shall be made a
party to any litigation commenced against Sublandlord for which Sublandlord is
obligated to indemnify Subtenant as provided herein, then Sublandlord shall
save, indemnify, defend (by counsel acceptable to Subtenant) and hold Subtenant
harmless in connection with such litigation and any appeal thereof.
8.3 Subtenant shall, at its sole cost and expense, maintain during
the Term of this Sublease each of the following insurance policies: (a)
commercial general liability insurance, covering bodily injury, property damage,
personal injury and advertising liability including premises operations,
completed
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operations, product liability and blanket contractual liability, with limits of
not less than $1 Million per occurrence and $3 Million in the aggregate, (b)
commercial automotive liability, including owned, non-owned and hired vehicles
with limits of not less than $1 Million per occurrence, (c) "All Risk" property
insurance insuring all of Subtenant's personal property, equipment, trade
fixtures and improvements against damage or destruction due to risk including,
but not limited to, fire, vandalism, malicious mischief, flood, earthquake,
insuring Subtenant for full replacement cost, (d) Subtenant worker's
compensation insurance in compliance with applicable state and federal laws, and
(e) employers liability insurance with a limit of liability of not less than
$500,000.00. Each of the aforesaid Subtenant's insurance policies shall be upon
terms and conditions as approved by Sublandlord, provided however Subtenant
agrees to maintain such policies with amounts, terms and conditions which shall
be in compliance with the requirements of the Lease should the Lease
requirements exceed those required in this Subleaseand shall be written with
insurance companies having an A.M. Best Rating of at least A-, VII, licensed to
do business in the state where the Sublease Premises is located and acceptable
to Sublandlord. Subtenant shall include Sublandlord and Landlord as "additional
insureds" on all liability insurance policies required to be maintained by
Subtenant, shall provide for a waiver of subrogation against Sublandlord and
Landlord on all property insurance policies required to be maintained by
Subtenant, shall provide Sublandlord with certificates of insurance for all
policies required of Subtenant pursuant to this Sublease and the Lease no later
than ten (10) days after full execution of the Sublease and upon each renewal,
and shall provide Sublandlord notices and other documents provided to Landlord
in satisfaction of the requirements of the Lease at such time as the same are
provided to the Landlord. Subtenant's liability shall not be limited by the
amount of insurance coverage to be maintained by Subtenant hereunder. All
policies shall be primary over any coverage held by Sublandlord and contain a
provision that the policy will not be cancelled, failed to be renewed or
materially altered without thirty (30) days prior written notice to Sublandlord.
If Subtenant elects to self-insure any of the insurance required of Subtenant
hereunder, then the self-insured shall be considered an insurance carrier for
purposes of this paragraph. Each self-insured retention(s) and/or deductible
amounts shall be treated as though they were recoverable under required
insurance. No property or assets of Sublandlord's partners, principals,
subsidiaries or parent companies, disclosed or undisclosed, shall be subject to
levy, execution or other enforcement procedure for the satisfaction of
Subtenant's remedies.
8.4 If the Lease is terminated with respect to the Subleased Premises
by Landlord or Sublandlord pursuant to Section 12 of the Lease as a result of
fire or other casualty, to the Premises or any part thereto, this Sublease shall
similarly terminate at the same time. Sublandlord shall notify Subtenant of any
such termination of the Lease promptly after receipt of notice thereof from
Landlord. In the event the Premises or the Subleeased Premises are damaged or
destroyed by fire or other casualty and the Lease shall not be terminated, this
Sublease shall continue in full force and effect. Subtenant shall not have the
right to terminate this Sublease in the event the Subleased Premises are damaged
or destroyed by fire or other casualty but shall have the rent abatement
benefits of Sublandlord, if any, with respect to the Subleased Premises (based
on the rent due under this Sublease) pursuant to Section 12 of the Lease. If, as
a result of a fire or other casualty, Sublandlord shall have a right under the
Lease to terminate the Lease, Sublandlord and Subtenant agree that Sublandlord
may exercise such termination right without the consent of Subtenant and, if so
terminated then, this Sublease shall similarly terminate on the date immediately
preceding the effective date of such termination. Sublandlord agrees to furnish
Subtenant with a copy of such termination notice simultaneously with sending
such notice to Landlord.
9. ASSIGNMENT. Subtenant shall neither assign nor encumber any of its
rights under this Sublease or with respect to the Subleased Premises nor
re-sublet or permit any other person or entity to use or occupy all of any
portion of the Subleased Premises without the prior written consent of
Sublandlord (which consent shall be subject to the provisions of the Lease as if
Sublandlord were "Landlord"
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thereunder and Subtenant were "Tenant" thereunder and otherwise shall not be
unreasonably withheld, conditioned or delayed), and without the prior written
consent of Landlord (which consent shall be governed by the provisions of the
Lease). Notwithstanding the foregoing and as may be provide in the Lease by
incorporation provisions of this Sublease, Subtenant shall have the right,
subject to Landlord's prior written consent (which consent shall be governed by
the provisions of the Lease) without the prior consent of Sublandlord to assign
this Sublease or to sublet all or any portion of the Subleased Premises to any
entity which: (a) controls, is controlled by or under common control with
Subtenant; or (b) is Subtenant's successor through merger, reorganization or
consolidation (collectively, "Subtenant Affiliate"); or (c) acquires
substantially all of the assets of Subtenant; provided however, it is expressly
understood and agreed by Subtenant that conditions to no prior consent by
Sublandlord are as follows: (i) Subtenant shall not be released with respect to
the obligations under the Sublease arising from a permitted assignment or
sublease to a Subtenant Affiliate, (ii) Subtenant shall provide Sublandlord at
least thirty (30) days prior written notice of such an assignment or sublease,
(iii) Subtenant shall provide to Sublandlord along with the notice provided for
in sub-section (ii) a duplicate original of all assignment or sublease, as
applicable, agreements and documentation executed by all applicable parties in
which the Subtenant Affiliate or acquiring entity, as appropriate, shall assume
all of Subtenant's obligations under this Sublease such that, by way of example
and not limitation, in the event of a sublease to the extent applicable to the
portion of the Subleased Premises being subleased to the Subtenant Affiliate or
in the event of an assignment then all of Subtenant's obligations under this
Sublease, and (iv) the Tenant Affiliate or acquiring entity, as appropriate,
must have a net worth (as evidenced by reasonable financial documentation if
requested by Sublandlord) equal or greater than the greater of (x) Subtenant's
net worth on the Commencement Date of this Sublease or (y) Subtenant's net worth
on the effective date of such assignment or sublease, as applicable. As used
herein, "control" shall mean the possession directly or indirectly of the power
to direct or cause the direction of the management and policies of such entity
through ownership of the voting shares or by contract or otherwise.
10. DEFAULT BY SUBLANDLORD. If Sublandlord shall fail to comply with the
Lease for more than thirty (30) days after written notice from Subtenant and
such failure materially effects Subtenant's possession of the Subleased
Premises, then Subtenant shall provide Sublandlord and Landlord a second notice,
and Sublandlord and Landlord shall have thirty (30) days from receipt of such
second notice to cure said failure. If Sublandlord or Landlord have commenced
curing within such period and continue to diligently prosecute curing said
default such period shall be extended for such period as Sublandlord and/or
Landlord continue to diligently prosecute said default.
11. DEFAULT BY SUBTENANT; REMEDIES.
11.1 In addition to all of the rights and remedies that Sublandlord
may exercise against Subtenant under the terms of this Sublease (and/or by law)
in the event of Subtenant's default, Sublandlord shall be entitled to exercise
against Subtenant all of such other and further rights and remedies as the
"Landlord" may exercise against the "Tenant" under the Lease with regard to the
Subleased Premises, provided however, it is the intent of the parties hereto
that for all instances in which "Tenant" under the Lease is entitled to either a
cure or grace period that for purposes of this Sublease as between Sublandlord
and Subtenant only such cure or grace period shall be reduced by two (2)
business days in each instance.
11.2 The prevailing party shall be awarded all costs and expenses
including, without limitation, reasonable attorneys' fees, arising from
enforcement of the provisions of this Sublease. The remedies described in this
section and the Lease are cumulative and in addition to and without waiver of
all remedies allowed Sublandlord by this Sublease, case law, common law and/or
statute now or hereafter in
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effect, and are not mutually exclusive. Subtenant agrees that the rights and
remedies granted Sublandlord in this section are commercially reasonable.
11.3 INTENTIONALLY DELETED.
12. NOTICE. All notices shall be in writing, and if to Subtenant shall be
sent by nationally recognized reputable overnight courier requiring signature of
addressee upon delivery, or by registered mail, return receipt requested,
postage prepaid, addressed to Subtenant at Four Batterymarch Park, Quincy,
Massachussets, with a copy to Xxxxx Xxxxx LLP, 000 Xxxxxxx Xxxxxxxxx, Xxxxxx, XX
00000 Attn: Xxxxx Xxxxxxx, Esq., and if to Sublandlord shall be sent by
nationally recognized reputable overnight courier requiring signature of
addressee upon delivery, or by registered mail, return receipt requested,
postage prepaid, addressed to 0 Xxxxxx Xxxxx, Xxxx Xxxxxx 00XX, Xxxx Xxxxx, XX
00000, Attention: Real Estate Department, with copy to Business Integration
Group, 0000 X. Xxxxxx Xxxx - Xxxxx 000, Xxxx: Lease Xxxxxxxxxxxxxx Xxxxxxxxxx,
Xxxxx, XX 00000, or to such other address as either party shall designate by
written notice to the other. Notice shall be deemed given upon receipt or
refusal to accept same.
13. RIGHT OF ENTRY. In addition to the rights of entry granted to the
Landlord under the Lease with regard to the Subleased Premises, Sublandlord
and/or any of its agents shall have the right upon reasonable prior notice (oral
or written) [except in the event of an emergency in which practical, if any,
notice shall be required] to enter the Subleased Premises during all reasonable
hours to examine the same, and/or to make any repairs, alterations, improvements
or additions pursuant to the terms of this Sublease, and/or to effect any cure
of Subtenant's default (which Sublandlord has elected to cure) pursuant to the
provisions of this Sublease, and/or to exhibit the Subleased Premises to third
parties, including, without limitation, mortgagees. In addition, Sublandlord
shall be entitled (but not obligated) to enter the Subleased Premises at any
time without notice in the event of an emergency.
14. ESTOPPEL STATEMENT. Each party agrees to deliver to the requesting
party or to its designee within fourteen (14) days after request a statement in
writing certifying (a) that this Sublease is unmodified and in full force and
effect (or if there have been modifications, that the Sublease as modified is in
full force and effect and stating the modifications); (b) the dates to which the
Rent and other charges have been paid; (c) that the requesting party is not in
default under any provisions of this Sublease, or if in default, the nature
thereof in detail; and (d) other matters reasonably requested by the requesting
party and/or its designee. Each party understands and agrees that the requesting
party and its designee may rely on the statements contained in such estoppel
statement. In the event Subtenant fails to execute and deliver such estoppel
statement within the such fourteen (14) day period, then in addition to
Sublandlord's rights and remedies for failure to timely deliver such estoppel
statement, such estoppel statement shall be deemed to be a conclusive admission
by Subtenant that this Sublease is in full force and effect, free of any set-off
and free of any default on Landlord's and Sublandlord's part. without releasing
Subtenant from its obligation to complete, execute and deliver same.
15. ENTIRE AGREEMENT. This Sublease contains the entire agreement and
understanding between the parties hereto with respect to the Subleased Premises,
and there are no other terms, covenants, obligations, or representations, oral
or written, of any kind whatsoever. Sublandlord and Subtenant have participated
fully in the negotiation and preparation hereof, and this Sublease shall not be
more strictly construed against either of the parties hereto. This Sublease may
not be cancelled, changed or altered in any way unless in writing executed by
Sublandlord and Subtenant (and Landlord if required by the Lease).
16. SUCCESSORS AND ASSIGNS. This Sublease shall be binding upon, and shall
inure to the benefit of, the parties hereto, their respective heirs,
administrators, and permitted successors and assigns.
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17. NO WAIVER. The failure of Sublandlord to insist in any instance upon
the strict performance or observance of any obligation by Subtenant hereunder,
or to exercise any right or option contained herein shall not be construed as a
waiver or relinquishment for the future of any such obligation by Subtenant or
any right or option of Sublandlord. Sublandlord's receipt and acceptance of Rent
or other amounts, or both, or Sublandlord's acceptance of performance of any
other obligation by Subtenant , with knowledge of the Subtenant's breach of any
provision of this Sublease shall not be deemed a waiver of such breach.
18. WAIVER OF JURY TRIAL; RIGHT TO COUNTERCLAIM. SUBTENANT AND SUBLANDLORD
EACH HEREBY WAIVE ANY RIGHT THAT EITHER MAY HAVE TO TRIAL BY JURY IN ANY SUMMARY
PROCEEDING OR OTHER ACTION OR COUNTERCLAIM ARISING OUT OF OR IN ANY WAY
CONNECTED WITH THIS SUBLEASE, WITH THE RELATIONSHIP OF SUBLANDLORD TO SUBTENANT,
OR WITH THE SUBLEASED PREMISES AND THE USE AND OCCUPANCY THEREOF. SUBTENANT
HEREBY WAIVES ANY AND ALL RIGHTS TO ASSERT OR INTERPOSE A COUNTERCLAIM, OFFSET
OR DEDUCTION OF WHATEVER NATURE IN ANY PROCEEDING, ACTION OR OTHERWISE TO
RECOVER OR OBTAIN POSSESSION OF THE SUBLEASED PREMISES.
19. AUTHORITY. If Sublandlord or Subtenant sign as a corporation,
partnership or other firm or entity, each of the persons executing this Sublease
on behalf of the Sublandlord or Subtenant do hereby covenant and warrant that
Sublandlord and Subtenant, as applicable, are duly authorized to transact
business, are in good standing and existing, and are qualified to do business in
the where the Subleased Premises is located; that the Sublandlord and Subtenant,
as applicable, have full right and authority to enter into this Sublease; and
that the persons signing on behalf of the entity have been duly authorized to do
so.
20. BROKER. Both parties warrant and represent to each other that each
party did not authorize any broker, salesman, agent or finder to act on its
behalf in connection with the consummation of this Sublease other than Xxxxxxx &
Xxxxxxxxx of Massachusetts, Inc. and Insignia/ESG ("Broker") whose fee shall be
paid by Sublandlord pursuant to separate agreement, and agree to hold the other
party harmless from any claims by any broker, salesman, agent or finder on such
party's behalf other than Broker arising out of this transaction. The provisions
of this paragraph shall survive the expiration or earlier termination of this
Sublease.
21. MISCELLANEOUS. This Sublease shall in all aspects be governed by the
laws of the state where the Sublease Premises is located. Except with respect to
any costs arising from obtaining Landlord's initial consent to this Sublease,
any costs arising from Sublandlord's or Landlord's consent shall be borne by
Subtenant, whether or not consent is given. Time shall be of the essence with
respect to the performance of all Subtenant's obligations hereunder. Capitalized
terms used but not defined herein shall have the meanings set forth in the
Lease. Captions are inserted only as a matter of convenience and for reference
and in no way define, limit or describe the scope of this Sublease nor the
intent of any provision thereof. Neither this Sublease nor any notice or
memorandum thereof shall be recorded by Subtenant.
22: FURNITURE/EQUIPMENT. Subtenant acknowledges and agrees that Sublandlord has
left remaining in the Subleased Premises certain furniture, fixtures, equipment,
and assorted personal property as shown on the "Inventory" attached hereto and
made a part hereof as EXHIBIT "B" (collectively, "Equipment") which shall be
deemed to be a part of the property subleased by Subtenant hereunder in its
"AS-IS, WHERE-IS" condition, it being understood and agreed that there is no
warranty, maintenance contract or other maintenance, repair and/or replacement
with respect to the Equipment being provided by Sublandlord nor shall
Sublandlord be responsible or liable in any way or manner to Sub-Subtenant with
respect to the Equipment including, without limitation, for failure to maintain,
repair or replace the Equipment or for malfunctions of the Equipment. Subtenant
shall be liable for and shall pay before delinquency, taxes levied against the
Equipment and any personal property and trade fixtures placed by Subtenant in
the Subleased Premises which shall become due
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and payable for periods during the Term, which obligation shall survive the
expiration or earlier termination of this Sublease. If any such taxes are levied
against Landlord or Sublandlord, whether directly or indirectly, or the
Subleased Premises, or if the assessed value of the Building or Subleased
Premises is increased by the inclusion of such Equipment, personal property or
trade fixtures, upon written notice from Sublandlord, Subtenant shall pay to
Sublandlord the amount of the taxes based upon the increased assessments which
shall become due and payable for periods during the Term, which obligation shall
survive the expiration or earlier termination of this Sublease. Effective on the
Commencement Date, ownership of the Equipment shall deemed transferred to
Subtenant without any additional writing or other agreement between Sublandlord
and Subtenant [it being agreed that Subtenant shall be responsible for and shall
pay before delinquency any and all taxes associated with such transfer of
ownership of the Equipment, if any], and such Equipment shall be removed by
Subtenant from the Subleased Premises and all damage caused by the removal
thereof repaired, at Subtenant's sole cost and expense, at the expiration or
earlier termination of this Sublease; provided however, upon request by
Subtenant, Sublandlord shall execute and deliver a xxxx of sale ("Xxxx of Sale")
for the Equipment in the form attached hereto and made a part hereof as EXHIBIT
"C". Subtenant shall at all times during the Term maintain, at its sole cost and
expense, property insurance as required in this Sublease with respect to the
Equipment. Sublandlord and Subtenant acknowledge and agree that this Sublease
may be executed by such parties prior to determination of the aforesaid
Inventory exhibit, and in such event Sublandlord hereby agrees to perform an
inventory walk-thru and inspection on a date reasonably mutually agreeable to
Sublandlord and Subtenant to be conducted at the Subleased Premises at a time
selected by Sublandlord and reasonably agreeable to Subtenant wherein Subtenant
or it's designee shall be present to attend and observe, at which time
Sublandlord and Subtenant shall mutually prepare and execute the Inventory list
which shall then be deemed the Inventory exhibit for this Sublease and deemed
attached hereto and made a part hereof as EXHIBIT "B". Failure of Subtenant to
attend the walk-thru inspection shall be deemed a waiver of Subtenant's right to
so attend and mutually prepare the Inventory, and in such event the Inventory
prepared by Sublandlord shall be deemed binding and conclusive and shall be
deemed attached hereto and made a part hereof as EXHIBIT "B".
[EXECUTION PAGE FOLLOWS]
- 12 -
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date, month, and year first above written.
SUBLANDLORD: LUMBERMENS MUTUAL CASUALTY COMPANY
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxx
------------------------------------------ ----------------------------------------
Title: Xxxxxxx X. Xxxxxx, Chief Financial Officer Title: Xxxxxx X. Xxxxxx, Real Estate Officer
------------------------------------------ ----------------------------------------
Date: Date:
------------------------------------------ --------------------------------------
SUBTENANT: THE J XXXX GROUP, INC.
By: /s/ Xxxx X. Xxxxxx
------------------
Title: CFO
---
Date: 8-28-03
-------
The undersigned, Landlord under the Lease in Exhibit "A", hereby consents to the
subletting of the Subleased Premises on the terms and conditions contained in
this Sublease and does not release Sublandlord from any of its obligations under
the Lease. This consent shall apply only to this Sublease and shall not be
deemed a consent to any other sublease.
LANDLORD: NATIONAL FIRE PROTECTION ASSOCIATION
By: -----------------------------
Title: -----------------------------
Date: -----------------------------
LIST OF EXHIBITS:
A LEASE
B INVENTORY
C XXXX OF SALE
- 13 -
EXHIBIT "A"
LEASE
(SEE ATTACHED)
- 14 -
DRAFT DATED 4/27/99
Lease Agreement
THIS INSTRUMENT IS A LEASE, dated as of April 27, 1999, in which the
Landlord and the Tenant are the parties hereinafter named, and which relates to
space in a building (the "Building") known as Four Batterymarch Park 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.
1.2 BASIC DATA
LANDLORD: National Fire Protection Association (NFPA)
LANDLORD'S ORIGINAL ADDRESS: Xxx Xxxxxxxxxxxx Xxxx, Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx
TENANT: Lumbermens Mutual Casualty Company, an Illinois corporation,
doing business as Xxxxxx Insurance Company
TENANT'S ORIGINAL ADDRESS: Xxx Xxxxxx Xxxxx
Xxxx Xxxxx, Xxxxxxxx 00000
GUARANTOR: [NONE]
BASIC RENT: Years 1 and 2 of the Term:
$791,235.00 annually; $65,936.25 monthly (based upon a
rate of $27.00 per square foot of the Premises
Rentable Area per annum)
Years 3 and 4 of the Term:
$820,540.00 annually; $68,378.33 monthly (based upon a
rate of $28.00 per square foot of the Premises
Rentable Area per annum)
Years 5, 6 and 7 of the Term:
$864,497.50 annually; $72,041.46 monthly (based upon a
rate of $29.50 per square foot of the Premises
Rentable Area per annum)
Years 8, 9 and 10 of the Term:
$879,150.00 annually; $73,262.50 monthly (based upon a
rate of $30.00 per square foot of the Premises
Rentable Area per annum)
Basic Rent may be adjusted and/or abated pursuant to
Section 12.1
PREMISES RENTABLE AREA: 29,305 square feet located on a portion of the
third floor of the Building, as shown on EXHIBIT FP hereto. Premises
Rentable Area includes a common area factor of 1.16. The useable square
feet within the Premises is 25,263 square feet.
PERMITTED USES: General office uses.
ESCALATION FACTOR: as computed in accordance with the Escalation Factor
Computation.
PLAN APPROVAL DATE: April 15, 1999
SCHEDULED COMPLETION DATE: December 1, 1999
INITIAL TERM: Ten (10) years commencing on the Commencement Date and
expiring at the close of the day immediately preceding the tenth
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 in which such tenth anniversary shall
fall.
SECURITY DEPOSIT: NONE
BASE OPERATING EXPENSES: Base Operating Expenses shall be the actual
Operating Expenses for the Property for calendar year 2000 (provided
that, if during any portion of calendar year 2000, less than 95% of the
Building Rentable Area was occupied by tenants or if the Building was in
operation for only a portion of such year, actual operating expenses
incurred shall be reasonably extrapolated by Landlord to the estimated
operational expenses that would have been incurred if the Building were
in operation for the entire year and 95% occupied for such year, and
such extrapolated amount shall, for the purposes hereof, be deemed to be
the Base Operating Expenses.
2
BASE TAXES: Base Taxes shall be the actual Taxes for the Property for
the period July 1, 1999 through June 30, 2000 (provided that if the
assessment for such period does not reflect the assessment for the
completed improvements for the Property, Base Taxes shall be
appropriately adjusted when the completed improvements have been fully
assessed).
COMMERCIAL GENERAL LIABILITY INSURANCE: $2,000,000 per occurrence
(combined single limit) and $5,000,000 annual aggregate.
1.3 ADDITIONAL DEFINITIONS
BUILDING RENTABLE AREA: 159,161 square feet
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 are in the future recognized as Federal or Commonwealth of
Massachusetts holidays.
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 the
greater of (i) ninety-five percent (95%) of Building Rentable Area or
(ii) Building Rentable Area which is actually leased on an average
annual basis.
LANDLORD'S WORK: As defined in Section 4.2.
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.
3
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 subject to all of the terms,
covenants and conditions contained in this Lease.
2.2 APPURTENANT RIGHTS AND RESERVATIONS
a. Tenant shall have, as appurtenant to the Premises, (i) 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 and (ii) at no additional charge to
Tenant, 3.74 parking spaces per 1,000 square feet of Premises
Rentable Area on a non-exclusive, first-come, first-served basis,
such spaces to be available in a surface level parking lot and .26
parking spaces per 1,000 square feet of Premises Rentable Area in
the parking garage located under the Building, on a non-exclusive,
first-come, first-served basis. With respect to parking spaces,
Landlord reserves the right to institute a tag or sticker system to
monitor compliance by Tenant and others of use of the tag or
sticker system to monitor compliance by Tenant and others of use of
the parking spaces. The Premises shall be designated a non-smoking
area and Tenant will comply, and cause its employees and invitees
to comply, with reasonable Building regulations regarding
non-smoking areas.
4
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.
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 otherwise specifically provided in this Lease),
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 written 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 Landlord, at Landlord's Original Address,
or at such other place or Landlord shall from time to time
designate by written notice.
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
Commencement 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 as additional rent a late charge
equal to 5% of the amount of any Basic Rent payment not paid when
due; provided, however, that no such charge shall be payable in
connection with the first payment of Basic Rent not paid when due
during any three (3) calendar year period
5
provided that such payment is made within five (5) days of written
notice of such non-payment from Landlord.
ARTICLE IV
TERM OF LEASE
4.1 COMMENCEMENT DATE
The Commencement Date shall be the later to occur of:
a. The Scheduled Completion Date; or
b. The day following the date on which the Premises are ready for
occupancy as provided in Section 4.2.
Notwithstanding the foregoing, except as provided in Article 4.2(e), if Tenant's
personnel shall occupy all or any part of the Premises for the conduct of its
business prior to the Commencement Date as determined pursuant to the preceding
sentence, such date of occupancy shall, for all purposes of this Lease, be the
Commencement Date.
4.2 PREPARATION OF THE PREMISES
a. Landlord and Tenant hereby approve (i) the floor plan dated August
7, 1998, as last revised on April 28, 1999 prepared by The
Environments Group, and (ii) the Scope Documents Package dated
October 14, 1998, each of which are attached hereto as EXHIBIT SP
and incorporated herein by this reference (collectively, the "Space
Plans"). Based upon the Space Plans, Landlord shall cause to be
prepared, or at Tenant's option, Tenant's architect shall prepare,
design development documents ("Design Documents"). In the event
Landlord causes to be prepared the Design Documents, Tenant shall
review and approve the Design Documents in writing within seven (7)
days of delivery thereof to Tenant. In the event Tenant elects to
have its architect prepare the Design Documents, Landlord shall
provide Tenant with an allowance of $0.45 per square foot of
Premises Rentable Area for the cost of Tenant's architect to
prepare the Design Documents ("Design Documents Allowance"). Upon
receipt by Landlord of a statement from Tenant indicating the
amount due to the architect retained by Tenant to prepare the
Design Documents, Landlord shall promptly reimburse Tenant for such
amount not to exceed the Design Documents Allowance. Based upon the
Space Plans and the Design Documents, Landlord shall, at its sole
cost and expense, cause to be prepared construction documents
("Construction Documents"). Tenant shall review the Construction
Documents and either approve or submit
6
in writing to Landlord any revisions within seven (7) days of
delivery thereof to Tenant. If Tenant submits revisions to
Landlord, Tenant shall review and approve the revised Construction
Documents within four (4) business days of delivery thereof to
Tenant. Any disapproval or revisions by Tenant of the Construction
Documents or, in the event Landlord causes the Design Documents to
be prepared, the Design Documents on a basis inconsistent with the
Space Plans shall constitute a Tenant Delay and in no event shall
such disapproval or revisions increase the cost of the work set
forth in the Space Plans. In the event that Tenant's architect
prepares the Design Documents, any inconsistency with the Space
Plans shall constitute a Tenant Delay and in no case shall such
inconsistency increase the cost of the work set forth in the Space
Plans. Landlord shall exercise all reasonable efforts to cause the
tenant improvement work to be built in accordance with the Space
Plans, Design Documents and the Construction Documents
(collectively, the "Landlord's Work"). Tenant shall have no claim
against Landlord for failure so to complete such Landlord's Work
except as provided in paragraph (d) of this Section 4.2. Landlord
shall perform the Landlord's Work at its sole cost and expense. If
Tenant requests any change in Landlord's Work, Landlord shall
notify Tenant within three (3) business days of the cost thereof.
Tenant shall notify Landlord within three (3) business days of
receipt of Landlord's statement of the change order cost as to
whether Tenant authorizes Landlord to proceed with the change
order. In the absence of such notice, Landlord shall not proceed
with the change order, and Tenant's request therefor shall be
deemed withdrawn. Any increase in the cost of Landlord's Work
resulting from a change by Tenant in any of the Landlord's Work
thereof shall be paid to Landlord either 100% in advance or on such
other schedule as Landlord may in its discretion determine, such
determination to be made by Landlord at the time of its approval of
such changes to Landlord's Work. Tenant shall, if requested by
Landlord, execute a work letter confirming such excess costs prior
to the time Landlord shall be required to commence work.
b. Notwithstanding anything to the contrary set forth herein, the
Landlord's Work shall not include a refrigerator, microwave,
icemaker or accordion partition with header.
c. The Premises shall be deemed ready for occupancy on the first day
as of which:
i. Landlord's Work (including the base building work specified
in Exhibit SP) has been completed except for items of work
(and, if applicable, adjustment of equipment and fixtures)
which can be
7
completed after occupancy has been taken which will not
materially interfere with Tenant's use and its ability to
open, operate and conduct business within the Premises
(i.e., so-called "punch list" items),
ii. Tenant has been given notice of the date that Landlord's
Work was or will be completed, such notice to be given by
Landlord to Tenant at least two (2) weeks' prior to the
anticipated date of completion,
iii. Either a temporary or permanent certificate of occupancy or
an equivalent use or occupancy permit for the Premises and
the Building ( a "Certificate of Occupancy") shall be
issued by the building inspector within the municipality
where the Building is being constructed; provided that if a
temporary Certificate of Occupancy is issued, Landlord
shall use diligent efforts to obtain appropriate extensions
prior to the expiration of the same. In the event that the
temporary Certificate of Occupancy expires and, as a result
thereof, Tenant is prohibited by the building inspector
from occupying the Premises for the Permitted Uses, Tenant
shall (in addition to the remedy provided in Article
4.2(d)) be entitled to an abatement in Basic Rent and
Escalation Charges for the period during which it is so
prohibited from occupying the Premises,
iv. The common areas on the first (1st) and third (3rd) floors
of the Building are substantially complete, and
v. All life safety electrical plumbing, HVAC, water and
elevator services ("Critical Building Services") are
available to the Premises.
The determination as to whether the Premises are ready for occupancy
shall be made by ADD, Inc. (or such other architect as may be selected
by Landlord) and shall be conclusive and binding on Landlord and Tenant.
On the day prior to Tenant's move-in to the Premises, Landlord, or its
designee, and Tenant, or it designee, shall determine in writing the so
called "punch list" items described in Paragraph 4.2 (c)(i), above.
Landlord shall complete within thirty (30) days or as soon as conditions
permit all "punch list" items and Tenant shall afford Landlord access to
the Premises for such purposes. All telephone installation in the
Premises shall be the responsibility of the Tenant. Failure of delay of
such installation shall not delay the above completion date.
8
d. If the Premises shall not be ready for occupancy within ninety (90)
days following the Scheduled Completion Date (which period shall be
extended automatically one day for each day of delay in the
Premises being ready for occupancy resulting from force majeure or
Tenant's Delay or both), Tenant shall have the right to terminate
this Lease by giving notice to Landlord of Tenant's desire so to do
within thirty (30) days after the expiration of such period; and,
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 30-day period, Landlord
substantially completes Landlord's Work (as defined in Article 4.2
(c)); and 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 Landlord's Work within such time. If the Premises
shall not be ready for occupancy by the Scheduled Completion Date
(which period shall be extended automatically for periods of force
majeure and Tenant's Delay), and this Lease shall not have been
terminated, Tenant shall receive a credit against Basic Rent next
due for each day following the Scheduled Completion Date (as
extended as aforesaid) that the Premises are not ready for
occupancy.
As used herein, the term "force majeure" shall mean a time
extension equal to the aggregate of any delays when the party
required to perform the respective obligation is prevented from
doing so, despite the exercise of reasonable diligence, and such
delay is caused by: (i) Acts of God, (ii) changes in government
regulations, (iii) casualty, (iv) strike, lockouts or other such
labor difficulties (unless such strike, lockout or labor difficulty
is caused by the use of non-union labor other than the use of
non-union labor by Tenant), (v) extraordinary weather conditions,
including earthquakes and hurricanes, and other natural disasters,
(iv) an inability to obtain supplies or parts for which there are
no available substitutions, (vii) failure of power, (viii) riots,
wars, acts of public enemy or insurrections, (ix) fires, explosions
or (x) other acts reasonably beyond such parties' control, but in
no event shall the term include economic or financing difficulties
or delays by contractors or subcontractors which are not directly
attributable to one or more of the matters listed in the preceding
items (i) through (x), inclusive.
e. Landlord shall permit Tenant access to the Premises for a period of
at least fourteen (14) calendar days prior to the Commencement
Date, without requiring payment of Basic Rent or other charges, for
the limited purpose of allowing Tenant or its contractors to
install fixtures and wiring for data and telephone services when
such access may be provided without material interference with the
remaining Landlord Work provided that any such work to be performed
by Tenant or its
9
contractors during such period shall (i) not interfere with the
remaining Landlord Work, (ii) be coordinated with the remaining
Landlord Work in such a manner as to maintain harmonious labor
relations and not cause any work stoppage or damage to the Premises
or the Building and (iii) not interfere with Building construction
or operation. Tenant hereby acknowledges that Landlord will be
using union labor in connection with its Work in the Premises and
the Building and 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 with Landlord.
f. If a delay shall occur in the date the Premises are ready for
occupancy pursuant to paragraph (c) as the result of any of the
following (a "Tenant's Delay"):
i. Any request by Tenant that Landlord delay in the
commencement or completion of Landlord's Work for any
reason;
ii. Any change by Tenant in any of Landlord's Work, which, in
Landlord's reasonable judgment, causes a delay in
Landlord's completion of Landlord's Work;
iii. Any other act or omission of Tenant or its officers,
agents, servants or contractors which, in Landlord's
reasonable judgment, causes a delay in Landlord's
completion of Landlord's Work; or
iv. Any reasonably necessary displacement of any of Landlord's
Work from its place in Landlord's construction schedule
resulting from any of the causes for delay referred to in
clauses i., ii., and iii. of this paragraph and the fitting
of such Work back into such schedule; or
v. Any act or omission of Tenant in violation of paragraph (e)
above.
A delay by Tenant shall not ripen into a Tenant Delay unless and
until Landlord shall have notified Tenant in writing (the "Notice
of Tenant's Delay") of the act, omission or failure to act which
Landlord alleges as the basis for such Tenant Delay. The Notice of
Tenant's Delay shall describe such act, omission or failure in
reasonable detail and shall be deemed effective when transmitted by
facsimile to those parties identified on Exhibit TD attached hereto
at the facsimile number set forth beside the name for each such
party. The Tenant's Delay shall
10
begin to accrue on the day that the facsimile is so transmitted.
Landlord's facsimile transmission log shall be conclusive evidence
of the giving of the Notice of Tenant's Delay. Landlord shall be
required to give only one (1) Notice of Tenant's Delay with respect
to any continuing act, omission or failure (it being agreed that
multiple Notices shall not be required for any particular act,
omission or failure to give rise to a Tenant's Delay equal to the
number of days that such act, omission or failure continues).
If and to the extent that a Tenant's Delay shall occur, then Tenant
shall, from time to time, and within twenty (20) days after demand
therefor, pay the Landlord as an additional charge for each day of
such delay equal to the amount of Basic Rent, Escalation Charges
and other charges that would have been payable hereunder calculated
on a per diem basis for the number of days in the month in which
the Commencement Date would have occurred had the Commencement Date
occurred prior to such delay. Tenant also shall pay to Landlord
with twenty (20) days of invoice therefor, any additional costs
incurred by Landlord in completing the work to the extent that such
costs are reasonably attributable to Tenant's Delay.
4.3 CONCLUSIVENESS OF LANDLORD'S PERFORMANCE; WARRANTIES
Except to the extent to which Tenant shall have given Landlord written
notice (including punchlist items), not later than the end of the second
full calendar month next beginning after the Commencement Date, of
respects in which Landlord has not performed Landlord's Work, Tenant
shall be deemed to have acknowledged that all Landlord's Work has been
completed to Tenant's satisfaction and that Tenant has waived any claim
that Landlord has failed to perform any of Landlord's Work. Landlord
agrees to correct any defect due to faulty workmanship or materials in
Landlord's Work, provided Tenant shall have given written notice of such
defects to Landlord prior to the first anniversary of the Commencement
Date. From and after the expiration of such twelve (12) month period,
Tenant shall be entitled to the benefit of any applicable warranties
obtained by Landlord from third parties with respect to Landlord's Work
provided that Tenant shall be solely responsible for enforcing such
warranties directly against the party providing the same.
4.4
COMMENCEMENT DATE AGREEMENT
Within thirty (30) days after the commencement of the Term of this
Lease, Landlord and Tenant shall execute a
Commencement Date Agreement in the
form attached hereto as Exhibit CDA and made a part hereof, confirming the
Building Rentable Area, the Premises Rentable Area, the Commencement Date,
Expiration
11
Date and the Basic Rent per annum during the Term of this Lease. The
Commencement Date Agreement shall not be recorded with the Registry of Deeds.
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, which Landlord may give or
withhold in its sole discretion. Landlord shall provide
building standard signage on the entry door to the Premises
provided that Tenant has submitted to Landlord a plan or
sketch of the sign to be placed on such entry doors and
that such plan or sketch is reasonably acceptable to
Landlord. In addition, Landlord agrees to maintain a tenant
directory in the lobby of the Building in which will be
placed, at Landlord's expense, Tenant's name and the
location of the Premises in the Building. Tenant shall have
the use of a pro-rata number of the strips on the tenant
directory, based on the ratio of the Premises Rentable Area
to 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; and
iv. Tenant shall not operate any cooking apparatus (except for
coffee making equipment, microwave or toaster ovens within
employee
12
break areas of the Premises), or locate more than two (2)
vending machines in the Premises.
5.2 INSTALLATIONS AND ALTERATIONS BY TENANT
a. Tenant shall make no alterations, additions or improvements
(collectively, "Improvements") in or to the Premises without
Landlord's prior written consent provided that subsequent to the
completion of the initial Landlord Work, Landlord's consent shall
not be required if such Improvements (i) are non-structural and do
not exceed in the aggregate a cost of $15,000 or (ii) are of a
decorating nature (i.e., carpeting, painting, wallpaper)
irrespective of the cost. With respect to Improvements requiring
Landlord's consent, Landlord shall not unreasonably withhold,
condition or delay its consent for non-structural Improvements to
the Premises. All 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 which consent shall not be unreasonably withheld,
conditioned or delayed provided that 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;
iii. Be made at Tenant's sole expense and at such times and in
such manner as Landlord may from time to time reasonably
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 shall 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 Premises and the Building caused by such removal.
13
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.
Landlord shall have the option, but not the obligation, of
removing, bonding over or paying such lien if Tenant has not done
so within fifteen (15) days following Landlord's notice to Tenant
of the filing of the same, and any amounts paid by Landlord
therefor shall be paid to Landlord within 10 business days after
invoice therefor as additional rent hereunder.
d. Tenant shall not be obligated to remove at the end of the Term of
this Lease (i) any Improvement unless Landlord specifies an
Improvement for removal at the time Landlord consents to such
Improvement or (ii) any improvements built by Landlord as part of
the initial fit-up of the Premises which would customarily be
considered standard tenant improvement (collectively referred to
herein as "Building Standard Office Improvements").
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, conditioned or delayed. In all other
cases, Landlord's consent may be withheld in its sole discretion.
The foregoing restrictions shall not be applicable to an assignment
of this Lease or a subletting of the Premises by Tenant to (i) a
subsidiary
14
wholly owned by Tenant, (ii) a controlling corporation (which owns
a majority of the outstanding stock of Tenant), (iii) or any other
corporation, the stock in which is wholly owned by the stockholders
of Tenant or (iv) to any entity resulting from a sale, buy-out,
merger or consolidation with Tenant (each of the entities described
in the foregoing clauses (i)-(iv) being referred to herein as an
"Affiliate") provided that Tenant shall prior to the effective date
of such assignment provide to Landlord evidence reasonably
satisfactory to Landlord that, as of the date of such assignment,
the assignee shall have a net worth equal to or greater than that
of Tenant as of the date of execution of this Lease. It shall be a
condition of the validity of any assignment, whether with the
consent of Landlord or to an Affiliate, that the assignee agrees
directly with Landlord, by written instrument in form reasonably
satisfactory to Landlord, to be bound by all the obligations of
Tenant hereunder including, without limitation, the provisions
restricting assignment and subletting set forth in this Article VI.
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 following a default by Tenant hereunder beyond applicable
notice and grace periods, collect rent and other charges from the
assignee, subtenant or occupant, and apply the net amount collected
to the rent and other charges 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 except as may otherwise be provided in this Article VI.
No assignment or subletting and no use of the Premises, including
without limitation by an Affiliate, 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 the area of
such space to the entire
15
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, rent concession allowances which are reasonable and
customary in the Quincy/Braintree market and the cost of
preparing such space for occupancy by the subtenant, Tenant
shall pay to Landlord, as an additional charge, 50% 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, rent
concession allowances which are reasonable and customary in
the Quincy/Braintree market and the cost of preparing space
for the assignee, Tenant shall pay to Landlord, as an
additional charge, 50% of such excess when received by
Tenant.
Notwithstanding any other provision of this Article VI, if Tenant
shall intend to assign this Lease to a party other than an Affiliate of
Tenant or intend to enter into a sublease with a party other than an
Affiliate of Tenant for substantially all of the Premises for
substantially all of the remaining Term of this Lease, Tenant shall so
notify Landlord in writing (which notice shall state the earliest
effective date intended by Tenant for such proposed assignment or
subletting), and Landlord may elect to terminate this Lease by giving
notice to Tenant of such election not later than fifteen (15) business
days after receiving such notice from Tenant, whereupon this Lease shall
terminate on and as of the earliest effective date of such subletting or
assignment, as such date was set forth in the notice from Tenant, with
the same force and effect as if such date were 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 a first class manner consistent with other first class buildings
in the greater suburban Boston market, and in good order, condition
and repair the roof, public areas (including common areas and the
parking garage), exterior walls (including glass on exterior
Building walls) and structure of the Building (including plumbing,
mechanical and electrical
16
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 or unless such repairs are due to the acts or negligence
of Landlord, its agents, employees or contractors.
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 commence to make such repairs within thirty (30) days
after receipt of such notice (or, in the case of emergency, within
such shorter period as may be reasonable in the circumstances), or
fails to proceed with reasonable diligence to complete such
repairs. Upon such failure, Tenant shall have the right, but not
the obligation, to make such repair, whereupon Landlord shall
forthwith reimburse Tenant for the reasonable costs incurred by
Tenant upon receipt of an invoice from Tenant. In no event shall
Tenant have a right of offset or abatement of Basic Rent or other
amounts due hereunder.
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, except that Landlord shall obtain, at
its cost and expense, a Certificate of Occupancy for the Premises
as specified in Section 4.2 hereof. 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.
17
b. If repairs are required to be made by Tenant pursuant to the terms
hereof, Landlord may demand that Tenant make the same within 30
days after written notice, and if Tenant refuses or neglects to
commence such repairs within such 30 day period or to complete the
same within a reasonable time thereafter provided Tenant commence
such repairs within such 30 day period and diligently pursues
completion thereof (provided that such repairs shall be completed
within 90 days following Landlord's initial notice), 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 within 30 days after written demand
(which demand shall include a reasonably detailed statement of
Landlord's expenses and, if applicable, invoices from contractors
and suppliers), pay to Landlord the cost thereof as an additional
charge hereunder. If Landlord has paid the contractors and
suppliers prior to seeking payment from Tenant hereunder (but
without the requirement to do so), Landlord shall provided evidence
of such payment to Tenant together with its statement for payment
hereunder.
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 area.
Landlord reserves the right to reasonably 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 reasonable 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 shall not be unreasonably withheld,
conditioned or delayed and may include a requirement to provide
insurance in such amounts as Landlord may reasonably deem necessary
to protect the common areas of the Building affected during such
move.
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 harmless against
18
and from any liability, loss, injury, claim or suit resulting
directly or indirectly from such moving, unless such liability,
loss, injury, claim or suit resulting from such moving is due to
the negligence or willful misconduct of Landlord or Landlord's
agents, employees or contractors.
c. Except in the case of emergency or a scheduled closing of the
Building, Landlord shall provide to Tenant (subject to reasonable
security procedures which may be imposed by Landlord) access to the
Building, an elevator and the loading dock, twenty-four hours per
day, 365 days per year.
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 8:00 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 4.5 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 reasonable charges to be applied in
non-discriminatory manner as may from time to time be in effect
(without imposition by Landlord of any administrative fee for
electric service for overtime HVAC). 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, in Landlord's
reasonable discretion, be provided by Landlord, at Tenant's expense
provided that Landlord has first notified Tenant of the overload
and has given Tenant a reasonable opportunity to remove such excess
personnel or equipment prior to installing the supplementary
systems. Except in the case of emergency, Landlord shall provide to
Tenant (subject to reasonable security procedures which may be
imposed by Landlord) access to the Building, an elevator and a
loading dock twenty-four (24) hours a day, three hundred sixty-five
(365) days a year).
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
19
ordinary lavatory and drinking purposes, Landlord may
assess a reasonable charge (not to exceed the actual cost
of the additional water) for the additional water so used
or install a water meter and thereby measure Tenant's water
consumption for all purposes. In the latter event, Tenant
shall pay the cost of the meter and the cost of
installation thereof and shall keep such meter and
installation equipment in good working order and repair.
Tenant agrees to pay for water consumed, as shown on such
meter, together with the sewer charge based on such meter
charges, as and when bills are rendered and if Tenant is in
default in making such payment, Landlord may pay such
charges and collect the same from Tenant, within ten (10)
days after written demand therefor, as an additional charge
hereunder. 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. After 7:00 p.m. 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 EXHIBIT
CS attached hereto.
iii. Passenger elevator service from the existing passenger
elevator system in common with Landlord and other tenants
of the Building.
7.5 ELECTRICITY
a. Landlord shall supply electricity to the Premises to supply a
requirement not to exceed 4.5 xxxxx per square foot of usable 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. In connection with Landlord's Work, Landlord shall
purchase and install, at Tenant's expense, which expense shall be
reasonable and shall be included in the Tenant Improvement
Allowance, 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 (at
a reasonable cost) 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
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system other than typewriters, pencil sharpeners, adding machines,
hand-held or desk-top calculators, dictaphones and a computer
network connected with personal computers.
b. Landlord shall install at Tenant's expense, which expense shall be
reasonable and included in the Tenant Improvement Allowance, a
separate meter which shall measure electric consumption (including
electricity consumed in connection with the operation of the
variable-air-volume (VAV) boxes used to heat and cool the Premises)
in the Premises. Tenant shall pay as additional rent all amounts
billed by the applicable utility company when due directly to the
utility company. If, for any reason, such utility charges are not
separately metered at any time during the Term, Tenant shall pay as
additional rent all reasonably allocated charges attributable to
the furnishing of electricity to the Premises, which charges shall
not exceed Landlord's actual costs therefor.
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. The term "Taxes" shall not include inheritance
taxes, gift taxes, transfer taxes, franchise taxes, excise taxes,
net income taxes, profit taxes, capital levies, late payment
charges and penalties (to the extent that Tenant has made all
payments of Taxes required hereunder in a timely fashion), or
special assessments levied against assets other than real estate
(provided that real estate betterments and assessments shall be
included in Taxes, so long as the same are paid in installments
over the longest period permitted by the assessing authority).
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, an amount equal to:
i. The excess of Taxes over Base Taxes, multiplied by,
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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 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 theretofore made by Tenant for the Tax Year covered by
such bills exceed the required payments on account thereof for such
Tax 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 Tax Year are greater than
estimated payments theretofore made on account thereof for such Tax
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 an
amount equal to such refund or reimbursement or sum in lieu thereof
(exclusive of interest) multiplied by the Escalation Factor and adjusted
for any partial year; 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 Tax 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.
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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
twenty (20) 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 95% 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 been incurred if
the Building were 95% occupied for such Operating Year, and such
extrapolated amount shall, for the purposes hereof, be deemed to be the
Operating Expenses for such Operating Year. In no event shall Landlord
collect more than 100% of Operating Expenses (subject to Landlord's
right throughout the year to collect estimated payments, with the
measurement of Landlord's collections being made at the time of annual
reconciliation of payments of Operating Expenses hereunder).
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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 Operating
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. Reasonable estimated payments by Tenant on account of Operating
Expenses shall be paid by Tenant monthly and at the time and in the
fashion herein provided for the payment of Basic Rent. Landlord
shall use reasonable efforts to provide to Tenant thirty (30) days
prior to each Operating Year a reasonably detailed budget,
consistently applied from year to year, for anticipated Operating
Expenses, provided, however, that any delay or failure on the part
to Landlord to provide such budget shall not affect or excuse the
obligations of Tenant to make all payments required hereunder at
the times specified herein. 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.
By no later than June 30 after the end of each Operating Year,
Landlord shall submit to Tenant a reasonably detailed accounting of
Operating Expenses, consistently applied from year to year, for
such Operating Year, and Landlord shall certify the accuracy
thereof. If estimated payments theretofore made for such Operating
Year by Tenant exceed Tenant's required payment on account thereof
for such Operating 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 Operating Year are greater than the
estimated payments (if any) theretofore made on account thereof for
such Operating 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 Operating Expenses as Landlord has
hereunder for the failure of Tenant to pay Basic Rent.
24
c. Tenant shall have the right, no more often than once in an
Operating Year, exercisable within one hundred twenty (120) days
following the delivery to Tenant of the accounting referred to in
Paragraph 9.2(b) and upon reasonable prior notice to Landlord to
inspect Landlord's books and records relating to Operating Expenses
and Taxes for the Operating Year covered by such accounting. Tenant
acknowledges and agrees that only employees of Tenant, or Tenant's
certified public accountant or accounting firm (provided that such
accountant or accounting firm is then responsible for Tenant's
general corporate accounting), or a real estate service provider
engaged generally by Tenant for real estate facilities management
purposes (but not a third party engaged in the business of review
of leasehold charges and payments) may conduct any such inspection,
which inspection shall occur at such place and time (during normal
business hours) as Landlord may reasonably designate. Tenant shall
pay for all reasonable expenses incurred by Landlord in connection
with, and relating directly to, Tenant's inspection of Landlord's
books and records if such audit does not disclose an overpayment by
Tenant of five percent (5%) or more. Landlord shall reimburse
Tenant for its reasonable expenses incurred in connection with the
audit if the audit reveals overcharges of five percent (5%) or
more. In any event, Landlord shall reimburse Tenant the amount of
any overpayment.
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, actions or proceedings 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 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 reasonable costs,
expenses and liabilities incurred in or in connection with any such
claim, action or proceeding brought thereon, and the defense thereof.
25
10.2 LANDLORD'S INDEMNITY
To the maximum extent this agreement may be made effective according to
law, and except to the extent caused by the acts or omissions of Tenant
or its agents, employees or independent contractors, Landlord agrees to
indemnify and save harmless Tenant from and against all claims, actions
or proceedings of whatever nature arising from the negligence or willful
misconduct of Landlord or Landlord's contractors, licensees, agents,
servants or employees occurring after the date of this Lease until the
end of the Term of this Lease. This indemnity and hold harmless
agreement shall include indemnity against all costs, expenses and
liabilities incurred in or in connection with any such claim, action or
proceeding brought thereon, and the defense thereof.
10.3 TENANT'S 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 commercial general liability policy of insurance under
which Tenant is the named insured and under which Landlord and
Landlord's lenders, if any, are named as additional insured. Each such
policy shall be non-cancelable and non-amendable with respect to
Landlord and Landlord's said designees without thirty (30) days prior
notice to Landlord and shall be in at least the amounts of the
Commercial General Liability Insurance specified in Section 1.2, and a
duplicate original or certificate thereof shall be delivered to
Landlord. In addition, Tenant shall maintain worker's compensation
insurance in at least statutory limits covering all of Tenant's
employees working in the Premises.
Notwithstanding anything to the contrary contained herein, provided that
Xxxxxx Insurance Company is the Tenant under this Lease, Tenant shall
have the right to self-insure any risks for which Tenant is required to
carry a policy of insurance pursuant to the provisions of this Lease,
provided that Tenant shall comply with the provisions of Schedule 10.2
attached hereto and made a part hereof. If at any time during the term
of this Lease, Tenant is not in compliance with the requirements of
Schedule 10.2, Tenant shall immediately supply Landlord with the policy
of insurance required under the first paragraph hereof.
10.4 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 Buildings 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
26
or damage to Tenant's Removable Property, unless caused by the
negligence or willful misconduct of Landlord or Landlord's contractors,
licensees, agents, servants or employees. 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.
10.5 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, unless caused by the negligence or willful misconduct of
Landlord or Landlord's contractors, licensees, agents, servants or
employees.
10.6 LANDLORD'S INSURANCE
Landlord shall maintain at all times during the Term of this Lease
insurance against: (i) physical damage to the Building and the Tenant
Improvements (excluding Tenant's furniture, fixtures, equipment, and
other personal property), in an amount not less than the full
replacement cost of the property insured, and covering the risks
customarily covered under a "Causes of Loss-Special Form" (formerly
known as "all risk") policy (including flood and earthquake damage
coverage), subject to a commercially reasonable deductible, (ii)
commercial general liability insurance (including contractual liability
coverage for bodily injury and property damage) in an amount of not less
than $10,000,000 on a combined single limit basis, and (iii) worker's
compensation insurance in at least statutory limits. Landlord shall name
Tenant as an additional insured on its comprehensive general liability
insurance policy, and such policy shall be non-cancelable and
non-amendable with respect to Tenant's interest thereunder without
thirty (30) days prior notice to Tenant. Landlord shall deliver to
Tenant certificates as to the insurance required hereunder upon request
therefor.
ARTICLE XI
LANDLORD'S ACCESS TO PREMISES
11.1 LANDLORD'S RIGHTS
Landlord shall have the right upon reasonable prior written notice to
Tenant (except in the case of emergency where no notice shall be
required) to enter
27
the Premises at all reasonable hours for the purpose of inspecting or
making repairs to the same, and Landlord shall also have the right upon
reasonable prior written notice to Tenant to make access available at
all reasonable hours to prospective or existing mortgages, purchasers or
tenants of any part of the Property. Any access by Landlord shall not
unreasonably disturb or interfere with Tenant's conduct of business at
the Premises or quiet use and enjoyment of the Premises.
ARTICLE XII
FIRE, EMINENT DOMAIN, ETC.
12.1 ABATEMENT OF RENT
If the Premises shall be damaged by fire or other casualty 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
immediately prior to such damage including Tenant Improvements and
alterations. If the Premises or the appurtenant rights and reservations
for which Tenant may have an entitlement per Section 2.2 of this Lease
shall be materially and adversely 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 RIGHT OF TERMINATION
If the Premises or the Property 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 six (6) months from the time that repair
work would commence), or, if as a result of any exercise of the right of
eminent domain more than thirty percent (30%) of the Building or the
Property is taken or a material portion of the parking is taken or there
is a material impact on access to the Property or Tenant's use of the
Premises is materially impaired (collectively, a "Taking"), then either
party shall have the right to terminate this Lease (even if Landlord's
entire interest in the Premises may have been divested) by giving to the
other party notice of such party'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
28
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 its
condition prior to the casualty or Taking (to the extent feasible),
including tenant improvements, provided that Landlord's obligation shall
be limited to the amount of insurance proceeds available therefor. If,
for any reason (including, without limitation, insufficiency or
unavailability of insurance proceeds), such restoration shall not be
substantially completed within six (6) months from the time that repair
work would commence in the case of damage by fire or casualty or from
the effective date of the Taking, as applicable (which six (6) month
period may be extended for such periods of time as Landlord is prevented
from proceeding with completing such restoration for reasons of force
majeure, 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 so 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.
12.4 AWARD
Landlord shall have and hereby reserves and excepts, and Tenant hereby
grants and assigns to Landlord, all rights to recover for damage 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. Landlord hereby agrees that it will
not prosecute in any condemnation proceeding a claim for the value of
Tenant's removable property installed in the Premises by Tenant at
Tenant's expense or for any relocation expenses incurred or to be
incurred by Tenant.
ARTICLE XIII
DEFAULT
29
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 five (5) 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 not discharged within sixty (60) days after the
commencement thereof; 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
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
30
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. Or if Tenant dissolves or is dissolved or liquidated or
adopts any plan or commences any proceeding, the result of
which is intended to include dissolution or liquidation;
vii. Or if Tenant fails to supply the insurance required under
Section 10.2 within five (5) Business Days after notice to
Tenant from Landlord;
viii. 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 fifteen (15) 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. c. 186, or otherwise), 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
re-enter the Premises by 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.
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
31
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
re-let, shall be liable to Landlord for, and shall pay to Landlord,
as 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 re-letting of the
Premises, after deducting all reasonable expenses in connection
with such re-letting, including, without limitation, all
repossession costs, brokerage commissions, legal expenses,
attorneys' fees, advertising, expenses of employees, alteration
costs and expenses of preparation for such re-letting. 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, Landlord may demand, as
liquidated final damages and in lieu of all such current damages
beyond the date of such demand, and 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 Taxes and Operating Expenses would be the same as the
payments required for the immediately preceding Operating or Tax
Year) for what remained, 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.
Nothing contained in this Lease shall limit or prejudice the right
of Landlord to prove for and obtain in proceedings for bankruptcy
or insolvency by reason of the termination of this Lease, an amount
equal to the maximum allowed by any statute or rule of law in
effect at the time when, and governing the proceedings in which,
the damages are to be proved, whether or not the amount be greater,
equal to or less than the amount of the loss or damages referred to
above.
e. In case of any Default by Tenant, Landlord may re-enter the
Premises by summary proceedings, ejectment, or otherwise, and
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
32
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 reasonable
judgment considers advisable and necessary for the purpose
of re-letting the Premises; and the making of such
alterations, repairs and decorations shall not operate or
be construed to release Tenant from liability hereunder as
aforesaid. Landlord shall in no event be liable in any way
whatsoever for failure to re-let the Premises, or, in the
event that the Premises are re-let, for failure to collect
the rent under such re-letting, provided that Landlord
shall use commercially reasonable efforts to relet the
Premises. 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. Intentionally Omitted.
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 reasonable 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
provided Landlord commences curing such default within such 30 day
period and continues to diligently prosecute to completion the cure of
such default, after notice by Tenant to Landlord specifying wherein
Landlord has failed to perform any such obligations. In the event that
Tenant undertakes a cure of a default of Landlord hereunder following
such notice, Landlord shall reimburse Tenant
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for its reasonable costs incurred in such cure within thirty (30) days
after delivery to Landlord of an itemized statement therefor, provided
that in no event shall Tenant have any right to abatement, set-off or
other excuse for nonperformance hereunder with respect thereto.
ARTICLE XIV
MISCELLANEOUS PROVISIONS AND
TENANT'S ADDITIONAL CONVENTS
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 pay to Landlord, within twenty (20) days of Landlord's
written demand therefor, 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 Landlord, or acceptance by Landlord or
Tenant, of a lesser amount than shall be due from Tenant to
Landlord or Landlord to Tenant shall be treated otherwise than as a
payment on account. The acceptance by Landlord or Tenant of a check
for a lesser amount with an 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 or
Tenant may accept such check without prejudice to any other rights
or remedies which Landlord or Tenant may have against Tenant or
Landlord.
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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 other charges hereunder 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
Landlord or 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. No owner of the Property shall be liable under this Lease except
for breaches of Landlord's obligations occurring while owner of the
Property. The obligations of Landlord shall be binding upon the
assets of Landlord which comprise the Property but not upon other
assets of Landlord. No individual partner, trustee, stockholder,
officer, director, employee, member or beneficiary of Landlord
shall be personally liable under this Lease and Tenant shall look
solely to Landlord's interest in the Property in pursuit of its
remedies upon an event of default hereunder, and the general assets
of Landlord and of the individual partners, trustees, stockholders,
officers, employees, members or beneficiaries of Landlord shall not
be subject to levy, execution or other enforcement procedure for
the satisfaction of the remedies of Tenant.
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
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After receiving notice from Landlord and 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 written notice of the
name and address of such holder), 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 written 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 between such purchaser-lessor
and seller-lessee (provided, however, that the purchaser-lessor
shall take title to the Property subject to this Lease); provided,
however, that such purchaser-lessor shall have executed and
delivered to Tenant a recognition agreement whereby such
purchaser-lessor agrees to recognize this Lease as a direct lease
between such purchaser-lessor and Tenant on the terms and
conditions of this Lease in the event of the termination of the
lease between the purchaser-lessor and the seller-lessee. 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. Tenant hereby agrees that, 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 from the performance and observance of all covenants and
obligations hereunder.
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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.
e. Tenant shall not pay rent more than one month in advance.
14.7 RULES AND REGULATIONS
Tenant shall abide by the rules and regulations set forth on EXHIBIT D
hereto and any other reasonable 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 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. In the event of any conflict
between this Lease and such rules and regulations, the terms of this
Lease shall prevail.
14.8 ADDITIONAL CHARGES
If Tenant shall fail to pay when due any sums 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 both parties to this Lease shall be
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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
Landlord and Tenant agree not to record this Lease, but each party
hereto agrees, contemporaneously with the execution of this Lease, to
execute a so-called Notice of Lease in the form of EXHIBIT NOL attached
hereto and incorporated herein. 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. Upon termination of this Lease,
Tenant and Landlord shall execute an instrument in recordable form
acknowledging the date of termination.
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
addressed as follows:
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 written notice).
WITH A COPY TO:
Xxxxxxxxx X. Xxxxxxx, Esq., Xxxx and Xxxx LLP, 00 Xxxxx Xxxxxx,
Xxxxxx, XX 00000
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 written notice).
WITH A COPY TO:
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Xxxxxx Xxxxxx Xxxxx & Associates, P.A., 000 Xxxxx Xxxxxx Xxxx,
Xxxxx 000, Xxxx Xxxxx, XX 00000.
All such notices so addressed shall be effective (i) when delivered, if
hand delivered, or (ii) one (1) day after deposit with a recognized
overnight delivery service or (iii) three (3) days after deposit with
the U.S. Postal Service if mailed by registered or certified mail,
postage prepaid, return receipt requested.
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 executed
by Landlord and Tenant, and no act or omission of any employee or agent
of either party 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 subject and subordinate to any mortgage from time to
time encumbering the Property, whether executed and delivered prior to
or subsequent to the date of this Lease, provided that Tenant shall have
received a commercially reasonable subordination, non-disturbance and
attornment agreement in recordable form executed by the holder of any
such mortgage ("SNDA"). In confirmation of such subordination, Tenant
shall execute, in addition to the SNDA, such instruments in confirmation
of the foregoing agreement as such holder may reasonably request. In the
event that any mortgagee or its respective successor in title shall
succeed to the interest of Landlord, then this Lease shall continue in
full force and effect and Tenant shall and does hereby agree to attorn
to such mortgagee or successor and to recognize such mortgagee or
successor as its Landlord. Landlord represents that as of the date of
execution of this Lease there is no mortgage encumbering the Building or
the Property.
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14.16 ESTOPPEL CERTIFICATE
Landlord and Tenant agree from time to time, within twenty (20) days of
the receipt of a written request by the other party, to execute,
acknowledge and deliver to the requesting party a statement in writing
certifying that this Lease is unmodified and in full force and effect
and, if Tenant is the requesting party, that there are no uncured
defaults of Tenant under this Lease, and if Landlord is the requesting
party, that Tenant has no defenses, offsets or counterclaims against its
obligations to pay the Base Rent, Escalation Charges and other charges
hereunder and to perform its other covenants under this Lease and that
there are no uncured defaults of the Landlord or Tenant under this Lease
(or, if there have been any modifications that the same is in full force
and effect as modified and stating the modifications and, if there are
any defenses, offsets, counterclaims, or defaults, setting them forth in
reasonable detail), and the dates to which the Base Rent, Escalation
Charges and other charges hereunder have been paid. Any such statement
delivered pursuant to this Section 14.16 may be relied upon by a
prospective purchaser or mortgagee of the Premises or any prospective
assignee of any mortgagee of the Premises or any prospective assignee of
Tenant's interest in the Premises, as the case may be. Failure of a
party to respond to such request within such twenty (20) day period
shall be a Default under this Lease.
14.17 SECURITY DEPOSIT
Intentionally omitted.
14.18 REMEDYING DEFAULTS; LATE PAYMENTS
If Tenant shall at any time default beyond applicable notice and cure
periods in the performance of any obligation under this Lease, Landlord
shall have the right, but not the obligation, to enter upon the Premises
and to perform such obligation notwithstanding the fact that no specific
provision for such substituted performance is made in the Lease with
respect to such default. In performing such obligation, Landlord may
make any payment of money or perform any other act. In the event of the
exercise of such right by Landlord, Tenant agrees to pay to Landlord
forthwith within thirty (30) days after written notice accompanied, if
applicable, by an itemized written statement with copies of invoices,
all such sums, together with interest thereon at a rate equal to 3% over
the prime rate in effect from time to time, as published in the Wall
Street Journal (but in no event less than 18% per annum or more than the
maximum rate allowed by law), as an additional charge. Any payment of
Basic Rent, Escalation Charges or other charges payable hereunder not
paid when due shall bear interest at a rate equal to 3% over the prime
rate in effect from time to time, as published in the Wall Street
Journal (but in no event less
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than 18% per annum or more than the maximum rate allowed by law) from
the due date thereof, as an additional charge.
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
herein provided (prorated on a daily basis) and shall otherwise be on
the terms and conditions set forth in this Lease as far as applicable.
Landlord shall make no claim against Tenant for consequential damages
occasioned by any holdover of Tenant during the first thirty (30) days
thereof.
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 (i) to the extent
specified by Landlord pursuant to Paragraph 5.2, all Improvements made
by Tenant and (ii) with respect to improvements made by Tenant not
requiring Landlord's consent; and Tenant shall repair any damages to the
Premises or the Building caused by such removal. Notwithstanding
anything in this Lease to the contrary, Tenant shall have no obligation
to remove Building Standard Office Improvements from the Premises. Any
of Tenant's Removable Property which shall remain in the Building or on
the Premises
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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.
14.22 BROKERAGE
Landlord and Tenant each warrant and represent to the other that they
have dealt with no broker except Xxxxxxx & Wakefield and Xxxxx Xxxxxx
Xxxxx & Partners ("Brokers") in connection with the consummation of this
Lease. Each party hereto agrees that if any person or entity, other than
the Brokers makes a claim for brokerage commissions, and such claim is
made by, through or on account of any acts or alleged acts of said party
or its representatives, said party will protect, indemnify, defend and
hold the other party free and harmless from and against any and all
loss, liability, cost, damage and expense (including reasonable
attorneys' fees) in connection therewith. Landlord shall be responsible
for all sums due to the Brokers in connection with this Lease.
14.23 SUBSTITUTE SPACE
Intentionally omitted.
14.24 ENVIRONMENTAL COMPLIANCE
a. Tenant shall not cause any hazardous or toxic wastes, hazardous or
toxic substances or hazardous or toxic materials (collectively,
"Hazardous Materials") to be used, generated, stored or disposed of
on, under or about, or transported to or from, the Premises
(collectively, "Hazardous Materials Activities") without first
receiving Landlord's written consent, which may be withheld for any
reason and revoked at any time. If Landlord consents to any such
Hazardous Materials Activities, Tenant shall conduct them in strict
compliance (at Tenant's expense) with all applicable Regulations,
as hereinafter defined, and using all necessary and appropriate
precautions. Landlord shall not be liable to Tenant for any
Hazardous Materials Activities by Tenant, Tenant's employees,
agents, contractors, licensees or invitees, whether or not
consented to by Landlord. Tenant shall indemnify, defend with
counsel reasonably acceptable to Landlord and hold Landlord
harmless from and against any claims, damages, costs and
liabilities, arising out of Tenant's Hazardous Materials
Activities. For purposes hereof, Hazardous Materials shall include
but not be limited to substances defined as "hazardous substances,"
"toxic substances," or "hazardous wastes" in the federal
Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended; the federal
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Hazardous Materials Transportation Act, as amended; and the federal
Resource Conservation and Recovery Act, as amended ("RCRA"); those
substances defined as "hazardous wastes" in the
Massachusetts
Hazardous Waste Facility Siting Act, as amended (
Massachusetts
General Laws Chapter 21D); those substances defined as "hazardous
materials" or "oil" in
Massachusetts General Laws Chapter 21E, as
amended; and as such substances are defined in any regulations
adopted and publications promulgated pursuant to said laws
(collectively, "Regulations"). Prior to using, storing or
maintaining any Hazardous Materials on or about the Premises,
Tenant shall provide Landlord with a list of the types and
quantities thereof, and shall update such list as necessary for
continued accuracy. Tenant shall also provide Landlord with a copy
of any Hazardous Materials inventory statement required by any
applicable Regulations, and any update filed in accordance with any
applicable Regulations. If Tenant's activities violate or create a
risk of violation of any Regulations, Tenant shall cease such
activities immediately upon notice from Landlord. Tenant shall
immediately notify Landlord both by telephone and in writing of any
spill or unauthorized discharge of Hazardous Materials or of any
condition constituting an imminent hazard under any Regulations.
Landlord, Landlord's representatives and employees may, upon
reasonable prior written notice (except in the case of emergency
where no notice shall be required) enter the Premises at any time
during the Term to inspect Tenant's compliance herewith, and may
disclose any violation of any Regulations to any governmental
agency with jurisdiction. Nothing herein shall prohibit Tenant form
using minimal quantities of cleaning fluid and office supplies
which may constitute Hazardous Materials but which are customarily
present in premises devoted to office use, provided that such use
is in compliance with all applicable laws and subject to all of the
other provisions of this SECTION 14.24.
b. Landlord hereby warrants, represents and agrees that there will be
no Hazardous Materials present on or in the Property or any part
thereof (including, without limitation, the groundwater) as of the
date upon which the Premises are ready for occupancy by Tenant.
Landlord further agrees that Landlord will not permit or
voluntarily suffer the use, generation, storage or disposal of any
Hazardous Material on the Property during the Term of this Lease,
except for cleaning products and office supplies which are
customarily present within first-class office buildings similar to
the Building. In the event that the Property or any part or area
thereof becomes contaminated with any Hazardous Material during or
before the Term of this Lease Landlord shall promptly notify Tenant
and, at Landlord's sole cost, remediate, to the
43
full extent required by law, such contamination. In the event that
the Property or any part or area thereof becomes contaminated with
any Hazardous Material during or before the Term of this Lease, to
the extent that such contamination arose from the acts or omissions
of Landlord or its employees, agents, contractors, licensees or
invitees, Landlord shall indemnify, defend and hold Tenant harmless
from any claim, loss or liability arising from or in connection
with such contamination including, without limitation, costs of
analysis, removal, remediation and restoration. In the event that
the presence of Hazardous Materials did not arise from the acts of
Tenant or its employees, agents, contractors, licensees or invitees
and the presence of Hazardous Materials is determined by a
qualified professional in the field of environmental study as
posing a threat to the health of any employee, agent or invitee of
Tenant, and Tenant ceases to use the Premises or any part thereof
due to the presence of Hazardous Materials, Tenant shall be
entitled to an abatement in Rent and Escalation Charges due under
this Lease with respect to the period during which Tenant ceased to
use the Premises or some part thereof. In the case of a cessation
of use of only a part of the Premises, such abatement shall be
apportioned on the basis of the area of the portion of the Premises
as to which use has ceased.
14.25 EXHIBITS
Exhibits D, OC, CS, SP, FP, TD, NOL, CDA and Schedule 10.2 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.
14.27 EVIDENCE OF AUTHORITY.
Landlord and Tenant shall, simultaneously with the execution of this
Lease, deliver to each other a Secretary's Certificate or similar
instrument evidencing that the execution of this Lease by the respective
party has been properly authorized and that the individual executing
this Lease on its behalf is authorized to do so.
14.28 REMEDIES CUMULATIVE.
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Any and all rights and remedies which either party may have under this
Lease, and at law and equity, shall be cumulative and shall not be
deemed inconsistent with each other, and any two or more of all such
rights and remedies may be exercised at the same time insofar as
permitted by law.
14.29 WAIVER OF JURY TRIAL.
Landlord and Tenant hereby waive trial by jury in any action, proceeding
or counterclaim brought by either of the parties hereto against the
other, on or in respect to any matter whatsoever arising out of or in
any way connected with this Lease, the relationship of Landlord and
Tenant hereunder, Tenant's use or occupancy of the Premises, and/or
claim of injury or damages.
14.30 ROOF RIGHTS.
Subject to such reasonable restrictions as Landlord may require and
subject to the execution by Tenant of a commercially reasonable license
agreement, but without rent or other charge, Landlord shall not
unreasonably withhold, condition or delay its consent to a request by
Tenant to maintain on the roof of the Building one (1) satellite dish
and to connect the same to the Premises by appropriate wiring, provided
that Landlord shall be entitled to impose such restrictions on the size
and location of such satellite dish as Landlord may determine in its
reasonable discretion, and further provided that such satellite dish
shall provide service to Tenant only and to no other party. Tenant shall
be solely responsible for compliance with all applicable laws,
ordinances and regulations with respect to the installation and
maintenance of the satellite dish.
14.31 STORAGE SPACE.
Subject to availability, Tenant shall have the opportunity to lease from
Landlord during the Term of this Lease a maximum of 1500 square feet of
storage space located on the parking level of the Building at the rate
of $10.00 per square foot.
14.32 BUILDING NAME.
The Building is currently known as Four Batterymarch Park. Landlord
hereby reserves the right to change the name of the Building, but agrees
not to change the name of the Building to that of any insurance company.
14.33 YEAR 2000 COMPLIANCE.
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Landlord warrants to Tenant that all necessary Building equipment,
software and appliances, including but not limited to elevators,
heating, ventilating and air conditioning systems, card key access
systems, door locks, energy management systems, sprinkler systems, fire
detection and life safety systems and other Building systems will remain
fully functional and perform their normal operations on and after the
Commencement Date, as well as on and after January 1, 2000, without
interruptions or malfunctions as a result of the passage from the year
1999 to the year 2000. If Landlord has actual knowledge that any
repairs, alterations or replacements must be made to any of the
aforesaid equipment, software or appliances in order to prevent or
eliminate any such interruptions or malfunctions in the services or
operations provided thereby, Landlord will cause any such repairs,
alterations or replacements to be promptly and timely made and the cost
of any such repairs, alterations or replacements will be paid by
Landlord.
OPTION TO EXTEND; RIGHT OF FIRST OFFER
14.34 TENANT'S OPTION TO EXTEND THE TERM OF THIS LEASE
Provided that at the time of the exercise of this option and at the
beginning of the extension period (i) Tenant is not in default under this Lease
beyond applicable notice and cure periods, and (ii) this Lease has otherwise not
been terminated, then Tenant shall have a one time option to extend the Term for
one (1) period of five (5) years commencing at the expiration of the Term (the
"Extension Option"). If Tenant chooses to exercise such option Tenant shall do
so by written notice to Landlord ("Tenant's Extension Notice") given no earlier
than eighteen (18) and no later than twelve (12) months prior to the expiration
of the Term of this Lease. Failure of Tenant to exercise such option in a timely
manner shall terminate Tenant's right to lease and occupy the Premises beyond
the Term, and shall terminate all further rights under the Extension Option set
forth in this Section 15.1. The terms and conditions of this Lease during any
such extension shall be the same as contained in this Lease except that Landlord
shall have no obligation to make, or to provide any allowance for, tenant
improvements as may be described in this Lease, and the Basic Rent shall be
adjusted to be the greater of (i) ninety-five percent (95%) of the then Fair
Market Rent (defined below) or (ii) the Basic Rent charged during the year
immediately preceding the extension period, and Tenant shall have no additional
options to extend the Term except as described herein. At the time of adjustment
of the Basic Rent hereunder, Base Operating Expenses hereunder shall be adjusted
to a base year of calendar year 2009, and Bases Taxes shall be adjusted to a
base year of the fiscal year ending June 30,2009.
No later than fifteen (15) days after the date Landlord receives
Tenant's Extension Notice (the "Landlord's Response Date"), Landlord shall
propose a fair market rent for the Premises (the "Landlord's Proposed Fair
Market Rent") and give
46
written notice thereof to Tenant. "Fair Market Rent" for purposes of this Lease
shall mean the rental income that the Premises would most probably command on
the open market as indicated by current rentals being paid for comparable space
within the geographic area (including the Building) in which the Building is
located (as of the time such rental will become effective), giving due
consideration to all matters as are customarily and appropriately considered by
landlords and tenants engaged in leasing similar space in the geographic area in
which the Building is located as of the time of such determination and the terms
of this Lease.
Tenant shall notify Landlord in writing within thirty (30) days of the
date of Landlord's notice containing Landlord's Proposed Fair Market Rent as to
whether Tenant is accepting or rejecting Landlord's Proposed Fair Market Rent
("Tenant's Notice"). If Tenant fails to provide Tenant's Notice to Landlord
within such thirty (30) day period, Tenant shall be deemed to have accepted
Landlord's Proposed Fair Market Rent, which shall be the Fair Market Rent for
the purposes of the first paragraph of this Section. If Tenant rejects
Landlord's Proposed Fair Market Rent (a "Tenant's Objection Notice"), Tenant
shall propose a fair market rent for the Premises in such notice (the "Tenant's
Proposed Fair Market Rent"). Landlord and Tenant shall attempt to reach
agreement with respect to the Fair Market Rent within fifteen (15) days of the
date of Tenant's Objection Notice. If Landlord and Tenant fail to agree within
such fifteen (15) day period, the Fair Market Rent shall be determined by the
appraisal procedure described below.
Unless Landlord and Tenant have agreed in writing to the Fair Market
Rent within fifteen (15) days after Tenant's Objection Notice, Landlord and
Tenant, within twenty-five (25) days after Tenant's Objection Notice, shall
jointly appoint a single MAI appraiser with experience in commercial real estate
including at least ten (10) years of experience in appraising office space in
the metropolitan office rental market in which the Building is located and who
is hereinafter referred to as an "appraiser." Within five (5) days after the
appointment of such appraiser Landlord and Tenant shall each provide a written
summary of their respective determinations of the Landlord's and Tenant's
Proposed Fair Market Rent, together with any supporting information which it
deems relevant to such determination to the appraiser promptly upon his/her
appointment. Within thirty (30) days of the appointment of the appraiser, the
appraiser shall notify both Landlord and Tenant of its determination of the Fair
Market Rent. If the appraiser's determination of the Fair Market Rent is equal
to the Landlord's or Tenant's Proposed Fair Market Rent or within the range
between the Landlord's and Tenant's Proposed Fair Market Rent, then the
appraiser's determination of the Fair Market Rent will be the Fair Market Rent.
If the appraiser's determination of the Fair Market Rent exceeds both the
Landlord's and Tenant's Proposed Fair Market Rent, then the higher of either the
Landlord's or Tenant's Proposed Fair Market Rent shall be the Fair Market Rent.
If the appraiser's determination of the Fair Market Rent is lower than both the
Landlord's and Tenant's
47
Proposed Fair Market Rent, then the lower of either the Landlord's or Tenant's
Proposed Fair Market Rent shall be the Fair Market Rent.
If Landlord and Tenant cannot agree on the identity of the appraiser,
then either party on behalf of both may apply to the President of the New
England Chapter of the American Institute of Real Estate Appraisers (or its
successor), or on its failure or inability to appoint an appraiser within ten
(10) days of the application to that person to act, to a court of competent
jurisdiction, for the appointment of an appraiser to serve as the appraiser. The
appraiser shall within thirty (30) days of his or her appointment make his or
her determination of the Fair Market Rent.
The Fair Market Rent of the Premises, determined in accordance with the
provisions of this section, shall be binding and conclusive on Tenant and
Landlord.
The cost and expense of the appraiser shall be shared equally by Tenant
and Landlord. If, for any reason, the decision of the appraiser pursuant to this
Section shall not be determined before the commencement of the extension period,
then Tenant shall pay Base Rent in monthly installments at the greater of (i)
the rate in effect immediately prior to the commencement of such extension
period or (ii) the average of the Landlord's Proposed Fair Market Rent and the
Tenant's Proposed Fair Market Rent until such decision of the appraiser shall be
made, and upon the decision by the appraiser an appropriate adjustment shall be
made, retroactive to the first day of such extension.
In no event shall the date by which Tenant must exercise the Extension
Option be extended for purposes of this Section. Time is of the essence with
respect to this Extension Option.
14.35 TENANT'S RIGHT OF EARLY EXPIRATION
Subject to the conditions specified in this section and provided that
Tenant shall not be in default under this Lease beyond applicable notice and
cure periods as of the date of Tenant's expiration notice or as of the
expiration date described below, Tenant shall have the right to elect to cause
the Term of this Lease to expire effective as of the last day of the seventh
(7th) Lease Year, as if this date was the expiration date of the Term of this
Lease as otherwise provided for herein, by giving at least twelve (12) calendar
months prior written notice to Landlord specifying Tenant's desire to so
accelerate the expiration date of this Lease (the "Termination Notice"). Tenant
shall pay to Landlord a termination fee (the "Termination Fee") equal to the sum
of (i) the value of all unamortized transaction costs (as reasonably determined
by Landlord, the "Transaction Costs") and (ii) three (3) months Basic Rent. The
payment of Basic Rent shall be made simultaneously with the giving of the
Termination Notice and the payment of the Transaction Costs shall be made within
thirty (30) days after written demand by Landlord, which demand shall be
48
accompanied by an itemized statement of such Transaction Costs. Payment of the
Termination Fee as aforesaid shall be a condition to the effectiveness of the
Termination Notice. Time shall be of the essence with respect to this Section
15.2.
14.36 RIGHTS OF FIRST OFFER.
14.36.1 Landlord is in the process of marketing for lease the third
floor of the Building which is the subject of this Section 14.36.1 (the "Third
Floor Offer Space"). The provisions of this Section shall not apply to the
initial leasing of the Third Floor Offer Space after the date hereof or to any
rights of extension contained in such initial lease(s), nor shall this Section
14.36.1 apply to any other portion of the Building.
Provided that there is at least one year remaining in the Term of this
Lease, that Tenant is not in default in the performance or observance of any of
the terms and provisions of this Lease on the part of Tenant to be performed or
observed beyond applicable grace and cure periods, and provided that the initial
tenant occupying the Third Floor Offer Space under a lease between Landlord and
DM Management Company has not exercised its prior rights of first offer as to
the Third Floor Offer Space (as to which the rights of Tenant under this Section
14.36.1 shall be expressly subordinate), if Landlord intends to market for lease
all or any portion of the Third Floor Offer Space and such space is at the time
subject to Tenant's rights under this Section, then Landlord will present a term
sheet (the "Third Floor Offer") for the leasing of such space to Tenant at fair
market rent, as reasonably determined by Landlord, and on such other reasonable
and customary terms and conditions for comparable first class office buildings
in the Boston,
Massachusetts geographic area as Landlord may determine. Except
as otherwise set forth in the Third Floor Offer, the Third Floor Offer to lease
such space shall be on the terms and conditions set forth herein.
Upon its receipt of the Third Floor Offer, Tenant shall have ten (10)
business days to accept or reject the Third Floor Offer. If Tenant accepts the
Third Floor Offer within said ten (10) business day period, Landlord and Tenant
shall execute an amendment to this Lease which incorporates the Third Floor
Offer Space on the terms set forth therein within thirty (30) days of Tenant's
acceptance of said Third Floor Offer. In the event that Tenant does not accept
said Third Floor Offer within said ten (10) business day period or Landlord and
Tenant do not execute a lease on the terms therein set forth within said thirty
(30) day period, then Landlord shall have the right to lease to any other party
said Third Floor Offer Space on such terms and conditions not materially more
favorable than those contained in the Third Floor Offer. As used herein,
"materially more favorable" shall include a rental rate less than ninety percent
(90%) of that contained in the Third Floor Offer.
49
14.36.2 Landlord has leased the fourth floor of the Building to DM
Management Company. This Section 14.36.2 shall apply to any portion of the
fourth floor which may become available after the expiration or termination of
the DM Management Company lease (the "Fourth Floor Offer Space"). The provisions
of this Section shall not apply to any rights of extension in the DM Management
Company lease, nor to any renewal thereof, nor shall this Section 14.36.2 apply
to any other portion of the Building.
Provided that Tenant has not previously rejected a Fourth Floor Offer from
Landlord, that there is at least one year remaining in the Term of this Lease
and that Tenant is not in default in the performance or observance of any of the
terms and provisions of this Lease on the part of Tenant to be performed or
observed beyond applicable grace and cure periods, if Landlord intends to market
for lease all or any portion of the Fourth Floor Offer Space and such space is
at the time subject to Tenant's rights under this Section, then Landlord will
present a term sheet (the "Fourth Floor Offer") for the leasing of such space to
Tenant at fair market rent, as reasonably determined by Landlord, and on such
other reasonable and customary terms and conditions for comparable first class
office buildings in the Boston,
Massachusetts geographic area as Landlord, and
on such other reasonable and customary terms and conditions for comparable first
class office building in the Boston,
Massachusetts geographic area as Landlord
may determine. Except as otherwise set forth in the Fourth Floor Offer, the
Fourth Floor Offer to lease such space shall be on the terms and conditions set
forth herein.
Upon its receipt of the Fourth Floor Offer, Tenant shall have ten (10)
business days to accept or reject the Fourth Floor Offer. If Tenant accepts the
Fourth Floor Offer within said ten (10) business day period, Landlord and Tenant
shall execute an amendment to this Lease which incorporates the Fourth Floor
Offer Space on the terms set forth therein within thirty (30) days of Tenant's
acceptance of said Fourth Floor Offer. In the event that Tenant does not accept
said Fourth Floor Offer within said ten (10) business day period or Landlord and
Tenant do not execute a lease on the terms therein set forth within said thirty
(30) day period, then Landlord shall have the right to lease to any other party
said Fourth Floor Offer Space on such terms and conditions not materially more
favorable than those contained in the Fourth Floor Offer. As used herein,
"materially more favorable" shall include a rental rate less than ninety percent
(90%) of that contained in the Fourth Floor Offer.
[Signatures on Next Page]
50
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 LUMBERMENS MUTUAL CASUALTY COMPANY
ASSOCIATION
By: /s/ [ILLEGIBLE] By: /s/ [ILLEGIBLE]
------------------------------ ---------------------------------
Title: President and CEO Title: Senior Vice President
/s/ [ILLEGIBLE] By: /s/ [ILLEGIBLE]
--------------------------------- ---------------------------------
Sr. V. P. Title: REAL ESTATE OFFICER
51
EXHIBIT CDA
COMMENCEMENT DATE AGREEMENT
See attached
52
COMMENCEMENT DATE AGREEMENT
THIS
COMMENCEMENT DATE AGREEMENT is entered into this _____________ day
of _____________, 1999, by and between NATIONAL FIRE PROTECTION ASSOCIATION
("Landlord") and LUMBERMANS MUTUAL CASUALTY COMPANY, an Illinois corporation,
doing business as Xxxxxx Insurance Company ("Tenant").
WITNESSETH:
WHEREAS, on April ____, 1999, Landlord and Tenant entered into a Lease
Agreement (the "Lease") covering certain premises located on a portion of the
third floor of the office building known as Four Batterymarch Park, located in
Batterymarch Park, Quincy,
Massachusetts (the "Demised Premises"), as shown on
Exhibit FP to the Lease; and
WHEREAS, Section 4.4 of the Lease requires Landlord and Tenant to
execute a
Commencement Date Agreement, confirming the Building Rentable Area,
the Premises Rentable Area, the Commencement Date, the Expiration Date and the
Basic Rent per annum during the Term of the Lease.
NOW, THEREFORE, in consideration of the foregoing, of the mutual
promises of the parties hereto contained herein, and of other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. In accordance with the provisions of Section 4.4 of the Lease, Landlord
and Tenant hereby confirm each of the following:
1.1 The Building Rentable Area is _____________;
1.2 The Premises Rentable Area is _____________;
1.3 The Commencement Date of the Lease is _____________, ____;
1.4 The Expiration Date of the Lease is _____________, 20___; and
1.5 The Basic Rent per annum during the Initial Term of the Lease is as
follows:
Years 1 and 2: $_____________
Years 3 and 4: $_____________
Years 5, 6 and 7: $_____________
53
Years 8,9 and 10: $_____________
2. Terms not defined herein shall have the meaning provided therefor in the
Lease.
3. Except as provided herein, all other terms and conditions of the Lease
remain in full force and effect.
The foregoing
Commencement Date Agreement is hereby agreed to by
Landlord and Tenant who have executed this
Commencement Date Agreement as of the
date first above written.
TENANT:
WITNESS/ATTEST: LUMBERMANS MUTUAL CASUALTY
COMPANY, an Illinois corporation, doing
business as Xxxxxx Insurance Company
By:
---------------------- ---------------------------------
Name:
Title:
By:
---------------------- ---------------------------------
Name:
Title:
LANDLORD:
WITNESS/ATTEST: NATIONAL FIRE PROTECTION
ASSOCIATION
By:
---------------------- ---------------------------------
Name:
Title:
54
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. 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. LAVORATORIES
DAILY ON BUSINESS DAYS:
1. Sweep and damp mop floors.
CS-1
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 basin, 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.
C. MAIN LOBBY, BUILDING EXTERIOR AND CORRIDORS
DAILY ON BUSINESS DAY:
1. Sweep and wash all floors.
2. Wash all rubber mats.
3. Clean elevators, wash or vacuum floors, wipe down walls and doors.
4. Spot clean any metal work inside lobby.
5. Spot clean any metal work surrounding building entrance doors.
MONTHLY:
All resilient tile floors in public areas to be treated equivalent to
spray buffing.
CS-2
QUARTERLY:
Windows washed inside and outside - weather permitting.
D. MISCELLANEOUS SERVICES
Tenant requiring services in excess of those described above shall
request same through Landlord, at Tenant's expense.
Initialed for Identification
LANDLORD: TENANT:
------------------------ ----------------------------
CS-3
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 (and only to the extent
such personnel are actually performing) 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 four
percent (4%) of gross annual income of the Property, whether or not
actually paid, or where otherwise managed, the amounts accrued for
management, together with amounts accrued for reasonable legal and other
professional fees relating to the Property, but excluding such fees and
commissions paid in connection with
OC-1
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.
6. Omitted.
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 (including interest charged thereon) 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.
Operating Expenses shall exclude the following:
(a) The cost of capital improvements, repairs or replacements to the
Building except for those that (a) reduce operating expenses of the
Building, but only to the extent of such cost saving, or (b) are
required by law; provided, however, such capital improvements,
repairs and replacements shall be amortized over a reasonable
period of time in accordance with generally accepted accounting
principles;
(b) Payments for rented equipment, the cost of which equipment would
constitute a capital expenditure if the equipment were purchased,
except equipment rented for maintenance and repair of the Building
which shall be a permitted Operating Expense;
(c) The cost of correcting defects as to which Landlord is responsible
pursuant to Section 4.3 of this Lease;
(d) Depreciation and amortization, except to the extent provided above;
(e) Interest, mortgage charges and real estate taxes;
OC-2
(f) Any items to the extent such items are reimbursable to Landlord by
Tenant (other than through additional rent), by other tenants or
occupants of the Building, or by any third parties;
(g) Salaries of officers, executives and employees of Landlord not
connected with the operation of the Building, provided that if any
officer, executive or employee of Landlord or a managing agent
performs duties with respect to the Building, then a fair and
equitable portion of the wages and fringe benefits for such
officer, executive or employee as determined by Landlord shall be
allocated to the Building and included in Operating Expenses;
(h) All costs related to the preparation of any portion of the Building
for occupancy by a tenant or other occupant;
(i) Any cost incurred by the negligent acts or omissions of Landlord,
its agents and employees;
(j) Advertising and promotional expenses associated with the marketing
of vacant space in the Building;
(k) Legal fees and expenses incurred by Landlord, except to the extent
that such fees and expenses were incurred in connection with
contracts and the enforcement thereof, for services which are
provided to Tenant and available to all tenants in the Building;
(l) Costs and expenses incurred by Landlord in connection with the
repair of damage to the Building caused by fire or other casualty,
insured or required to be insured against hereunder.
(m) Insurance premiums to the extent any unusual tenant activity causes
Landlord's existing insurance premiums to increase or requires
Landlord to purchase additional insurance, but only to the extent
such additional cost can be identified by the insurer;
(n) The cost of installing any specialty service such as a cafeteria,
retail store, newsstand, concession or athletic club;
(o) The cost of any item for which Landlord is reimbursed through
condemnation awards;
(p) Management fees in excess of the greater of (i) those reasonable
and customary for comparable properties in the geographic area in
which
OC-3
the Building is located or (ii) four (4) percent of gross annual
income from the Property;
(q) Costs incurred due to violation by Landlord or any other tenant of
the Building of any lease or any laws, rules, regulations or
ordinances applicable to the Building;
(r) The cost of any work or services performed for any tenant of the
Building, whether at the expense of Landlord or such tenant, to the
extent that such work or services are in excess of the work or
services which Landlord would be required to furnish other tenants
of the Building at the expense of Landlord;
(s) The cost of any electricity and other utilities consumed in
premises let to other tenants in the Building in excess of the
amounts provided without cost to Tenant under this Lease on a per
square foot of Premises Rentable Area basis;
(t) The cost of electricity or other utilities contracted for directly
between any other tenant of the Building and the utility company
supplying such electricity or utilities;
(u) Any bad debt loss, rent loss, or reserves for bad debts or rent
loss;
(v) Charitable or political contributions;
(w) Amounts paid as ground rental or rental or other charges under any
ground lease or other lease having priority in right over the Lease
or under or in connection with any license or easement;
(x) Costs and expenses incurred by Landlord in connection with the
repair of damage to the Building caused by risks insured or
required to be insured against hereunder, except that expenses
incurred by reason of deductible amounts under insurance policies
may be included up to an aggregate sum of $25,000 per year;
(y) The cost of installing, any specialty service such as a cafeteria,
retail store, newsstand, concession or athletic club;
(z) Expenses in connection with claims for personal injury or property
damage alleged to have arisen from or in connection with the
existence, condition or operation of the Building, including
without limitation costs incurred in connection with the defense of
such claims, except that
OC-4
expenses incurred by reason of deductible amounts under insurance
policies may be included up to the aggregate sum of $25,000 per
year;
(aa) Cost associated with the operation of the business of the
partnership or entity which constitutes the Landlord, or the
operation of any parent, subsidiary or affiliate of Landlord, as
the same are distinguished from the costs of operation of the
Building, including without limitation partnership or entity
accounting and legal matters, costs of defending any lawsuits with
any mortgagee, cost of selling, syndicating, financing, mortgaging
or hypothecating any of Landlord's interest in the Building, and
costs of any disputes between Landlord and its employees or
disputes of Landlord with third-party building management;
(bb) Fines, penalties and interest on fines or penalties;
(cc) Costs incurred in connection with investigating, assessing,
removing, encapsulating or otherwise remediating or abating
asbestos or other hazardous or toxic materials or other forms of
contamination in or on the Building or on or under the Property or
any part thereof (including without limitation groundwater
contamination);
(dd) Cost of any works of fine art (as distinguished from mass-produced
decorative items) or temporary exhibits in the Building;
(ee) Any costs representing an amount paid to a landlord-related
corporation or entity which are in excess of the amount which would
be paid in the absence of such relationship;
(ff) All expenses in connection with the marketing, renting or leasing
of space in the Building, including without limitation, leasing
commissions, finder's fees, architect's fees, space planning fees,
advertising expenses and other expenses incurred in connection with
leasing or renting negotiations and transactions with present or
prospective tenants or other occupants of the Building;
(gg) Expenses incurred in connection with the consideration of approval
of subleases or assignments of leases by tenants;
(hh) Expenses incurred by Landlord in connection with the transfer or
disposition of the Property or the Building or any ground
underlying or overriding lease, including without limitation,
transfer taxes, brokerage commissions, finder's fees, legal fees
and closing costs.
OC-5
(ii) Expenses in connection with the design, installation, operation,
maintenance, repair or replacement of telecommunications equipment
or facilities unless such equipment or facilities are available for
us by Tenant on substantially the same basis as they are made
available to other tenants of the Building.
Initialed for Identification
LANDLORD: TENANT:
------------------------ -------------------------------
OC-6
Exhibit D
RULES AND REGULATIONS
The following Rules and Regulations have been formulated for the safety and well
being of all Tenants of the Building and to insure compliance with all municipal
and other requirements. Strict adherence to these Rules and Regulations is
necessary to guarantee that each and every Tenant will enjoy a safe and
undisturbed occupancy in the Building in accordance with the lease. Any
continuing violation of these Rules and Regulations by a Tenant, after notice
from the Landlord, shall constitute a Default under the Lease.
1. The sidewalks, entrances, loading dock, atrium, elevators, vestibules,
stairways, corridors, or other parts of the Building not occupied by any
Tenant shall not be obstructed or encumbered by any Tenant or used for
any purpose other than ingress and egress and to from the Premises. The
Landlord shall have the right to control and operate and public portions
of the Building and the facilities furnished for common use of the
Tenants, in such manner as the Landlord reasonably deems best for the
benefit of the Tenants generally.
2. No drapes, blinds, shades or screens shall be attached to or hung in, or
used in connection with, any window or door of the Premises, without the
prior written consent of the Landlord.
3. No bicycles, vehicles or animals, birds or pets of any kind shall be
brought into or kept in or about the Premises, and no cooking (other
than in a microwave oven, toaster oven or coffee maker) shall be done or
permitted by any Tenant on the Premises. No Tenant shall cause or permit
any unusual or objectionable odors to be produced upon or penetrate from
the Premises.
4. No inflammable, combustible or explosive fluid, chemical or substance
shall be kept upon the Premises, except for office and cleaning supplies
of a type, and in quantities, commonly found in general office uses in
the vicinity of the Premises.
5. No additional locks or bolts of any kind shall be places upon any of the
doors, nor shall any changes be made in existing locks or the mechanism
thereof to the doors leading to the corridors or main halls. All
entrance doors shall be kept closed during business hours except as they
may be used for ingress or egress. Each Tenant shall, upon the
termination of his tenancy, restore to the Landlord all keys either
furnished to, or otherwise procured by such Tenant and in the event of
the loss of any keys so furnished, such Tenant shall pay to the Landlord
the cost thereof.
D-1
6. No furniture, equipment or other bulky matter of any description shall
be received into the Building or carried in the elevators except in the
manner and during the reasonable times approved by Landlord. Tenant
shall obtain Landlord's determination prior to moving said property into
the Building. All moving of furniture, equipment, and other material
within the public areas shall be under the direct reasonable control and
supervision of Landlord who shall, however, not be responsible for any
damage to or charges for moving the same unless such damages or charges
result from the negligence of Landlord or Landlord's employees or
agents. Landlord shall have the sole right to determine if Tenant's
property can be safely transported in the elevators.
7. The Landlord reserves the right to exclude from the Building at all
times any person who is not known or does not properly identify himself
to the building management or security service. Landlord may, at its
option, require all persons admitted to or leaving the Building between
the hours of 6:00 PM and 7:00 AM, Monday through Friday, and on
Saturdays after 1:00 PM to register. Each Tenant shall be responsible
for all persons for whom they authorize entry into or exit out of the
Building.
8. The Premises shall not, at any time, be used for lodging or sleeping or
for any immoral or illegal purposes.
9. Canvassing, soliciting and peddling in the Building is prohibited and
each Tenant shall cooperate to prevent the same.
10. Landlord does not maintain suite finishes which are non standard, such
as bathrooms, wallpaper, special lights, etc. However, should the need
for repairs of items not maintained by Landlord arise, Landlord will, at
Tenant's request and expense, arrange for the work to be done.
11. All Tenants and visitors are expected to observe all safety features and
traffic laws in the park which include:
- A speed limit of 20 m.p.h.
- All stop signs are to be obeyed
- Automobiles are not be left in the roadway at anytime
- Automobiles are not to be left in the parking lot overnight or
weekends.
- Automobiles should be parked within marked lanes. Reserved parking
and parking for the handicap signs should be respected.
D-2
12. Landlord may, upon request by any Tenant, waive the compliance by such
Tenant of any of the foregoing Rules and Regulations, provided that:
(i) No waiver shall be effective unless signed by Landlord or
Landlord's authorized agent.
(ii) Any such waiver shall not relieve such Tenant from the obligation
to comply with such Rules or Regulations in the future unless
expressly consented to by Landlord, and;
(iii) No waiver granted to any Tenant shall relieve any other Tenant
from the obligation of complying with the foregoing Rules and
Regulations unless such other Tenant has received a similar waiver
in writing from Landlord.
Initialed for Identification
Landlord:
-----------------------
Tenant:
-------------------------
D-3
Exhibit SP
SPACE PLANS
See attached.
4 BATTERYMARCH
October 14, 1998
SCOPE DOCUMENT PACKAGE
Project: Xxxxxx Insurance Braintree Branch Relocation
Project No. 8100-11
The following information is for the landlord's design and construction document
development for the above mentioned tenant. The information within is not
considered final and is not intended to be all inclusive. Construction documents
are to be submitted to The Environments Group for final review and approval.
Please direct any questions regarding these matters to: Xx. Xxxxxx X. Xxxxxx
The Environments Group
(000) 000-0000
(000) 000-0000 FAX
SCOPE DOCUMENT PACKAGE
--------------------------------------------------------------------------------
1. SPACE PLAN / TENANT STANDARDS:
A. See attached Xxxxxx approved space plan dated October 14, 1998.
B. Refer to Landlord's building standards and tenant work letter as
amended by Xxxxxx for specifications.
2. PARTITIONS:
A. Demising: Provide building standard partitions.
B. Interior: Provide building standard partitions.
3. DOOR/FRAMES/HARDWARE:
A. Provide building standard doors/frames/hardware, unless otherwise
noted. Hardware to be ADA compliant.
B. Suite Entry: Provide building standard door, frame, and sidelight
detail. Entry door to have closer and lockset.
C. Reception to Office Space: Provide building standard door and
frame. Provide electronic card reader system with electronic
release button at adjacent systems furniture workstation. Provide
closer at door/frame. Provide "pass-thru" glass as shown.
Pass-thru to consist of clear, tempered or laminated glass at
approximately 42 inches above finished floor (coordinate with
systems furniture panel height), and top of pass-thru to extend to
align with the top of the adjacent door frame. Allow approximately
6 inches of open space between glass and a plastic laminate
transaction top (transaction top to align with face of drywall at
office side to ensure flush condition of workstation as shown) for
"passing-thru" items.
1
October 14,1998
SCOPE DOCUMENT PACKAGE
Project: Xxxxxx Insurance Braintree Branch Relocation
Project No. 8100-11
D. Sidelights: Provide 18 inch wide, floor to height to match top of
door frame, clear tempered or laminated glass sidelight, at
locations indicated on plan. Blinds are NOT to be installed at
sidelights.
E. Provide ADA compliant latchsets at each door. Provide locksets at
each of the following:
1. Entry Door
2. Reception Door
3. Computer/Telephone Room
F. Coat Hooks: Provide one coat hook at each private office. Mount at
room side of door, center of door, approximately 5'-3" A.F.F.
4. LIGHTING:
A. Provide building standard three lamp, deep cell parabolic, 18
cell, 2 X 4 fixtures, or 9 cell 2 X 2 fixtures as required, with
electronic ballast, or equal.
5. CEILING SYSTEM:
A. Provide building standard lay in system.
6. FLOORING/BASE:
A. Carpet: Carpet: Xxxx 60279 Website, Color 79470 Celestial,
broadloom. Provide at all areas unless noted otherwise.
B. Carpet: Xxxx Commercial Origins, Color 50110 Fog 10511, Broadloom.
Provide at Managing Attorney, Executive Private Office and
conference room.
C. Vinyl Composition Tile: Xxxxxxxxx, Imperial Texture Tile, Excelon
51927 Field Xxxx, 12" X 12", 1/8" gauge. Locate at:
1. Storage Room
2. Breakroom
Provide VPI Conductive floor tile, CON-16 Cloud, in
Computer/Telephone Room.
D. Wall Base: 2 1/2" high VPI Arctic Night. Straight at carpet areas,
coved at areas with VCT.
2
October 14, 1998
SCOPE DOCUMENT PACKAGE
Project: Xxxxxx Insurance Braintree Branch Relocation
Project No. 8100-11
7. WALL FINISHES:
A. Paint: Xxxxxxxx Xxxxx 974 or equal. Eggshell at all walls.
Semi-gloss at door frames, if applicable. Provide at all areas
unless noted otherwise.
B. Vinyl Wallcovering: Vicretex Coco Bisque, CA 21-14-DS, Type 2,54"
W., 2102 or equal. Locate at:
1. Managing Attorney Private Office
2. Conference Room
3. Reception Area
8. SIGNAL/POWER/DATA LOCATION PLAN:
A. As noted on plans dated October 14, 1998.
9. BREAKROOM:
A. Provide the following appliances:
1. Full size refrigerator; white.
2. Icemaker located below base cabinet.
3. Microwave; locate at ADA compliant height.
4. Coffeemaker by tenant. Copper water line NOT required.
5. Hot Water Heater.
B. Provide double bowl stainless steel sink with gooseneck faucet and
ADA compliant 4" wrist blades. Construct sink cabinet at ADA
height, allowing ADA access; wrap pipes for ADA compliance.
10. MILLWORK:
A. In wall blocking for reception signage is NOT required.
B. Transaction top: See notes regarding pass thru. Provide plastic
laminate to match wallcovering color. Ease any outside edges of
top.
C. Breakroom:
1. Countertop at Base Cabinet: Pionite XX000-Xxxxx Xxxxx Xxxxx.
2. Base and Wall Cabinets: Formica 933-58 Mission White or Equal.
D. Provide ADA compliant 4 inch wire pulls at cabinets.
3
October 14, 1998
SCOPE DOCUMENT PACKAGE
Project: Xxxxxx Insurance Braintree Branch Relocation
Project No. 8100-11
E. Install at least 5% of total wall cabinets to achieve 48 inches
AFF to bottom shelf, per ADA.
F. Coordinate space between base cabinet and wall cabinet to
accommodate tenant's coffee maker. (Verify with tenant)
G. Coat rod and shelf: Provide proportion of rod and shelf within
closet at ADA compliant height as required.
11. WINDOW TREATMENT:
A. Perimeter window lines to have building standard, building
furnished and installed, thin slat horizontal blinds, or equal.
12. LIGHT SWITCHING:
A. Provide switch at each enclosed room. Provide building standard
distribution for open area. Switches to be located within ADA
compliant height range. Prefer thermostats to be located centered
above light switches, at 48 inches AFF, where the two functions
occur in the same room.
13. EXIT SIGNS:
A. Provide building standard per local and national codes.
14. LIFE SAFETY SYSTEMS:
A. Provide building standard per local and national codes.
B. Provide fire extinguishers as required.
C. Ensure ADA compliance.
15. GENERAL:
A. All finishes to be approved by The Environments Group prior to
order and installation.
B. Open floor furniture is Steelcase. Panels are not powered. Refer
to electrical specification package.
4
October 14, 1998
SCOPE DOCUMENT PACKAGE
Project: Xxxxxx Insurance Braintree Branch Relocation
Project No. 8100-11
C. 7 X 24 Air conditioning is required for the Computer / Telephone
Room. Provide separate unit and thermostat for room. Locate unit
away from any equipment shown to avoid leakage / malfunction of
drain.
5
EXHIBIT FP
FLOOR PLAN
See attached.
[GRAPHIC]
4 Batterymarch Park, Quincy
--------------------------------------------------------------------------------
4/28/99
[ILLEGIBLE]
COMMENCEMENT DATE AGREEMENT
THIS COMMENCEMENT DATE AGREEMENT is entered into this 5th day of January,
2000, by and between NATIONAL FIRE PROTECTION ASSOCIATION ("Landlord") and
LUMBERMANS MUTUAL CASUALTY COMPANY, an Illinois corporation, doing business as
Xxxxxx Insurance Company ("Tenant").
WITNESSETH:
WHEREAS, on April 27, 1999, Landlord and Tenant entered into a Lease
Agreement (the "Lease") covering certain premises located on a portion of the
third floor of the office building known as Four Batterymarch Park, located in
Batterymarch Park, Quincy, Massachusetts (the "Demised Premises"), as shown on
Exhibit FP to the Lease; and
WHEREAS, Section 4.4 of the Lease requires Landlord and Tenant to execute a
Commencement Date Agreement, confirming the Building Rentable Area, the Premises
Rentable Area, the Commencement Date, the Expiration Date and the Basic Rent per
annum during the Term of the Lease.
NOW, THEREFORE, in consideration of the foregoing, of the mutual promises
of the parties hereto contained herein, and of other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. In accordance with the provisions of Section 4.4 of the Lease, Landlord and
Tenant hereby confirm each of the following:
1.1 The Building Rentable Area is 159,161 square feet;
1.2 The Premises Rentable Area is 29,305 square feet;
1.3 The Commencement Date of the Lease is November 22, 1999;
1.4 The Expiration Date of the Lease is November 30, 2009; and
1.5 The Basic Rent per annum during the Initial Term of the Lease is as
follows:
Years 1 and 2: $ 791,235.00
Years 3 and 4: $ 820,540.00
Years 5, 6 and 7: $ 864,497.50
53
Years 8, 9 and 10: $ 879,150.00
2. Terms not defined herein shall have the meaning provided therefor in the
Lease.
3. Except as provided herein, all other terms and conditions of the Lease
remain in full force and effect.
The foregoing Commencement Date Agreement is hereby agreed to by Landlord
and Tenant who have executed this Commencement Date Agreement as of the date
first above written.
TENANT:
WITNESS/ATTEST: LUMBERMANS MUTUAL CASUALTY
COMPANY, an Illinois corporation, doing
business as Xxxxxx Insurance Company
By: /s/ Xxxxxx X. Xxxxxx
------------------ ----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Corporate Real Estate Manager
By:
------------------ ----------------------------------
Name:
Title:
LANDLORD:
WITNESS/ATTEST: NATIONAL FIRE PROTECTION
ASSOCIATION
By: [ILLEGIBLE]
------------------ ----------------------------------
Name: [ILLEGIBLE]
Title: Sr. V.P. and Gen. Counsel
54
EXHIBIT "B"
INVENTORY
(SEE ATTACHED)
-15-
Inventory
two countertop microwave ovens
one refrigerator
one built-in dishwasher
one built-in ice machine
Items 1 - 167, inclusive, listed on Business Office Systems Proposal
K00750 23-2000 (Purchase Order No. KEM12273) dated 06/19/03 attached hereto and
made a part hereof
[BOS LOGO] PROPOSAL
BUSINESS OFFICE SYSTEMS. INC. A XXXXXXX PREFERRED DEALER
000 XXXXXXX XXXXX, XXXXXX, XXXXXXXX 00000-0000 PROPOSAL NUMBER
PHONE 000.000.0000 FAX 000.000.0000 K00750 23-200
xxx.xxx.xxx CUSTOMER PURCHASE ORDER NO
SOLD TO SHIP TO KEM12273
XXXXXX SALESPERSON
XXXXXX NATIONAL INSURANCE 4 BATTERY MARCH PARK XXXXXXXX XXXXXXXX
ONE XXXXXX DRIVE 3RD FLOOR DATE
XXXX XXXXX, XX 00000 XXXXXX XX 00000 06/19/03
ATTN: XXXX XXXXXXX / XXXX XXXX
1
ITEM # QUANTITY MODEL NUMBER DESCRIPTION UNIT SELL TOTAL SELL
BRAINTREE, MA QUINCY - NEW FACILITY
BUYER: XXXX XXXXX/000-000-0000
P.O.#KEM12273
1 10.00 CF-D-2430-6-N-B??D SERIES 24" x 30" x 26.5" MODULAR TABLE ON
CASTERS LAMINATE; BEIGE NEBULA 4624-60, BASE: BLACK,
T-MOLD: BLACK
2 1.00 TQ24C5L48 STARTER UNIT CLOSED L UPRIGHT 48" X 24" X 88"
3 2.00 TQ24O5L42 STARTER UNIT OPEN L UPRIGHT 42" X 24" X 88"
4 3.00 TQ24O5T42 ADD ON UNIT OPEN T UPRIGHT 42" X 24" X 88"
5 1.00 A771-1741 HB SYNC, PNEU, BHA, ADJ W/O CAPSHARD
CASTERS, BACK LOCK
6 1.00 A831-1741 MB SYNC, PNEU, BHA, ADJ W/O CAPSHARD
CASTERS, BACK LOCK
7 1.00 AKA-M-SLIDE-BBKEMPER ???-SLIDE-BBKEMPER ARTICULATING KYBRD
PLATFORM, SLIDE MOU
8 1.00 CW-30 COUNTERWEIGHT, 950 SERIES 30" LATERAL FILE
9 1.00 CW-42 COUNTERWEIGHT, 950 SERIES 42" LATERAL FILE
10 1.00 HGBN-0004 MULTI-PURPOSE STORAGE BIN 4-INCH
THIS DOCUMENT IS SUBJECT TO THE TERMS AND CONDITIONS
APPEARING ON THE ATTACHED DOCUMENT
ORIGINAL PROPOSAL
[BOS LOGO] PROPOSAL
BUSINESS OFFICE SYSTEMS. INC. A XXXXXXX PREFERRED DEALER
000 XXXXXXX XXXXX, XXXXXX, XXXXXXXX 00000-0000 PROPOSAL NUMBER
PHONE 000.000.0000 FAX 000.000.0000 K00750 23-200
xxx.xxx.xxx CUSTOMER PURCHASE ORDER NO
SOLD TO SHIP TO KEM12273
XXXXXX SALESPERSON
XXXXXX NATIONAL INSURANCE 4 BATTERY MARCH PARK XXXXXXXX XXXXXXXX
ONE XXXXXX DRIVE 3RD FLOOR DATE
XXXX XXXXX, XX 00000 XXXXXX XX 00000 06/19/03
ATTN: XXXX XXXXXXX / XXXX XXXX
2
ITEM # QUANTITY MODEL NUMBER DESCRIPTION UNIT SELL TOTAL SELL
11 1.00 HGBN-0008 MULTI-PURPOSE STORAGE BIN 8-INCH
12 2.00 HGMB-0002 MAILBOX, GRID MOUNT
13 2.00 HGRT-0001 REFERENCE TRAY, GRID MOUNT
14 1.00 LFRS-430-LD0F 4-HI LATERAL FILE, RADIUS CASE 30 INCHES
15 1.00 LFRS-442-LD0F 4-HI LATERAL FILE, RADIUS CASE 42 INCHES
16 3.00 LSET-3 STANDARD LOCK PLUG & KEY LOCK SET (QTY 3)
17 1.00 MAC-0001 MAKE-A-CORNER
18 2.00 PDM-24-DLN MOBILE PEDESTAL DRAWER 24"
19 2.00 RBMP-0072 MAIN BEAM - POWERED - 72"
20 2.00 RCT-4230 WORK SURFACE - REGULAR, MAIN BEAM 42" X 30"
21 1.00 REFE-0005 FLOOR ENTRY CONDUIT 1/2" DIA.
22 1.00 RFEC-0002 FLOOR POWER & COMMUNICATIONS COVER
23 1.00 RIF-0012 INFEED - 12 FEET
24 2.00 RMB-0072 MINI BEAM STARTER 72"
25 1.00 RMBP-0090 MINI BEAM TO R POST CONNECT KIT
26 2.00 RMC-0072 MINI BEAM PAD 72"
THIS DOCUMENT IS SUBJECT TO THE TERMS AND CONDITIONS
APPEARING ON THE ATTACHED DOCUMENT
ORIGINAL PROPOSAL
[BOS LOGO] PROPOSAL
BUSINESS OFFICE SYSTEMS. INC. A XXXXXXX PREFERRED DEALER
000 XXXXXXX XXXXX, XXXXXX, XXXXXXXX 00000-0000 PROPOSAL NUMBER
PHONE 000.000.0000 FAX 000.000.0000 K00750 23-200
xxx.xxx.xxx CUSTOMER PURCHASE ORDER NO
SOLD TO SHIP TO KEM12273
XXXXXX SALESPERSON
XXXXXX NATIONAL INSURANCE 4 BATTERY MARCH PARK XXXXXXXX XXXXXXXX
ONE XXXXXX DRIVE 3RD FLOOR DATE
XXXX XXXXX, XX 00000 XXXXXX XX 00000 06/19/03
ATTN: XXXX XXXXXXX / XXXX XXXX
3
ITEM # QUANTITY MODEL NUMBER DESCRIPTION UNIT SELL TOTAL SELL
27 2.00 RMLP-0018 MINI BEAM L POST 18"
28 2.00 RMT-7824 WORK SURFACE - REGULAR, MINI BEAM 78" X 24"
29 3.00 ROSU-0036 OVERHEAD STORAGE - 36" STORAGE XXXX
00 5.00 RPC-0072 PAD, TACKABLE, MAIN BEAM 72"
31 2.00 RPCR-0002 PCR DUPLEX
32 1.00 RPG-0036 GRID FOR 36" PAD
33 3.00 RPOS-0001 UNIVERSAL POST
34 7.00 RRA-0072 RAILS 72"
35 2.00 RRC-0003 RECEPTACLE, COMMON GRND TRIPLEX 1 CIRCUIT
36 3.00 RUS-0024-M MINI BEAM UPPER POST, ONE HIGH 24"
37 5.00 RUS-0028 MAIN BEAM UPPER POST, TWO HIGH 28"
38 3.00 RUS-0038-M MINI BEAM UPPER POST, TWO HIGH 38"
39 1.00 SPLA-5413 MODESTY PANEL, PERFORATED 14" X 72"
MINI BEAM MOUNT
40 3.00 0521 SORTER, 59-1/16"w X 28-1/8"d 5 BINS
w X 2 BINS h
41 1.00 0521 SORTER, 59-1/16"w X 28-1/8"d 5 BINS
w X 2 BINS h 8 BINS STN
42 8.00 735.05 INDEX LABELS PKG OF 10
THIS DOCUMENT IS SUBJECT TO THE TERMS AND CONDITIONS
APPEARING ON THE ATTACHED DOCUMENT
ORIGINAL PROPOSAL
[BOS LOGO] PROPOSAL
BUSINESS OFFICE SYSTEMS. INC. A XXXXXXX PREFERRED DEALER
000 XXXXXXX XXXXX, XXXXXX, XXXXXXXX 00000-0000 PROPOSAL NUMBER
PHONE 000.000.0000 FAX 000.000.0000 K00750 23-200
xxx.xxx.xxx CUSTOMER PURCHASE ORDER NO
SOLD TO SHIP TO KEM12273
XXXXXX SALESPERSON
XXXXXX NATIONAL INSURANCE 4 BATTERY MARCH PARK XXXXXXXX XXXXXXXX
ONE XXXXXX DRIVE 3RD FLOOR DATE
XXXX XXXXX, XX 00000 XXXXXX XX 00000 06/19/03
ATTN: XXXX XXXXXXX / XXXX XXXX
4
ITEM # QUANTITY MODEL NUMBER DESCRIPTION UNIT SELL TOTAL SELL
43 4.00 865.1 RISER 59-1/16w X 13-3/4d
44 1.00 T3150 TABLE, 31-5/8w X 59-1/16d, CLSD
SIDE/BACK BASE SHELF 8 DWR
45 6.00 T3150 TABLE, 31-5/8w X 59-1/16d, CLSD
SIDE/BACKBASE SHLF INTERM SH
46 1.00 T3150 TABLE, 31-5/8w X 59d-1/16, CLSD
SIDE/BACK BASESHELF/SLIDE DOOR
47 3.00 240 XXXXXXX SWATHMORE CHAIR WOOD LEG
48 1.00 50-2020L XXXXXXX SWATHMORE BEVELED TABLE 20" X 20"X 20"
49 1.00 PX-48-XX-XX ETEX VISUAL BOARD 48" X 48" 2ND FLIP
W/ TEARBAR TACK, PR
50 1.00 13333-3036 TABLE TOP 13333 SERIES 30" X 36" RECTANGULAR
51 2.00 13333-3060 TABLE TOP 13333 SERIES 30" X 60" RECTANGULAR
52 4.00 2402-222 TABLE BASE 2400 SERIES FOR 30" X 60" TABLE TOP
53 1.00 2402-2228 TABLE BASE 2400 SERIES FOR 36" X 30" TABLE TOP
54 1.00 24CT-1300-60RD 24CT SERIES CONFERENCE TABLE 60" ROUND
55 54.00 24FT-1333-3060 FOLDING TABLES 24FT SERIES 30"x 60" RECTANGULAR
THIS DOCUMENT IS SUBJECT TO THE TERMS AND CONDITIONS
APPEARING ON THE ATTACHED DOCUMENT
ORIGINAL PROPOSAL
[BOS LOGO] PROPOSAL
BUSINESS OFFICE SYSTEMS. INC. A XXXXXXX PREFERRED DEALER
000 XXXXXXX XXXXX, XXXXXX, XXXXXXXX 00000-0000 PROPOSAL NUMBER
PHONE 000.000.0000 FAX 000.000.0000 K00750 23-200
xxx.xxx.xxx CUSTOMER PURCHASE ORDER NO
SOLD TO SHIP TO KEM12273
XXXXXX SALESPERSON
XXXXXX NATIONAL INSURANCE 4 BATTERY MARCH PARK XXXXXXXX XXXXXXXX
ONE XXXXXX DRIVE 3RD FLOOR DATE
XXXX XXXXX, XX 00000 XXXXXX XX 00000 06/19/03
ATTN: XXXX XXXXXXX / XXXX XXXX
5
ITEM # QUANTITY MODEL NUMBER DESCRIPTION UNIT SELL TOTAL SELL
56 9.00 CS-42 CABINET STORAGE SHELF 42"
57 38.00 CW-30 COUNTERWEIGHT, 950 SERIES 30" LATERAL FILE
58 5.00 CW-36 COUNTERWEIGHT, 950 SERIES 36" LATERAL FILE
59 123.00 CW-42 COUNTERWEIGHT, 950 SERIES 42" LATERAL FILE
60 1.00 HTR-0036 ROUND TABLE 36"
61 1.00 HTS-3030 SQUARE CONFERENCE TABLE 30" X 30"
62 24.00 LBR-436 4-HIGH BOOKCASE - 36" RADIUS CASE
63 6.00 LBR-436 4-HIGH BOOKCASE - 36" RADIUS CASE
64 22.00 LFRS-430-LD0F 4-HI LATERAL FILE, RADIUS CASE 30 INCHES
65 16.00 LFRS-430-LD0F 4-HI LATERAL FILE, RADIUS CASE 30 INCHES
66 5.00 LFRS-436-LD0F 4-HI LATERAL FILE, RADIUS CASE 36 INCHES
67 121.00 LFRS-442-LD0F 4-HI LATERAL FILE, RADIUS CASE 42 INCHES
68 2.00 LFRS-442-LD0F 4-HI LATERAL FILE, RADIUS CASE 42 INCHES
69 2.00 LHRS-242-LDCF CREDENZA, RADIUS CASE, 42 INCHES
THIS DOCUMENT IS SUBJECT TO THE TERMS AND CONDITIONS
APPEARING ON THE ATTACHED DOCUMENT
ORIGINAL PROPOSAL
[BOS LOGO] PROPOSAL
BUSINESS OFFICE SYSTEMS. INC. A XXXXXXX PREFERRED DEALER
000 XXXXXXX XXXXX, XXXXXX, XXXXXXXX 00000-0000 PROPOSAL NUMBER
PHONE 000.000.0000 FAX 000.000.0000 K00750 23-200
xxx.xxx.xxx CUSTOMER PURCHASE ORDER NO
SOLD TO SHIP TO KEM12273
XXXXXX SALESPERSON
XXXXXX NATIONAL INSURANCE 4 BATTERY MARCH PARK XXXXXXXX XXXXXXXX
ONE XXXXXX DRIVE 3RD FLOOR DATE
XXXX XXXXX, XX 00000 XXXXXX XX 00000 06/19/03
ATTN: XXXX XXXXXXX / XXXX XXXX
6
ITEM # QUANTITY MODEL NUMBER DESCRIPTION UNIT SELL TOTAL SELL
70 9.00 LSRS-442-LB 4-HI STORAGE, RADIUS CASE, 42"
71 1.00 SCF1-2472-JJN STEEL CREDENZA 24" X 72" -FULL BACK
PANEL-NO GROMMETS-NO VS
72 17.00 RBMN-0036 MAIN BEAM - NON-POWERED - 36"
73 2.00 RBMP-0048 MAIN BEAM - POWERED - 48"
74 108.00 RBMP-0072 MAIN BEAM - POWERED - 72"
75 1.00 RBMP-0096 MAIN BEAM - POWERED - 96"
76 128.00 RCT-4230 WORK SURFACE - REGULAR, MAIN BEAM 42" X 30"
77 1.00 RCT-4830 WORK SURFACE - REGULAR, MAIN BEAM 48" X 30"
78 18.00 RCT-7224 WORK SURFACE - REGULAR, MAIN BEAM 72" X 24"
79 35.00 REFE-0005 FLOOR ENTRY CONDUIT 1/2" DIA.
80 6.00 REFE-0010 FLOOR ENTRY CONDUIT 1" DIA.
81 41.00 RFEC-0002 FLOOR POWER & COMMUNICATIONS COVER
82 47.00 RIF-0012 INFEED - 12 FEET
83 102.00 RMB-0072 MINI BEAM STARTER 72"
84 57.00 RMBP-0090 MINI BEAM TO R POST CONNECT KIT
85 101.00 RMC-0072 MINI BEAM PAD 72"
THIS DOCUMENT IS SUBJECT TO THE TERMS AND CONDITIONS
APPEARING ON THE ATTACHED DOCUMENT
ORIGINAL PROPOSAL
[BOS LOGO] PROPOSAL
BUSINESS OFFICE SYSTEMS. INC. A XXXXXXX PREFERRED DEALER
000 XXXXXXX XXXXX, XXXXXX, XXXXXXXX 00000-0000 PROPOSAL NUMBER
PHONE 000.000.0000 FAX 000.000.0000 K00750 23-200
xxx.xxx.xxx CUSTOMER PURCHASE ORDER NO
SOLD TO SHIP TO KEM12273
XXXXXX SALESPERSON
XXXXXX NATIONAL INSURANCE 4 BATTERY MARCH PARK XXXXXXXX XXXXXXXX
ONE XXXXXX DRIVE 3RD FLOOR DATE
XXXX XXXXX, XX 00000 XXXXXX XX 00000 06/19/03
ATTN: XXXX XXXXXXX / XXXX XXXX
7
ITEM # QUANTITY MODEL NUMBER DESCRIPTION UNIT SELL TOTAL SELL
86 82.00 RMLP-0018 MINI BEAM L POST 18"
87 5.00 RMPT-0001 MINI BEAM SINGLE POST
88 112.00 RMT-7824 WORK SURFACE - REGULAR, MINI BEAM 78" X 24"
89 189.00 ROSU-0036 OVERHEAD STORAGE - 36" STORAGE XXXX
00 4.00 RPC-0048 PAD, TACKABLE, MAIN BEAM 48"
91 259.00 RPC-0072 PAD, TACKABLE, MAIN BEAM 72"
92 2.00 RPC-0096 PAD, TACKABLE, MAIN BEAM 96"
93 150.00 RPCR-0002 PCR DUPLEX
94 130.00 RPG-0036 GRID FOR 36" PAD
95 169.00 RPOS-0001 UNIVERSAL POST
96 4.00 RRA-0048 RAILS 48"
97 360.00 RRA-0072 RAILS 72"
98 2.00 RRA-0096 RAILS 96"
99 131.00 RRC-0003 RECEPTACLE, COMMON GRND TRIPLEX 1 CIRCUIT
100 20.00 RSPT-6030 WORK SURFACE, SEMI-SUSPENDED,
CONVERGENT, 60" X 30"
101 17.00 RSPT-7236-B WORK SURFACE, SEMI-SUSPENDED,
CONVERGENT, 72" X 36"
THIS DOCUMENT IS SUBJECT TO THE TERMS AND CONDITIONS
APPEARING ON THE ATTACHED DOCUMENT
ORIGINAL PROPOSAL
[BOS LOGO] PROPOSAL
BUSINESS OFFICE SYSTEMS. INC. A XXXXXXX PREFERRED DEALER
000 XXXXXXX XXXXX, XXXXXX, XXXXXXXX 00000-0000 PROPOSAL NUMBER
PHONE 000.000.0000 FAX 000.000.0000 K00750 23-200
xxx.xxx.xxx CUSTOMER PURCHASE ORDER NO
SOLD TO SHIP TO KEM12273
XXXXXX SALESPERSON
XXXXXX NATIONAL INSURANCE 4 BATTERY MARCH PARK XXXXXXXX XXXXXXXX
ONE XXXXXX DRIVE 3RD FLOOR DATE
XXXX XXXXX, XX 00000 XXXXXX XX 00000 06/19/03
ATTN: XXXX XXXXXXX / XXXX XXXX
8
ITEM # QUANTITY MODEL NUMBER DESCRIPTION UNIT SELL TOTAL SELL
102 1.00 RTT-1272 COUNTER TOP, FOR 72" RAIL
103 3.00 RUS-0014 MAIN BEAM UPPER POST, ONE HIGH 14"
104 75.00 RUS-0024-M MINI BEAM UPPER POST, ONE HIGH 24"
105 227.00 RUS-0028 MAIN BEAM UPPER POST, TWO HIGH 28"
106 228.00 RUS-0038-M MINI BEAM UPPER POST, TWO HIGH 38"
107 147.00 LSET-3 STANDARD LOCK PLUG & KEY LOCK SET (QTY 3)
108 67.00 LSET-6 STANDARD LOCK PLUG & KEY LOCK SET (QTY 6)
109 7.00 LSET-9 STANDARD LOCK PLUG & KEY LOCK SET (QTY 9)
110 1.00 CACC-1830-4 CONF CADDY W/ADJUSTABLE SHELF
111 1.00 CBS-68BO BOAT SLAB BASE - 48" X 168"
CAMERON, PROFILE, TRIPOLI
112 8.00 HCLP-3028-A CABINET, LOWER W/PED DRAWERS 30 INCHES
113 8.00 HCSD-0003 CABINET SHELF DIVIDER PACKAGE OF 3
114 8.00 HCUO-3056 OPEN CABINET, UPPER, 1 SHELF 30" X 56"
115 8.00 HCWB-0002 CABINET TO WORKSURFACE BRACKET
116 33.00 HGBN-0004 MULTI-PURPOSE STORAGE BIN 4-INCH
117 33.00 HGBN-0008 MULTI-PURPOSE STORAGE BIN 8-INCH
THIS DOCUMENT IS SUBJECT TO THE TERMS AND CONDITIONS
APPEARING ON THE ATTACHED DOCUMENT
ORIGINAL PROPOSAL
[BOS LOGO] PROPOSAL
BUSINESS OFFICE SYSTEMS. INC. A XXXXXXX PREFERRED DEALER
000 XXXXXXX XXXXX, XXXXXX, XXXXXXXX 00000-0000 PROPOSAL NUMBER
PHONE 000.000.0000 FAX 000.000.0000 K00750 23-200
xxx.xxx.xxx CUSTOMER PURCHASE ORDER NO
SOLD TO SHIP TO KEM12273
XXXXXX SALESPERSON
XXXXXX NATIONAL INSURANCE 4 BATTERY MARCH PARK XXXXXXXX XXXXXXXX
ONE XXXXXX DRIVE 3RD FLOOR DATE
XXXX XXXXX, XX 00000 XXXXXX XX 00000 06/19/03
ATTN: XXXX XXXXXXX / XXXX XXXX
9
ITEM # QUANTITY MODEL NUMBER DESCRIPTION UNIT SELL TOTAL SELL
118 129.00 HGMB-0002 MAILBOX, GRID MOUNT
119 129.00 HGRT-0001 REFERENCE TRAY, GRID MOUNT
120 130.00 PDM-24-DLN MOBILE PEDESTAL DRAWER 24"
121 14.00 PDS-24-JLN SUSPENDED PEDESTAL DRAWER 24"
122 17.00 PDX-24-JLN FIXED PEDESTAL DRAWER 24"
123 12.00 A771-1141 HB SYNC, PNEU, BHA, CANT W/O CAPSHARD
CASTERS, BACK LOCK
124 5.00 A771-1741 HB SYNC, PNEU, BHA, ADJ W/O CAPSHARD
CASTERS, BACK LOCK
125 115.00 A831-1741 MB SYNC, PNEU, BHA, ADJ W/O CAPSHARD
CASTERS, BACK LOCK
126 6.00 A871-1141 HB SYNC, PNEU, BHA, CANT W/O CAPSHARD
CASTERS, BACK LOCK
127 17.00 A871-1741 HB SYNC, PNEU, BHA, ADJ W/O CAPSHARD
CASTERS, BACK LOCK
128 25.00 C500-270E SLED BASE SIDE, UPHL SHELL, VINYL
CAPS, GLIDES
129 42.00 C500-270E SLED BASE SIDE, UPHL SHELL, VINYL
CAPS, GLIDES
130 24.00 M600-2210 4-LEG STACKER, ARMS, UPHL OUTER
131 20.00 M600-2210 4-LEG STACKER, ARMS, UPHL OUTER
132 2.00 MPRV-CART STACKING CART
THIS DOCUMENT IS SUBJECT TO THE TERMS AND CONDITIONS
APPEARING ON THE ATTACHED DOCUMENT
ORIGINAL PROPOSAL
[BOS LOGO] PROPOSAL
BUSINESS OFFICE SYSTEMS. INC. A XXXXXXX PREFERRED DEALER
000 XXXXXXX XXXXX, XXXXXX, XXXXXXXX 00000-0000 PROPOSAL NUMBER
PHONE 000.000.0000 FAX 000.000.0000 K00750 23-200
xxx.xxx.xxx CUSTOMER PURCHASE ORDER NO
SOLD TO SHIP TO KEM12273
XXXXXX SALESPERSON
XXXXXX NATIONAL INSURANCE 4 BATTERY MARCH PARK XXXXXXXX XXXXXXXX
ONE XXXXXX DRIVE 3RD FLOOR DATE
XXXX XXXXX, XX 00000 XXXXXX XX 00000 06/19/03
ATTN: XXXX XXXXXXX / XXXX XXXX
10
ITEM # QUANTITY MODEL NUMBER DESCRIPTION UNIT SELL TOTAL SELL
133 65.00 AKA-M-SLIDE-BBKEMPER ???-SLIDE-BBKEMPER ARTICULATING KYBRD PLATFORM,
SLIDE MOU
134 1.00 A/TFX/LC/1929 XXXXXX, TELEPHONE/FAX STAND 19" X 19" X 29"
135 18.00 3267 PARAGON FULL BACK GUEST CHAIR
136 6.00 6117 CASIMIR GUEST CHAIR
137 5.00 75-11222MCT 111 3/4 MODULAR CABINET TOP
138 6.00 75-1822MBFC BOX/BOX/FILE PEDESTAL (22" DEEP)
139 17.00 75-1822MFFC FILE/FILE PEDESTAL (22" DEEP)
140 2.00 75-1829MFFC FILE\FILE PEDESTAL 29 1/2" DEEP
141 6.00 75-3722FS OPEN SHELL WITH 10" SHELF
142 6.00 75-4822ER 48" EXECUTIVE BRIDGE RETURN
143 3.00 75-60BCBMFCNX PRAXIS BOOKCASE 36" X 60"
144 4.00 75-7236EBT/CB5 BULLET TABLE WITH ENDS 72" X 36"
145 2.00 75-7242SHEL MODULAR BOW-SHAPED SHELL
146 5.00 75-7418HDW 74" OVERHEAD STORAGE XXXX
000 1.00 75-9322MCT 93 1/8 MODULAR CABINET TOP
148 6.00 75-ECD CENTER DRAWER
149 2.00 CBD-MFCY CONFERENCE TABLE BASE 18" X 2.5"
THIS DOCUMENT IS SUBJECT TO THE TERMS AND CONDITIONS
APPEARING ON THE ATTACHED DOCUMENT
ORIGINAL PROPOSAL
[BOS LOGO] PROPOSAL
BUSINESS OFFICE SYSTEMS. INC. A XXXXXXX PREFERRED DEALER
000 XXXXXXX XXXXX, XXXXXX, XXXXXXXX 00000-0000 PROPOSAL NUMBER
PHONE 000.000.0000 FAX 000.000.0000 K00750 23-200
xxx.xxx.xxx CUSTOMER PURCHASE ORDER NO
SOLD TO SHIP TO KEM12273
XXXXXX SALESPERSON
XXXXXX NATIONAL INSURANCE 4 BATTERY MARCH PARK XXXXXXXX XXXXXXXX
ONE XXXXXX DRIVE 3RD FLOOR DATE
XXXX XXXXX, XX 00000 XXXXXX XX 00000 06/19/03
ATTN: XXXX XXXXXXX / XXXX XXXX
11
ITEM # QUANTITY MODEL NUMBER DESCRIPTION UNIT SELL TOTAL SELL
150 3.00 CB-MFCM VENEER CYLINDER BASE
151 3.00 CT-48-MFCNG4 48"ROUND CONFERENCE TOP
152 1.00 CT-7236-MFCNG1 CONFERENCE TABLE 36" X 72"
153 1.00 CU-1822CUBE-MFCN CUBE END TABLE 18" X 18" X 22"
154 6.00 TL-1 TASKLIGHT
155 1.00 V1828P-2FCPL 8900plus VERTICAL FILE 18 "X 28 5/8"X 26 7/8"
156 30.00 V1828P-4FCPL 8900plus SERIES VERTICAL FILE 18"X 28 5/8"X
50 7/8"
157 31.00 XX-XX COUNTERWEIGHT FOR VERTICAL FILES
158 6.00 HCLP-3028-A CABINET, LOWER W/PED DRAWERS 30 INCHES
159 6.00 HCSD-0003 CABINET SHELF DIVIDER PACKAGE OF 3
160 6.00 HCUO-3056 OPEN CABINET, UPPER, 1 SHELF 30" X 56"
161 6.00 HCWB-0002 CABINET TO WORKSURFACE BRACKET
162 1.00 CACB-1873-4 TRIPOLI CONFERENCE BUFFET
163 1.00 CAVD-4848-FSC VISUAL DISPLAY BOARD, 48" X 48"
164 65.00 MAC-0001 MAKE-A-CORNER
165 15.00 RMTP-0024 MINI BEAM T POST 24"
166 6.00 SPLA-5413 MODESTY PANEL, PERFORATED 14" X 72" MINI BEAM
MOUNT
THIS DOCUMENT IS SUBJECT TO THE TERMS AND CONDITIONS
APPEARING ON THE ATTACHED DOCUMENT
ORIGINAL PROPOSAL
[BOS LOGO] PROPOSAL
BUSINESS OFFICE SYSTEMS. INC. A XXXXXXX PREFERRED DEALER
000 XXXXXXX XXXXX, XXXXXX, XXXXXXXX 00000-0000 PROPOSAL NUMBER
PHONE 000.000.0000 FAX 000.000.0000 K00750 23-200
xxx.xxx.xxx CUSTOMER PURCHASE ORDER NO
SOLD TO SHIP TO KEM12273
XXXXXX SALESPERSON
XXXXXX NATIONAL INSURANCE 4 BATTERY MARCH PARK XXXXXXXX XXXXXXXX
ONE XXXXXX DRIVE 3RD FLOOR DATE
XXXX XXXXX, XX 00000 XXXXXX XX 00000 06/19/03
ATTN: XXXX XXXXXXX / XXXX XXXX
12
ITEM # QUANTITY MODEL NUMBER DESCRIPTION UNIT SELL TOTAL SELL
167 1.00 XL01-3835 PROFILE SERIES, BOAT TABLE TOP 48" X 168"
168 1.00 FREIGHT CHARGES
169 1.00 LABOR TO RECEIVE, DELIVER AND INSTALL ALL PRODUCTS
DURING NORMAL WORKING HOURS.
ATTN: XXXX XXXXXXXXX.
Accepted by:
-------------------------------------------------
THIS DOCUMENT IS SUBJECT TO THE TERMS AND CONDITIONS
APPEARING ON THE ATTACHED DOCUMENT
ORIGINAL PROPOSAL
EXHIBIT "C"
XXXX OF SALE
LUMBERMENS MUTUAL CASUALTY COMPANY D/B/A XXXXXX INSURANCE COMPANIES,
having an address of One Xxxxxx Drive, Attn: Real Xxxxxx Xxxx. 00XX, Xxxx Xxxxx,
Xxxxxxxx (the "Seller") for and in consideration of the sum of Ten ($10.00)
Dollars cash in hand paid, the receipt and sufficiency of which is hereby
acknowledged, has bargained, sold and delivered and by these presents does
bargain, sell and deliver unto THE J XXXX GROUP, INC., a Delaware corporation,
having an address of Four Batterymarch Park, Quincy, Massachussets (the "Buyer")
the personal property, fixtures, equipment and furniture more particularly
described on EXHIBIT "A" attached hereto and made a part hereof (collectively,
"Equipment") in its "AS-IS" condition and, except as otherwise expressly stated
herein, without any warranty or representation, express or implied, in any way,
it being understood and agreed by Buyer that there is no warranty, maintenance
contract or other maintenance, repair and/or replacement with respect to the
Equipment being sold by Seller nor shall Seller be responsible or liable in any
way or manner to Buyer with respect to the Equipment including, without
limitation, for malfunctions of the Equipment. The Seller warrants the right and
title to said Equipment unto the Buyer against the claims of all persons
claiming by, through or under the Seller. Buyer shall assume and pay and hold
the Seller harmless from any taxes which may be incurred as a result of this
transaction.
TO HAVE AND TO HOLD the said Equipment above described unto the Buyer,
its successors and assigns, forever.
IN WITNESS WHEREOF, the undersigned has set its hand and affixed its
seals all as of the _____day of ____________, 20__.
ATTEST/WITNESS: LUMBERMENS MUTUAL CASUALTY COMPANY D/B/A
XXXXXX INSURANCE COMPANIES
BY:
------------------- -----------------------------
(Title)
STATE OF ILLINOIS )
)ss.
COUNTY OF ___________)
I,__________________, an officer duly authorized to administer oaths
and take acknowledgements, hereby certify that on this ____ day of ________,
20___ the _____________ of LUMBERMENS MUTUAL CASUALTY COMPANY D/B/A XXXXXX
INSURANCE COMPANIES personally appeared before me and is known to me to be the
person described in and who executed the foregoing Xxxx of Sale, and
acknowledged before me that he/she executed the same freely and voluntarily in
the capacity and for the purpose therein expressed.
Witness my hand and official seal this ___ day of ___________, 20___.
----------------------------
Notary Public
My commission expires:
- 16 -
EXHIBIT "A" TO XXXX OF SALE
INVENTORY
(see attached)
- 17 -
Inventory
two countertop microwave ovens
one refrigerator
one built-in dishwasher
one built-in ice machine
Items 1 - 167, inclusive, listed on Business Office Systems Proposal K00750
23-2000 (Purchase Order No. KEM12273) dated 06/19/03 attached hereto and made a
part hereof
[BOS LOGO] PROPOSAL
BUSINESS OFFICE SYSTEMS. INC. A XXXXXXX PREFERRED DEALER
000 XXXXXXX XXXXX, XXXXXX, XXXXXXXX 00000-0000 PROPOSAL NUMBER
PHONE 000.000.0000 FAX 000.000.0000 K00750 23-200
xxx.xxx.xxx CUSTOMER PURCHASE ORDER NO
SOLD TO SHIP TO KEM12273
XXXXXX SALESPERSON
XXXXXX NATIONAL INSURANCE 4 BATTERY MARCH PARK XXXXXXXX XXXXXXXX
ONE XXXXXX DRIVE 3RD FLOOR DATE
XXXX XXXXX, XX 00000 XXXXXX XX 00000 06/19/03
ATTN: XXXX XXXXXXX / XXXX XXXX
1
ITEM # QUANTITY MODEL NUMBER DESCRIPTION UNIT SELL TOTAL SELL
BRAINTREE, MA QUINCY - NEW FACILITY
BUYER: XXXX XXXXX/000-000-0000
P.O.#KEM12273
1 10.00 CF-D-2430-6-N-B??? ??? SERIES 24" X 30" X 26.5" MODULAR TABLE ON
CASTERS LAMINATE; BEIGE NEBULA 4624-60,
BASE: BLACK, T-MOLD: BLACK
2 1.00 TQ24C5L48 STARTER UNIT CLOSED L UPRIGHT 48" X 24" X 88"
3 2.00 TQ24O5L42 STARTER UNIT OPEN L UPRIGHT 42" X 24" X 88"
4 3.00 TQ24O5T42 ADD ON UNIT OPEN T UPRIGHT 42" X 24" X 88"
5 1.00 A771-1741 HB SYNC, PNEU, BHA, ADJ W/O CAPSHARD
CASTERS, BACK LOCK
6 1.00 A831-1741 MB SYNC, PNEU, BHA, ADJ W/O CAPSHARD
CASTERS, BACK LOCK
7 1.00 AKA-M-SLIDE-BBKEMPER ???-SLIDE-BBKEMPER ARTICULATING KYBRD PLATFORM,
SLIDE MOU
8 1.00 CW-30 COUNTERWEIGHT, 950 SERIES 30" LATERAL FILE
9 1.00 CW-42 COUNTERWEIGHT, 950 SERIES 42" LATERAL FILE
10 1.00 HGBN-0004 MULTI-PURPOSE STORAGE BIN 4-INCH
THIS DOCUMENT IS SUBJECT TO THE TERMS AND CONDITIONS
APPEARING ON THE ATTACHED DOCUMENT
ORIGINAL PROPOSAL
[BOS LOGO] PROPOSAL
BUSINESS OFFICE SYSTEMS. INC. A XXXXXXX PREFERRED DEALER
000 XXXXXXX XXXXX, XXXXXX, XXXXXXXX 00000-0000 PROPOSAL NUMBER
PHONE 000.000.0000 FAX 000.000.0000 K00750 23-200
xxx.xxx.xxx CUSTOMER PURCHASE ORDER NO
SOLD TO SHIP TO KEM12273
XXXXXX SALESPERSON
XXXXXX NATIONAL INSURANCE 4 BATTERY MARCH PARK XXXXXXXX XXXXXXXX
ONE XXXXXX DRIVE 3RD FLOOR DATE
XXXX XXXXX, XX 00000 XXXXXX XX 00000 06/19/03
ATTN: XXXX XXXXXXX / XXXX XXXX
2
ITEM # QUANTITY MODEL NUMBER DESCRIPTION UNIT SELL TOTAL SELL
11 1.00 HGBN-0008 MULTI-PURPOSE STORAGE BIN 8-INCH
12 2.00 HGBM-0002 MAILBOX, GRID MOUNT
13 2.00 HGRT-0001 REFERENCE TRAY, GRID MOUNT
14 1.00 LFRS-430-LD0F 4-HI LATERAL FILE, RADIUS CASE 30 INCHES
15 1.00 LFRS-442-LD0F 4-HI LATERAL FILE, RADIUS CASE 42 INCHES
16 3.00 LSET-3 STANDARD LOCK PLUG & KEY LOCK SET (QTY 3)
17 1.00 MAC-0001 MAKE-A-CORNER
18 2.00 PDM-24-DLN MOBILE PEDESTAL DRAWER 24"
19 2.00 RBMP-0072 MAIN BEAM - POWERED - 72"
20 2.00 RCT-4230 WORK SURFACE - REGULAR, MAIN BEAM 42" X 30"
21 1.00 REFE-0005 FLOOR ENTRY CONDUIT 1/2" DTA.
22 1.00 RFEC-0002 FLOOR POWER & COMMUNICATIONS COVER
23 1.00 RIF-0012 INPEED - 12 FEET
24 2.00 RMB-0072 MINI BEAM STARTER 72"
25 1.00 RMBP-0090 MINI BEAM TO R POST CONNECT KIT
26 2.00 RMC-0072 MINI BEAM PAD 72"
THIS DOCUMENT IS SUBJECT TO THE TERMS AND CONDITIONS
APPEARING ON THE ATTACHED DOCUMENT
ORIGINAL PROPOSAL
[BOS LOGO] PROPOSAL
BUSINESS OFFICE SYSTEMS. INC. A XXXXXXX PREFERRED DEALER
000 XXXXXXX XXXXX, XXXXXX, XXXXXXXX 00000-0000 PROPOSAL NUMBER
PHONE 000.000.0000 FAX 000.000.0000 K00750 23-200
xxx.xxx.xxx CUSTOMER PURCHASE ORDER NO
SOLD TO SHIP TO KEM12273
XXXXXX SALESPERSON
XXXXXX NATIONAL INSURANCE 4 BATTERY MARCH PARK XXXXXXXX XXXXXXXX
ONE XXXXXX DRIVE 3RD FLOOR DATE
XXXX XXXXX, XX 00000 XXXXXX XX 00000 06/19/03
ATTN: XXXX XXXXXXX / XXXX XXXX
3
ITEM # QUANTITY MODEL NUMBER DESCRIPTION UNIT SELL TOTAL SELL
27 2.00 RMLP-0018 MINI BEAM L POST 18"
28 2.00 RMT-7824 WORK SURFACE - REGULAR, MINI BEAM 78" X 24"
29 3.00 ROSU-0036 OVERHEAD STORAGE - 36" STORAGE XXXX
00 5.00 RPC-0072 PAD, TACKABLE, MAIN BEAM 72"
31 2.00 RPCR-0002 PCR DUPLEX
32 1.00 RPG-0036 GRID FOR 36" PAD
33 3.00 RPOS-0001 UNIVERSAL POST
34 7.00 RRA-0072 RAILS 72"
35 2.00 RRC-0003 RECEPTACLE, COMMON GRND TRIPLEX 1 CIRCUIT
36 3.00 RUS-0024-M MINI BEAM UPPER POST, ONE HIGH 24"
37 5.00 RUS-0028 MAIN BEAM UPPER POST, TWO HIGH 28"
38 3.00 RUS-0038-M MINI BEAM UPPER POST, TWO HIGH 38"
39 1.00 SPLA-5413 MODESTY PANEL, PERFORATED 14" X 72"
MINI BEAM MOUNT
40 3.00 0521 SORTER, 59-1/16"w X 28-1/8"d 5 BINS w X 2 BINS h
41 1.00 0521 SORTER, 59-1/16"w X 28-1/8"d 5 BINS w X 2 BINS h 8
BINS STN
42 8.00 735.05 INDEX LABELS PKG OF 10
THIS DOCUMENT IS SUBJECT TO THE TERMS AND CONDITIONS
APPEARING ON THE ATTACHED DOCUMENT
ORIGINAL PROPOSAL
[BOS LOGO] PROPOSAL
BUSINESS OFFICE SYSTEMS. INC. A XXXXXXX PREFERRED DEALER
000 XXXXXXX XXXXX, XXXXXX, XXXXXXXX 00000-0000 PROPOSAL NUMBER
PHONE 000.000.0000 FAX 000.000.0000 K00750 23-200
xxx.xxx.xxx CUSTOMER PURCHASE ORDER NO
SOLD TO SHIP TO KEM12273
XXXXXX SALESPERSON
XXXXXX NATIONAL INSURANCE 4 BATTERY MARCH PARK XXXXXXXX XXXXXXXX
ONE XXXXXX DRIVE 3RD FLOOR DATE
XXXX XXXXX, XX 00000 XXXXXX XX 00000 06/19/03
ATTN: XXXX XXXXXXX / XXXX XXXX
4
ITEM # QUANTITY MODEL NUMBER DESCRIPTION UNIT SELL TOTAL SELL
43 4.00 865.1 RISER 59-1/16w X 13-3/4d
44 1.00 T3150 TABLE, 31-5/8w X 59-1/16d, CLSD SIDE/BACK BASE
SHELF 8 DWR
45 6.00 T3150 TABLE, 31-5/8w X 59-1/16d, CLSD SIDE/BACKBASE SHLF
INTERM SH
46 1.00 T3150 TABLE, 31-5/8w X 59d-1/16, CLSD SIDE/BACK
BASESHELF/SLIDE DOOR
47 3.00 240 XXXXXXX SWATHMORE CHAIR WOOD LEG
48 1.00 50-2020L XXXXXXX SWATHMORE BEVELED TABLE 20" X 20"X 20"
49 1.00 PX-48-XX-XX ETEX VISUAL BOARD 48" X 48" 2ND FLIP W/ TEARBAR
TACK, PR
50 1.00 13333-3036 TABLE TOP 13333 SERIES 30" X 36" RECTANGULAR
51 2.00 13333-3060 TABLE TOP 13333 SERIES 30" X 60" RECTANGULAR
52 4.00 2402-222 TABLE BASE 2400 SERIES 30" X 60" TABLE TOP
53 1.00 2402-2228 TABLE BASE 2400 SERIES 36" X 30" TABLE TOP
54 1.00 24CT-1300-60RD 24CT SERIES CONFERENCE TABLE 60" ROUND
55 54.00 24FT-1333-3060 FOLDING TABLES 24FT SERIES 30"X 60" RECTANGULAR
THIS DOCUMENT IS SUBJECT TO THE TERMS AND CONDITIONS
APPEARING ON THE ATTACHED DOCUMENT
ORIGINAL PROPOSAL
[BOS LOGO] PROPOSAL
BUSINESS OFFICE SYSTEMS. INC. A XXXXXXX PREFERRED DEALER
000 XXXXXXX XXXXX, XXXXXX, XXXXXXXX 00000-0000 PROPOSAL NUMBER
PHONE 000.000.0000 FAX 000.000.0000 K00750 23-200
xxx.xxx.xxx CUSTOMER PURCHASE ORDER NO
SOLD TO SHIP TO KEM12273
XXXXXX SALESPERSON
XXXXXX NATIONAL INSURANCE 4 BATTERY MARCH PARK XXXXXXXX XXXXXXXX
ONE XXXXXX DRIVE 3RD FLOOR DATE
XXXX XXXXX, XX 00000 XXXXXX XX 00000 06/19/03
ATTN: XXXX XXXXXXX / XXXX XXXX
5
ITEM # QUANTITY MODEL NUMBER DESCRIPTION UNIT SELL TOTAL SELL
56 9.00 CS-42 CABINET STORAGE SHELF 42"
57 38.00 CW-30 COUNTERWEIGHT, 950 SERIES 30" LATERAL FILE
58 5.00 CW-36 COUNTERWEIGHT, 950 SERIES 36" LATERAL FILE
59 123.00 CW-42 COUNTERWEIGHT, 950 SERIES 42" LATERAL FILE
60 1.00 HTR-0036 ROUND TABLE 36"
61 1.00 HTS-3030 SQUARE CONFERENCE TABLE 30" X 30"
62 24.00 LBR-436 4-HIGH BOOKCASE - 36" RADIUS CASE
63 6.00 LBR-436 4-HIGH BOOKCASE - 36" RADIUS CASE
64 22.00 LFRS-430-LD0F 4-HI LATERAL FILE, RADIUS CASE 30 INCHES
65 16.00 LFRS-430-LD0F 4-HI LATERAL FILE, RADIUS CASE 30 INCHES
66 5.00 LFRS-436-LD0F 4-HI LATERAL FILE, RADIUS CASE 36 INCHES
67 121.00 LFRS-442-LD0F 4-HI LATERAL FILE, RADIUS CASE 42 INCHES
68 2.00 LFRS-442-LD0F 4-HI LATERAL FILE, RADIUS CASE 42 INCHES
69 2.00 LHRS-242-LDCF CREDENZA, RADIUS CASE, 42 INCHES
THIS DOCUMENT IS SUBJECT TO THE TERMS AND CONDITIONS
APPEARING ON THE ATTACHED DOCUMENT
ORIGINAL PROPOSAL
[BOS LOGO] PROPOSAL
BUSINESS OFFICE SYSTEMS. INC. A XXXXXXX PREFERRED DEALER
000 XXXXXXX XXXXX, XXXXXX, XXXXXXXX 00000-0000 PROPOSAL NUMBER
PHONE 000.000.0000 FAX 000.000.0000 K00750 23-200
xxx.xxx.xxx CUSTOMER PURCHASE ORDER NO
SOLD TO SHIP TO KEM12273
XXXXXX SALESPERSON
XXXXXX NATIONAL INSURANCE 4 BATTERY MARCH PARK XXXXXXXX XXXXXXXX
ONE XXXXXX DRIVE 3RD FLOOR DATE
XXXX XXXXX, XX 00000 XXXXXX XX 00000 06/19/03
ATTN: XXXX XXXXXXX / XXXX XXXX
6
ITEM # QUANTITY MODEL NUMBER DESCRIPTION UNIT SELL TOTAL SELL
70 9.00 LSRS-442-LB 4-HI STORAGE, RADIUS CASE, 42"
71 1.00 SCF1-2472-JJN STEEL CREDENZA 24" X 72"-FULL BACK PANEL-NO
GROMMETS-NO VS
72 17.00 RBMN-0036 MAIN BEAM - NON-POWERED - 36"
73 2.00 RBMP-0048 MAIN BEAM - POWERED - 48"
74 108.00 RBMP-0072 MAIN BEAM - POWERED - 72"
75 1.00 RBMP-0096 MAIN BEAM - POWERED - 96"
76 128.00 RCT-4230 WORK SURFACE - REGULAR, MAIN BEAM 42" X 30"
77 1.00 RCT-4830 WORK SURFACE - REGULAR, MAIN BEAM 48" X 30"
78 18.00 RCT-7224 WORK SURFACE - REGULAR, MAIN BEAM 72" X 24"
79 35.00 REFE-0005 FLOOR ENTRY CONDUIT 1/2" DIA.
80 6.00 REFE-0010 FLOOR ENTRY CONDUIT 1" DIA.
81 41.00 REFC-0002 FLOOR POWER & COMMUNICATIONS COVER
82 47.00 RIF-0012 INFEED - 12 FEET
83 102.00 RMB-0072 MINI BEAM STARTER 72"
84 57.00 RMBP-0090 MINI BEAM TO R POST CONNECT KIT
85 101.00 RMC-0072 MINI BEAM PAD 72"
THIS DOCUMENT IS SUBJECT TO THE TERMS AND CONDITIONS
APPEARING ON THE ATTACHED DOCUMENT
ORIGINAL PROPOSAL
[BOS LOGO] PROPOSAL
BUSINESS OFFICE SYSTEMS. INC. A XXXXXXX PREFERRED DEALER
000 XXXXXXX XXXXX, XXXXXX, XXXXXXXX 00000-0000 PROPOSAL NUMBER
PHONE 000.000.0000 FAX 000.000.0000 K00750 23-200
xxx.xxx.xxx CUSTOMER PURCHASE ORDER NO
SOLD TO SHIP TO KEM12273
XXXXXX SALESPERSON
XXXXXX NATIONAL INSURANCE 4 BATTERY MARCH PARK XXXXXXXX XXXXXXXX
ONE XXXXXX DRIVE 3RD FLOOR DATE
XXXX XXXXX, XX 00000 XXXXXX XX 00000 06/19/03
ATTN: XXXX XXXXXXX / XXXX XXXX
7
ITEM # QUANTITY MODEL NUMBER DESCRIPTION UNIT SELL TOTAL SELL
86 82.00 RMLP-0018 MINI BEAM L POST 18"
87 5.00 RMPT-0001 MINI BEAM SINGLE POST
88 112.00 RMT-7824 WORK SURFACE - REGULAR, MINI BEAM 78" X 24"
89 189.00 ROSU-0036 OVERHEAD STORAGE - 36" STORAGE XXXX
00 4.00 RPC-0048 PAD, TACKABLE, MAIN BEAM 48"
91 259.00 RPC-0072 PAD, TACKABLE, MAIN BEAM 72"
92 2.00 RPC-0096 PAD, TACKABLE, MAIN BEAM 96"
93 150.00 RPCR-0002 PCR DUPLEX
94 130.00 RPG-0036 GRID FOR 36" PAD
95 169.00 RPOS-0001 UNIVERSAL POST
96 4.00 RRA-0048 RAILS 48"
97 360.00 RRA-0072 RAILS 72"
98 2.00 RRA-0096 RAILS 96"
99 131.00 RRC-0003 RECEPTACLE, COMMON GRND TRIPLEX 1 CIRCUIT
100 20.00 RSPT-6030 WORK SURFACE, SEMI-SUSPENDED, CONVERGENT,
60" X 30"
101 17.00 RSPT-7236-B WORK SURFACE, SEMI-SUSPENDED, CONVERGENT,
72" X 36"
THIS DOCUMENT IS SUBJECT TO THE TERMS AND CONDITIONS
APPEARING ON THE ATTACHED DOCUMENT
ORIGINAL PROPOSAL
[BOS LOGO] PROPOSAL
BUSINESS OFFICE SYSTEMS. INC. A XXXXXXX PREFERRED DEALER
000 XXXXXXX XXXXX, XXXXXX, XXXXXXXX 00000-0000 PROPOSAL NUMBER
PHONE 000.000.0000 FAX 000.000.0000 K00750 23-200
xxx.xxx.xxx CUSTOMER PURCHASE ORDER NO
SOLD TO SHIP TO KEM12273
XXXXXX SALESPERSON
XXXXXX NATIONAL INSURANCE 4 BATTERY MARCH PARK XXXXXXXX XXXXXXXX
ONE XXXXXX DRIVE 3RD FLOOR DATE
XXXX XXXXX, XX 00000 XXXXXX XX 00000 06/19/03
ATTN: XXXX XXXXXXX / XXXX XXXX
8
ITEM # QUANTITY MODEL NUMBER DESCRIPTION UNIT SELL TOTAL SELL
102 1.00 RTT-1272 COUNTER TOP, FOR 72" RAIL
103 3.00 RUS-0014 MAIN BEAM UPPER POST, ONE HIGH 14"
104 75.00 RUS-0024-M MINI BEAM UPPER POST, ONE HIGH 24"
105 227.00 RUS-0028 MAIN BEAM UPPER POST, TWO HIGH 28"
106 228.00 RUS-0038-M MINI BEAM UPPER POST, TWO HIGH 38"
107 147.00 LSET-3 STANDARD LOCK PLUG & KEY LOCK SET (QTY 3)
108 67.00 LSET-6 STANDARD LOCK PLUG & KEY LOCK SET (QTY 6)
109 7.00 LSET-9 STANDARD LOCK PLUG & KEY LOCK SET (QTY 9)
110 1.00 CACC-1830-4 CONF CADDY W/ADJUSTABLE SHELF
111 1.00 CBS-68BO BOAT SLAB BASE - 48" X 168" CAMERON, PROFILE,
TRIPOLI
112 8.00 HCLP-3028-A CABINET, LOWER W/PED DRAWERS 30 INCHES
113 8.00 HCSD-0003 CABINET SHELF DIVIDER PACKAGE OF 3
114 8.00 HCUO-3056 OPEN CABINET, UPPER, 1 SHELF 30" X 56"
115 8.00 HCWB-0002 CABINET TO WORKSURFACE BRACKET
116 33.00 HGBN-0004 MULTI-PURPOSE STORAGE BIN 4-INCH
117 33.00 HGBN-0008 MULTI-PURPOSE STORAGE BIN 8-INCH
THIS DOCUMENT IS SUBJECT TO THE TERMS AND CONDITIONS
APPEARING ON THE ATTACHED DOCUMENT
ORIGINAL PROPOSAL
[BOS LOGO] PROPOSAL
BUSINESS OFFICE SYSTEMS. INC. A XXXXXXX PREFERRED DEALER
000 XXXXXXX XXXXX, XXXXXX, XXXXXXXX 00000-0000 PROPOSAL NUMBER
PHONE 000.000.0000 FAX 000.000.0000 K00750 23-200
xxx.xxx.xxx CUSTOMER PURCHASE ORDER NO
SOLD TO SHIP TO KEM12273
XXXXXX SALESPERSON
XXXXXX NATIONAL INSURANCE 4 BATTERY MARCH PARK XXXXXXXX XXXXXXXX
ONE XXXXXX DRIVE 3RD FLOOR DATE
XXXX XXXXX, XX 00000 XXXXXX XX 00000 06/19/03
ATTN: XXXX XXXXXXX / XXXX XXXX
9
ITEM # QUANTITY MODEL NUMBER DESCRIPTION UNIT SELL TOTAL SELL
118 129.00 HGMB-0002 MAILBOX, GRID MOUNT
119 129.00 HGRT-0001 REFERENCE TRAY, GRID MOUNT
120 130.00 PDM-24-DLN MOBILE PEDESTAL DRAWER 24"
121 14.00 PDS-24-JLN SUSPENDED PEDESTAL DRAWER 24"
122 17.00 PDX-24-JLN FIXED PEDESTAL DRAWER 24"
123 12.00 A771-1141 HB SYNC, PNEU, BHA, CANT W/O CAPSHARD CASTERS,
BACK LOCK
124 5.00 A771-1741 HB SYNC, PNEU, BHA, ADJ W/O CAPSHARD CASTERS,
BACK LOCK
125 115.00 A831-1741 MB SYNC, PNEU, BHA, ADJ W/O CAPSHARD CASTERS,
BACK LOCK
126 6.00 A871-1141 HB SYNC, PNEU, BHA, CANT W/O CAPSHARD CASTERS,
BACK LOCK
127 17.00 A871-1741 HB SYNC, PNEU, BHA, ADJ W/O CAPSHARD CASTERS,
BACK LOCK
128 25.00 C500-270E SLED BASE SIDE, UPHL SHELL, VINYL CAPS, GLIDES
129 42.00 C500-270E SLED BASE SIDE, UPHL SHELL, VINYL CAPS, GLIDES
130 24.00 M600-2210 4-LEG STACKER, ARMS, UPHL OUTER
131 20.00 M600-2210 4-LEG STACKER, ARMS, UPHL OUTER
132 2.00 MPRV-CART STACKING CART
THIS DOCUMENT IS SUBJECT TO THE TERMS AND CONDITIONS
APPEARING ON THE ATTACHED DOCUMENT
ORIGINAL PROPOSAL
[BOS LOGO] PROPOSAL
BUSINESS OFFICE SYSTEMS. INC. A XXXXXXX PREFERRED DEALER
000 XXXXXXX XXXXX, XXXXXX, XXXXXXXX 00000-0000 PROPOSAL NUMBER
PHONE 000.000.0000 FAX 000.000.0000 K00750 23-200
xxx.xxx.xxx CUSTOMER PURCHASE ORDER NO
SOLD TO SHIP TO KEM12273
XXXXXX SALESPERSON
XXXXXX NATIONAL INSURANCE 4 BATTERY MARCH PARK XXXXXXXX XXXXXXXX
ONE XXXXXX DRIVE 3RD FLOOR DATE
XXXX XXXXX, XX 00000 XXXXXX XX 00000 06/19/03
ATTN: XXXX XXXXXXX / XXXX XXXX
10
ITEM # QUANTITY MODEL NUMBER DESCRIPTION UNIT SELL TOTAL SELL
133 65.00 AKA-M-SLIDE-BBKEMPER ???-SLIDE-BBKEMPER ARTICULATING
KYBRD PLATFORM, SLIDE MOU
134 1.00 A/TFX/LC/1929 XXXXXX, TELEPHONE/FAX STAND 19" X 19" X 29"
135 18.00 3267 PARAGON FULL BACK GUEST CHAIR
136 6.00 6117 CASIMIR GUEST CHAIR
137 5.00 75-11222MCT 111 3/4 MODULAR CABINET TOP
138 6.00 75-1822MBFC BOX/BOX/FILE PEDESTAL (22" DEEP)
139 17.00 75-1822MFFC FILE/FILE PEDESTAL(22" DEEP)
140 2.00 75-1829MFFC FILE\FILE PEDESTAL 29 1/2" DEEP
141 6.00 75-3722FS OPEN SHELL WITH 10" SHELF
142 6.00 75-4822ER 48" EXECUTIVE BRIDGE RETURN
143 3.00 75-60BCBMFCNX PRAXIS BOOKCASE 36" X 60"
144 4.00 75-7236EBT/CB5 BULLET TABLE WITH ENDS 72" X 36"
145 2.00 75-7242SHEL MODULAR BOW-SHAPED SHELL
146 5.00 75-7418HDW 74" OVERHEAD STORAGE XXXX
000 1.00 75-9322MCT 93 1/8 MODULAR CABINET TOP
148 6.00 75-ECD CENTER DRAWER
149 2.00 CBD-MFCY CONFERENCE TABLE BASE 18" X 2.5"
THIS DOCUMENT IS SUBJECT TO THE TERMS AND CONDITIONS
APPEARING ON THE ATTACHED DOCUMENT
ORIGINAL PROPOSAL
[BOS LOGO] PROPOSAL
BUSINESS OFFICE SYSTEMS. INC. A XXXXXXX PREFERRED DEALER
000 XXXXXXX XXXXX, XXXXXX, XXXXXXXX 00000-0000 PROPOSAL NUMBER
PHONE 000.000.0000 FAX 000.000.0000 K00750 23-200
xxx.xxx.xxx CUSTOMER PURCHASE ORDER NO
SOLD TO SHIP TO KEM12273
XXXXXX SALESPERSON
XXXXXX NATIONAL INSURANCE 4 BATTERY MARCH PARK XXXXXXXX XXXXXXXX
ONE XXXXXX DRIVE 3RD FLOOR DATE
XXXX XXXXX, XX 00000 XXXXXX XX 00000 06/19/03
ATTN: XXXX XXXXXXX / XXXX XXXX
11
ITEM # QUANTITY MODEL NUMBER DESCRIPTION UNIT SELL TOTAL SELL
150 3.00 CB-MFCM VENEER CYLINDER BASE
151 3.00 CT-48-MFCNG4 48"ROUND CONFERENCE TOP
152 1.00 CT-7236-MFCNG1 CONFERENCE TABLE 36" X 72"
153 1.00 CU-1822CUBE-MFCN CUBE END TABLE 18" X 18" X 22"
154 6.00 TL-1 TASKLIGHT
155 1.00 V1828P-2FCPL 8900plus VERTICAL FILE 18 "X 28 5/8"X 26 7/8"
156 30.00 V1828P-4FCPL 8900plus SERIES VERTICAL FILE 18"X 28 5/8"X
50 7/8"
157 31.00 XX-XX COUNTERWEIGHT FOR VERTICAL FILES
158 6.00 HCLP-3028-A CABINET, LOWER W/PED DRAWERS 30 INCHES
159 6.00 HCSD-0003 CABINET SHELF DIVIDER PACKAGE OF 3
160 6.00 HCUO-3056 OPEN CABINET, UPPER, 1 SHELF 30" X 56"
161 6.00 HCWB-0002 CABINET TO WORKSURFACE BRACKET
162 1.00 CACB-1873-4 TRIPOLI CONFERENCE BUFFET
163 1.00 CAVD-4848-FSC VISUAL DISPLAY BOARD, 48" X 48"
164 65.00 MAC-0001 MAKE-A-CORNER
165 15.00 RMTP-0024 MINI BEAM T POST 24"
166 6.00 SPLA-5413 MODESTY PANEL, PERFORATED 14" X 72"
MINI BEAM MOUNT
THIS DOCUMENT IS SUBJECT TO THE TERMS AND CONDITIONS
APPEARING ON THE ATTACHED DOCUMENT
ORIGINAL PROPOSAL
[BOS LOGO] PROPOSAL
BUSINESS OFFICE SYSTEMS. INC. A XXXXXXX PREFERRED DEALER
000 XXXXXXX XXXXX, XXXXXX, XXXXXXXX 00000-0000 PROPOSAL NUMBER
PHONE 000.000.0000 FAX 000.000.0000 K00750 23-200
xxx.xxx.xxx CUSTOMER PURCHASE ORDER NO
SOLD TO SHIP TO KEM12273
XXXXXX SALESPERSON
XXXXXX NATIONAL INSURANCE 4 BATTERY MARCH PARK XXXXXXXX XXXXXXXX
ONE XXXXXX DRIVE 3RD FLOOR DATE
XXXX XXXXX, XX 00000 XXXXXX XX 00000 06/19/03
ATTN: XXXX XXXXXXX / XXXX XXXX
12
ITEM # QUANTITY MODEL NUMBER DESCRIPTION UNIT SELL TOTAL SELL
167 1.00 XL01-3835 PROFILE SERIES, BOAT TABLE TOP 48" X 168"
168 1.00 FREIGHT CHARGES
169 1.00 LABOR TO RECEIVE, DELIVER AND INSTALL ALL PRODUCTS
DURING NORMAL WORKING HOURS.
ATTN: XXXX XXXXXXXXX.
Accepted by:
--------------------------------------------------
THIS DOCUMENT IS SUBJECT TO THE TERMS AND CONDITIONS
APPEARING ON THE ATTACHED DOCUMENT
ORIGINAL PROPOSAL
COMMENCEMENT DATE AGREEMENT
Agreement ("Commencement Agreement") made this 29 day of September,
2003, between LUMBERMENS MUTUAL CASUALTY COMPANY, an Illinois insurance company
("Sublandlord"), and THE J XXXX GROUP INC., a Delaware corporation
("Subtenant").
WHEREAS, Sublandlord and Subtenant entered into a sublease dated as of
September, 2003 ( "Sublease") relating to that certain premises containing
approximately 29,305 rentable square feet ("Subleased Premises") in the building
located at Four Batterymarch Park, Quincy, Massachussets ("Building") [All
capitalized terms not otherwise defined herein shall have the meanings ascribed
to them in the Sublease];
WHEREAS, the Term of the Sublease has commenced; and
WHEREAS, pursuant to Paragraph 2 of the Sublease, the parties desire to
confirm the dates of Commencement Date;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, Sublandlord and Subtenant agree, as follows:
a) Subtenant is in possession of, and has accepted, the Subleased Premises
described by the Sublease.
b) The Sublease Term commenced on, and the Commencement Date is,
September 15, 2003.
c) The Sublease Term will expire on, and the Expiration Date is, on
October 31, 2009, unless sooner terminated.
d) The Sublease is in full force and effect and is hereby ratified and
confirmed.
IN WITNESS WHEREOF, Sublandlord and Subtenant have caused this
Commencement Agreement to be duly executed on the date first written above.
Subtenant: Sublandlord:
THE J XXXX GROUP INC. LUMBERMENS MUTUAL CASUALTY
COMPANY D/B/A XXXXXX INSURANCE
COMPANIES
By: /s/ XXXX X. XXXXXX By: /s/ XXXXXX X. XXXXXX
------------------------------- --------------------------
Name: Xxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer Title: Real Estate Officer
CONSENT TO SUBLEASE
THIS CONSENT TO SUBLEASE ("Consent Agreement") dated as of August 28,
2003 is made with reference to that certain sublease (the "Sublease") dated
August 28, 2003 by and between Lumbermens Mutual Casualty Company ("Tenant") and
The J. Xxxx Group, Inc. ("Subtenant"), and is entered into between the foregoing
parties and National Fire Protection Association ("Landlord"), having an address
at Xxx Xxxxxxxxxxxx Xxxx, Xxxxxx, XX with reference to the following facts:
A. Landlord and Tenant are the parties to that certain Lease (the
"Master Lease") dated as of April 27, 1999 respecting certain premises
("Premises") known as 29,305 square feet located on a portion of the third
floor, located in the building ("Building") known as Four Batterymarch Park
located in Batterymarch Park, Quincy, MA.
B. Tenant and Subtenant wish to enter into the Sublease respecting the
Premises described therein (the "Sublease Premises").
C. The Master Lease provides that Tenant may not enter into any
sublease without Landlord's prior written approval.
D. Tenant and Subtenant have herewith presented the fully-executed
Sublease to Landlord for Landlord's approval, and Landlord is willing to approve
the same, upon all of the terms and conditions hereinafter appearing.
NOW, THEREFORE, for good and valuable consideration, the parties hereto
agree as follows:
1. Neither the Master Lease, the Sublease nor this Consent shall be
deemed to grant Subtenant any rights whatsoever against Landlord. Subtenant
hereby acknowledges and agrees that its sole remedy for any alleged or actual
breach of its rights in connection with the Sublease Premises (as defined in the
Sublease) shall be solely against Tenant.
2. This Consent shall not release Tenant from any existing or future
duty, obligation or liability to Landlord pursuant to the Master Lease, nor
shall this Consent change, modify or amend the Master Lease in any manner,
except as expressly stated herein. This consent shall not be deemed Landlord's
consent to any further subleases.
3.
(a) In the event of Master Lease Termination (as hereinafter defined)
prior to the termination of the Sublease, at Landlord's option, Subtenant agrees
to attorn to Landlord and to recognize Landlord as Subtenant's landlord under
the Sublease, under the terms and conditions and at the rental rate specified in
the Sublease, and for the then remaining term of the Sublease, except that
Landlord shall not be bound by any provision of the Sublease which in any way
increases Landlord's duties, obligations or liabilities to Subtenant beyond
those owed to Tenant under the Master Lease. Subtenant agrees to execute and
deliver at any time and from time to time, upon request of Landlord, any
instruments which may be necessary or appropriate to
1
evidence such attornment. Landlord shall not: (i) be liable to Subtenant for any
act, omission or breach of the Sublease by Tenant, (ii) be subject to any
offsets or defenses which Subtenant might have against Tenant, (iii) be bound by
any rent or additional rent which Subtenant might have paid in advance to
Tenant, or (iv) be bound to honor any rights of Subtenant in any security
deposit made with Tenant except to the extent Tenant has turned over such
security deposit to Landlord. Tenant hereby agrees that in the event of Master
Lease Termination, Tenant shall immediately pay or transfer to Landlord any
security deposit then held by Tenant not applied by Tenant or due to Tenant
under the Sublease arising from Subtenant's default and/or failure to comply
with or fully and timely perform Subtenant's obligations under the Sublease.
Landlord shall have the right, in Landlord's sole discretion, to elect not to
have Subtenant attorn to Landlord and, in this event, the Sublease shall be
deemed terminated on the date of Master Lease Termination and, Landlord shall
have no obligation to permit Subtenant to continue to occupy the Premises. In
the event that the Landlord elects not to have Subtenant attorn to Landlord,
then Subtenant shall have the option to lease the Sublease Premises at the then
fair market rate for the Sublease Premises (which, absent agreement between
Landlord and Subtenant, shall be determined pursuant to the procedure set forth
in section 14.34 of the Lease) for a term equal to the greater of the remainder
of the term of the Sublease or the remainder of the term of that certain lease
agreement dated September, 1998 between Landlord and Subtenant.
(b) "Master Lease Termination" means any event, which by voluntary or
involuntary act or by operation of law, might cause or permit the Master Lease
to be terminated, expired, cancelled, foreclosed against, or otherwise come to
an end, including but not limited to (1) a default by Tenant under the Master
Lease of any of the terms or provisions thereof; (2) foreclosure proceedings
brought by the holder of any mortgage or trust deed to which the Master Lease is
subject; or (3) the termination of Tenant's leasehold estate by dispossession
proceeding or otherwise.
(c) In the event of attornment hereunder, Landlord's liability shall be
limited to matters arising during Landlord's ownership of the Building, and in
the event that Landlord (or any successor owner) shall convey or dispose of the
Building to another party, such party shall thereupon be and become landlord
hereunder and shall be deemed to have fully assumed and be liable for all
obligations of this Consent or the Sublease to be performed by Landlord which
first arise after the date of conveyance, including the return of any security
deposit, and Tenant shall attorn to such other party, and Landlord (or such
successor owner) shall, from and after the date of conveyance, be free of all
liabilities and obligations hereunder not then incurred. The liability of
Landlord to Subtenant for any default by landlord under this Consent or the
Sublease after such attornment, or arising in connection with Landlord's
operation, management, leasing, repair, renovation, alteration, or any other
matter relating to the Building or the Sublease Premises, shall be limited to
the interest of the Landlord in the Building (and proceeds thereof). Under no
circumstances shall any present or future general partner of Landlord (if
Landlord is a partnership) have any liability for the performance of Landlord's
obligations under this Consent or the Sublease.
4. In addition to Landlord's rights under Section 3 hereof, in the
event Tenant is in default beyond all applicable notice and cure periods under
any of the terms and provisions of the Master Lease, Landlord may elect to
receive directly from Subtenant all sums due or payable to Tenant by Subtenant
pursuant to the Sublease, and upon receipt of Landlord's notice,
2
Subtenant shall thereafter pay to Landlord any and all sums becoming due or
payable under the Sublease and Tenant shall receive from Landlord a
corresponding credit for such sums against any payments then due or thereafter
become due from Tenant. Tenant agrees that any such sums paid by Subtenant shall
be deemed applied against any sums owed by Subtenant under the Sublease. Except
in the event of a Master Lease Termination and attornment to Landlord in
accordance with Section 3 above, neither the service of such written notice nor
the receipt of such direct payments shall cause Landlord to assume any of
Tenant's duties, obligations and/or liabilities under the Sublease, nor shall
such event impose upon Landlord the duty or obligation to honor the Sublease,
nor subsequently to accept Subtenant's attornment pursuant to Section 3(a)
hereof.
5. Subtenant hereby acknowledges that it has read and has knowledge of
all of the terms, provisions, rules and regulations of the Master Lease and
agrees not to do or omit to do anything which would cause Tenant to be in breach
of the Master Lease. Any such act or omission shall also constitute a breach of
this Consent Agreement and shall entitle Landlord to recover any damage, loss,
cost or expense which it thereby suffers, from Subtenant, whether or not
Landlord proceeds against Tenant.
6. In the event of any litigation between the parties hereto with
respect to the subject matter hereof, the unsuccessful party agrees to pay the
successful party all costs, expenses and reasonable attorney's fees incurred
therein by the successful party, which shall be included as a part of the
judgment therein rendered.
7. This Consent Agreement shall be binding upon and inure to the
benefit of the parties' respective successors and assigns, subject to all
agreements and restrictions contained in the Master Lease, the Sublease and
herein with respect to subleasing, assignment, or other transfer. The agreements
contained herein constitute the entire understanding between the parties with
respect to the subject matter hereof, and supersede all prior agreements,
written or oral, inconsistent herewith. No amendment, modification or change
therein will be effective unless Landlord shall have given its prior written
consent thereto. This Consent Agreement may be amended only in writing, signed
by all parties hereto.
8. Notices required or desired to be given hereunder shall be given by
either receipted overnight courier or United States mail, by certified mail,
return receipt requested, postage prepaid, addressed to the Landlord at the
address set forth above, to Tenant at the address set forth in EXHIBIT "A"
attached hereto and made a part hereof and to Subtenant at the address of the
the Sublease Premises, respectively, and shall be deemed given upon receipt or
refusal thereof. Any party may change its address for notice by giving notice in
the manner hereinabove provided.
As a condition to the effectiveness of Landlord's consent to the
Sublease, Tenant agrees to pay Landlord concurrently with Tenant's delivery of
an executed counterpart hereof, Two Hundred-Fifty Dollars ($250.00) in
reimbursement of Landlord's reasonable attorneys' fees and administrative
expenses incurred in connection with this Consent Agreement, as additional rent.
9. Tenant shall also promptly pay to Landlord any share of bonus rents,
or other items required under the Master Lease in connection with subleases.
3
10. Tenant and Subtenant agree to indemnify and hold Landlord harmless
from and against any loss, cost, expense, damage or liability, including
reasonable attorneys' fees, incurred as a result of a claim by any person or
entity (i) that it is entitled to a commission, finder's fee or like payment in
connection with the Sublease or (ii) relating to or arising out of the Sublease
or any related agreements or dealings.
11. Tenant agrees to hold any and all payments due under the Sublease
as a trust fund to be applied first to the satisfaction of all of Tenant's
obligations under the Master Lease and hereunder before using any part thereof
for any other purpose.
IN WITNESS WHEREOF, the following parties have executed this Consent to
Sublease as of the date first above written.
TENANT:
Lumbermens Mutual Casualty Company
By: /s/ XXXXXXX X. XXXXXX
---------------------------------
Name Typed: XXXXXXX X. XXXXXX
-------------------------
Title: CHIEF FINANCIAL OFFICER
------------------------------
By: /s/ XXXXXX X. XXXXXX
---------------------------------
Name Typed: XXXXXX X. XXXXXX
-------------------------
Title: REAL ESTATE OFFICER
------------------------------
SUBTENANT:
The J. Xxxx Group, Inc.
By: /s/ XXXX X. XXXXXX
---------------------------------
Name Typed: XXXX X. XXXXXX
-------------------------
Title: CFO
------------------------------
LANDLORD:
National Fire Protection Association
By: /s/ XXXXX XXXXXX
--------------------------------
Name Typed: XXXXX XXXXXX
------------------------
Title: CFO
-----------------------------
4
EXHIBIT "A"
XXXXXX NOTICE ADDRESSES:
1) XXXXXX INSURANCE COMPANIES
ONE XXXXXX DRIVE
ATTN: REAL XXXXXX XXXXXXXXXX, 00XX
XXXX XXXXX, XXXXXXXX 00000
