EXHIBIT 10.7
SUBLEASE
THIS SUBLEASE (this "Sublease") is made and entered into this 18th day of
June, 1997, by and between THE TRAVELERS INDEMNITY COMPANY, a Connecticut
corporation, (the "Sublessor"), and STREAM INTERNATIONAL INC., a Delaware
corporation (the "Sublessee").
WITNESSETH:
WHEREAS, pursuant to that certain lease dated the 12th day of October, 1993, as
amended by a First Amendment to Lease dated June 10, 1994, a Second Amendment to
Lease dated August 1, 1994 and a Third Amendment to Lease dated May 9, 1995, by
and between Beacon Properties, L.P. (successor in interest to The Travelers
Insurance Company) as Landlord (the "Master Landlord") and Sublessor (successor
by assignment to The Travelers Insurance Company) as tenant (the "Lease"), a
copy of which Lease is attached hereto and made a part hereof as Exhibit A
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(LEASE), the Master Landlord leased to Sublessor approximately 62,972 rentable
square feet of office space (the "Premises"), situated in the Building known as
Westwood Business Centre, located at 000 Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxxxx
00000 (the "Building"), upon and subject to the terms and conditions set forth
in the Lease;
WHEREAS, said Lease is and continues to be in full force and effect, and to the
best of Sublessor's knowledge, Sublessor is not in default of any term or
condition thereof; and
WHEREAS, Sublessor desires to sublease to Sublessee approximately 23,682
rentable square feet of said Premises, situated on the first (1st) floor, as
shown in cross hatching on the floor plan attached hereto and made a part
hereof, as Exhibit B (PLAN OF SUBLEASED PREMISES), hereinafter (the "Subleased
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Premises").
NOW THEREFORE, in consideration of the mutual covenants and agreements herein
contained, the Sublessor hereby subleases to Sublessee and Sublessee hereby
subleases from Sublessor the Subleased Premises, subject to the Lease and on the
terms, covenants and conditions hereinafter provided:
1. INCORPORATION BY REFERENCE
This Sublease is subject and subordinate to all of the terms and conditions of
the Lease by and between Sublessor and Master Landlord, as the same may be
modified or amended, except as specifically set forth herein. In the event of
any conflicts between the terms of the Sublease and the terms of the Lease, for
all purposes hereof, the terms of the Sublease shall control; however, to the
extent that an issue is not addressed in the Sublease, and also not specifically
excluded herein, the terms of the Lease shall control. Sublessee, its successors
and permitted assigns, shall perform the obligations to be performed by the
tenant in the Lease, as set forth therein, to the extent such terms and
conditions are applicable to the Subleased Premises, as set forth herein. The
terms, provisions, covenants, and conditions of the Lease are incorporated
herein by reference on the following mutually accepted understandings:
(a) In any case where the Master Landlord reserves the right to enter the
Premises pursuant to the Lease, said right shall inure to the benefit of
the Master Landlord as well as to Sublessor with respect to entry onto the
Subleased Premises.
(b) With respect to the performance of any other obligations required of Master
Landlord under the Lease, including, but not limited to; work, services,
repairs, repainting and restoration, Sublessor's sole obligation shall be
to act on Sublessee's behalf in requesting the performance of the same of
Master Landlord, after first receiving a request in writing from Sublessee,
and to use its best efforts in order to obtain the performance of the same
from Master Landlord. In the event that Master Landlord does not perform
any obligation which "Landlord" is required to perform pursuant to the
terms and conditions of the Lease and such affects the Subleased Premises,
or if an incident arises which affects the Subleased Premises, Sublessee
shall notify Sublessor in writing detailing the specific incident or
describing the obligation which Master Landlord has breached and how such
affects the Subleased Premises. Sublessor hereby agrees to notify the
Master Landlord of such occurrence. In the event such incident or breach is
not cured or remedied by the Master Landlord in the period of time as
provided for under the terms of the Lease, Sublessee shall promptly notify
Sublessor of the same, and if there is self-help remedy provided to the
Tenant under the Lease and Sublessor reasonably determines that such should
be exercised, then Sublessor shall exercise such remedy against the Master
Landlord, and in such an event, Sublessee may exercise such same remedy
against Sublessor. In the event of an incident affecting the use and
occupancy of the Subleased Premises whereby the Lease provides the option
of termination as a remedy in the event that Master Landlord has not cured
the same, Sublessee shall only exercise such option to terminate this
Sublease in the event that Sublessor mutually agrees to such action and
Sublessor shall be exercising the same action (for the same incident)
against Master Landlord.
(c) In connection with any alterations, as defined in Article 4.02 of the Lease
(ALTERATIONS), which are desired to be made by Sublessee, during the Term
of this Sublease, the terms of Article 4.02 shall be applicable to this
Sublease, except as provided to the contrary herein. The Sublessee shall
obtain the Sublessor's written consent prior to the making of any such
alterations, which consent the Sublessor agrees not to unreasonably
withhold. All plans and specifications for such work shall be prepared by
Sublessee, at Sublessee's sole cost and expense, and in accordance with all
applicable Laws (as defined herein), and in a good and workmanlike manner
by Sublessee or its contractors or subcontractors. Sublessee shall
indemnify and hold Sublessor and Master Landlord harmless from any and all
cost, expenses, injury, loss, damages, claims, demands or liability
(including reasonable attorney fees) which may arise out of Sublessee's
construction of any such alterations. Sublessee shall be solely responsible
for any permits and licenses in order to complete the same.
Sublessee agrees to employ contractors and subcontractors who will
guarantee to use first-class materials and workmanship and Sublessee shall
not permit any lien to be placed on record with respect to any part of the
Building, or Subleased Premises for work or materials furnished or
obligations incurred by or for Sublessee. Sublessee shall not permit any
lien to be placed upon the Subleased Premises or the Building as a result
of any alterations or improvement work made by it, and Sublessee hereby
agrees that if any such lien is filed on account of the acts of Sublessee,
Sublessee shall discharge any such lien by payment, bond or otherwise,
within ten (10) days of recordation of the same.
Upon Sublessor's receipt of Sublessee's request for any such alterations,
Sublessor shall also notify Sublessee as to whether Sublessor will require
such alterations to be removed upon
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the expiration of the Sublease term pursuant to the terms and conditions of
the Lease, and the Subleased Premises restored to the same condition and
configuration as when delivered to Sublessee, normal wear and tear, fire and
casualty excepted. Any alterations completed by Sublessee shall be completed
in accordance with all applicable Laws, including Environmental Laws (as
defined herein) and Sublessee hereby agrees not to use any Hazardous
Materials (as defined herein) for such alterations, which shall include,
however, not be limited to, the use of asbestos containing materials.
(d) The terms and conditions of Article 4.01 of the Lease (SUBLEASING AND
ASSIGNMENT), shall not be applicable to this Sublease and the rights of the
tenant under such Article of the Lease shall not inure to the benefit of
Sublessee herein. Sublessee acknowledges and agrees that no sublease,
assignment, mortgage, pledge or encumbrance of this Sublease or the
Subleased Premises shall be permitted.
However, notwithstanding the foregoing to the contrary, Sublessee may, in
accordance with the terms hereof and Article 4.01 of the Lease, except as
provided to the contrary herein, assign this Sublease, or further sublease
all or a portion of the Subleased Premises to a third party or an Affiliate
(as hereafter defined). It is hereby agreed that Sublessee may assign this
Sublease or sublease all or a portion of the Subleased Premises to a third
party with the prior written consent of Sublessor, which consent shall not
be unreasonably withheld or delayed, and that Sublessee may assign this
Sublease or sublease all or a portion of the Subleased Premises to an
Affiliate, without necessity of Sublessor's prior consent, but with thirty
(30) days prior written notice to Sublessor, provided that (i) the assignee
or sublessee is a bona fide entity, (ii) in the event of an assignment, the
assignee assumes all of the obligations of Sublessee, as set forth in this
Sublease; (iii) Sublessee is not in default (beyond any applicable notice or
cure periods as provided in this Sublease) of any term or condition of this
Sublease at the time that it provides notice to Sublessor of such assignment
or sublet; (iv) any sublease is not in conflict with any of the terms or
conditions of this Sublease or the Lease; (v) any assignment is subject to
all of the terms of this Sublease; and (vi) Sublessee herein shall remain
liable for all of the obligations and covenants under this Sublease.
For purposes of this section 1(d) an "Affiliate" shall mean a general or
limited partnership in which Tenant or its parent or successor owns a
general partnership interest and has the right to manage the partnership
business, or an entity in which Tenant owns one hundred percent (100%) of
the equity interests, and owns or has the right to cast the votes
attributable to a majority of the voting interests, or any entity with which
Tenant may merge or consolidate, any entity that purchases or owns
substantially all of the assets or stock of Tenant, any parent of Tenant, or
any parent or subsidiary of Tenant's parent.
In the event of an assignment of this Sublease or further sublet of all or
any portion of the Subleased Premises to a third party, Sublessor's consent
shall not be unreasonably withheld or delayed by Sublessor and Sublessor
hereby agrees to provide its consent, provided that (i) the assignee or
sublessee is a bona fide entity, (ii) in the event of an assignment, the
assignee assumes all of the obligations of Sublessee, as set forth in this
Sublease; (iii) Sublessee is not in default (beyond any applicable notice or
cure periods as provided in this Sublease) of any term or condition of this
Sublease at the time that it requests such consent; (iv) any sublease is not
in conflict with any of the terms or conditions of this Sublease or the
Lease; (v) any assignment is subject to all of the terms of this Sublease;
and (vi) Sublessee herein shall remain liable for all of the obligations and
covenants under this Sublease.
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Sublessor hereby agrees to provide its consent or denial to Sublessee,
within twenty (20) days of receipt of Sublessee's request, provided that
such request includes the following information in order for Sublessor to
provide its determination; (i) the name and address of the proposed
assignee or sublessee; (ii) the nature of the proposed assignee's or
sublessee's business which it will conduct or operate in the Subleased
Premises; (iii) the terms of the proposed assignment or sublease; and (iv)
reasonable financial information so that Sublessor can evaluate the
proposed assignee. Notwithstanding the foregoing, Sublessor's consent to
one assignment or sublease, does not waive the consent requirement for
future assignments.
(e) Notwithstanding anything in this Sublease or the Lease to the contrary,
Sublessee agrees that Sublessor shall not be obligated to furnish for or to
Sublessee any service of any nature whatsoever, including, without
limitation, those expressly referred to in Article 3.01 of the Lease
(SERVICES PROVIDED BY LANDLORD). However, in accordance with provision (b)
above, Sublessor shall act on Sublessee's behalf in requesting the
performance of and furnishing of such services for the Subleased Premises
by Master Landlord pursuant to the terms of the Lease. In the event that
Master Landlord does not provide those services as described in such
Article 3.01 or in the manner as provided for therein, Sublessee shall have
those certain rights in such an event as set forth in Section 1(a) above.
(f) The Sublease shall not incorporate any provision of the Lease nor shall
Sublessee benefit from the rights or privileges contained in any provision
of the Lease, which, pursuant to and in accordance with its particular
terms and conditions, is not applicable to subleases or assignments, or any
provision of the Lease, which by its nature or pursuant to a specified
prohibition contained in the Lease, is personal to Sublessor or would not
convey or transfer by a sublease or assignment of all or a portion of the
Premises. In accordance with the foregoing, this exclusion shall include
the following Articles, which shall therefore not inure to or benefit
Sublessee: 1.04 (Premises), 1.05 (Area Verification and Measurement), 1.07
(Lease Term), 1.08 (Improvements), 2.01 (Rent), 4,01 (Subleasing and
Assignment), 4.04 (Space Adjustment Options), 4.05 (Right of First
Refusal/Offer), 4.06 (Renewal Option), 4.07 (Holding Over), 4.08 (Earth
Satellite Station), 7.03 (Recording of Lease) and 9.08 (Broker's Warranty).
Sublessee acknowledges and agrees that the provisions specifically set
forth in this provision (g) are personal to Sublessor, and those provisions
of the Lease, which would by their nature be personal to the tenant under
the Lease, shall continue to inure to and benefit Sublessor with respect to
the Lease, this Sublease, the Premises and the Subleased Premises.
2. TERM
The term of this Sublease shall be for seven (7) years and one (1) month (the
"Term") and shall commence on the 1st day of July, 1997 (the "Sublease
Commencement Date") and shall expire on the last day of July, 2004 (the
"Sublease Expiration Date"), unless sooner terminated pursuant to any provision
of the Lease or this Sublease. Sublessor and Sublessee acknowledge and agree
that it is the intent of the parties hereto, that, in no event shall the Term of
this Sublease extend for a period longer than the term of the Lease, as such
Lease term may be canceled, terminated or reduced, pursuant to such Lease, by
agreement between Master Landlord and Sublessor, or otherwise. Notwithstanding
the foregoing to the contrary, and provided that Sublessee is not in default of
any term or condition of this Sublease, beyond any grace or cure periods, as
provided for herein, Sublessor hereby agrees (i) not to enter into any voluntary
agreements with Master Landlord in order to terminate the Lease or to surrender
any portion of the Subleased Premises prior to the Sublease
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Expiration Date, except as expressly provided for under the terms of the Lease
nor (ii) to modify any provision of the Lease to the extent that such
modification would have an adverse affect on Sublessee's rights or obligations
under this Sublease or Sublessee's use or occupancy of the Subleased Premises.
Pursuant to the foregoing, Sublessor hereby covenants not to surrender any
portion of the Subleased Premises (provided that this Sublease is in full force
and effect) in the event that Sublessor exercises its option(s) to surrender
space as expressly provided in Article 4.04 (B) (SURRENDER OF SPACE) of the
Lease.
Upon the early termination or expiration of this Sublease, Sublessee shall
surrender the Subleased Premises to Sublessor in as good condition and order as
at the Sublease Commencement Date, reasonable wear and tear excepted. If the
Subleased Premises are not surrendered upon the termination or expiration of
this Sublease, Sublessee shall and does hereby indemnify and hold Sublessor
harmless from any claims or demands which may arise out of Sublessee's continued
occupancy of the Subleased Premises, including any liability accruing to Master
Landlord under the Lease. Sublessee's obligations under this provision shall
survive the expiration or earlier termination of this Sublease.
Any personal property owned by Sublessee, if any, which shall remain on the
Subleased Premises after the expiration or early termination of this Sublease
and the removal of Sublessee from the Subleased Premises may, at the option of
Sublessor, be deemed to have been abandoned by Sublessee, In such event,
Sublessor shall have the right to either retain such personal property as its
sole property or to remove and dispose of such personal property without
accountability at the expense of Sublessee, as Sublessor sees fit. If Sublessee
fails to remove any property from the Subleased Premises or repair any damage
caused by such removal, which removal or repair is required pursuant to any
provision of this Sublease, then Sublessor may so remove or repair the same and
Sublessee shall reimburse Sublessor for all reasonable and necessary costs
Sublessor incurs therefrom.
3. RENT
Sublessee shall pay to Sublessor monthly base rent (the "Base Rent") in
accordance with the base rent schedule attached hereto and made a part hereof as
Exhibit C (BASE RENT SCHEDULE), plus any applicable sales or other tax (other
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than an income tax) which may now or hereafter come into effect. The Base Rent
shall be paid in advance on the first day of each month, commencing on the
Sublease Commencement Date, without notice or demand and without abatement,
deduction or offset, except as expressly provided for in this Sublease, and will
be sent to The Travelers Indemnity Company, Corporate Real Estate and Services,
0000 Xxxxx Xxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxx 00000, ATTN: CRE/Accounting. The
first month's Base Rent installment (and any other sum due hereunder as of the
Sublease Commencement Date) shall be paid upon the execution of this Sublease.
In the event that the Term of this Sublease begins or ends on any day other than
the first day of a calendar month, then the rental payments for such periods
shall be prorated on a per diem basis.
A five percent (5%) late charge may, at Sublessor's sole option, be charged as
additional rent for any rental payments that arrive later than the fifth (5th)
day of the month. All rental payments and any other payments due to Sublessor
hereunder shall bear interest, when not received by the fifth (5th) day of the
month, from the date due until paid at a rate per annum equal to the prime rate
published from time to time in the Wall Street Journal plus two percent (2%).
When any provision of this Sublease requires the payment of any sums of money
other than Base Rent or the Sublessee
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Escalation (as hereinafter defined), such sums of money shall be deemed
additional rent, and shall be immediately due and payable, unless otherwise
provided for in this Sublease.
Sublessee agrees to pay Sublessor Sublessee's Proportionate Share, as such term
is hereinafter defined, of any amounts payable by Sublessor pursuant to Article
2.02 (ESCALATION) of the Lease (hereinafter, the Sublessee Escalation"), over a
base year of calendar year 1997 for Operating Cost Escalation, and over a base
year of fiscal year 1997-1998 for Real Estate Tax Escalation, as respectively
defined therein. The Building Operating Costs shall be capped in accordance with
the terms of Subsection 2.02(A)(4) (CPI CAP) of the Lease. Pursuant to the terms
of Subsection 2.02(A) of the Lease, Sublessee's liability for Operating Cost
Escalation shall commence to accrue as of January 1, 1998, and Sublessor shall
invoice Sublessee for Sublessee's Proportionate Share of the same in accordance
with the terms of such Subsection 2.02(A) (and after Sublessor's receipt of
Master Landlord's invoice for the same). Pursuant to the terms of Subsection
2.02(B)(7) of the Lease, Sublessee's liability for Real Estate Tax Escalation
shall commence to accrue as of July 1, 1998, and Sublessor shall invoice
Sublessee for Sublessee's Proportionate Share of the same in accordance with the
terms of such Subsection 2.02(B)(7) (and after Sublessor's receipt of Master
Landlord's invoice for the same). Sublessee will pay Sublessor such Sublessee
Escalation within fifteen (15) days of receipt of an invoice, accompanied by
reasonable documentation evidencing the same. Any abatements or other reductions
in Building Operating Costs or Real Estate Taxes which Master Landlord passes on
to Sublessor pursuant to the terms of Article 2.02 of the Lease, Sublessor
agrees to also pass on to Sublessee. As used herein, "Sublessee's Proportionate
Share" shall be the percentage calculated by dividing the total rentable square
footage of the Subleased Premises by the total rentable square footage of the
Premises. For purposes of this Sublease, Sublessee's Proportionate Share shall
be deemed to be 37.61%.
4. USE AND SUBLESSEE'S COMPLIANCE WITH LAWS
Sublessee shall use the Subleased Premises for general office use consistent
with the terms and conditions of the Lease and this Sublease, and for no other
purpose without the prior written consent of Sublessor and the Master Landlord.
Notwithstanding the foregoing, in no event shall any use be made of the
Subleased Premises by or for the benefit of any party in a business which is in
competition with Sublessor's property casualty insurance business.
Notwithstanding anything in the Lease or in this Sublease to the contrary, from
and after the Sublease Commencement Date, Sublessee shall comply with all
statutes, rules, ordinances, orders, codes and regulations, and legal
requirements and standards issued thereunder, including, but not limited to The
Americans With Disabilities Act of 1990 (the "ADA"), as the same may be enacted
and amended from time to time (collectively referred to in this Sublease as the
"Laws"), to the extent the same are applicable to Sublessee's use or manner of
use of the Subleased Premises.
In the event that Sublessee's use or manner of use of the Subleased Premises
violates any provision of Laws, including but not limited to the ADA, Sublessee
shall bear all expense, cost and liability for compliance with such Laws.
Sublessee hereby agrees to indemnify, defend and hold Sublessor harmless from
all loss, cost, liability or expense, including reasonable attorney fees,
resulting from its failure to comply with all Laws relating to Sublessee's use
or manner of use of the Subleased Premises.
In addition, Sublessee shall (i) comply with all Environmental Laws (as
hereinafter defined); (ii) not cause or permit any Hazardous Materials (as
hereinafter defined) to be treated, stored, disposed of,
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generated, or used in the Subleased Premises, provided, however, that Sublessee
may store, use or dispose of products customarily found in offices and used in
connection with the operation and maintenance of property if Sublessee complies
with all Environmental Laws and does not contaminate the Subleased Premises or
environment; (iii) promptly after receipt, deliver to Sublessor, any
communication concerning any past or present, actual or potential violation of
Environmental Laws, or liability of either party for environmental damages.
"Environmental Laws" means all applicable present and future statutes,
regulations, rules, final administratively approved unappealable guidelines,
ordinances, codes, permits, or orders of all governmental agencies, departments,
commissions, boards, bureaus, or instrumentalities of the United States, states
and their political subdivisions and all applicable judicial, administrative and
regulatory decrees and judgments relating to the protection of the public health
or safety of the environment. "Hazardous Materials" include substances (a) which
require remediation under Environmental Laws; or (b) which are or become defined
as a hazardous waste, hazardous substance, pollutant or contaminant under any
Environmental Laws; or (c) which are toxic, explosive, corrosive, flammable,
infectious, radioactive, carcinogenic or mutagenic; or (d) which contain
petroleum hydrocarbons, polychlorinated byphenyls, asbestos, asbestos containing
materials or urea formaldehyde.
Sublessor hereby covenants to Sublessee, that (i) Sublessor will perform all of
the monetary obligations as the tenant under the Lease in accordance with the
terms of the Lease, and that (ii) Sublessor shall perform all of the other
obligations of the Lease, as the tenant thereunder, in accordance with the terms
of the Lease; however, subject to the acts, actions or inaction's of any other
subtenants of Sublessors', within the Premises.
5. IMPROVEMENTS
Sublessee accepts the Subleased Premises in an "as is" condition and
acknowledges that no representation with respect to the condition thereof has
been made to it and that Sublessor has no responsibility of improving the space
for Sublessee.
Notwithstanding the foregoing, Sublessor shall provide Sublessee with an
allowance of up to Five and 00/100 Dollars ($5.00) per rentable square feet (the
"Allowance") which shall be applied towards the improvements which Sublessee is
to construct in the Subleased Premises in order to prepare the same for its
occupancy (hereafter the "Sublessee Improvements"). The amount of the Allowance
which is used by Sublessee for the Sublessee Improvements, shall be amortized
into the Base Rent over the Term of the Sublease at an interest rate of ten
percent (10%). Any construction in and to the Subleased Premises, to be
performed by Sublessee, in order to prepare the same for its occupancy, shall be
done in accordance with the terms and conditions of Section 1 (c) (INCORPORATION
BY REFERENCE) hereof, and in a good and workmanlike manner by Sublessee or its
contractors or subcontractors and shall be performed and comply at the time of
completion, with all applicable laws, ordinances, regulations and orders of the
federal, state, county or other governmental authorities having jurisdiction
thereof Sublessee shall indemnify and hold Sublessor and Master Landlord
harmless from any and all cost, expenses, injury, loss, damages, claims, demands
or liability (including reasonable attorney fees) which may arise out of
Sublessee's construction of any such improvements. Sublessee shall be solely
responsible for any permits and licenses in order to complete the same.
Sublessor shall make payment to Sublessee within thirty (30) days of receipt of
invoices evidencing the same. Once all of the Sublessee Improvements have been
completed, Sublessee shall notify Sublessor in writing and an amendment to this
Sublease shall be drafted modifying the Base Rent in order to incorporate the
actual used portion of the Sublessee Allowance (in the method describe above)
for the Term of the Sublease. Sublessee's construction of the
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Sublessee Improvements shall in no way delay the Sublease Commencement Date as
set forth in this Sublease.
Notwithstanding anything contained herein to the contrary, Sublessee may have
access to the Subleased Premises as of June 1, 1997 (provided that this Sublease
is fully executed between the parties), in order to prepare the same for its
occupancy. In the event that Sublessee occupies the Subleased Premises prior to
the Sublease Commencement Date, as set forth herein, all terms and conditions of
this Sublease shall apply, to both parties, except for the payment of Base Rent
and any other sums due hereunder, and Sublessor shall not be obligated to
furnish any services (or request the provision thereof by Master Landlord) to
the Subleased Premises until the actual Sublease Commencement Date, except to
the extent required in order for Sublessee to install its trade fixtures. In the
event that Sublessee commences its business operations on the Subleased Premises
prior to the Sublease Commencement Date, the Sublease Commencement Date shall be
deemed to have occurred as of such time, and Sublessee shall be obligated to
commence all rent payments as of such date.
Sublessee agrees to employ contractors and subcontractors who will guarantee to
use first-class materials and workmanship and Sublessee shall not permit any
lien to be placed on record with respect to any part of the Building, or
Subleased Premises for work or materials furnished or obligations incurred by or
for Sublessee. Sublessee shall discharge any such lien by payment, bond or
otherwise, within ten (10) days of recordation of the same.
6. PARKING
Throughout the Term of this Sublease, as long as Sublessee shall have performed
within the applicable notice periods all of the agreements on Sublessee's part
to be performed, Sublessor shall make available to Sublessee parking spaces, on
a non-exclusive basis, based on the ratio of four (4) parking spaces for every
1,000 square feet of rentable area of the Subleased Premises. Of these parking
spaces, one (1) covered parking space, located in the parking garage below the
Building, shall be provided, per every 2,100 square feet of rentable area, as
further described on Exhibit E (PLAN OF PARKING GARAGE PARKING), attached hereto
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and made a part hereof. The remaining parking spaces shall be located in the
paved surface parking lot adjacent to the Building. All parking spaces shall be
provided (and utilized) in accordance with the terms and conditions of the
Lease. At any time during the Term of this Sublease, if Sublessee or its
invitees use more than the specified number of spaces, Sublessee shall, within
five (5) days of receipt of a notice from Sublessor cease and desist immediately
from using said additional spaces. Failure to so comply with this requirement
shall constitute a default of this Sublease.
7. SIGNAGE
Notwithstanding the terms of Article 4.03 (TENANT SIGNAGE) of the Lease to the
contrary, Sublessor shall provide Sublessee with Building standard directory
and suite entry signage, at the sole cost and expense of Sublessee. No other
terms or conditions of such Article 4.03 of the Lease shall be applicable to
this Sublease.
8. DEFAULT BY SUBLESSEE
If (i) Sublessee does not fulfill any of the terms, covenants, or agreements of
the Lease or this Sublease to be performed by Sublessee, including, but not
limited to, the payment of the Base Rent, the Sublessee Escalation or
additional rent, and such breach shall not have been remedied (or proper
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corrective measures to cure the breach have not commenced) within five (5) days
after written notice from Sublessor; or (ii) Sublessee commits any event of
default as described in Article 8.01 of the Lease (DEFAULT BY TENANT), as herein
incorporated, and such is not cured within the notice and cure period provided
for therein; or (iii) Sublessee causes Sublessor to be put into default under
the terms of the Lease; or (iv) Sublessee is the subject of an attachment,
execution or other judicial seizure of substantially all of Sublessee's assets
located at the Subleased Premises or of Sublessee's interest in this Sublease;
or (v) Sublessee assigns this Sublease or sublets all or any portion of the
Subleased Premises, except as expressly provided for in Section 1 (d) of this
Sublease, and such assignment or sublet is not amended, modified or terminated
within twenty (20) days after written notice from Sublessor to Sublessee, which
notice shall set forth how such assignment or sublet is in violation of the
terms of this Sublease; or (vi) Sublessee is the subject of the filing of a
petition in any bankruptcy or other insolvency proceeding, by or against
Sublessee, or Sublessee commences an act seeking any relief under any state or
federal debtor relief law, or Sublessee is the subject of the filing, by or
against Sub lessee, for the reorganization or modification of Sublessee's
capital structure, or a trustee or receiver is appointed to take possession of
substantially all of Sublessee's assets or the leasehold; however, if such a
filing or petition is filed against Sublessee by non-affiliated third parties,
then such filing shall not be a Sublessee Default unless Sublessee fails to have
the proceedings initiated by such petition dismissed within sixty (60) days
after filing thereof; or (vii) Sublessee admits or indicates an admission that
it cannot meet its obligations as they become due; or (viii) or Sublessee makes
an assignment for the benefit of its creditors; then such failure or occurrence
or any such events as set forth in (i) through (viii) shall constitute a
Sublessee event of default hereunder (a Sublessee Default").
Upon the occurrence of any Sublessee Default which is not cured by Sublessee
within the grace periods specified in this Section, Sublessor shall have the
following rights and remedies, in addition to all other rights and remedies
available to Sublessor pursuant to the Lease, or in law or in equity:
(a) Sublessor may give written notice to Sublessee specifying such
Sublessee Default or Defaults and stating that this Sublease and the Term hereby
demised shall expire and terminate on the date specified in such notice, and
upon the date specified in such notice, this Sublease and the Term hereby
demised and all rights of Sublessee under the Sublease shall expire and
terminate. Upon any termination of this Sublease, Sublessee shall quit and
peaceably surrender the Subleased Premises, and all portions thereof, to
Sublessor, and Sublessor, upon or at any time after any termination, may, to the
extent permitted by law, without further notice, enter upon and reenter the
Subleased Premises, and all portions thereof, and possess and repossess itself
thereof by force, summary proceeding, ejectment or otherwise, and may dispossess
Sublessee and remove Sublessee and all other persons and property from the
Subleased Premises and the right to receive all rental and other income of and
from the same.
(b) Sublessor may elect not to terminate this Sublease, and Sublessor may
instead terminate Sublessee's right of possession and may repossess the
Subleased Premises by forcible entry and detainer suit, by taking peaceful
possession or otherwise, without terminating this Sublease, in which event
Sublessor shall exert commercially reasonable efforts to mitigate it damages and
relet the Subleased Premises for the account of Sublessee, for such rent and
upon such terms as shall be reasonably satisfactory to Sublessor. Sublessor
shall not be required to accept any sublessee offered by Sublessee or observe
any instruction given by Sublessee about such reletting or do any act or
exercise any care or diligence with respect to such reletting or to the
mitigation of damages. For the purpose of such reletting, Sublessor may decorate
or make any repairs, changes, improvements,
9
alterations, or additions in or to the Subleased Premises to the extent deemed
by Sublessor desirable or convenient (the "Reletting Alterations").
(c) No such termination of Sublessee's right to possess the Subleased
Premises under this Section shall relieve Sublessee of its liabilities and
obligations under this Sublease (as if such right of possession had not been so
terminated or expired), and such liabilities and obligations shall survive any
such termination of possession. In the event of any such termination of
Sublessee's right of possession, whether or not the Subleased Premises, or any
portion thereof, shall have been relet, Sublessee shall pay the Sublessor a sum
equal to the Base Rent, and the Sublessee Escalation and any other charges
required to be paid by Sublessee up to the time of such termination of such
right of possession and thereafter Sublessee, until the end of the Term of this
Sublease, shall be liable to Sublessor for and shall pay to Sublessor: (i) the
equivalent of the amount of the Base Rent and the Sublessee's Escalation payable
under this Sublease, less (ii) the net proceeds of any reletting effected
----
pursuant to the provisions of this Section after deducting all of Sublessor's
reasonable expenses in connection with such reletting, including, without
limitation, all reletting costs, brokerage commissions, attorneys' fees, the
costs of Reletting Alterations for the Subleased Premises, or any portion
thereof. Sublessee shall pay such amounts in accordance with the terms of this
Section as set forth in a written statement thereof from Sublessor to Sublessee
(hereinafter, the "Deficiency") to Sublessor in monthly installments on the days
on which the Base Rent is payable under this Sublease, and Sublessor shall be
entitled to recover from Sublessee each monthly installment of the Deficiency as
the same shall arise. Sublessee agrees that Sublessor may file suit to recover
any sums that become due under the terms of this Section from time to time, and
all reasonable costs and expenses of Sublessor, including attorneys' fees and
costs incurred in connection with such suits shall be payable by Sublessee on
demand.
(d) At any time after a Sublessee Default and the termination of the
Sublease by Sublessor, whether or not Sublessor shall have collected any monthly
Deficiency as set forth in this Section, Sublessor shall be entitled to recover
from Sublessee, and Sublessee shall pay to Sublessor, on demand, as and for
final damages for such Sublessee Default and in lieu of any subsequent
Deficiency (but without limitation of the provisions of subsection (f) hereof):
(i) all the Base Rent and the Sublessee Escalation and other sums
due and payable by Sublessee on the date of termination; plus
----
(ii) the costs of curing the Sublessee Default existing at or prior
to the date of termination, including the cost of any attorney fees
incurred by Sublessor; plus
----
(iii) the cost of recovering possession of the Subleased Premises and
preparation for reletting, including, without limitation, Reletting
Alterations, brokerage and management commissions, operating expenses,
attorney's fees, rent concessions and alteration costs; plus
____
(iv) the amount by which the then present worth of the aggregate of
the Base Rent and Sublessee's Escalation and any other charges to be
paid by Sublessee hereunder for the then unexpired Term of this
Sublease (assuming this Sublease had not been so terminated) is
greater than the then present worth of the then aggregate fair market
rent of the Subleased Premises which can be reasonably expected during
the same period (taking into account rentals received by Sublessor
under a replacement Sublease of the Subleased Premises). In the
computation of present
10
worth, a discount at the then market discount rate as reasonably
determined by Sublessor shall be employed.
(e) Any and all property belonging to Sublessee or to which Sublessee is
or may be entitled which may be removed from the Subleased Premises by Sublessor
pursuant to the authority of this Sublease or applicable law, may be handled,
removed or stored in a commercial warehouse or otherwise by Sublessor at
Sublessee's risk and expense and Sublessor shall in no event be responsible for
the value, preservation or safekeeping thereof. Sublessee shall pay to
Sublessor, upon demand, any and all expenses incurred in such removal and all
storage charges for such property so long as the same shall be in Sublessor's
possession or under Sublessor's control.
(f) Sublessor shall have the right of injunction, in the event of a breach
or threatened breach by Sublessee of any of the agreements, conditions,
covenants or terms hereof, to restrain the same and the right to invoke any
remedy allowed by law or in equity, whether or not other remedies, indemnity or
reimbursements are herein provided. The rights and remedies given to Sublessor
in this Sublease are distinct, separate and cumulative remedies; and no one of
them, whether or not exercised by Sublessor, shall be deemed exclusive of any of
the others.
Sublessor may collect and receive any rent due from Sublessee, and the payment
thereof shall not constitute a waiver of or affect any notice or demand given,
suit instituted or judgment obtained by Sublessor, or be held to waive, affect,
change, modify or alter the rights or remedies that Sublessor has against
Sublessee in equity, at law, or by virtue of this Sublease. No receipt or
acceptance by Sublessor from Sublessee of less than the monthly rent herein
stipulated shall be deemed to be other than a partial payment on account for any
due and unpaid stipulated rent; no endorsement or statement on any check or any
letter or other writing accompanying any check or payment of rent to Sublessor
shall be deemed an accord and satisfaction, and Sublessor may accept and
negotiate such check or payment without prejudice to Sublessor's rights to (i)
recover the remaining balance of such unpaid rent, or (ii) pursue any other
remedy provided in this Sublease.
Nothing herein shall limit or prejudice the right of Sublessor to prove for and
obtain in proceedings for bankruptcy or insolvency by reason of any such
termination, 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 damage referred to above.
9. INSURANCE
Pursuant to Article 5.01 (INSURANCE) of the Lease, Sublessor may self-insure the
coverages provided for therein. This self-insurance option is personal to
Sublessor and such right shall not be extended to nor inure to the benefit of
Sublessee and Sublessee shall be required to maintain, at its expense, during
the Term of this Sublease: Commercial General Liability Insurance, including
contractual liability coverage, with minimum limits of not less than $1,000,000
per occurrence and $4,000,000 in excess per occurrence; all-risk property damage
insurance for all of Sublessee's personal property up to the full replacement
value thereof; applicable Worker's Compensation Insurance with statutory minimum
limits; and Employer's Liability Insurance with minimum limits of not less than
$1,000,000. All such insurance policies shall be issued by insurance companies
licensed to do business in the state where the Subleased Premises is located,
shall name Sublessor and Master Landlord as additional insureds, as their
interests may appear, and shall provide that the insurance shall not be canceled
or materially changed in the scope or amount of coverage unless
11
fifteen (15) days advance notice is given to Sublessor. Prior to the Sublease
Commencement Date, Sublessee shall provide Sublessor with a certificate of
insurance, evidencing such coverages and naming Sublessor and Master Landlord as
additional insureds.
10. INDEMNIFICATION
Sublessee shall and hereby does indemnify and hold Master Landlord and Sublessor
harmless from and against any and all actions, claims, demands, damages,
liabilities and expenses (including, without limitation, reasonable attorney's
fees) asserted against, imposed upon or incurred by Sublessor or Master Landlord
by reason of; (i) any violation caused, suffered or permitted by Sublessee, its
agents, servants, employees or invitees, of any of the applicable terms,
covenants, conditions of the Lease or of this Sublease; (ii) any damage or
injury to persons or property occurring upon or in connection with the use or
occupancy of the Subleased Premises (and/or any other facility accessed and used
by Sublessor, whether within the Premises or on or about the Building as defined
in the Lease, which use shall also be extended to Sublessee), the Premises or
the Building, except to the extent caused by the negligence or willful
misconduct of Master Landlord or Sublessor, or their respective agents,
employees or invitees; and (iii) any damage or injury to persons or property
which is caused by the negligence or willful misconduct of Sublessee, its
agents, employees, contractors or invitees.
Sublessor shall and hereby does indemnify and hold Sublessee harmless from and
against any and all actions, claims, demands, damages, liabilities and expenses
(including, without limitation; reasonable attorney's fees) asserted against,
imposed upon or incurred by Sublessee by reason of (i) any breach or default by
Sublessor, or its employees, agents or contractors of any of the applicable
terms, covenants, conditions of this Sublease, or (ii) any damage or injury to
persons or property which is caused by the negligence or willful misconduct of
Sublessor, its agents, employees, contractors or invitees.
11. NOTICES
All notices with respect to this Sublease will be sent in writing through
certified mail, or via a nationally recognized carrier of overnight mail (e.g.
Federal Express), postage prepaid, to Sublessee and to Sublessor at the
following addresses or to such other addresses which may be designated in
writing from time to time.
Sublessee: Stream International Inc.
000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxxxx 00000
with a copy to: Xxxx and Xxxx, LLP.
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxx X. Xxxxxx, Esquire
Sublessor: The Travelers Indemnity Company
Xxx Xxxxx Xxxxxx, 0 XXX
Xxxxxxxx, XX 00000-0000
Attn: Corporate Real Estate & Services
12
With a copy to: The Travelers Indemnity Company
Corporate Real Estate & Services
Senior Manager
0000 Xxxxx Xxxxx Xxxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
12. BROKERS
Sublessor and Sublessee warrant and represent that they have dealt with no real
estate broker in connection with this Sublease other than Xxxxxxxx Xxxx Company
and Xxxxxxxxx and Xxxx, and that no other real estate broker is entitled to any
commission on account of this Sublease. Each of Sublessor and Sublessee will
indemnify and hold the other harmless from any loss, cost, damage or expense,
including reasonable attorney fees, which the other shall incur on account of
the falsity of the maker's foregoing representation and warranty when made.
13. SECURITY DEPOSIT
As security for the faithful performance and observance by Sublessee of the
terms, provisions, and conditions of this Sublease, Sublessee shall deliver to
Sublessor simultaneously with the execution of this Sublease, an irrevocable
letter of credit running in favor of Sublessor, issued by Citicorp Services,
Inc., in the amount of Six Hundred Thirty-One Thousand Five Hundred Twenty and
00/100 Dollars ($631,520.00). A copy of such letter of credit shall be attached
hereto as Exhibit D. The letter of credit shall be irrevocable for the term
thereof and shall provide that it is automatically renewable for a period ending
not earlier than sixty (60) days after the expiration of the term hereby demised
without any action whatsoever on the part of Sublessor. In addition, Sublessor
hereby agrees to allow for a reduction in the amount of the letter of credit, at
a rate of 25% (of the initial amount) per year. Such letter of credit shall
therefore run in favor of Sublessor in the following amounts:
July 1, 1997 - July 31, 2000: $631,520.00
August 1, 2000 - July 31, 2001: $473,640.00
August 1, 2001 - July 31, 2002: $315,760.00
August 1, 2002 - July 31, 2003: $157,880.00
August 1, 2003 - July 31, 2004: $ 39,470.00 (equal to one (1) months
rent until the end of the Sublease Term)
The form and terms of the letter of credit (and the bank issuing the same) shall
be acceptable to Sublessor and shall provide, among other things, in effect
that:
(1) As a condition to payment, thereon, Sublessor shall certify that a
default by Sublessee under the Sublease has occurred, and that such
default remains uncured after the expiration of the applicable default
or cure period provided in the Sublease;
(2) Sublessor shall have the right to draw down on an amount up to the face
amount of the letter of credit, upon the presentation to the issuing
bank of Sublessor's statement that such amount is due to Sublessor under
the terms and conditions of this Sublease, it being understood that if
Sublessor is a corporation, then such statement shall be signed
13
by an officer of such corporation. If Sublessor does draw down on any
amount of the letter of credit, upon presentation to the issuing bank of
the foregoing, the issuing bank shall wire transfer, in United States
dollars, the amount to be drawn down to the bank of Sublessor's choice
as stated in its notice;
(3) The letter of credit will be honored by the issuing bank without inquiry
as to the accuracy thereof and regardless of whether the Sublessee
disputes the content of such statement;
(4) In the event of a transfer of Sublessor's interest in the Lease of which
the Sublease is a part, Sublessor shall have the right to transfer the
letter of credit to the transferee and thereupon the Sublessor shall,
without any further agreement between the parties, be released by
Sublessee from all liability therefore, and it is hereby agreed that the
provisions hereof shall apply to every transfer or assignment of said
letter of credit to a new Sublessor.
(5) Sublessee further covenants that it will not assign or encumber said
letter of credit or any part thereof and that neither Sublessor nor its
successors or assigns will be bound by any such assignment, encumbrance,
attempted assignment or attempted encumbrance;
(6) Without limiting the generality of the foregoing, if the letter of
credit expires earlier than sixty (60) days after the expiration of the
term of the Sublease, or the issuing bank notifies Sublessor that it
shall not renew the letter of credit, Sublessor will accept a renewal
thereof or substitute letter of credit (such renewal or substitute
letter of credit to be in effect not later than thirty (30) days prior
to the expiration thereof), irrevocable and automatically renewable as
above provided to sixty (60) days after the end of the term of this
Sublease upon the same terms and conditions as the expiring letter of
credit or such other terms as may be acceptable to Sublessor.
14. WAIVER OF CONSEQUENTIAL DAMAGES
Pursuant to Article 8.06 (WAIVER OF CONSEQUENTIAL DAMAGES) of the Lease, and to
the extent provided for therein, neither Sublessor nor Sublessee shall be liable
to the other under or in connection with this Sublease for any consequential
damages and both Sublessor and Sublessee waive, to the full extent permitted by
law, any claim for consequential damages.
15. SUBLESSOR'S RIGHT TO PERFORM SUBLESSEE'S COVENANTS
If Sublessee shall at any time fail to pay any amounts due under this Sublease
or to obtain, pay for, maintain or deliver any of the insurance policies
provided for hereunder, or shall fail to perform any other act on its part to be
made or performed hereunder, then Sublessor, after twenty (20) days notice to
Sublessee, except when other notice is expressly provided for in this Sublease
(or without notice in case of an emergency as may in Sublessor's opinion exist),
and without waiving or releasing Sublessee from any obligation of Sublessee
contained in this Sublease, may (but shall be under no obligation to):
(a) Pay any amount payable by Sublessee pursuant to this Sublease; or
14
(b) Obtain, pay for and maintain any of the insurance policies provided for
herein to be furnished by Sublessee; or
(c) Make any other payments or perform any act on Sublessee's part to be
made or performed as provided in this Sublease.
Sublessor may enter upon the Subleased Premises for any such purpose, and take
all such action thereon as may be necessary therefor.
All sums so paid by Sublessor and all costs and expenses incurred by Sublessor
in connection with the performance of any such act, together with interest
thereon at the rate per annum which is two percentage points above the Prime
Rate published in the Wall Street Journal from the respective dates of
Sublessor's making of each such payment or incurring of each such cost and
expense, shall be paid by Sublessee to Sublessor on demand as additional rent
hereunder, and Sublessor shall not be limited in the proof of any damages which
Sublessor may claim against Sublessee arising out of or by reason of Sublessee's
failure to provide and keep in force insurance as aforesaid to the amount of the
insurance premium or premiums not paid or incurred by Sublessee and which would
have been payable upon such insurance, but Sublessor shall also be entitled to
recover as damages for such breach the uninsured amount of any loss, to the
extent of any deficiency in the minimum amount of insurance required by the
provisions of this Sublease, and damages, costs and expenses of suit suffered or
incurred by reason of damage to, or destruction of, and part of the premiums
occurring during any period when Sublessee shall have failed or neglected to
provide such insurance as required. Upon the expiration or termination of this
Sublease, the unearned premiums upon any such insurance policies lodged with
Sublessor by Sublessee shall belong to Sublessor.
16. ENTIRE AGREEMENT
This Sublease, the Exhibits attached hereto and the applicable terms and
conditions of the Lease which have been incorporated herein by reference,
contain the entire agreement between the parties concerning the Subleased
Premises and shall supersede any other agreements between the parties concerning
this matter, whether oral or written. This Sublease shall not be modified,
canceled or amended except by written agreement, signed by both parties.
17. SUCCESSORS AND ASSIGNS
The obligations of this Sublease shall bind and benefit the successors and
permitted assigns of the parties with the same effect as if mentioned in each
instance where a party hereto is named or referred to.
18. TIME IS OF THE ESSENCE
Time is of the essence with respect to the performance of all conditions,
obligations and elections of Sublessee hereunder.
19. CAPTIONS
The captions appearing in this Sublease are inserted only as a matter of
convenience and in no way define, limit, construe or describe the scope or
intent of such sections of this Sublease nor in any way affect this Sublease.
15
20. EXHIBITS
The following exhibits (the "Exhibits") were attached to this Sublease and made
a part hereof prior to the execution of this Sublease:
Exhibit A Lease
Exhibit B Plan of Subleased Premises
Exhibit C Base Rent Schedule
Exhibit D Letter of Credit
Exhibit E Plan of Parking Garage Parking
16
IN WITNESS WHEREOF, Sublessor and Sublessee have executed this Sublease as of
the day and year first above written.
WITNESS: SUBLESSOR:
THE TRAVELERS INDEMNITY COMPANY
/s/ Xxx Xxxxx
--------------------
/s/ [ILLEGIBLE] By: /s/ Xxxxx X. Xxxxx
-------------------- --------------------------
Xxxxx X. Xxxxx
Its Vice President
SUBLESSEE:
/s/ [ILLEGIBLE] STREAM INTERNATIONAL INC.
--------------------
6.13.97 By: /s/ [ILLEGIBLE]
-------------------- --------------------------
Its President
17
ACKNOWLEDGMENT OF SUBLESSOR:
STATE OF CONNECTICUT)
) ss. _______________
COUNTY OF HARTFORD )
On this 3rd day of July, 1997, before me, the undersigned officer, personally
appeared Xxxxx X. Xxxxx, known to me to be the Vice President of The Travelers
Indemnity Company, a corporation, and that he as such Vice President, duly
authorized, executed the foregoing instrument as his free act and deed on
behalf of the corporation for the purposes therein contained.
IN WITNESS WHEREOF, I have hereunto set my hand.
/s/ [ILLEGIBLE]
--------------------------------
Notary Public/
My commission expires: ___________
ACKNOWLEDGMENT OF SUBLESSEE:
STATE OF )
) ss. ________________
COUNTY OF )
On this ____ day of ______________, 199_, before me, the undersigned officer,
personally appeared ___________________, known to me to be the _________________
of _______________________, a ________________________, and that he/she as such
_____________________, duly authorized, executed the foregoing instrument as
his/her free act and deed on behalf of _______________________ for the purposes
therein contained.
IN WITNESS WHEREOF, I have hereunto set my hand.
/s/ Xxxxxx Xxxxx-Xxxxxx
--------------------------------
Notary Public/
Commissioner of the Superior Court
My commission expires: 8/23/2002
----------
18
(PLAN OF SUBLEASED PREMISES)
SCHEDULE 1
[DRAWING APPEAR HERE]
EXHIBIT C
BASE RENT SCHEDULE
Rentable Rental Monthly Annual
Period Area Rate Rent Rent
------ ---- ---- ---- ----
7/1/97-
8/31/98 23,682 $20.00 $ 39,470.00 $473,640.00
8/1/98-
7/31/99 23,682 $20.50 $ 40,456.75 $485,481.00
8/1/99-
7/31/2000 23,682 $20.75 $ 40,950.13 $491,401.50
8/1/00-
7/31/2001 23,682 $21.00 $ 41,443.50 $497,322.00
8/1/01-
7/31/2002 23,682 $21.25 $ 41,936.88 $503,242.50
8/1/02-
7/31/2003 23,682 $21.50 $422,430.25 $509,163.00
8/1/03-
7/31/2004 23,682 $21.75 $ 42,923.63 $515,083.50
19
EXHIBIT D
LETTER OF CREDIT
CITICORP SERVICES, INC.
Citibank, N.A.
NORTH AMERICAN TRADE FINANCE
JUNE 24, 1997
THE TRAVELERS INDEMNITY COMPANY
0000 XXXXX XXXXX XXXXXXX
XXXXX 000
XXXXXXXXXX, XX 00000
REF: IRREVOCABLE LETTER OF CREDIT NO. NY-00689-30021370
GENTLEMEN:
BY ORDER OF OUR CLIENT, STREAM INTERNATIONAL, INC., 000 XXXXXXXX XXXX,
XXXXXXXX, XX 00000, WE HEREBY OPEN OUR IRREVOCABLE LETTER OF CREDIT NO.
NY-00689-30021370 IN YOUR FAVOR FOR AN AMOUNT NOT TO EXCEED IN THE AGGREGATE US
DOLLARS 631,520.00 (SIX HUNDRED THIRTY ONE THOUSAND FIVE HUNDRED TWENTY AND
00/100 US DOLLARS), EFFECTIVE AUGUST 1, 1997 AND EXPIRING AT OUR 000 XXXX
XXXXXX XXXXXX, XXX XXXX X.X. 00000, XX SUCH OTHER OFFICE AS WE MAY ADVISE FROM
TIME TO TIME, WITH OUR CLOSE OF BUSINESS ON SEPTEMBER 30, 1998, OR ANY FUTURE
EXPIRATION DATE AS DESCRIBED HEREIN.
FUNDS HEREUNDER ARE AVAILABLE TO YOU AGAINST PRESENTATION OF YOUR SIGHT
DRAFT(S) DRAWN ON US MENTIONING THEREON OUR LETTER OF CREDIT NUMBER
NY-00689-30021370, ACCOMPANIED BY YOUR PURPORTEDLY SIGNED STATEMENT
CERTIFYING THAT THE APPLICANT OF CREDIT IS IN DEFAULT OF THE LEASE
AGREEMENT ENTERED INTO BETWEEN THE TRAVELERS INDEMNITY COMPANY AND STREAM
INTERNATIONAL, INC., FOR THE PREMISES LOCATED AT 000 XXXXXX XXXXXX,
XXXXXXXX, XX 00000 AND THAT THE APPLICABLE NOTICES HAVE BEEN GIVEN AND THE
CURE PERIOD EXPIRED.
IT IS A CONDITION OF THIS LETTER OF CREDIT THAT THE AVAILABLE BALANCE UNDER THIS
LETTER OF CREDIT WILL AUTOMATICALLY REDUCE WITHOUT AMENDMENT BASED UPON THE
FOLLOWING SCHEDULE IF THIS LETTER OF CREDIT IS RENEWED FOR THOSE PERIODS:
DATE OF REDUCTION AMOUNT AVAILABLE UNDER LETTER OF CREDIT
AUGUST 1, 2000: $473,640.00
AUGUST 1, 2001: $315,760.00
AUGUST 1, 2002: $157,880.00
AUGUST 1, 2003: $ 39,470.00 (ONE MONTH'S RENT TO END OF TERM
SEE NEXT PAGE
EXHIBIT D
LETTER OF CREDIT PAGE 2
________________________________________________________________________________
CITICORP SERVICES, INC.
Citibank, N.A.
IT IS A CONDITION OF THIS LETTER OF CREDIT THAT IT SHALL BE DEEMED
AUTOMATICALLY EXTENDED WITHOUT AMENDMENT FOR 12 MONTHS FROM THE PRESENT OR
ANY FUTURE EXPIRATION DATE HEREOF, UNLESS 60 DAYS PRIOR TO ANY SUCH DATE
WE SHALL NOTIFY YOU BY REGISTERED MAIL THAT WE ELECT NOT TO CONSIDER THIS
LETTER OF CREDIT RENEWED FOR ANY SUCH ADDITIONAL PERIOD, HOWEVER THIS
LETTER OF CREDIT WILL NOT BE EXTENDED BEYOND THE FINAL EXPIRATION DATE OF
JULY 31, 2004. UPON RECEIPT BY YOU OF SUCH NOTICE, YOU MAY DRAW HEREUNDER
BY MEANS OF YOUR DRAFT ON US AT SIGHT ACCOMPANIED BY YOUR WRITTEN
STATEMENT THAT THE FUNDS WILL BE RETAINED AND USED BY YOU TO MEET ANY OF
YOUR OBLIGATION(S) IN RELATION TO THE LEASE AGREEMENT BY AND BETWEEN THE
TRAVELERS INDEMNITY COMPANY AND STREAM INTERNATIONAL, INC., AND FURTHER,
THAT IN THE EVENT THE OBLIGATION(S) ARE SATISFIED, YOU WILL REFUND TO US
THE AMOUNT PAID BY US TO YOU HEREUNDER.
WE HEREBY ENGAGE WITH YOU IF WE RECEIVE YOUR DRAFT AND STATEMENT, AS
MENTIONED ABOVE, HERE AT OUR OFFICE AT 000 XXXX XXXXXX, XXXXX XXXXXXX
TRADE FINANCE, 00XX XXXXX, XXXX 0, XXX XXXX, XXX XXXX 00000, OR SUCH OTHER
OFFICE AS WE MAY ADVISE FROM TIME TO TIME, ON OR PRIOR TO OUR CLOSE OF
BUSINESS ON SEPTEMBER 30, 1998 OR ANY FUTURE EXPIRATION DATE AS DESCRIBED
HEREIN, WE WILL PROMPTLY HONOR YOUR DRAFT.
SHOULD YOU HAVE OCCASION TO COMMUNICATE WITH US REGARDING THIS LETTER OF
CREDIT, PLEASE DIRECT YOUR CORRESPONDENCE TO US AT 000 XXXX XXXXXX, 16TH
FLOOR, ZONE 9, XXX XXXX XX 00000, ATTN: NATF LC DEPT., OR SUCH OTHER
OFFICE AS WE MAY ADVISE FROM TIME TO TIME, MAKING SPECIFIC MENTION OF THE
LETTER OF CREDIT NUMBER INDICATED ABOVE.
THIS LETTER OF CREDIT IS SUBJECT TO THE UNIFORM CUSTOMS AND PRACTICE FOR
DOCUMENTARY CREDITS (1993 REVISION) INTERNATIONAL CHAMBER OF COMMERCE
PUBLICATION #500, AND AS TO MATTERS NOT GOVERNED BY THE UCP, SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK AND APPLICABLE U.S. FEDERAL LAW, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW.
CITIBANK N.A.
/S/ [ILLEGIBLE]
AUTHORIZED SIGNATURE.
STREAM INTERNATIONAL ASSIGNED PARKING SPACES: #`s 10-14, 39-44
EXHIBIT E
PLAN OF PARKING GARAGE PARKING
[DRAWING APPEARS HERE]
EXHIBIT A
Westwood Business Centre
Westwood, Massachusetts
THIRD AMENDMENT TO LEASE
------------------------
Date: May 9, 1995
LANDLORD: Beacon Properties, L.P., successor-in-interest to The
Travelers Insurance company
TENANT: The Travelers Insurance Company
LEASE
EXECUTION
DATE: As of October 12, 1993
PREVIOUS
LEASE
AMENDMENTS: First Amendment to Lease dated June 10, 1994 Second
Amendment to Lease dated as of August 1, 1994
WHEREAS, the parties have agreed to modify Tenant's termination right with
respect to the "Premier Premises" on the second (2nd) floor of the Building.
NOW THEREFORE, the above-referenced lease, as previously amended
(collectively, the "Lease") , is hereby further amended as follows. All
capitalized terms used herein shall have the same definitions as used in the
Lease.
1. MODIFICATION TO PREMIER PREMISES TERMINATION RIGHT
--------------------------------------------------
The first sentence of Section 4.04D of the Lease (which was added to the
Lease by Xxxxxxxxx 0X of the First Amendment to Lease dated June 10, 1994) is
hereby deleted in its entirety and replaced by the following:
In addition to Tenant's rights under Section 4.04B hereof, Tenant
shall have the option to surrender the Premier Premises as of the last
day of any month between July 1, 1998 and December 31, 1998 upon
giving Landlord written notice on or before the date six (6) months
prior to the last day of the month in question.
2. HEADINGS
--------
Titles and paragraph headings are for reference purposes and for
convenience of the parties only and shall have no bearing upon nor force or
effect in respect of the interpretation and
application of the substantive provisions contained in this Third Amendment.
As hereby amended, the Lease is ratified, confirmed and approved in all
respects.
EXECUTED UNDER SEAL as of the date first above-written.
LANDLORD: TENANT:
BEACON PROPERTIES, L.P. THE TRAVELERS INSURANCE
COMPANY
By: Beacon Properties Corporation,
General Partner
By:/s/ Xxxxxx X. Xxxxxx By: /s/ Xxxx X. Xxxxxxxx
-------------------------- -----------------------------
Xxxxxx X. Xxxxxx Name: XXXX X. XXXXXXXX
Senior Vice President Title: NATIONAL DIRECTOR
Hereunto Duly Authorized Hereunto Duly Authorized
Date Signed: 11/22/95 Date Signed: Oct. 18, 1995
---------------------- ---------------------
_____________
Beacon
-------------
Management
-------------
Company
-------------
00 Xxxxxxx Xxxxxx Xxxxxxxxx, Xxxxxxxxxxxxx 00000 617 235-5140
October 11, 1995
Xx. Xxxxxxxx X. Xxxx
Regional leasing Manager
The Travelers Insurance Company
0000 Xxxxxxxxx Xxxx
Xxxxxxxx 000, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Re: Xxxxxxxx Xxxxxxxx Xxxxxx, 000 Xxxxxx Xxxxxx, Xxxxxxxx MA
Lease Dated October, 1993, as amended by First Amendment dated June 10,
1994, as amended by Second Amendment dated August 1, 1994, by and between
The Travelers Insurance Company and Beacon Properties, LP.
Dear Xx. Xxxx:
In accordance with Article 4.80 of the above Lease, I am writing to inform you
of a proposed installation of an antenna at the above property; and I am seeking
your approval.
I have been informed by two independent operators that the proposed antenna
installation would not interfere with your satellite installation. According to
these experts, your system operates in the megahertz range while the proposed
antenna operates in the gigahertz range which are two different areas of the
spectrum. Also, the proposed installation would not be located in the same area
of the roof as yours, and would also be pointed in an opposite direction.
Thank you for your cooperation in this matter.
Very truly yours,
/s/ J. Xxxxxx Xxxxxxx
--------------------------
J. Xxxxxx Xxxxxxx
Director of Leasing
cc: X. Xxxxx
X. Xxxxx
X. XxXxxxx
X. Xxxx
ACCEPTED BY:
The Travelers
By: /s/ [ILLEGIBLE] Title: Regional Manager
--------------------- ---------------------
Date: 10/12/95
-------------------
Xxxxxxxx Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxxxx
SECOND AMENDMENT TO LEASE
-------------------------
Date: As of August 1, 1994
LANDLORD: Beacon Properties, L.P., successor-in-interest to
The Travelers Insurance Company
TENANT: The Travelers Insurance Company
LEASE
EXECUTION
DATE: As of October 12, 1993
PREVIOUS
LEASE
AMENDMENTS: First Amendment to Lease dated June 10, 1994
WHEREAS, Tenant has, by letter dated July 14, 1994, a copy of which is
attached hereto, exercised its right, pursuant to Section J of Article 3.01 of
the above-referenced lease, not to utilize a shuttle bus service;
WHEREAS, all of the Base Building Improvements and Tenant Improvements
required to be made by Landlord under the Lease have been completed and the
actual costs thereof have been determined; and
WHEREAS, the parties desire to confirm the rental and certain other terms
of said lease.
NOW THEREFORE, the above-referenced lease, as previously amended
(collectively, the "Lease"), is hereby further amended as follows. All
capitalized terms used herein shall have the same definitions as used in the
Lease.
1. LEASE COMMENCEMENT DATE
-----------------------
The parties hereby confirm and agree that the Lease Commencement Date is
August 1, 1994.
2. LEASE EXPIRATION DATE
---------------------
The parties hereby confirm and agree that the Lease Expiration Date is July
31, 2004.
3. SHUTTLE BUS SERVICE
-------------------
Since Tenant has exercised its right, pursuant to Section J of Article 3.01
of the Lease, not to use the shuttle bus service, as described in said Section
J, the parties hereby agree that:
A. Said Section J is hereby deleted from the Lease in its entirety and is
of no further force of effect;
B. Effective as of August 1, 1994, Tenant's Base Rent shall be reduced by
$.52 per rentable square foot of the Premises. Such reduction in
Tenant's Base Rent is reflected in the Revised Base Rent Schedule
which is attached hereto as Revised Exhibit G; and
C. Subparagraph A(2)(k) of Section 2.02 of the Lease is hereby deleted
from the Lease in its entirety and is of no further force or effect.
4. ADJUSTMENTS ON ACCOUNT OF BUILD-OUT
-----------------------------------
The parties hereby confirm and agree that the Base Building Improvements
and Tenant Improvements required to be made by Landlord under the Lease have
been completed, and that the total cost of the same was $1,268,963.14.
Accordingly, the parties hereby further confirm and agree that:
A. Since the Allowance exceeds the costs of the Base Building
Improvements and Tenant Improvements, Tenant's Base Rent, in
implementation of the last sentence of Section 2.03 of Exhibit D to
the Lease, shall be reduced by $3,935.31 per month effective from and
after March 1, 1995. Such reduction in Tenant's Base Rent is reflected
in the Revised Base Rent Schedule which is attached hereto as Revised
Exhibit G; and
B. Since Tenant incurred $198,439.14 on account of the Tenant
Improvements for which it was not reimbursed from the Allowance,
Landlord hereby agrees to pay such sum of $198,439.14 to Tenant.
Tenant acknowledges and agrees that, upon implementation of the rent
reduction provided for in Paragraph 4A above and payment by Landlord to Tenant
of the sum set forth in Paragraph 4B above, Landlord shall be deemed to have
fully satisfied its obligations to Tenant under the Lease with respect to the
Allowance.
5. REVISED BASE RENT SCHEDULE
--------------------------
In implementation of Paragraphs 3 and 4 above, effective August 1, 1994
Exhibit G to the Lease is hereby deleted in its
entirety and the Revised Exhibit G, a copy of which is attached hereto and made
a part hereof, is substituted in its place.
As hereby amended, the Lease is ratified, confirmed and approved in all
respects.
EXECUTED UNDER SEAL as of the date first above-written.
LANDLORD:
BEACON PROPERTIES, L.P.
By: Beacon Properties Corporation,
General Partner
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------
Xxxxxx X. Xxxxxx
Senior Vice President
Hereunto Duly Authorized
Date Signed: 8/11/95
-------------------------
TENANT:
THE TRAVELERS INSURANCE COMPANY
By /s/ Xxxx X. Xxxxxxxx
----------------------------------
Name: Xxxx X. Xxxxxxxx
Title: National Director
Hereunto Duly Authorized
Date Signed: _____________________
[LOGO OF THE TRAVELERS]
Corporate Real Estate & Services
The Travelers Companies
Xxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
000 000-0000
FAX: 000 000-0000
July 14, 1994
Xx. Xxxxxx Xxxxxx, Leasing Director
Beacon Management Company
The Wellesley Office Park
00 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxxxxxx 00000-0000
Re: Lease Agreement by and between Beacon Properties L.P. (successor in
interest to The Travelers Insurance Company) as "Landlord", and The
Travelers Insurance Company as "Tenant", dated October 12, 1993, as amended
(the "Lease") for certain premises, as further described in the Lease,
located at 000 Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxxxx (the "Premises").
Dear Xx. Xxxxxx:
Pursuant to Article 3.01 (SERVICES PROVIDED BY LANDLORD) of the Lease, this
letter shall serve as notice that The Travelers Insurance Company as Tenant will
not be utilizing the "shuttle bus service", as further described in Section (J)
thereof. In accordance with the terms of Section J of Article 3.01, Tenant's
Base Rent shall be reduced by $ .52 per rentable square foot and Tenant' s Base
Year for Operating Costs, and the calculation of such subsequent years' costs,
as further described in Article 2.02 of the Lease, shall also be adjusted
accordingly.
This change shall be effective as of the Commencement Date of the Lease, August
1, 1994 and the monthly rent payments shall be adjusted accordingly. In
addition, Exhibit G (BASE RENT SCHEDULE) of the Lease shall also be modified in
the following manner.
Period Base Rental
------ Rate Per RSF
------------
Year 1-3 $17.94
Year 4-5 $18.44
Year 6-7 $19.19
Year 8 $19.69
Year 9-10 $20.19
Please review the revised Base Rent Schedule and have this notice executed by or
on behalf of Beacon Properties, L.P. as provided below, in order to acknowledge
your agreement with the same.
Sincerely. AGREED AND ACCEPTED:
BEACON PROPERTIES, L.P.
/s/ Xxxx X. Xxxxxxxx
Xxxx X.Xxxxxxxx
National Director, Leasing & Facilities Mgmt. _______________________________
AFB/cd
REVISED EXHIBIT G
-----------------
Revised Base Rent Schedule -- The Travelers
TOTAL AREA: 62,972 square feet
Period Annual Base Rent Monthly Installment
------ ---------------- -------------------
August 1, 1994 - $1,129,717.68 $(94,143.14)
February 28, 1995
March 1, 1995 - $1,082,493.96 $(90,207.83)
July 31, 1997
August 1, 1997 - $1,113,979.92 $(92,831.66)
July 31, 1999
August 1, 1999 - $1,161,208.92 $(96,767.41)
July 31, 2001
August 1, 2001 - $1,192,695.00 $(99,391.25)
July 31, 2002
August 1, 2002 - $1,224,180.96 $102,015.08
July 31, 2004
----------
Beacon
----------
Management
----------
Company
----------
00 Xxxxxxx Xxxxxx Xxxxxxxxx, Xxxxxxxxxxxxx 00000 617 235-5140
February 23, 1995
Xx. Xxx Xxxxxx
Corporate Real Estate Manager
The Travelers Insurance Company
00 Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Re: Xxxxxxxx Xxxxxxxx Xxxxxx, 000 Xxxxxx Xxxxxx, Xxxxxxxx MA
Lease Dated October, 1993, as amended by First Amendment dated June 10,
1994, as amended by Second Amendment dated August 1, 1994, by and between
The Travelers Insurance Company and Beacon Properties, L.P.
Dear Xxx:
In accordance with Article 4.08 of the above Lease, I am writing to inform you
of a proposed installation of an antenna at the above property; and I am seeking
your approval.
I have been informed by two independent operators that the proposed antenna
installation would not interfere with your satellite installation. According to
these experts, your system operates in the megahertz range while the proposed
antenna operates in the gigahertz range which are two different areas of the
spectrum. Also, the proposed installation would not be located in the same area
of the roof as yours, and would also be pointed in an opposite direction.
Thank you for your cooperation in this matter.
Very truly yours,
/s/ Xxxxx X Xxxxxx
Xxxxx X. Xxxxxx
Property Manager
cc: X. Xxxxx
X. Xxxxxxx
X. XxXxxxx
X. Xxxxxx
ACCEPTED BY:
The Travelers
BY: /s/ (ILLEGIBLE) Title: Manager - Corporate Real Estate
------------------------- --------------------------------
Date: 2/28/95
----------
----------
Beacon
----------
Management
----------
Company
----------
Wellesley Office Park Associates
July 18, 1994
Xx. Xxx Xxxxxx
Corporate Real Estate Manager
The Travelers
00 Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Re: Lease dated October 12, 1993 / by and between The Travelers Insurance
Company and The Beacon Corporation.
Dear Xx. Xxxxxx:
I would like to take this opportunity to wish you well in your new premises at
000 Xxxxxx Xxxxxx, Xxxxxxxx, XX.
For record purposes, we wish to confirm that The Travelers Insurance
Company has leased 62,972 square feet on the first, second, and third floors of
Xxxxxxxx Xxxxxxxx Xxxxxx, 000 Xxxxxx Xxxxxx, Xxxxxxxx, XX.
I also wish to confirm that your entire premises is substantially complete *
and a partial move in took place June 24, 1994 and the completed move occured
July 8, 1994. The Term Commencement Date August 1,1994 and Termination Date
July 31, 2004.
If the above accurately states your understanding of the above referenced Lease
dates please counter sign below and return one copy to me at Beacon Management
Company. We suggest that you file the second copy with your Lease for future
reference. Thank you.
-------
Very truly yours * as defined in the Lease AB
-------
/s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
Property Manager
PPL/ikm
cc: Xxxxxx Xxxxxx
Xxxxxxx Xxxx
Xxxxxxxx X'Xxxxx
Xxxxxxx Xxxxxxx
AGREED AND CONSENTED TO:
The Travelers Insurance Company
By: /s/ Xxxx X. Xxxxxxxx Title National Director
--------------------------- ------------------
(hereunto duly authorized)
Date 8/4/94
--------
00 Xxxxxxx Xxxxxx Xxxxxxxxx Xxxxxxxxxxxxx 00000 617 235-5140
Westwood Business Centre
Westwood, Massachusetts
FIRST AMENDMENT TO LEASE
------------------------
This First Amendment to Lease (this "Amendment") made this 7th day of June,
1994 by and between Beacon Properties, L.P. (the "Landlord") and The Travelers
Insurance Company (the "Tenant") amends that certain Lease Agreement by and
between The Travelers Insurance Company, as Landlord, and The Travelers
Insurance Company, as Tenant, dated as of October 12, 1993 (the "Original
Lease"). Capitalized terms used herein without definition which are defined in
the Original Lease shall have the meanings ascribed to them therein.
WHEREAS, Landlord has, as of the date of this Amendment, purchased the Land
and Building from Tenant;
WHEREAS, the parties hereto desire to amend the Original Lease so as to
modify certain of Tenant's rights thereunder and to accommodate certain of
Landlord's concerns in connection with the operation and management of the
Building;
NOW, THEREFORE, the parties hereto hereby agree the Original Lease is
amended as follows (the Original Lease, as amended by this Amendment, being
hereinafter referred to as the "Lease"):
1. Amend Building Description. Section 1.03 A. if the Original Lease is hereby
--------------------------
amended by inserting at the end thereof, provided that the rentable area of the
Building shall be subject to remeasurement as provided on Schedule 2.
2. Clarification of Premises. Sections 1.04 and 1.05, the second sentence of
-------------------------
Paragraph A of Section 4.04 (relating to the so-called "6-1-95 Option Space"),
and Exhibit A-3 of the Original Lease are hereby deleted in their entirety and
the following is substituted in their place:
1.04. PREMISES
The Premises consist of the portions of the first, second and third floors
of the Building outlined by cross-hatching on Schedule 1 attached to this
Amendment and incorporated in the Lease by this reference. The portion of
the Premises located on the second floor of the Building, containing 9,354
rentable square feet, which is labelled as "Premier Premises" on Schedule
1, is hereinafter referred to as the "Premier Premises." Wherever in the
Lease there is a reference to Exhibit A-3, such reference shall be deemed
to
be made to Schedule 1 attached to this Amendment. Each portion of the
Premises contains the rentable square footage and usable square footage set
forth on Schedule 2 attached to this Amendment and incorporated in the
Lease by this reference, and, for the purposes of Section 2.02 of the
Lease, the Tenant's Proportionate Share applicable to each portion of the
Premises is as set forth on said Schedule 2, subject to adjustment as
provided in said Schedule 2.
3. Changes Outside of the Premises. The last sentence of Section 1.03 of the
-------------------------------
Original Lease is hereby deleted in its entirety and the following is inserted
in its place:
Notwithstanding anything to the contrary in this Lease contained, but
subject to Landlord's obligation, as set forth in Section 3.02 hereof, to
maintain the Building in first-class condition, Landlord shall have the
right, at any time and from time to time, to make alterations,
improvements, and repairs to the Building and/or the Common Area Facilities
and the services provided by Landlord therein, provided that no such
alteration, improvement or repair (collectively a "Landlord Alteration"):
(i) materially adversely affects Tenant's use of, or access to, the
Premises, (ii) reduces Tenant's parking rights under the Lease, or (iii)
subject to the last sentence of this paragraph, decreases the rentable area
of the Building for the purposes of determining Tenant' s Proportionate
Share. Notwithstanding the foregoing, if the rentable area of the Building
has been previously increased as the result of a Landlord Alteration, then,
for the purposes of determining Tenant's Proportionate Share, the rentable
area of the Building may be decreased (but not below the rentable area of
the Building as of the Lease Commencement Date) as the result of subsequent
Landlord Alterations.
4. Force Majeure Extension of Scheduled Lease Commencement
-------------------------------------------------------
Date. Section 1.07 of the Original Lease is hereby amended by
----
inserting the words "subject to extension pursuant to Section
9.01 hereof" after the words "August 1, 1994."
5. Exercise Room. Paragraph L Section 3.01 of the Original Lease is hereby
-------------
amended by deleting the words "equipment fitness center" and inserting in their
place the words "exercise room."
6. Tenant Work; Allowance.
----------------------
Section 2.03 of Exhibit D of the Original Lease is hereby deleted in its
entirety and the following inserted in its place:
2.03 PAYMENT FOR THE TENANT IMPROVEMENTS; SCHEDULED LEASE COMMENCEMENT
DATE
-2-
A. Landlord shall provide Tenant with an allowance of $25.00 per rentable
square foot (the "Allowance") to be allocated to the cost of
performing all Base Building Improvements and Tenant Improvements
required to be made by Landlord under the provisions of Section 1.08
of the Lease, Exhibit C of the Lease and this Exhibit D, including
without limitation the following (collectively the "Tenant Work"):
(1) All work shown on the plans listed on Schedule 3 attached to this
Amendment and incorporated in the Lease by this reference;
(2) All overtime costs required to be incurred by Landlord in the
performance of the Tenant Improvements and Base Building
Improvements, to the extent that such costs are required as the
result of the fault or delay of Tenant or Tenant's contractors;
(3) Any Building security necessary to protect Tenant's furniture,
equipment and other personal property during construction and
Tenant's move into the Building;
(4) Obtaining a Certificate of Occupancy after the completion of the
Tenant Improvements;
(5) All punchlist work and any liquidated damages, within the meaning
of Section 3.03 of this Exhibit D to which Tenant may be entitled
in the event that the punchlist items are not completed on a
timely basis, to the extent that such costs are incurred as the
result of the fault or delay of Tenant or Tenant's contractors;
(6) Any amounts which Landlord is required to reimburse Tenant,
pursuant to Section 3.05 of this Exhibit D in event that the
Premises are not Substantially Complete by the Scheduled Lease
Commencement Date, to the extent that such costs are incurred as
the result of the fault or delay of Tenant or Tenant's
contractors;
(7) All telecommunications wiring and cabling;
(8) All design services;
(9) Moving expenses;
(10) The cost of remeasurment of the rentable area of the Building as
provided on Schedule 2; and
(11) The cost of re-stripping the parking area.
Up to the amount of the Allowance, Landlord shall pay all costs
associated with the Tenant Work. If Tenant shall incur any costs for
such Tenant Work, Tenant shall submit to Landlord applications for
payment or reimbursement from the Allowance, in the amount of the costs
of the Tenant Work performed or for services
-3-
provided. Landlord will make payment to the appropriate vendor or to
the Tenant, at Tenant's option, within fifteen (15) days after
Landlord's receipt of such application for payment. As soon as all the
subject work has been performed, Landlord and Tenant shall make a
final computation of the application of the Allowance. In the event
that any such costs ("Excess Costs") are incurred by Landlord or
Tenant which would require Landlord to pay any amount in excess of the
Allowance, Tenant, and not Landlord, shall bear such cost. If Landlord
is required to incur any such Excess Costs, Tenant shall within ten
(10) days of billing therefor, after the Substantial Completion of the
Premises, reimburse Landlord, as additional rent, for such Excess
Costs. If any portion of the Allowance has not been spent, the Base
Rental Rate shall be decreased based upon the portion of the Allowance
remaining, such decrease to be calculated based upon the amortization
on a straight-line basis over ten (10) years utilizing an interest
rate of 8.5% of such remainder (the "Base Rental Rate Adjustment");
provided, however that the amount of the Base Rental Rate Adjustment
shall not exceed $1.19 per square foot of rentable area.
7. Certain Uncontrollable Operating Costs. Subparagraph (4) of Paragraph A of
--------------------------------------
Section 2.02 of the Original Lease is hereby amended by deleting the word
"utilities" appearing in fourth line and inserting in its place the words
"Uncontrollable Operating Costs, as hereinafter defined," and by adding the
following at the end thereof:
"Uncontrollable Operating Costs" shall mean sewer, water, gas, and electric
utility rates and charges, and any other energy-related costs; insurance;
taxes; and snow removal.
8. Space Adjustment Option Adjustments.
-----------------------------------
A. The first sentence of Section 4.04 of the Original Lease is hereby
amended by deleting the word and numeral "six (6)" appearing in the first line
and inserting in its place the word and numeral "nine (9)."
B. Paragraph A of said Section 4.04 is hereby amended by deleting the word
"On" appearing in the first line thereof and inserting in its place the words
"Within the Window Period applicable to, as hereinafter defined," by deleting
the words "as outlined on Exhibit A-2" appearing in the third and fourth lines
-----------
thereof, and by adding the following sentence after the first sentence thereof:
-4-
The "Window Period" applicable to any anniversary date shall be the six (6)
month period commencing on the date three months prior to such anniversary
date and expiring on the date three months after such anniversary date.
C. Said Section 4.04 is hereby further amended by adding the following
additional paragraphs at the end thereof:
C. Limitation On Options.
(1) Tenant's rights under Section 4.04 A hereof are subject and
subordinate, in all respects, to the rights of any other tenant
(an "Existing Tenant") in the Building whose lease (an "Existing
Lease") was executed prior to the date of this Amendment,
including without limitation any renewal, extension or expansion
rights provided for in any such Existing Lease, all as set forth
on Schedule 4 attached to this Amendment and incorporated in the
Lease by this reference. Without limiting the foregoing, Tenant
shall have no right to lease any portion of the Building pursuant
to either Section 4.04 or 4.05 of the Lease for any time period
during which an Existing Tenant who is identified on Schedule 4
has the right, pursuant to its lease with Landlord, to lease such
premises.
(2) If at the time of exercise of any option under Section 4.04 A
hereof there is more than one "contiguous area of additional
space" which could be leased to Tenant, then Landlord shall have
the right to select which area shall be leased to Tenant.
(3) If a "contiguous area of additional space" contains more than 10%
of Tenant's then existing rentable area, Landlord shall have no
obligation to subdivide such contiguous area if such subdivision
would leave Landlord with unleased premises which are not, in
Landlord's reasonable judgment, of a size, configuration and
location which is reasonably marketable (a "Disadvantageous
Subdivision"). If Landlord shall determine that the exercise of
Tenant's option will result in such a Disadvantageous
Subdivision, Landlord shall notify Tenant of its determination
within ten (10) days after notice from Tenant of its option to
lease space, which notice shall specify the size, configuration,
and location of premises which would eliminate such condition
(the "Substitute
-5-
Configuration"), which Substitute Configuration may contain between
90% and 110% of the amount of space which was the subject of
Tenant's election. In such event, Tenant shall have the right,
exercisable by notice to Landlord within ten (10) days after the
receipt of Landlord's notice, to lease the Substitute
Configuration. Failure by Tenant to exercise such right shall
constitute a waiver of its option to lease a "contiguous area of
additional space" on such anniversary date.
(4) Any space surrendered pursuant to Section 4.04 B shall, in
Landlord's reasonable judgment, be of a size, configuration and
location which is reasonably marketable.
(5) If Tenant shall have exercised its right pursuant to Section 4.04 B
to surrender any portion of the Premises as of an anniversary date,
or shall have failed to exercise a right to lease additional space
pursuant to Section 4.04 A as of an anniversary date, then any
additional space which Tenant has the right to lease under Section
4.04 A need not be contiguous with the Premises then demised
hereunder.
(6) Tenant may not exercise rights under both Paragraphs A and B of
Section 4.04 as of the same anniversary date.
D. Surrender of Premier Premises.
In addition to Tenant's rights under Section 4.04 B hereof, Tenant shall
have the option, upon giving Landlord written notice on or before the
date six (6) months prior to the second anniversary of the Lease
Commencement Date, to surrender the Premier Premises as of the second
anniversary of the Lease Commencement Date. If Tenant timely exercises
its surrender right under this Section 4.04 D:
(1) The Base Rent, Operating Cost Escalation, Real Estate Tax
Escalation, and Tenant's Proportionate Share shall be
proportionately reduced;
(2) The number of unreserved parking spaces and underground parking
spaces provided to Tenant in Section 3.03 shall be proportionately
reduced;
(3) Tenant shall pay to Landlord the unamortized portion of the
Premier Premises Excess Allowance,
-6-
as hereinafter defined, which shall be amortized on a straight-
line basis over ten (10) years utilizing an interest rate of 8.5%.
For the purposes hereof, the "Premier Premises Excess Allowance"
shall be defined as the amount by which the cost incurred by
Landlord on account of the Allowance exceeds the product of (x)
Seventeen ($17.00) Dollars per rentable square foot of the Premier
Premises multiplied by (y) the rentable square feet of the Premier
Premises.
9. First Refusal Adjustments.
-------------------------
A. Section 4.05 of the Original Lease is hereby amended by adding the
words "which Landlord is willing to accept" after the word "Building" appearing
in the third line thereof.
B. Said Section 4.05 is hereby further amended by inserting the words "or,
with respect to the space shown on Exhibit A-5 (the "A-5 Space") without regard
to Tenant's Proportionate Share," after the word "25%" appearing in the first
line thereof, and by substituting the words "A-5 Space" for the words "First
Offer Space" wherever they appear.
C. Said Section 4.05 is hereby further amended by adding the following at
the end of the first paragraph thereof:
For the purposes of this Section 4.05, an area shall not be deemed to be
"available" unless and until Landlord determines that the existing tenant
(or anyone claiming by, through, or under such existing tenant) of such
area will vacate such area, and Landlord is willing to market such area to
third parties. If Tenant does not timely exercise its right to lease an
available space hereunder, Landlord shall have no further obligation to
Tenant under this Section 4.05 with respect to such available space unless
(i) while such space remains so available, Landlord shall receive an Offer
for such space which Landlord is willing to accept on economic terms
(giving effect to rent, term, tenant improvement costs and other
inducements) which is lower than the Offer previously submitted by more
than ten percent (10%), or (ii) such space again becomes available at the
expiration or other termination of a new lease of such available space.
D. Said Section 4.05 is hereby further amended by deleting the word
"reduce" appearing in the last line of the first paragraph of said Section 4.05
and inserting in its place the word "affect."
-7-
E. The second paragraph of Section 4.05 of the Lease is hereby deleted in
its entirety.
10. Renewal Option Adjustments.
--------------------------
A. The first sentence of Section 4.06 of the Original Lease is hereby
amended by deleting the words "up to" appearing in the second line thereof.
B. The fourth sentence of said Section 4.06 is hereby amended by deleting
the word and numeral "twelve (12)" and inserting in its place the word and
numeral "fourteen (14)" appearing in the second line thereof.
C. The fifth sentence of said Section 4.06 is hereby amended by deleting
the words "March 1, 2004" and inserting in their place the words "November 1,
2003."
11. Force Majeure for Construction. Section 9.01 of the Original Lease is
------------------------------
hereby amended by deleting the words "After the Lease Commencement Date""
appearing in the first line thereof, and by inserting at the end of the
paragraph the words "which occurs after the date as of which The Beacon
Corporation or its designee acquires title to the Property."
12. Lease Ratified. The Lease is hereby ratified, confirmed continues in full
--------------
force and effect.
EXECUTED UNDER SEAL as of the date first above written.
LANDLORD:
BEACON PROPERTIES, L.P.
By: Beacon Properties Corporation,
General Partner
By:______________________________
Xxxxxx X. Xxxxxxxxx,
Senior Vice President -
Finance and Asset Management
Hereunto Duly Authorized
TENANT:
THE TRAVELERS INSURANCE COMPANY
By /s/ Xxxx X. Xxxxxxxx
-----------------------------------
(Name) (Title)
Hereunto Duly Authorized
Xxxx X. Xxxxxxxx
National Director of Leasing & Finance
-8-
SCHEDULE 1
----------
[FLOOR PLAN APPEARS HERE]
LEVEL ONE
[FLOOR PLAN APPEARS HERE]
LEVEL TWO-North & South Wings
[FLOOR PLAN APPEARS HERE]
LEVEL THREE-North Wing
SCHEDULE 2
----------
Portion of Rentable Floor Usable Floor
---------- -------------- ------------
Premises Area Area
-------- ---- ----
First floor 46,026 square feet 41,776 square feet
Second floor 14,900 square feet 12,243 square feet
Third floor 2,046 square feet 1,900 square feet
TOTAL 62,972 square feet 55,919 square feet
Tenant's
--------
Proportionate Share
-------------------
First Floor 30.02%*
Second Floor 9.72%*
Third Floor l.33%*
TOTAL 41.07%*
The Proportionate Shares set forth on this Schedule 2 have been calculated
by using 153,296 square feet as the rentable area of the Building. Prior to the
Scheduled Lease Commencement Date, the Landlord shall cause the rentable area of
the Building to be recalculated in accordance with the Building Owners and
Management Association (BOMA) Method, American National Standard
(ANSI Z65.1-1980, reaffirmed 1989), Landlord and Tenant agreeing that under such
BOMA Method, rentable area means the sum of the rentable areas of all of the
floors in the Building. Upon such remeasurement, the Proportionate Share set
forth herein shall be recalculated using the rentable area so recalculated.
-9-
SCHEDULE 3
----------
EXHIBIT "A"
PLANS AND SPECIFICATIONS - PHASE II
THE TRAVELERS AT WESTWOOD BUSINESS CENTER
The following documents have been prepared by Xxxxxx Associates Architects, 000
xxxxxxxx Xxxxxx, Xxxxxx, XX 00000.
No. Description Date Rev. No. Date
--- ----------- ---- -------- ----
Al North Wing Level One Construction Plan 1/21/94
A2 South Wing Level One Construction Plan 1/21/94
A3 North Wing Level Two Construction Plan 1/21/94
A4 South Wing Level Two Construction Plan 1/21/94
A5 North Wing Level Three Plans 1/21/94
A6 North Wing Level One Reflected Ceiling Plan 1/21/94
A7 South Wing Level One Reflected Ceiling Plan 1/21/94
A8 North Wing Level Two Reflected Ceiling Plan 1/21/94
A9 South Wing Level Two Reflected Ceiling Plan 1/21/94
A10 Level One, Two, and Three Sections and Details 1/21/94
All North Wing Level One Finish Plan 1/21/94
A12 South Wing Level One Finish Plan 1/21/94
A13 North Wing Level Two Finish Plan 1/21/94
A14 South Wing Level Two Finish Plan 1/21/94
P-1 Plumbing and Sprinkler Plan West Wing 1/21/94
P-2 Plumbing and Sprinkler Plan East Wing 1/21/94
P-3 Second and Third Floor Sprinkler and Plumbing Plan 1/21/94
P-4 Plumbing and Sprinkler Details and Notes 1/21/94
X-0 Xxxxxxxxxx Xxxxx Xxxx Xxxx Wing 1/21/94
X-0 Xxxxxxxxxx Xxxxx Xxxx Xxxx Wing 1/21/94
M-3 Second and Third Floor Mechanical 1/21/94
M-2 General Notes and Specifications Mechanical 1/21/94
E-1 Lighting Floor Plan West Wing Electrical 1/21/94
E-2 Lighting Floor Plan North Wing Electrical 1/21/94
E-2 Power Floor Plan West Wing Electrical 12/17/93 1 1/21/94
E-4 Power Floor Plan East Wing Electrical 1/21/94
E-5 Second and Third Floor Lighting Electrical 1/21/94
E-6 Second and Third Floor Power Electrical 1/21/94
E-7 Legend, Notes, and Schedule 1/21/94
Specifications: Entitled "The Travelers Companies Westwood
Business Center; Project Manual: Phase II" 1/21/94
Memo: Issued by Xxxxxxxx X. Xxxxx of Q&W 2/1/94
No. Description Date Rev. No. Date
-- ----------- ---- ------- ----
LEASE AGREEMENT
BY AND BETWEEN
THE TRAVELERS INSURANCE COMPANY, as Landlord
AND
THE TRAVELERS INSURANCE COMPANY, as Tenant
WESTWOOD BUSINESS CENTRE
WESTWOOD, MASSACHUSETTS
TABLE OF CONTENTS
Section Heading Page
ARTICLE I. BASIC LEASE PROVISIONS
1.01 Date and Parties........................................ 1
1.02 Notices................................................. 1
1.03 Building and Land....................................... 2
1.04 Premises................................................ 2
1.05 Area Verification and Measurement....................... 3
1.06 Use..................................................... 3
1.07 Lease Term.............................................. 4
1.08 Improvements............................................ 4
ARTICLE II. TENANT'S OBLIGATION TO PAY RENT
2.01 Rent.................................................... 4
2.02 Escalation.............................................. 5
ARTICLE III. LANDLORD'S OBLIGATIONS
3.01 Services Provided By Landlord........................... 16
3.02 Repairs and Maintenance................................. 18
3.03 Parking................................................. 19
3.04 Life Safety and Security Requirements................... 19
3.05 Building Rules and Regulations.......................... 20
ARTICLE IV. TENANT'S RIGHTS AND OPTIONS
3.06 Non-Solicitation........................................ 20
4.01 Subleasing and Assignment............................... 20
4.02 Alterations............................................. 21
4.03 Tenant Signage.......................................... 21
4.04 Space Adjustment Options................................ 21
4.05 Right of First Refusal.................................. 23
4.06 Renewal Option.......................................... 23
4.07 Holding Over............................................ 24
4.08 Earth Satellite Station................................. 25
ARTICLE V. LIABILITY
5.01 Insurance............................................... 25
5.02 Environmental Compliance................................ 27
5.03 Requirements of Law..................................... 32
ARTICLE VI. LOSS OF PREMISES
6.01 Damages................................................. 33
6.02 Eminent Domain.......................................... 34
Section Heading Page
ARTICLE VII. NON-DISTURBANCE
7.01 Subordination, Attornment and
Non-Disturbance ..................... 35
7.02 Estoppel Certificate.................................... 36
7.03 Recording of Lease...................................... 36
7.04 Quiet Enjoyment......................................... 36
ARTICLE VIII. DISPUTES
8.01 Default by Tenant....................................... 37
8.02 Default by Landlord..................................... 37
8.03 Reduction of Services................................... 38
8.04 Arbitration............................................. 39
8.05 Governing Law........................................... 40
8.06 Waiver of Consequential Damages......................... 40
ARTICLE IX. MISCELLANEOUS
9.01 Force Majeure .......................................... 40
9.02 End of Term............................................. 40
9.03 Entire Agreement........................................ 41
9.04 Non-Discrimation........................................ 41
9.05 Binding on Successors................................... 41
9.06 Ambiguities............................................. 41
9.07 First-Class Building.................................... 41
9.08 Broker's Warranty....................................... 41
9.09 Partial Invalidity...................................... 42
9.10 Captions................................................ 42
9.11 Non-Merger of Parties................................... 42
9.12 Survival................................................ 42
9.13 Attachments............................................. 43
LEASE AGREEMENT
ARTICLE I. BASIC LEASE PROVISIONS
1.01. DATE AND PARTIES
This Lease Agreement ("Lease") is entered into as of the 12th day of
October, 1993, by and between THE TRAVELERS INSURANCE COMPANY, a
corporation organized and existing under the laws of Connecticut,
having its principal offices at XXX XXXXX XXXXXX, 00 XXX, XXXXXXXX, XX
00000 ("Landlord"), and THE TRAVELERS INSURANCE COMPANY, a corporation
organized and existing under the laws of the state of Connecticut,
having its principal offices at Xxx Xxxxx Xxxxxx, Xxxxxxxx, XX 00000-
7130 ("Tenant").
1.02. NOTICES
All notices and notifications required or permitted under this Lease
shall be in writing and sent by a nationally recognized private carrier
of overnight mail (e.g., Federal Express) or by United States Certified
Mail, return receipt requested and postage prepaid, to the parties at
the following addresses or at such other addresses as the parties may
designate by notice from time to time:
Landlord: The Travelers Insurance Company
C/O Travelers Realty Investment Company
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Tenant: The Travelers Insurance Company
Corporate. Real Estate
Xxx Xxxxx Xxxxxx, 0-00XX
Xxxxxxxx, XX 00000-0000
with a copy to:
The Travelers Insurance Company
Corporate Real Estate
Regional Manager
Xxx Xxxxx Xxxxxx, 0-0XXX
Xxxxxxxx, XX 00000
All notices shall be deemed effective three (3) days after the date of
mailing or on the date of actual receipt, if sooner.
Form Revised 8/1/93 1
1.03. BUILDING AND LAND
Landlord leases to Tenant, upon the terms and conditions contained in
this Lease, the Premises (as defined in Section 1.04) together with the
right, in common with others, to use the Common Area Facilities (as
hereinafter defined) of the Building (as hereinafter defined) and of
the Land (as hereinafter defined) on which the Building is located. As
used in this Lease, the "Common Area Facilities" shall include all
freight and passenger elevators, loading docks, sidewalks, parking
areas, driveways, hallways, stairways, public restrooms, common
entrances, lobby, cafeteria, fitness center, emergency systems and
other similar public areas and access ways of the Building and the
Land.
A. The "Building" means the building containing 160,000 rentable
square feet, with a name and address as follows:
Westwood Business Centre
000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
B. The "Land" means the property described in the legal description
attached as Exhibit A-1 and the tax assessor's plan attached as
-----------
Exhibit A-2. The Land contains 1.25 acres, more or less.
-----------
Landlord shall make no change to the Building configuration that
increases Tenant's Proportionate Share (as defined in Section
2.02) or that materially affects Tenant's use of or access to the
Premises without Tenant's prior written consent.
1.04. PREMISES
The Premises consist of the floor area outlined by cross-hatching on
Exhibit A-3. Tenant may increase or decrease the rentable area of
-----------
Tenant's Premises above or below the range stated in subsection A
hereof, and the corresponding rent as described in Exhibit G (BASE RENT
---------
SCHEDULE), by up to 10% based upon Tenant's final "design intent"
drawings referred to in Exhibit D (WORK LETTER AGREEMENT).
---------
Landlord represents and warrants that:
A. The net rentable area of the Premises shall be determined by
Tenant's final "design intent" drawings and shall be between
48,500 and 60,000 rentable square feet of office space
located on the first, second and third floors of the Building.
B. The usable area of the Premises shall be determined by Tenant's
final "design intent" drawings and shall be based on BOMA
measurements of rentable/usable area.
2
1.05. AREA VERIFICATION AND MEASUREMENT
For purposes of this Lease, the Premises and the Building shall be
measured in accordance with the Building Owners and Management
Association (BOMA) Method, American National Standard (ANSI Z65.1-1980,
reaffirmed 1989), with modifications as noted on Exhibit L, attached
---------
hereto. All references to rentable area and usable area as used in this
Lease shall refer to rentable and usable area calculations derived by
the application of BOMA. Landlord shall provide, upon Tenant's request,
the calculations which show how the rentable area of the Building and
Premises were derived.
If the net rentable area of the Premises is equal to or exceeds 25,000
square feet, Landlord shall provide Tenant with a certified survey
performed by a licensed or registered surveyor, as to the rentable and
usable area of the Premises and the rentable area of the Building (the
"Survey"), at Landlord's sole cost and expense. The Survey shall bear
the surveyor's seal and certification.
If the net rentable area of the Premises is less than 25,000 square
feet, Landlord shall provide Tenant with an architect's certification
as to the rentable and usable area of the Premises and the rentable
area of the Building (the "Certification"), at Landlord's sole cost and
expense.
In addition to the Survey or Certification, as applicable, Landlord
shall provide Tenant with final as-built plans of the Premises. The
final as-built plans shall indicate the rentable and usable area of the
Premises and shall indicate how the rentable area was calculated. Upon
request, at any time during the Lease Term, as defined in Section 1.07,
Tenant or its authorized representatives shall have the right to access
and review the final as-built plans for the Building.
The Base Rent (as defined in Section 2.01) and Tenant's Proportionate
Share shall be equitably adjusted if the Survey/Certification or the
final as-built plans indicate that the net rentable area of the
Building or the Premises differs from the numbers set forth in Section
1.03 (BUILDING AND LAND) or Section 1.04 (PREMISES). The
Survey/Certification shall be received by Tenant prior to Tenant's
first monthly rental payment under this Lease.
Tenant may, at any time during the Lease Term and at Tenant's sole cost
and expense, retain a licensed or registered surveyor to measure the
rentable and usable area of the Premises and the rentable area of the
Building. If such re-measurement reveals a material difference between
the net rentable area of the Premises or the Building from what is
stated in this Lease or in the Survey/Certification, the Base Rent and
Tenant's Proportionate Share as defined in Section 2.02 (ESCALATION)
shall be equitably adjusted on a retroactive basis.
1.06. USE
Tenant may use the Premises for general office use, or for any other
uses related to general office use.
Form Revised 8/1/93 3
1.07. LEASE TERM
The initial term of this Lease is for ten (10) years and is scheduled
to begin no sooner than August l, 1994, (the "Scheduled Lease
Commencement Date"). The initial term of this Lease shall commence on
the date when the entire Premises are Substantially Complete in
accordance with Article 3.02 of Exhibit D (WORK LETTER AGREEMENT); the
---------
inspection and the preparation of the punchlist have been completed in
accordance with Section 3.03 of Exhibit D (WORK LETTER AGREEMENT);
---------
Landlord is ready, willing and able to deliver actual possession of the
Premises and the Scheduled Lease Commencement Date has passed (the
"Lease Commencement Date"). However, if the Lease Commencement Date
would be a Saturday, Sunday or holiday, the Lease Commencement Date
shall be the first business day following that Saturday, Sunday or
holiday. The initial term of this Lease shall end on the day which is
the tenth year anniversary date of the Lease Commencement Date if the
Lease Commencement Date is the first day of any month (the "Lease
Expiration Date"). If the Lease Commencement Date is any day other than
the first day of any month, the Lease Expiration Date shall be the last
day of the month in which the tenth year anniversary date of the Lease
Commencement Date falls. The initial term of this Lease, as extended or
renewed in accordance with Section 4.06 (RENEWAL OPTION) of this Lease,
shall be referred to as the "Lease Term".
Within fifteen (15) days after the Lease Commencement Date, Landlord
and Tenant shall execute and be bound by a Commencement Date Agreement,
the form of which is attached as Exhibit H.
---------
1.08. IMPROVEMENTS
Prior to the Lease Commencement Date, Landlord shall make all Base
Building Improvements and Tenant Improvements in a first-class and
workmanlike manner in accordance with Exhibit C (BASE BUILDING
---------
IMPROVEMENTS) and Exhibit D (WORK LETTER AGREEMENT). All Tenant
---------
Improvements shall immediately become the property of Landlord upon
completion unless otherwise agreed to in writing.
ARTICLE II. TENANT'S OBLIGATION TO PAY RENT
2.01. RENT
Tenant agrees to pay to Landlord base rent (the "Base Rent") in monthly
installments in the amounts set forth in Exhibit G (BASE RENT
---------
SCHEDULE), in advance, prior to the tenth business day of each month of
the Lease Term. If the Lease Term commences or ends on a day other than
the first day or last day of a calendar month, or if the Base Rent for
any calendar month is to be prorated for any reason, the monthly
installment of the Base Rent shall be prorated on a per diem basis
based on the number of days in the calendar month. The monthly
installments of the Base Rent shall be made either by check and sent to
Xxxxxxxxx & Xxxx, 000 Xxxxxx Xxxxxx, X.X. Xxx 0000-0000, Xxxxxxxxxxxx,
XX 00000-0000 or by electronic direct deposit, at Tenant's option.
Landlord shall designate a bank account and shall furnish Tenant with a
Direct Deposit Authorization in the form of Exhibit F. Landlord
---------
Form Revised 8/1/93 4
shall give tenant notice if the address or bank account for rental
payments changes.
The Base Rent shall be calculated on a "gross lease" basis which
includes Building Operating Costs, Real Estate Taxes, Services and
utilities, each as hereinafter defined.
2.02. ESCALATION
For purposes of calculating the portion of any increases in the
operating costs and the real estate taxes for the Building, the Common
Area Facilities and the Land which Tenant shall pay Landlord, as set
forth in this Section 2.02, "Tenant's Proportionate Share" means the
percentage obtained by dividing the total rentable area of the Premises
by the total rentable area of the Building.
A. Operating Cost Escalation
(1) This Operating Cost Escalation provision is intended to assure
that Tenant pays only for Tenant's Proportionate Share of all
inflationary-type increases in the costs of operating and
maintaining the Building over the costs of the Base Year (as
hereinafter defined). It is also intended that the Base Rent
shall include all building services normally provided in first-
class office buildings.
In addition to the Base Rent, Tenant shall pay the Building
Operating Cost Escalation (as hereinafter defined). The
"Operating Cost Escalation" means the difference between
Tenant's Proportionate Share of the Building Operating Costs
(as hereinafter defined) for the Base Year and Tenant's
Proportionate Share of Building Operating Costs for the
calendar year in question.
For purposes of the Operating Cost Escalation, the "Base Year"
means the first full calendar year of the Lease Term.
In Landlord's and Tenant's reasonable discretion, the Building
Operating Costs for the Base Year shall be adjusted, if
necessary, to a level of a 95% occupied and fully operational
first-class office building at cost levels prevailing in the
geographic market in which the Building is located for an
entire year. This adjustment shall include (a) when building
systems are under warranty during the Base Year, an adjustment
for the cost of service contracts and other expenses that would
have been incurred in the absence of such warranties; (b) an
adjustment for all other expenses that are not incurred if the
Building is new and start-up discounts or similar savings have
been achieved; and (c) adjustments for all other atypical costs
that occur or do not occur during the Base Year other than
those costs which would occur in the Base Year in the ordinary
course of business. The purpose
Form Revised 8/11/93 5
of these adjustments is to include in the Building Operating
Costs for the Base Year all reasonable cost components that
occur or are likely to occur in later years.
If at any time during the Lease Term, less than 95% of the
total rentable, area of the Building is occupied by tenants, or
the Landlord is not supplying services to 95% of the total
rentable area of the Building at any time during any calendar
year, the Building Operating Costs for such calendar year shall
be reasonably determined to be an amount equal to the expenses
that would normally be expected to be incurred had such
occupancy been 95% of the total rentable area of the Building
and had Landlord been supplying services to 95% of the total
rentable area of the Building throughout the calendar year. The
only costs which shall be adjusted in this manner shall be
variable expenses where the amount is directly related to the
level of occupancy or square foot area receiving a particular
service. Landlord will indicate which expenses were adjusted in
this manner on Exhibit B-1. Landlord will provide specific
-----------
calculations detailing this adjustment upon Tenant's request.
If a new category of expense is incurred after the Base Year,
the first full year's expense for such item shall be added to
the Building Operating Costs for the Base Year commencing with
the first full calendar year that such expense is incurred, so
that Tenant shall only be required to pay subsequent increases
in such expense. The expense incurred for such item during the
first year shall be subject to the adjustments described in the
immediately preceding paragraphs.
Where Landlord allocates Building Operating Costs to the
Building, Common Area Facilities or the Land, which Building
Operating Costs are shared with other buildings; (i) the costs
so allocated must be clearly identified on the Operating Cost
Escalation invoice; (ii) the rational and the underlying method
of allocation must be set forth in detail; and (iii) the
benefit enuring to Tenant quantified. Absent the foregoing -
disclosure, allocated costs shall, in no event, be deemed
Building Operating Costs. Tenant reserves the right to
challenge the propriety of all allocated costs.
For the first full calendar year following the Base Year, the
Operating Cost Escalation shall be billed as a one-time charge
at the close of the year and shall be paid by Tenant within
sixty (60) days after receipt of the xxxx. For the second full
calendar year following the Base Year, and all subsequent full
or partial calendar years during the Lease Term, Tenant shall
pay Landlord, on account, with its monthly installments of Base
Rent in accordance with Section 2.01 (RENT), a sum equal to
one-twelfth (1/12) of the prior year's
6
Operating Cost Escalation, less any non-recurring expenses
("Operating Cost Escalation Paid on Account").
Landlord shall provide Tenant with a xxxx for the Operating
Cost Escalation in the form and calculated as shown in Exhibit
-------
B-1 after the close of each calendar year. Tenant shall, within
---
sixty (60) days of the Tenant's receipt of a xxxx, pay Landlord
the difference between the Operating Cost Escalation Paid on
Account and the final amount due as set forth in such xxxx. An
example of how Exhibit B-1 is to be completed is attached as
-----------
Exhibit B-2.
-----------
If for any calendar year the Operating Cost Escalation Paid on
Account exceeds the actual Operating Cost Escalation, the
excess shall be (i) treated as a prepayment of the next due
installment of Base Rent; Operating Cost Escalation Paid on
Account or (ii) refunded to Tenant, at Tenant's option.
(2) "Building Operating Costs" shall be limited to the following
reasonable expenses which are paid or incurred for operating
and maintaining the Building, the Common Area Facilities and
the Land in a first-class manner:
(a) Cleaning Expenses
All expenses for routine cleaning, including public areas,
atriums, elevators, rest rooms and windows. Cleaning
expenses shall include maintenance of cleaning equipment,
supplies, contract service and trash removal.
(b) Repairs and Maintenance
All expenses for general repair and maintenance, including
contracted services, elevator, electrical, roof, plumbing,
fire and life safety expenses, and other building
maintenance supplies.
(c) Roads, Grounds and Security
Expenses related to exterior maintenance (e.g.,
landscaping, snow removal, parking lot repairs, site
signage and site lighting) and expenses for security. If
separate fees are charged for parking, all parking area
maintenance and operating costs and Real Estate Taxes
(which taxes shall also be excluded from the Real Estate
Tax Escalation) shall be excluded from Building Operating
Costs.
(d) Heating, Ventilation and Air Conditioning
Expenses for labor and supplies necessary to operate and
maintain air conditioning, heating and ventilating
systems, including the cost of
7
contracted services. No replacement costs for major
components of the heating, ventilation or air conditioning
systems or energy costs are included in this category.
(e) Insurance
All expenses for insurance of the Building. Excluded from
Building Operating Costs shall be any comprehensive
general liability insurance coverage with minimum limits
in excess of $10,000,000.
(f) Salaries
All salaries, wages, medical, surgical, union and general
welfare benefits (including group life insurance), and
pension payments of persons employed by Landlord to the
extent such employees are directly engaged in the repair,
operation and maintenance of the Building, Common Area
Facilities and the Land, together with payroll taxes,
workers' compensation insurance premiums, uniforms and
related expenses pertaining to such employees, to the
extent such expenses are competitive and commercially
reasonable. Excluded from such salaries is the salary and
benefits of the Building Manager, which is included in
Subsection (g) below.
(g) Management Fee
A management fee which in no event shall exceed 4% of the
gross rental income from the Building, as adjusted below.
Management fees for the Base Year and the Lease Term shall
be computed as if the vacant areas of the Building were
fully rented at Tenant's Base Rent, including reasonably
anticipated amounts for escalations and other rents,
without regard to rent abatements or other concessions,
that would have been collected had the Building been fully
occupied. After the Base Year, management fees shall be
computed by substituting the actual base rents, including
reasonably anticipated amounts for escalations and other
rents, without regard to rent abatements or other
concessions, of tenants for so long as they occupy areas
vacant during Tenant's Base Year.
(h) Utilities
Expenses for utility services, including electricity, gas,
fuel oil, steam, chilled water coal and water/sewer.
Utilities for tenant areas shall not be in excess of that
for typical office use.
8
(i) Certain Capital Expenditures
The annual amortization over its useful life with a
reasonable salvage value on a straight-line basis of the
costs of any equipment or capital improvements made by
Landlord after the Lease was signed, as a labor-saving
measure or to accomplish other savings in operating,
repairing, managing or maintaining of the Building, but
only to the extent of the savings.
(j) Administration Expenses
Any expenditures pertaining to administration of the
Building, Common Area Facilities and the Land including
payroll and payroll-related expenses associated with
administrative and clerical personnel and general office
expenditures. However, such administrative expenses shall
only be included to the extent that they are not included
in the management fee as described in subsection (g)
above, and to the extent that such expenses or any
associated fees are not allocated to a leasing agent.
(k) Shuttle Bus
The costs of providing the shuttle bus service as
described in Section 3.01(J) of this Lease.
(3) Exclusions
Building Operating Costs shall not include any expenses or
costs incurred or paid by Landlord for the following items:
(a) Capital expenditures, including any capital replacement,
capital repair or capital improvement made to the
Building, the Common Area Facilities or the Land and any
other expense which would be deemed to be a capital
expenditure under generally accepted accounting
principles, consistently applied, except as permitted
pursuant to subsection (2)(i) above. Replacement of an
item or of a major component of an item and major repairs
to such items in lieu of replacement shall each be
considered a Capital Expenditure if the original item or a
subsequent improvement to such item was, or could have
been, capitalized.
Capital Expenditures of $1,000 or less may be included in
Building Operating Costs. For purposes of this clause, a
group of expenditures related to the same capital project
shall be considered a single expenditure;
9
(b) Depreciation or amortization of the Building or its
contents or components;
(c) Expenses for the preparation of space or other work which
Landlord performs for any tenant or prospective tenant of
the Building;
(d) Expenses for repairs or other work which is caused by
fire, windstorm, casualty or any other insurable
occurrence, including costs subject to Landlord's
insurance deductible;
(e) Expenses incurred in leasing or obtaining new tenants or
retaining existing tenants, including leasing commissions,
legal expenses, advertising or promotion;
(f) Legal expenses incurred in enforcing the terms of any
Lease;
(g) Interest, amortization or other costs, including legal
fees, associated with any mortgage, loan or refinancing of
the Land, Building, or Common Area Facilities;
(h) Expenses incurred for any necessary replacement of any
item to the extent that it is covered under warranty;
(i) Actual cost of any special electrical, heating,
ventilation or air conditioning or any other service
required by any tenant that exceeds normal building
standards or is required during times other than Business
Hours, (as defined in Section 3.01, SERVICES FURNISHED BY
LANDLORD), whether or not Landlord is reimbursed by such
tenant;
(j) Accounting and legal fees relating to the ownership,
construction, leasing, sale or any litigation relating to
the Building, the Common Area Facilities or the Land;
(k) Any interest or penalty incurred due to the late payment
of any Building Operating Costs;
(1) The cost of any item or service which Tenant separately
reimburses Landlord or pays to third parties, or that
Landlord provides selectively to one or more tenants of
the Building, other than Tenant, whether or not Landlord
is reimbursed by such other tenant(s);
(m) Any amount paid to an entity or individual related to
Landlord which exceeds the amount which would be paid for
similar goods or services on an arms-length basis between
unrelated parties;
10
(n) The cost of correcting defects in the construction of the
Building, the Common Area Facilities or the Land; repairs
resulting from ordinary wear and tear shall not be deemed
to be defects;
(o) The amount of any reimbursement or credit received or
receivable by Landlord with respect to an item of cost that
is included in Building Operating Costs. The intent of this
Subsection (o) is that Building Operating Costs shall be
calculated on a "net" basis;
(p) The initial cost of tools and small equipment used in the
operation and maintenance of the Building, the Common Area
Facilities and the Land;
(q) The initial cost or the replacement cost of any permanent
landscaping or the regular landscaping maintenance for any
property other than the Land;
(r) Any penalty or fine incurred for noncompliance with
applicable building or fire codes;
(s) Any costs of complying with or correcting violations of any
governmental laws, rules, regulations, or other
requirements applicable to the Land, the Building, the
Common Area Facilities or the Premises.
(t) Any ground rent, air space rent or other rent incurred for
the Land;
(u) Any costs incurred to test, survey, cleanup, contain xxxxx,
remove or otherwise remedy Hazardous Materials, as defined
in Section 5.02 (ENVIRONMENTAL COMPLIANCE) or asbestos
containing materials from the Building, the Common Area
Facilities or the Land;
(v) Any personal property taxes of Landlord for equipment or
items not used directly in the operation or maintenance of
the Building;
(w) Other--administrative expenditures (including expenditures
for travel, entertainment, dues, subscriptions, donations,
data processing, errors and omissions insurance, automobile
allowances, political donations and professional fees of
any kind unless specifically enumerated as Building
Operating Costs).
(4) CPI Cap
Notwithstanding any provision of this Lease to the contrary,
Tenant shall not be obligated to pay for any annual increases
in Building Operating Costs (however, excluding utilities) that
exceed the percentage increase, if any, for such year in the
national
11
consumer Price Index for All Urban consumers ("CPIU"), U.S.
City Average, published by the Bureau of Labor Statistics of
the U.S. Department of Labor, All Items Less Food and Energy.
If the CPIU is not published for any year during the Lease
Term, the cap on the Operating Cost Escalation shall be
determined by substituting a comparable index reasonably
selected and mutually agreed to by Landlord and Tenant, which
index shall reflect the purchasing power of the consumer dollar
and is published by the Bureau of Labor Statistics of the U.S.
Department of Labor. If such an index is not published by the
Bureau of Labor Statistics, Landlord and Tenant shall select a
comparable index published by a nationally recognized
responsible financial periodical. The cap on the Operating Cost
Escalation shall be determined by comparing the index for the
last month of the prior year to that of the last month of the
escalation year in question. For example, in determining the
1995 escalation, the index for December 1994 is to be compared
to the index for December 1995. The percentage increase in such
indices is then to be added to the allowable Building Operating
Costs for the prior year and the sum shall be compared to the
allowable Building Operating Costs for 1995. The lesser of the
two numbers shall be deemed to be the allowable Building
Operating Costs for 1995. This limitation shall be calculated
each year for which the Operating Cost Escalation is payable. A
further example is included in Exhibit B-2.
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B. Real Estate Tax Escalation
(1) This real estate tax escalation provision requires Tenant to
pay Tenant's Proportionate Share of increases in Real Estate
Taxes (as hereinafter defined) over Real Estate Taxes for the
Base Tax Year (as hereinafter defined).
(2) In addition to the Base Rent, Tenant shall pay the Real Estate
Tax Escalation (as hereinafter defined). The "Real Estate Tax
Escalation" means the difference between Tenant's Proportionate
Share of Real Estate Taxes for the Base Tax Year and Tenant's
Proportionate Share of Real Estate Taxes for such Tax Year (as
hereinafter defined).
(3) "Real Estate Taxes" means all real estate taxes levied or
assessed against the Building, the Common Area Facilities and
the Land as finally determined to be legally payable by legal
proceedings or otherwise after taking into account any
available discount, excluding any interest or penalty for late
payment and any transfer, sales, use or rent taxes. Real Estate
Taxes shall include any and all costs and expenses (including
attorney's fees) incurred by Landlord in connection with
seeking or obtaining reductions in and refunds of Real Estate
Taxes and shall be reduced by the amount of
12
any reductions or refunds actually received by Landlord. If
Landlord is successful in obtaining any reductions or refunds
in Real Estate Taxes, Tenant shall receive its share thereof
when such is actually obtained by Landlord.
(4) "Tax Year" means the full fiscal period for each levied or
assessed Real Estate Tax.
(5) "Base Tax Year" means the later to occur of (i) the first Tax
Year which falls entirely within the Lease Term and for which
Real Estate Taxes are levied or assessed, or (ii) the first Tax
Year of the Lease Term during which the Building is 100% fully
assessed and 100% fully taxed as a 100% completed structure.
(6) "Base Real Estate Taxes" means Real Estate Taxes for the Base
Tax Year.
(7) For the first Tax Year following the Base Tax Year, the Real
Estate Tax Escalation shall be billed as a one-time charge at
the close of the year and shall be paid by Tenant within thirty
(30) days after receipt of the xxxx.
Commencing with the second Tax Year following the Base Tax
Year, and all subsequent Tax Years, no sooner than sixty (60)
days prior to the earliest due date of the tax xxxx to the
taxing authority, Tenant shall pay Landlord, on account, within
sixty (60) days after receiving an invoice therefore, a sum
equal to the Real Estate Tax Escalation for the prior Tax Year
(the "Real Estate Tax Escalation Paid on Account").
Notwithstanding the foregoing, if Landlord is required by its
lender to escrow Real Estate Taxes on a monthly basis, Tenant
shall pay Landlord on account each month, commencing with the
second Tax Year following the Base Tax Year, a sum equal to
one-twelfth (1/12) of the prior year's Real Estate Tax
Escalation as Real Estate Tax Escalation Paid on Account.
Landlord shall provide Tenant with an invoice for the Real
Estate--Tax Escalation at the close of each Tax Year, after the
tax bills have been paid by Landlord, in the form and
calculated as shown in Exhibit B-3 and Landlord shall provide
-----------
Tenant with copies of paid Real Estate Tax bills. Tenant shall,
within sixty (60) days of the Tenant's receipt of such invoice,
pay Landlord the difference between the Real Estate Tax
Escalation Paid on Account and the final amount due as set
forth in such invoice.
If for any Tax Year the Real Estate Tax Escalation Paid on
Account exceeds the Real Estate Tax Escalation, the excess
shall be (i) applied to reduce the Operating Cost Escalation
due pursuant to this Lease, (ii) treated as a prepayment of the
next due installments of
13
the Base Rent, Operating Cost escalation Paid on Account or
(iii) refunded to Tenant, at Tenant's option.
(8) This Real Estate Tax Escalation provision is intended to assure
that Tenant pays Tenant's Proportionate Share of ordinary
increases in Real Estate Taxes due to ordinary jurisdiction-
wide increases in tax rates and changes in the Building, Common
Area Facilities and Land assessments due to changes in local
market values. It is also intended that the Base Rent shall
include all Real Estate Taxes applicable to the Land and the
fully completed Building and Common Area Facilities at normal
tax rate and assessment levels as of the Base Tax Year.
Accordingly:
(a) Tenant shall not be responsible for any increase in Real
Estate Taxes which results solely from the creation of
additional rentable area on the Land or in the Building or
from improvements or alterations made by Landlord or other
tenants.
Tenant shall pay the full amount of any increase in Real
Estate Taxes which are solely due to improvements to the
Premises made by Tenant or requested by Tenant and
provided by Landlord. If Tenant seeks to dispute any
increase in Real Estate Taxes on its improvements, the
burden of proof with respect thereto shall fall solely upon
Tenant and Landlord shall give Tenant the necessary
authority to challenge any such assessment on Landlord's
behalf, and Tenant shall bear the full cost and expense of
any such challenge.
(b) If (i) there is a tax abatement program in effect at any
time during the Lease Term which reduces Real Estate Taxes,
or (ii) Real Estate Taxes are "phased in" during the Lease
Term, Real Estate Taxes for the Base Tax Year shall be
adjusted so that they are computed on the same basis as
Real Estate Taxes for the Tax Year(s) during which the tax
abatement or phase-in is in effect.
For example, if Real Estate Taxes for the Base Tax Year are
reduced by 50% as part of a tax abatement program and Real
Estate Taxes are reduced by 25% for the next Tax Year (year
2) and are not reduced at all for the following Tax Year
(year 3), for purposes of computing the increase for year
2, the Base Year Real Estate Taxes shall be recomputed as
if there were a 25% abatement in effect, and for purposes
of computing the increase for year 3, the Base Real Estate
Taxes shall be computed as if there were no abatement in
effect.
(c) If Landlord contests the assessment for Tenant's Base Tax
Year, then Landlord, at Landlord's sole
14
cost and expense, shall take reasonable steps to contest
the assessment in later Tax Years as well. If Tenant's
Proportionate Share is equal to or greater than 25%, and
Landlord is not contesting the assessment for a Tax Year
during the Lease Term, Tenant may bring, at Tenant's
option, appropriate proceedings in Landlord's name or
Tenant's name, or both, for contesting the assessment for
such Tax Year; provided that Tenant gives Landlord ten (10)
days written notice of its intention to contest such
assessment. The net amount of taxes recovered as a result
of such proceedings (e.g., the amount recovered after
payment of all sums necessary to attain such recovery)
shall be shared between Landlord and Tenant with Tenant
receiving Tenant's Proportionate Share thereof; provided
that Tenant shall pay one hundred percent (100%) of any
increase in Real Estate Taxes (and all costs and expenses
in connection with such contest) resulting from Tenant's
contest of the assessment for any Tax Year during the Lease
Term. Landlord shall cooperate with Tenant with respect to
the proceedings so far as is reasonably necessary.
(d) Any increase in Real Estate Taxes for the Building
resulting from a refinancing or sale shall be
added to the Base Real Estate Taxes.
(e) Other adjustments shall be made to the Real Estate Tax
Escalation as necessary in order to preserve
the intent of this Subsection 9 B (8).
(9) Subject to the cure rights of any lender of record, Tenant may,
at its option, pay any delinquent Real Estate Taxes which are
in default for a period of thirty (30) days and such payments
shall be deducted from the Base Rent.
C. Escalation General Provisions
(1) Landlord shall provide Tenant with copies of bills, cancelled
checks or contracts relative to the Building Operating Costs upon
request. Landlord shall maintain accurate books and records for the
Building Operating Costs and Real Estate Taxes in accordance with
generally accepted accounting principles consistently applied,
however, adjustments to Building Operating Costs and Real Estate
Taxes shall be made as provided in this Lease. Landlord shall
maintain such books and records and keep copies of the actual paid
bills, cancelled checks and copies of any applicable contracts for
each year including the Base Year, for the duration of the Lease
Term, as extended, and for three (3) years thereafter. The Building
Operating Costs, including those for the Base Year, may be audited
by Tenant or Tenant's authorized representative during normal
business hours, upon reasonable prior notice to Landlord. If Tenant
challenges Landlord's computations of the Base Year Building
15
Operating Costs, Base Real Estate Taxes; or the amount of the
Operating Cost Escalation or Real Estate Tax Escalation, Tenant
shall give Landlord notice stating Tenant's objections. If an
independent audit performed on behalf of Tenant verifies that
Landlord's computations of the Building Operating Costs or Real
Estate Taxes for the Base Year are incorrect or that Tenant was
overcharged for the Operating Cost Escalation or Real Estate Tax
Escalation, Tenant shall give Landlord notice and Landlord shall
promptly repay all such overpayments to Tenant and adjust Tenant's
Base Year or Base Tax Year within thirty (30) days of receiving
Tenant's notice. If Landlord does not respond to Tenant's notice,
Tenant may withhold from its rental payments in the amount of such
overcharges or errors from its monthly rental payments until they
are resolved, through good faith negotiations or through arbitration
as per Section 8.04 (ARBITRATION) of this Lease. If Tenant's
internal or independent audit of the Building Operating Costs for
the Base Year or Base Real Estate Taxes, or any subsequent year
indicates that Tenant was overcharged for the Operating Cost
Escalation or Real Estate Tax Escalation by an amount which is
greater than or equal to 3% of the amount which should have been
paid by Tenant, Landlord shall promptly reimburse Tenant for all of
Tenant's travel expenses and audit fees incurred for the audit.
(2) Landlord agrees to waive any defense of statute of limitations until
after Tenant's receipt of the final Real Estate Tax or Operating
Cost Escalation after the Lease Expiration Date.
(3) The escalation payments for the last year of the Lease shall be
based upon the number of actual months Tenant occupied the Premises
during that year and shall be prorated accordingly.
(4) If there is a change in ownership of the Building, Landlord agrees
to give complete copies of all records affecting Building Operating
Costs and Real Estate Taxes to the subsequent owner. Any successor
to Landlord's interest shall, by collecting rent under this Lease,
be liable to Tenant for any overcharges in the Real Estate Tax
Escalation or the Operating Cost Escalation.
(5) In no event will the Base Rent be reduced if the Building Operating
Costs or Real Estate Taxes for any year during the Lease Term are
less than the Base Year amounts.
ARTICLE III. LANDLORD'S OBLIGATIONS
3.01. SERVICES PROVIDED BY LANDLORD
Landlord shall provide Tenant with the following services (the
"Services") at Landlord's sole cost and expense. Landlord shall provide
these services, in a first-class manner using first-class materials and
workmanship, Monday through Friday from 7 a.m. to 7 p.m. and Saturday
from 8 a.m. to 1 p.m. (the "Business Hours"), or as specified below.
Landlord shall not be required to provide
16
services on the following holidays: New Year's Day, Memorial Day,
Independence Day, Labor Day, Thanksgiving Day and Christmas Day (the
"Holidays").
A. A heating, ventilation and air conditioning ("HVAC") system for the
Premises, as described In Exhibit C (BASE BUILDING IMPROVEMENTS),
---------
fully equipped and of sufficient capacity to achieve maximum
efficiency and conserve energy in its operation for Tenant's
employees and business machinery and equipment. The HVAC system
shall maintain the temperature in the Premises at not less than 72
(degree) F based upon a "dry-bulb" measurement (and 55 (degree) F
based upon a "wet-bulb" measurement) in the winter and not more than
76 (degree) F based upon a "dry-bulb" measurement (and 60 (degree) F
based upon a "wet-bulb" measurement) in the summer.
B. Electrical current to the Premises for ordinary office use, lighting
and the HVAC system. Ordinary office use shall include, but shall
not be limited to, the operation of office equipment, typewriters,
word processors, personal computers, telephones, telecopy machines
and photocopy machines.
C. Complete Janitorial and Office Service and Supplies, as described in
Exhibit E, which shall include all costs of the replacement of
---------
lighting tubes, lamp ballasts, and bulbs.
0. Hot and cold water sufficient for drinking, lavatory, toilet and
ordinary cleaning purposes.
E. Security Service shall be provided in a manner comparable to other
"first-class buildings" (as defined in Section 9.07, FIRST-CLASS
BUILDINGS), and consistent with reasonably prudent standards of
maintaining a safe operating environment and the deterrence of
activities opposing this objective. Landlord reserves the right to
use public or private security personnel and services to provide
such security. Landlord hereby represents that such security shall
include guard service during non-Business Hours.
F. Automatic passenger elevators and freight elevators as described in
Exhibit C (BASE BUILDING IMPROVEMENTS), which shall provide access
---------
to the Premises twenty-four (24) hours a day, seven (7) days a week,
including Holidays and when Tenant moves into and out of the
Premises.
G. Extermination and pest control when necessary.
H. Maintenance of and service to all the Common Area Facilities to
maintain the same in a first-class condition. The maintenance and
service shall include cleaning, HVAC, electrical current and
illumination, snow shoveling, de-icing, repairs, replacements, lawn
care, trash hauling and landscaping.
I. Electrical current and HVAC for the telecommunications rooms as
described Exhibit D (WORK LETTER AGREEMENT) shall be
---------
17
provide twenty-four (24) hours a day seven (7) days a week.
J. Shuttle Bus Service between the Building and the Quincy, MA MTA
Station, which service shall be provided at least two (2) times per
day arriving at the Building prior to 9:00 am and twice departing
the Building after 4:00 pm, excluding Holidays. In the event Tenant
chooses not utilize the shuttle bus service, Tenant shall give
Landlord thirty (30) days notice and thereafter Tenant's Base Rent
shall be reduced by $.52 per rentable square foot of the Premises
and Tenant's Base Year for Operating Cost Escalation shall be
adjusted and shuttle bus charges shall no longer be part of the
Building Operating Costs. Tenant shall have the option to request
Landlord to add one (1) additional van to the shuttle bus service
upon giving Landlord thirty (30) days notice and thereafter Tenant's
Base Rent shall be increased by $.31 per rentable square foot of
Premises and Tenant's Base Year for Operating Cost Escalation shall
be adjusted to reflect two (2) vans being in operation rather than
one (1).
K. Cafeteria and food vending on the first floor substantially similar
to the cafeteria in operation as of the date of this Lease.
L. An equipment fitness center with showers and changing rooms at no
cost for Tenant's use.
Tenant shall have the right to request any or all of the Services
outside of the Business Hours or the Holidays, and the same shall be
supplied upon advance notice, at Tenant's expense. If more than one
tenant directly benefits from these services then the cost of providing
the services during non-Business Hours shall be allocated
proportionately between or among the benefiting tenants based upon the
amount of time each tenant benefits and the square footage of each
tenant's premises. The cost for these additional Services shall, in no
event, exceed Landlord's actual costs. The cost for additional HVAC and
electrical services shall be $18.00 per hour per zone, and shall be
allocated as described above.
3.02. REPAIRS AND MAINTENANCE
Tenant shall keep the Premises and Tenant's fixtures in good order
during the Lease Term and make repairs and replacements to the Premises
which are necessary due to Tenant's misuse or negligence.
Except for repairs and replacements that Tenant is required to make due
to its misuse or negligence, Landlord shall pay for and make all other
repairs and replacements to the Premises, the Common Area Facilities and
the Building, including the Building structure, systems, fixtures and
equipment. Landlord shall make all repairs and replacements necessary to
maintain the Building in a first-class condition.
Landlord may obtain reasonable access to the Premises to perform repairs
to the Building, the Common Area Facilities and the Premises at
reasonable times upon twenty-four (24) hours prior
18
notice to tenant. Landlord or Tenant may make emergency repairs without
giving the other party prior notice. to Tenant makes emergency repairs
without giving Landlord prior notice9 Landlord shall be obligated to
reimburse Tenant for the cost of such emergency repairs. Any repairs or
replacements which Landlord is required to make shall be made within a
reasonable period of time after receiving notice or having actual
knowledge of the need for such repair or replacement. When making
repairs, Landlord shall take all necessary actions to protect Tenant's
property and personnel from loss, damage and injury and to avoid
disrupting Tenant's use and occupancy of the Premises.
3.03. PARKING
Landlord shall provide, at no additional cost to Tenant, four (4)
parking spaces for every 1,000 rentable square feet of the Premises. Of
the parking spaces provided, one covered parking s ace for every 2,100
rentable square feet of the Premises shall be located in the parking
garage below the Building and the remaining spaces shall be located In
the paved surface parking lot adjacent to the Building on a non-
exclusive basis in common with other Building tenants. The parking areas
are shown on Exhibit A-4 and shall be available for Tenant's use during
-----------
the Business Hours. In addition, Landlord shell reserve a minimum of
fifteen (15) guest and visitor parking spaces which shall be shared in
common with other Building visitors.
Dir ectional signs for public identification shill be provided, and the
parking area shall be adequately striped and lighted and secured red to
provide for the safety of Tenant's employees and guests. Tenant reserves
the right to identify and segregate such parking spaces, at Tenant's
expense. The parking spaces and associated lighting shall be available
for Tenant's use at no additional cost in the event that Tenant conducts
a second shift operation. Landlord shall maintain the parking area in
first -class condition and repair at all times during the Lease Term,
Landlord shall only allow parking for vehicles consistent with the
typical and reasonable tenant composition of an office building.
If Tenant's number of parking spaces as identified above shall be
reduced subsequent to an occurrence as set forth in sections 6.01
(DAMAGES) or 6.02 (EMINENT DOMAIN), Landlord shall provide Tenant with
comparable alternate parking spaces in order to maintain Tenant's ratio
of parking spaces as set forth above.
Three (3) additional underground parking spaces in the Building parking
garage shall be designated and identified with proper signage, at
Landlord's expense, for Tenant's Drive-In Claim operations and an
appraisal office to be located adjacent to the parking spaces in the
lower level of the Building, as described in Exhibit D, (WORK LETTER
---------
AGREEMENT)
3.04. LIFE SAFETY AND SECURITY REQUIREMENTS
Landlord shall maintain the Life Safety and Security systems described
in Exhibit C (BASE BUIL WING IMPROVEMENTS) and shall
---------
comply with all requirements of all prevailing governmental authorities
having or claiming jurisdiction over the Building, the Common Area
Facilities and the Land. Landlord shall, prior to the Lease Commencement
Date, provide to Tenant a written emergency evacuation plan in
accordance with OSHA (as defined in Section 5.02.) standards or any
comparable standard if OSHA should be superseded.
Landlord shall conduct at least two (2) evacuation drills for the
Building per calendar year. Any problems discovered during these drills
shall be resolved jointly by Landlord and Tenant.
3.05. XXX WING RULES AND REGULATIONS
Landlord shall enforce uniformly and on a non-discriminatory basis the
Building Rules and Regulations, attached to this Lease as Exhibit J,
---------
upon all tenants in the Building. The purpose of the Building Rules and
Regulations shall be to ensure the safety, care, order or cleanliness of
the Building and Common Area Facilities. If any of the Building Rules or
Regulations conflicts with or is inconsistent with any provision of this
Lease, the Lease provision shall control. If Landlord modifies or
supplements the Building Rules and Regulations, Landlord shall provide
Tenant with advanced written notification of such modification or
supplement.
3.06 NON-SOLICITATION
Landlord shall implement, maintain and enforce a policy which prohibits
solicitation, canvassing, peddling, demonstrations, public protests, or
any other activity which would be disruptive to tenants in the Building,
from occurring in the Common Area Facilities. Landlord shall post
written notification of such policy in all the public Common Area
Facilities, as is reasonably practicable.
ARTICLE IV. TENANT'S RIGHTS AND OPTIONS
4.01 SUBLEASING AND ASSIGNMENT
Tenant may, upon notice to Landlord, sublease all or any part of the
Premises or assign this Lease, subject to Section 1.06 (USE).
Notwithstanding the foregoing, Tenant may sublease all or any portion of
the Premises or assign this Lease to its subsidiaries, affiliates and/or
independent contracted insurance agents without first notifying
Landlord. Any assignment or subleasing shall not release Tenant from
liability under this Lease except if the creditworthiness of the
proposed sub lessee or assignee is approved by Landlord to be
sufficient, which approval shall not be unreasonably withheld or
delayed. In order for Landlord to make such determination, Tenant shall
provide Landlord, within thirty (30) days of the anticipated sublease
commencement date; (i) the name and address of the proposed subtenant or
assignee; ( ii) the nature of the proposed subtenant's or assignee's
business; (iii) the terms of the proposed sublease or assignment and
(iv) reasonable financial information so that Landlord can evaluate the
proposed subtenant or assignee. If Landlord and Tenant cannot agree as
to the adequacy of such sub lessee's or
20
assignee's creditworthiness, such matter shall be subject to arbitration
in accordance with Section 8.04 (ARBITRATION). Notwithstanding any of
the foregoing to the contrary, Tenant may not assign this Lease or
sublease any portion of the Premises if Tenant is in Default (as defined
in Section 8.01.) under this Lease either on the date Tenant provides
Landlord with the information set forth above or, unless waived in
writing by Landlord, on the proposed commencement date of such sublease
or assignment.
4.02 ALTERATIONS
Tenant may make improvements, additions, installations, decorations and
changes ("Alterations") of a non-structural nature to the Premises
without Landlord's prior written approval. Non-structural Alterations
means any Alterations which do not affect any of the major Building
systems or structural components. All non-structural Alterations shall
become Landlord's property at the expiration of the Lease Term unless
otherwise agreed to in writing. Systems furniture and Tenant trade
fixtures, including moveable partitions, panels, screens, and HVAC
systems provided by Tenant, are Tenant's property and shall remain
Tenant's property at the expiration of the Lease Term, unless otherwise
so elected by Tenant.
Tenant shall employ contractors who guarantee to use first-class
materials and workmanship and who shall comply with all local building
codes. Tenant shall not permit any lien to be placed on record with
respect to any part of the Building for work or materials provided or
obligations incurred by or for Tenant. Tenant shall discharge any such
lien of record within thirty (30) days.
4.03. TENANT SIGNAGE
Landlord shall provide Tenant with identification and signage in
accordance with Tenant's specifications as described in Exhibit C
---------
(BASE BUILDING IMPROVEMENTS).
Landlord shall obtain Tenant's prior written consent if any insurance,
managed care or financial services competitor of Tenant requests
approval to display any exterior sign. Tenant's withholding of consent
shall not be unreasonably withheld or delayed. In no event shall the
signage of any competitor of Tenant be more prominent than Tenant's
signage.
4.04. SPACE ADJUSTMENT OPTIONS
Tenant shall have the option, upon giving Landlord six (6) months prior
notice, to acquire or surrender space as follows:
A. Acquiring Additional Space
On the 3rd, 5th and 7th anniversary date(s) of the Lease
Commencement Date, Tenant may lease a contiguous area of additional
space, up to 10% of Tenant's then existing rentable area on the 1st
or 2nd floor(s) as outlined on Exhibit A-2. In addition, on or
-----------
before June 1, 1995 Tenant
21
may lease up to 7,400 rentable square ?/feet, as outlined on
Exhibit A-2 as the "6-1-95 Option Space". Any additional space
-----------
shall be leased to Tenant upon the same terms and conditions as
provided in this Lease (including pro-rated Tenant Improvement,
Moving, Design and other allowances) for the remainder of the Lease
Term and shall be at the net effective Base Rent Rate as described
in Section 2.01 (RENT), adjusted for Real Estate Tax Escalation and
Operating Cost Escalation.
(1) Landlord shall provide the additional space with all Base
Building Improvements provided in Exhibit C and a pro-rata
---------
share, based on the remaining Lease Term of the Tenant
Improvement Allowance as provided in Exhibit D.
---------
(2) Tenant shall be entitled to additional parking spaces on the
same basis as described in Section 3.03 (PARKING). This does
not apply to Drive-In Claim parking spaces.
(3) Tenant may not acquire this additional space if Tenant is in
Default under this Lease either on the date Tenant exercises
its option to Lease the additional space or, unless waived in
writing by Landlord, on the proposed commencement date for the
additional space.
B. Surrender of Space
On the 3rd, 5th and 7th anniversary date(s) of the Lease Commencement
Date, Tenant may surrender up to 10% of Tenant's then existing rentable
area and thereupon the Base Rent, Operating Cost Escalation, Real Estate
Tax Escalation and Tenant's Proportionate Share shall be proportionately
reduced. In addition, the number of unreserved parking spaces and
underground parking spaces provided to Tenant in Section 3.03 (PARKING)
above shall be proportionately reduced.
(1) If Tenant surrenders space on the 3rd anniversary date, Tenant
shall pay Landlord the cost of the unamortized Tenant Improvements
for such surrendered area which shall be amortized on a straight-
line basis over ten (10) years utilizing an interest rate of 8.5%.
(2) If Tenant surrenders space on the 5th anniversary date, Tenant
shall pay Landlord the cost of the unamortized Tenant Improvements
for such surrendered area which shall be amortized on a straight-
line basis over ten (10) years utilizing an interest rate of 8.5%.
(3) If Tenant surrenders space in response to Landlord's request,
Tenant shall be relieved of all obligations to pay Base Rent, the
Operating Cost Escalation and the Real Estate Tax Escalation with
respect to the surrendered portion of the Premises.
22
4.05. RIGHT OF FINAL REFUSAL/OFFER
If Tenant's Proportionate Share is equal to or exceeds 25%, and Landlord
shall receive a bona fide offer (the "Offer") from any third party to
lease any available space in the Building, at any time during the Lease
Term, Landlord shall notify Tenant of such Offer through written notice,
enclosing a copy of the Offer, and Tenant may, within ten (10) days,
accept the terms of the Offer in writing and within thirty (30) days
thereafter lease the available space under the terms and conditions
specified in the Offer, including without limitation, the rental rate
which the third party accepted and would have paid if such third party
had entered into a lease with Landlord for such space. This right of
first refusal is in addition to Tenant's option to acquire additional
space under Section 4.04 (SPACE ADJUSTMENT OPTIONS). Any space acquired
under this right of first refusal shall not reduce Tenant's ability to
acquire space under said Section 4.04.
Notwithstanding the foregoing, if Tenant's Proportionate Share is
less than 25%, and the space shown on Exhibit A-5 (the "Right of First
-----------
Offer Space") shall become available, Landlord shall notify Tenant, in
writing of its availability. Tenant shall have ten
(10) days from its receipt of Landlord's notice to notify Landlord of
its desire to Lease such Right of First Offer Space. Within thirty (30)
days of Tenant's notice to Landlord, Landlord and Tenant shall enter
into a Lease for such space upon the same terms and conditions as this
Lease, including the Base Rent.
Notwithstanding the foregoing, Tenant may not exercise either (a) its
right of first refusal or (b) its option to lease the right of First
Offer Space if Tenant is in Default under this Lease either on the date
Tenant exercises its option to Lease the space described in the Offer or
the Right of First Offer Space, as the case may be, or, unless waived in
writing by Landlord, on the proposed commencement date for such space.
4.06. RENEWAL OPTION
Tenant shall have the option to renew this Lease (the "Renewal Option")
for an additional term of up to 5 years, upon the same terms and
conditions as in the initial Lease Term except that the Base Rent for
the renewal term shall be at a mutually agreed upon negotiated rate,
which rate shall not exceed ninety-five percent (95%) of the Fair
Market Rate at that time. The Base Year for Building Operating Costs and
the Base Tax Year shall be updated to the calendar year or the Tax Year,
as appropriate, which immediately follows the calendar year in which the
renewal term commences. "Fair Market Rate" shall mean the average of the
annual rental rates then being charged in the office market sector of
the area where the Building is situated, for comparable space for leases
commencing on or about the time of the commencement of the lease term to
which this definition applies, taking into consideration use, location
and floor level of the applicable building, the location, quality and
age of the building, leasehold improvements or allowances provided,
rental concessions (such as abatements, lease assumptions or takeovers
and moving expenses), the date that the particular rate under
consideration became effective, the term of the lease under
23
consideration, the extent of services provided thereunder, applicable
distinctions between "gross" leases and "net" leases, base year figures
for escalation purposes, brokerage fees saved due to the renewal, the
period for which space would be vacant if Tenant were to vacate the
space rather than to renew, the creditworthiness and quality of Tenant,
and other adjustments to the base rental and any other relevant term or
condition in making such evaluation, including bonfide written offers
made to Landlord by unrelated third parties at an arms-length basis to
lease the same comparable space. Tenant shall determine the amount of
space that shall be subject to renewal and Tenant shall give Landlord no
less than twelve (12) months notice of Tenant's space requirements prior
to the expiration of the then initial term. Landlord shall notify Tenant
of the Base Rent for the renewal term within one (1) month of receiving
Tenant's notice. Landlord and Tenant shall agree upon the Base Rent and
renewal terms by March 1, 2004, or this Lease shall automatically expire
upon the Lease Expiration Date. If this Renewal Option is exercised, the
Lease Expiration Date shall mean the last day of the renewed Lease Term.
4.07. HOLDING OVER
If Tenant desires to continue to use the Premises, or any part of the
Premises, after the expiration of either the Lease Term or any renewal
of this Lease, Tenant will give Landlord ninety (90) days' prior written
notice of Tenant's intention to do so which notice shall specify the
portion of the Premises with respect to which Tenant intends to hold-
over (the "Hold-over Space"). If Tenant timely gives Landlord notice as
aforesaid, Landlord shall give Tenant notice within ten (10) days of
receipt of Tenants notice (i) specifying whether or not Landlord has
previously executed a lease for all or a portion of the Hold-over Space
and (ii) upon execution thereafter of a lease for all or a portion of
any Hold-over Space specifying such Hold-over Space subject to lease.
Tenant may hold-over in any Hold-over Space with respect to which
Landlord has not executed a lease, for so long as Landlord shall not
have executed a lease with respect thereto, provided that: (i) such
tenancy shall be on a month-to-month basis and will not be construed as
a tenancy at sufferance and (ii) Tenant will pay Landlord monthly rent
during such tenancy the same as the last month's rent of the expiring
term, plus the allocable Real Estate Tax and Operating Cost Escalation
applicable to the month in question. Such month-to-month tenancy shall
not exceed six (6) months in duration (the "Maximum Hold-over Period").
Landlord may not evict Tenant from the Hold-over Space during the
Maximum Hold-over Period.
Tenant may not hold-over in any Hold-over Space with respect to which
Landlord has executed a lease and Tenant must surrender such Hold-over
Space in accordance with this Lease.
If Tenant should hold-over without the right to do so as provided
herein, Tenant shall be responsible for monthly, the Base Rent equal to
one and one-half (1 1/2) times the monthly installment of the Base Rent
for the last full month of the Lease Term.
24
4.08. EARTH SATELLITE STATION
At any time during the term of this Lease, at no additional rental cost,
Tenant shall have the right to install, operate and maintain a
satellite-earth communications station (antenna and associated
equipment), microwave equipment and/or an FM antenna on the Building or
the Land in an area designated by Landlord, which area shall be
conducive to the operation of an satellite-earth station.
The satellite station or microwave equipment will be connected to
communications equipment located within the Premises via cable. Adequate
cable distribution and conduits will be made available to Tenant, at
Tenant's expense.
Tenant agrees to comply with all applicable federal, state or local
regulations, and shall obtain Landlord's approval for final equipment
locations prior to its installation, which approval shall not be
unreasonably withheld or delayed. Landlord will support Tenant's efforts
to acquire local zoning permits, if such are required for this purpose.
The installation and required maintenance of this equipment shall be at
Tenant's sole cost and expense and shall in no way deface or adversely
alter the appearance of the Premises, the Building or the Land. Tenant
will be responsible for removing the installation at the end of its
tenancy, if Tenant so elects or if Landlord so requires, and Tenant will
repair any damage caused by its removal.
Landlord will cooperate with Tenant regarding the installation,
maintenance, repair and removal of the satellite station by Tenant.
No other tenant may place a satellite station on the Building or on the
Land without Tenant's approval, which shall only be withheld if Tenant's
reception or transmittals will be adversely impaired.
ARTICLE V. LIABILITY
5.01. INSURANCE
A. Landlord's Insurance
Landlord shall maintain in full force and effect during the Lease
Term all-risk property damage insurance for the Building, the
Common Area Facilities and the Land and all improvements on the
Land, including the Tenant Improvements described in Exhibit C
---------
(BASE BUILDING IMPROVEMENTS) and Exhibit D (WORK LETTER
---------
AGREEMENT), in the amounts of the full replacement values
thereof, as the values may exist from time to time; Boiler and
Machinery Insurance; Comprehensive General Liability Insurance,
including Contractual Liability, on an occurrence basis with
limits of not less than $5,000,000 per occurrence; Worker's
Compensation and Employer's Liability Insurance for all of
Landlord's agents, employees and contractors; Automobile
25
Liability Insurance for any automobiles or vehicles operated by
Landlord, its agents, employees contractors in connection with
the operation or maintenance of the Building, the Common Area
Facilities and the Land, with limits of not less than $1,000,000.
Notwithstanding the foregoing, the originally-named Landlord
shall have the right to self insure or to insure with a blanket
policy of insurance. Landlord's insurance shall be issued by
insurance companies licensed to do business in the state where
the Building is situated, with a general policyholder rating of
at least A- and a financial rating of at least XV in the most
current Best Insurance Report available at the time of execution
of this Lease. If the Best's ratings are changed or discontinued,
Landlord and Tenant shall agree to an equivalent method of rating
insurance companies.
Landlord's insurance policies shall be primary in the event of a
loss or claim occurring in the Common Area Facilities which is
not due to the negligence of Tenant, its agents, contractors,
employees or invitees.
B. Tenant's Insurance
Tenant shall maintain in full force and effect during the Lease
Term all-risk property damage insurance for Tenant's personal
property and trade fixtures; Worker's Compensation Insurance for
all of Tenant's employees working on the Premises and
Comprehensive General Liability Insurance with limits of not less
than $2,000,000 per occurrence, for injuries, losses, claims or
damages to persons or property occurring on the Premises, and due
to Tenant's use or occupancy of the Premises or to the negligence
or willful misconduct of Tenant, its agents, contractors,
employees or invitees.
Tenant reserves the right to self-insure or to insure with a
blanket policy of insurance the liabilities and casualties
specified in this Lease. Therefore, Tenant shall not be required
to provide Landlord with any certificates or policies of
insurance; however, Tenant shall provide Landlord with a letter
confirming such insurance, if requested by Landlord.
C. Indemnification
Landlord shall indemnify, defend and hold Tenant harmless (with
counsel approved by the Tenant) from any liabilities, claims,
damages, expenses, costs, losses, actions, fines, penalties, or
lawsuits for personal injury, death, and/or property damage
including, without limitation, court costs, reasonable attorney
fees, and other reasonable costs of litigation arising from any
incidents occurring in or about the Common Area Facilities or the
Land except that Landlord shall not so indemnify Tenant to the
extent the subject injury, death or damage is caused by the
negligence or willful misconduct of Tenant or its agents,
employees, contractors or invitees.
26
Tenant will indemnify, defend and hold landlord harmless (with
counsel approved by Landlord) from any liabilities, claims,
damages, expenses, costs, losses, actions, fines, penalties, or
lawsuits for personal Injury, death and/or property damage
including, without limitation, court costs, reasonable attorney
fees, and other reasonable costs of litigation for any incidents
occurring in or about the Premises except that Tenant shall not
so indemnify Landlord to the extent the subject injury, death or
damage is caused by the negligence or willful misconduct of
Landlord or its agents, employees, contractors or invitees.
5.02. ENVIRONMENTAL COMPLIANCE
A. Environmental Site Assessment
Prior to the Lease Commencement Date, Landlord, at Landlord's sole
cost and expense, shall provide Tenant with a Phase I Environmental
Site Assessment ("ESA") conducted by a reputable and licensed firm
in the industry, if one is available. Such ESA shall include an
assessment of possible indoor asbestos containing material. If a
Phase II Environmental Site Assessment has been conducted, Landlord
shall also provide Tenant with the results of the same. If an ESA
(or subsequent Phase II) is not available, Landlord shall provide
Tenant with an "Asbestos Survey" of possible asbestos containing
material in the Building, conducted by a licensed and certified
Industrial Hygienist or Environmental Consultant.
B. Use of Asbestos and PCB's
Landlord represents and warrants to, and covenants with Tenant as
follows:
(1) If the Building is being constructed or if any modifications
or renovations are to be done now or at any time during the
Lease Term, Landlord or Landlord's contractors shall not use
asbestos containing material for fireproofing or other
purposes in such construction.
(2) If the results of the ESA or Asbestos Survey, or the actual
knowledge of Landlord, or its contractors, employees or
Tenant, confirm that asbestos containing material is present
in the Premises, Landlord agrees to remove all such asbestos
containing material and any debris from the Premises, at
Landlord's sole cost and expense prior to the Lease
Commencement Date. Such removal shall be completed in
accordance with all applicable federal, state and local laws
and regulations concerning the removal of asbestos, and
completed in accordance with methods approved by the
Environmental Protection Agency ("EPA") and the Occupational
Safety and Health Administration ("OSHA"), and performed by
licensed industrial hygienists. Landlord will prosecute the
work diligently to completion. After the removal procedure,
Landlord will
27
monitor the air quality of the Premises by performing post
abatement air clearance tests. Such tests shall be performed
in accordance with procedures which meet the more stringent
of the Asbestos Hazard Emergency Response Act ("AHERA") or
state or local guidelines. If the results of such tests show
an asbestos fiber count exceeding .01 fibers/cc (TEN)
("Acceptable Air Quality"), the Lease Commencement Date
shall be delayed and Tenant will not occupy the Premises or
commence the payment of Rent, until the situation has been
remediated and the results of air sample testing verify an
Acceptable Air Quality. Landlord will use due diligence to
achieve such results. In no event shall remediation occur
later than thirty (30) days following the Lease Commencement
Date.
(3) If the results of any ESA or the Asbestos Survey, or the
actual knowledge of Landlord, or its contractors, employees
or Tenant confirm that asbestos containing material is
present in other areas of the Building or the Common Area
Facilities, such areas shall be identified in the Operations
and Maintenance Program attached hereto as Exhibit N. If the
---------
results of any ESA's, an Asbestos Survey, or the actual
knowledge of Landlord or its contractors, employees or
Tenant, confirms that any such asbestos or asbestos
containing material is friable, prior to the Lease
Commencement Date or within a reasonable period of time
thereafter, Landlord shall encapsulate such asbestos or
asbestos containing material in accordance with all
applicable federal, state and local laws and regulations
concerning the encapsulation of asbestos containing material
and in accordance with methods approved by the EPA and OSHA.
After the encapsulation procedure, Landlord will monitor the
air quality of the Premises and the Common Area Facilities
directly serving the Premises, by performing post abatement
air clearance tests. Such tests shall be performed in
accordance with procedures which meet the more stringent of
the AHERA or state or local guidelines. If the results of
such tests show an asbestos fiber count exceeding the
Acceptable Air Quality, the Lease Commencement Date shall be
delayed and Tenant will not occupy the Premises or commence
the payment of Rent, until the situation has been remediated
and the results of air sample testing verify an Acceptable
Air Quality. Landlord will use due diligence to achieve such
results. In no event shall remediation occur later than
thirty (30) days following the Lease Commencement Date.
After the completion of the initial asbestos removal from
the Premises, or the encapsulation of any asbestos
containing material in the Building or the Common Area
Facilities, Landlord hereby agrees to implement and maintain
throughout the Lease Term, as renewed or extended, or until
one (1) year after all asbestos containing material has been
removed from the Building
28
and the Common area Facilities and such removal properly
documented, at Landlord's sole cost and expense and without
cost to Tenant, an on-going Operations and Maintenance
Program (the "O&M Program"). The terms and requirements of
O&M Program shall be attached hereto as EXHIBIT M. The
O&M Program shall include periodic hazard assessments and
inspections of any asbestos containing material. Upon
Tenant's request, the results of the periodic hazard
assessments shall be made available to Tenant. If any such
assessment indicates that any asbestos containing material
has become friable, or if any friable asbestos containing
has become dangerous, or if a possible disturbance of any
asbestos containing material is planned, or if previously
undisclosed friable asbestos containing material is
discovered, Landlord will notify Tenant and initiate
immediate encapsulation or removal of the material in the
same manner set forth herein and aforementioned. Such
remediation procedures shall be at the sole cost and expense
of Landlord, unless, however, such is necessitated due to an
act of Tenant. Tenant shall be notified in writing, in
advance, of the remediation procedure which will occur. Such
notice shall set forth the contemplated procedure, and the
dates and times in which such procedure will be performed.
The procedure will in no event be performed during the
Business Hours without the written consent of Tenant. In the
event Tenant objects to the time of the procedure because
Tenant or its employees intend to be in the vicinity of the
procedure during the time which it is to be performed,
Tenant shall notify Landlord in writing within five (5) days
of Tenant's receipt of Landlord's notice regarding the
procedure. Tenant's failure to so notify Landlord shall
constitute Tenant's approval of the timing of the procedure.
If Tenant objects as aforesaid to the timing of the
procedure, Landlord and Tenant shall mutually determine a
reasonably appropriate time for such procedure. Before,
during and after any asbestos abatement procedures, Landlord
shall monitor the air quality of the Premises and the Common
Area Facilities and the results of such tests will be
provided to Tenant. If the results of the air monitoring
tests show an asbestos fiber count exceeding the Acceptable
Air Quality in the Premises, the Building or the Common Area
Facilities, including during or after a disturbance or
remediation procedure, and such is due to an act of
Landlord, its agents, employees or contractors, Tenant's
rent will be abated and Tenant will vacate the Premises and
Landlord will pay for the relocation of Tenant to acceptable
alternate office space, reasonable for the conduct of
Tenant's business, until Tenant can safely return to the
Premises and the results of all air quality testing are in
accordance with the standards set forth herein. if the
hazardous situation cannot be cured or the Acceptable Air
Quality standard reached within ninety (90) days, or within
a reasonable period of time thereafter if Landlord is
29
Pursuing a cure with due diligence, but in no event later
than one hundred-eighty (180) days thereafter, or if as per
the assessment of a licensed industrial hygienist the
situation is uncurable and constitutes a material danger of
bodily harm to Tenant, its employees or invitees, Tenant
shall notify Landlord of its intention to terminate this
Lease, without penalty or default and thereafter Tenant will
have no further obligations under the Lease (including no
further obligations to pay the annual Base Rent or Operating
Cost and Real Estate Tax Escalations) after the date which
Tenant vacates the Premises.
(4) None of the electrical transformers or capacitors that
directly serve the Building or the Common Area Facilities or
that are located on the Land contain polychlorinated
biphenyls ("PCB's") or, if they do, Landlord shall promptly
notify Tenant of (i) Landlord's plan for their removal, (ii)
all action which has been taken to prevent contamination of
the Premises should a fire or accidental release of PCB
fluid occur, and (iii) all action which has been taken to
insure that health hazards do not and shall not exist at any
time during the Lease Term.
(5) In the event that Tenant's files, property or equipment are
contaminated by asbestos or PCB's found in the Building by a
source other than Tenant, Landlord shall pay for the cost of
decontamination, removal and reproduction of such items.
C. Hazardous Materials
Except as otherwise specifically provided for herein, Landlord
represents and warrants and covenants with Tenant as follows:
(1) The Land, the Building and the Common Area Facilities and
its existing uses comply with, and Landlord is not violation
of has not in the past violated, and will not violate in the
future, any federal, state, county or local statutes, laws,
regulations, rules, ordinances, codes or permits of any
governmental authorities relating to environmental matters
("Environmental Laws").
(2) Landlord, its agents, contractors and employees have, and
shall continue at all times in the future to receive,
handle, use, store, treat, transport and dispose of all
hazardous substances, as to be defined hereinafter, in
compliance with all Environmental Laws. Hazardous Substances
shall not include incidental quantities which are commonly
used in offices, such as copier fluid, typewriter correction
fluids and ordinary cleaning solvents, provided that such
are at all times used, kept and stored in a manner which
complies with all Environmental Laws. Hazardous Substances
shall mean and include the following, or as later defined
30
under any Environmental Laws, including mixtures thereof:
any hazardous substance, pollutant, contaminant, waste, by-
product or constituent regulated under the Comprehensive
Environmental Response, Compensation and Liability Act. 42
U.S.C Section 9601 et seq.; oil and petroleum products and
-------
natural gas, natural gas liquids, liquefied natural gas and
synthetic gas usable for fuel; pesticides regulated under
the Federal Insecticide, Fungicide, and Rodenticide Act.
Section 136 et seq.; asbestos and asbestos-containing
-------
materials; PCBs; substances regulated under the Toxic
Substances Control Act. 15 U.S.C Section 2601 et seq.;
-------
source material, special nuclear material, by-product
material and any other radioactive materials or radioactive
wastes, however produced, regulated under the Atomic Energy
Act or the Nuclear Waste Policy Act; chemicals subject to
the OSHA Hazard Communication Standard. 29 C.F.R (1910.1200
et seq.; and industrial process and pollution control wastes
-------
whether or not hazardous within the meaning of the Resource
Conservation and Recovery Act, 42 U.S. C. Section 6901 et
---
seq., as amended by the Hazardous and Solid Waste Amendments
----
of 1984.
(3) During the period in which Landlord has owned the Building,
there have been no decrees, injunctions, judgements, orders
or writs of an environmental nature relating to the
Building, or the Land or their uses, and there are no
current lawsuits, claims, proceedings or investigations of
an environmental nature relating to the Land, the Building,
or the Common Area Facilities or their uses.
(4) There are no indoor air pollution or air quality problems in
the Building, the Common Area Facilities or in the HVAC
system(s). Landlord shall notify Tenant if any indoor air
quality problem is discovered or reported in the Building or
relating to the HYAC system(s) and immediately undertake to
correct such problem.
(5) If an ESA confirms any environmental hazards, on the Land or
affecting the Land, or in the Building or the Common Area
Facilities, or if Landlord defaults under any of the
provisions of this Section 5.02 (C), and such default
imposes a material danger to the health or safety of
Tenant's employees, then Landlord shall have thirty (30)
days following written notice from Tenant to initiate action
to cure the same and remove such danger and shall thereafter
proceed diligently to complete such cure and remove such
danger. In the event that Landlord fails to commence its
action within thirty (30) days, or fails to diligently
proceed thereafter with such action, and cure the same to
completion within ninety (90) days following any such
written notice from Tenant, then Tenant may, if it so
elects, cancel this Lease after written notice to Landlord,
whereupon Tenant shall have no further
31
obligations under the Lease (including no further
obligations to pay the annual Base Rent or Operating Cost
and Real Estate Tax Escalations) after the date which Tenant
vacates the Premises.
D. Tenant's Environmental Compliance
Tenant at its expense, shall comply with all Environmental Laws,
present or future related to environmental conditions in, at or
about the Premises or Tenant's use of the Premises, including
without limitation, all reporting requirements and the
performance of any cleanups required by any governmental
authorities which are necessary due to an act of Tenant.
E. Indemnification
Landlord and Tenant shall each indemnify, defend and hold the
other harmless from any costs and expenses (including reasonable
attorney fees and consultant fees), fines, suits, claims,
actions, damages, liabilities asserted against or sustained by
any such person or entity, or any other person or entity, and
arising out of or in any way connected with Landlord's or
Tenant's failure to comply with its obligations under this
Section 5.02.
5.03. REQUIREMENTS OF LAW
A. Landlord's Compliance with Laws
Landlord shall be responsible for compliance, at Landlord's sole
cost and expense, with all statutes, rules, ordinances, orders,
codes and regulations, and legal requirements and standards
issued thereunder, as the same may be enacted and amended from
time to time (collectively referred to in this Lease as the
"Laws"), which are applicable to all or any part of the physical
condition and occupancy of the Building, the Common Area
Facilities or the Land or additions thereto.
Landlord represents and warrants that the Building, the Common
Area Facilities and the Land are in compliance with the Laws as
of the Lease Commencement Date.
Landlord shall also obtain, at Landlord's sole cost and expense,
any permit, license, certificate or other authorization required
for the lawful and proper use and occupancy by Tenant or any
other party of all or any part of the Premises and shall exhibit
the same to Tenant upon Tenant's request.
Landlord shall notify Tenant of any violation notices or waivers
of building, OSHA or life safety codes or outstanding insurance
carrier recommendations with respect to the Building, the Common
Area Facilities or the Land. Tenant shall notify Landlord of any
OSHA violation notices with respect to the Premises.
32
Except to the extent affected by Tenants particular use of the
Premises, Landlord shall be responsible for the compliance of the
Common Area Facilities with applicable laws relating to
architectural barriers to the disabled, including but not limited
to the law commonly known as the "Americans with Disabilities Act
of 1990" (the "ADA"). Landlord hereby agrees to indemnify, defend
and hold Tenant harmless from all loss, cost, liability or
expense, including reasonable attorney fees, resulting from its
failure to comply with all Laws relating to the Premises and
condition of the Common Area Facilities, including but not
limited to the ADA.
8. Tenant's Compliance with Laws
Tenant shall be responsible for compliance with all the Laws,
which are applicable to Tenant's particular use and manner of use
of the Premises and the Common Area Facilities.
In the event that Tenant's particular use of the Premises and the
Common Area Facilities violate any provision of the Laws,
including but not limited to the ADA, Tenant shall bear all
expense, cost and liability for compliance with such Laws,
including but not limited to the ADA. Tenant hereby agrees to
indemnify, defend and hold Landlord harmless from all loss, cost,
liability or expense, including reasonable attorney fees,
resulting from its failure to comply with all the Laws relating
to its occupancy of the Premises and use of the Common Area
Facilities, including but not limited to the ADA.
Further, notwithstanding the identity of the party incurring the
expense of such Tenant Improvements described in Section 1.08
(IMPROVEMENTS) and per Exhibit D (WORK LETTER AGREEMENT), it
shall be the obligation of Tenant to verify that all plans,
specifications and finished improvements prepared and completed
in connection with such construction comply with all applicable
Laws, including but not limited to the ADA. Additionally, if any
construction, modification or renovation is necessary in or to
the Premises as a result of applicable Laws, including, but not
limited to the ADA, such construction, modification or renovation
shall be the responsibility of Tenant and Tenant hereby agrees to
indemnify, defend and hold Landlord harmless from any loss, cost,
liability or damage resulting from the failure of any plans,
specifications or finished improvements to comply with all
applicable Laws, including but not limited to the ADA.
ARTICLE VI. LOSS OF PREMISES
6.01. DAMAGES
If the Premises or the Building are totally destroyed by fire or any
other casualty, this Lease shall automatically terminate as of the
date of such destruction. If the Building, the Common Area Facilities
or the Premises are damaged to the extent that Tenant cannot use the
same to conduct its business for at least ninety (90) days, Tenant may
terminate this Lease as of the date of damage by notice to Landlord
within thirty (30) days after such date. If the Building or any
portion of the Common Area Facilities or the
33
Premises are damaged by fire, casualty, or any other cause, and
Tenant, at the time of such fire, casualty or other cause, was
physically leasing greater than twenty percent (20%) of the rentable
area of the Building and was not in Default under this Lease, then,
except as provided below, the damage shall be promptly repaired by and
at the sole cost and expense of Landlord, which obligation to restore
shall be limited to the insurance proceeds available to Landlord for
such restoration. Until such repairs and restoration are completed,
the Base Rent, the Building Operating Cost Escalation and the Real
Estate Tax Escalation shall be abated in proportion to the portion of
the Premises or the Common Area Facilities which is unusable by Tenant
in the conduct of its business by virtue of such casualty. If such
damage can be repaired within ninety (90) days and Landlord fails to
repair or restore such damage within such period, Tenant may, upon
thirty (30) days notice to Landlord, in addition to all other remedies
Tenant may have under this Lease, at law or in equity, terminate this
Lease. If such damage cannot be repaired within ninety (90) days and
Tenant terminates this Lease, as provided above, then Landlord shall
not be obligated to repair or restore such damage. If Tenant was
leasing twenty percent (20%) or less of the rentable area of the
Building or was in Default under this Lease, as of the date of such
fire, casualty or other cause, Landlord shall not be obligated to
repair and restore such damage and Landlord may terminate this Lease
of the date of damage by notice to Tenant within thirty (30) days
after such date. If any such damage which causes any portion of the
Premises to become unusable by Tenant in the conduct of its business
occurs during the last nine (9) months of the Lease Term, Tenant may,
upon thirty (30) days notice to Landlord, terminate this Lease.
6.02. EMINENT DOMAIN
A. If all of the Land, the Building, the Common Area Facilities, or
Premises are taken by eminent domain or condemnation, (the
"Taking") this Lease shall terminate immediately upon the
effective date of the Taking.
B. If there is a partial Taking of the Land, the Building, the
Common Area Facilities or the Premises, Tenant may terminate this
Lease by notice to Landlord if the remaining Premises, the
Building, or the Common Area Facilities are not, in Tenant's
judgment, adequate for the conduct of Tenant's business.
If Tenant does not terminate this Lease, Landlord shall proceed
with due diligence to make all necessary repairs to the Land, the
Building, the common Area Facilities, or the Premises in order to
render and restore the same to the condition that they were prior
to the Taking. Tenant shall remain in possession of the portion
of the Premises not taken as long as use of the Common Area
Facilities is not materially impaired, upon the same terms and
conditions of this Lease, except that the Base Rent, Tenant's
Proportionate Share of Operating Cost Escalation and Real Estate
Tax Escalation and Tenant's Proportionate Share shall be reduced
in direct proportion to the area of the Premises and the Common
Area Facilities subject to the Taking.
34
If Tenant Is not able to access or occupy the Premises or any
portion thereof not taken, or is not able to use the Common Area
Facilities, while Landlord is making the required repairs, the
Base Rent, Operating Cost Escalation and Real Estate Tax
Escalation shall be abated in proportion to the portion of the
Premises or the Common Area Facilities which are unusable by
Tenant in the conduct of its business.
C. Damages awarded to Landlord for any Taking shall belong to
Landlord, whether or not the damages are awarded as compensation
for loss or reduction in value of the Land, the Building, the
Common Area Facilities, or the Premises; however, nothing shall
restrict or limit Tenant from asserting a claim for any
additional damages resulting from the Taking for any unamortized
leasehold improvements paid for by Tenant, Tenant's moving
expenses, or Tenant's trade fixtures and equipment, provided such
claim does not reduce Landlord's award.
ARTICLE VI. NON-DISTURBANCE
7.01. SUBORDINATION, ATTORNMENT AND NON-DISTURBANCE
A. If this Lease is subordinate to any existing fee or leasehold
mortgages, ground or air space leases or deeds of trust covering
the Land, the Building or the Common Area Facilities, Landlord,
prior to the Lease Commencement Date, shall obtain, have executed
and shall deliver to Tenant, a Subordination, Non-Disturbance and
Attornment Agreement by and between the Tenant and such prior
party, in the form of Exhibit I attached to this Lease.
---------
B. Subject to the provision of Subsection (1) below, this Lease
shall be subordinate and subject to any future fee or leasehold
mortgages, ground leases and deeds of trust covering the Land,
the Building, or the Common Area Facilities.
(1) If any mortgage is foreclosed or ground lease or air space
lease terminated, then:
(a) This Lease shall continue in full force and effect, and
(b) Tenant's quiet enjoyment shall not be disturbed if
Tenant is not in default of this Lease, and
(c) Tenant shall attorn to and recognize the mortgagee,
purchaser at a foreclosure sale or ground or other
lessor ("Successor Landlord") as Tenant's landlord for
the remaining Lease Term; and
(d) Successor Landlord shall not be bound by:
(i) any payment of the Base Rent, Operating Cost
Escalation or Real Estate Tax Escalation for more
than one month in advance, except for any free rent
or other rent abatement specified in
35
this Lease, or as otherwise provided In Section
2.02 (ESCALATION).
(ii) any amendment, modification, or termination of the
Lease without Successor Landlord's consent, after
Successor Landlord's name is given to Tenant,
unless the amendment, modification, or ending Is
specifically authorized by this Lease and does not
require Successor Landlord's prior agreement or
consent.
(2) This Section B is self-operating; however, Landlord or
Tenant shall cause a Subordination, Attornment and Non-
Disturbance Agreement in the form of Exhibit I to be
---------
executed and delivered if either party so requests.
7.02. ESTOPPEL CERTIFICATE
Each party hereby agrees, from time to time, upon not less than thirty
(30) days prior notice, to execute and deliver an estoppel certificate
(the "Estoppel Certificate"). The Estoppel Certificate may be relied
upon by Landlord or Tenant, as appropriate, and any third party with
whom Landlord or Tenant Is dealing, and shall certify the following, as
of the date thereof:
A. The accuracy of this Lease;
B. The Lease Commencement Date and the Lease Expiration Date;
C. That this Lease is unmodified and in full force and effect or in
full force and effect as modified, stating the date and nature of
all modifications;
D. Whether to the executing party's knowledge the other party is in
default or whether the executing party has any claims or demands
against the other party and, if so, specifying the claim or demand;
and
E. To other correct and reasonably ascertainable facts that are
covered by the terms of this Lease.
7.03. RECORDING OF LEASE
At the request of either party, the parties shall promptly execute and
record, at the cost of the requesting party, a short form memorandum
setting forth the names of the parties to this Lease, the date of
execution, the Lease Term, the Lease Commencement Date, the Lease
Expiration Date, a description of the Premises, any outstanding options
and any other information the parties agree to include or is required by
statute governing such short form memoranda. A form of short form
memorandum is attached hereto as Exhibit K.
---------
7.04. QUIET ENJOYMENT
Tenant shall have the peaceful and quiet enjoyment and possession of the
Premises without any interference from Landlord or any person claiming
by, through or under Landlord.
36
ARTICLE VIII. DISPUTES
8.01. DEFAULT BY TENANT
Tenant shall be considered in default ("Default") of this Lease if (i)
Tenant fails to pay the Base Rent within fifteen (15) days after Tenant
receives notice from Landlord that the Base Rent was not received; or
(ii) Tenant fails to perform any of its other obligations under this
Lease within thirty (30) days or within a reasonable period of time
thereafter if a cure cannot be accomplished with thirty (30) days after
receiving written notice from Landlord specifying that such Default
exists, setting forth in reasonable detail the nature and extent of the
Default and identifying the applicable Lease section(s).
If Tenant is in Default as stated above, Landlord, in addition to the
remedies given in this lease or under the law, may end this Lease after
giving Tenant thirty (30) days notice of its intention to do so and in
accordance with any laws governing such termination, and Tenant shall
then surrender the Premises to Landlord; or Landlord may enter and take
possession of the Premises, in accordance with any laws governing such
repossession, and remove Tenant, with or without having ended the Lease.
Landlord's exercise of any of its remedies or its receipt of Tenant's
keys shall not be considered an acceptance or surrender of the Premises
by Tenant. A surrender must be agreed to in writing signed by both
parties.
If Landlord terminates this Lease or terminates Tenant's right to
possess the Premises because of a Tenant Default, Landlord may hold
Tenant liable for the difference between (i) the Base Rent and other
indebtedness that otherwise would have been payable by Tenant to
Landlord prior to the Lease Expiration Date, and (ii) any sums Landlord
receives by reletting the Premises during the remainder of the Lease
Term. Tenant shall pay any such sums due within thirty (30) days of
receiving Landlord's proper and correct invoice for the amounts.
Landlord is not entitled to accelerate the Base Rent or any other
amounts which would become due from Tenant to Landlord. During each
collection action, Landlord shall be limited to the amount of the Base
Rent due that would have accrued had the Lease not been terminated.
Landlord shall mitigate its damage by making best efforts to relet the
Premises on reasonable terms.
8. 02. DEFAULT BY LANDLORD
If Landlord fails to perform any of its obligations under this Lease and
such failure is not a result of an act or omission of Tenant or the
occurrence of one or more of the events stated in Section 9.01 (FORCE
MAJEURE) below (a "Landlord Default"), Tenant shall give Landlord notice
specifying the Landlord Default. A Landlord Default must be cured (i)
within fifteen (15) days after receiving notice from Tenant; or (ii) if
the Landlord Default can not be cured within fifteen (15) days, within a
reasonable period of time thereafter in order to cure such Landlord
Default as long as Landlord has commenced a cure with due diligence
after receiving notice from Tenant (the "Cure Period"). If the Landlord
Default is not corrected within the Cure Period, then in addition to all
rights, powers or remedies permitted by law, Tenant may:
37
A. Upon the first occurrence of any Landlord Default, correct the
Landlord Default and deduct the cost from the Base Rent and other
sums payable; provided, that (a) Tenant shall give Landlord at
least 10 business days' prior written notice before commencing to
correct the Landlord Default, which notice shall describe in
reasonable detail the work Tenant intends to perform and shall
include copies of all relevant plans, sworn statements, permits,
certificates of insurance, names of contractor and any other
information reasonably required by Landlord, (b) Tenant shall
only use those contractors and subcontractors to perform such
work which shall not create disharmony with existing trades in
the Building, (c) Tenant is not in Default under this Lease, and
(d) Tenant agrees to indemnify, defend and hold Landlord harmless
from and against any and all claims, actions, damages, costs and
expenses (including, without limitation, court costs and
attorneys' fees for personal injury, property damage or loss of
business, asserted against or sustained by Landlord and arising
out of any work performed by or on behalf of Tenant hereunder,
and provided such work is the proximate cause of any such claim,
action, damage, costs, and/or expense;
B. Upon the second and any subsequent occurrence of any Landlord
Default, withhold payment of the Base Rent and other sums
payable, if any, due to Landlord until Landlord has corrected the
specified Landlord Default; or
C. Upon the third occurrence of any Landlord Default or upon the
failure of Landlord to cure any Landlord Default within ninety
(90) days, Tenant shall have the right to seek the judicial
remedy of specific performance or to terminate this Lease by
providing Landlord with notice of such termination.
Tenant agrees to simultaneously give Landlord's mortgagee or deed of
trust holders (the "Holder") a copy of any notice of a Landlord Default
which Tenant serves upon Landlord, to any address which Landlord has
provided to Tenant.
The Holder shall have the right to cure a Landlord Default within the
Cure Period.
8.03. REDUCTION OF SERVICES
The Base Rent is based in part upon Services which Landlord shall
provide as described in Section 3.01, (SERVICES PROVIDED BY LANDLORD).
If, as a result of an act or omission of Landlord or any employee, agent
or contractor of Landlord (as distinguished from an act or omission of
Tenant or the occurrence of one or more of the events stated in Section
9.01 (FORCE MAJEURE) below), Landlord does not provide any or all of the
Services or does not provide the Services in the manner described
therein for more than five (5) consecutive days following notice from
Tenant of such failure, interruption or reduction, the Base Rent, the
Operating Cast Escalation and the Real Estate Tax Escalation payable
for such portion of the Premises shall be abated on a per diem basis
for the period of interruption beginning with the date the failure,
38
interruption or reduction in services began and ending when the services
are fully restored.
Tenant may also withhold the payment of the Base Rent, the Building
Operating Cost Escalation and the Real Estate Tax Escalation after
giving Landlord notices of two (2) failures to provide a particular
service as a result of an act or omission of Landlord or any employee,
agent or contractor of Landlord (as distinguished from an act or
omission of Tenant or the occurrence of one or more of the events stated
in Section 9.01 (FORCE MAJEURE) below) within a twelve (12) month period
until the problem with that service has been adequately corrected, so as
to provide Tenant with reasonable assurance that such interruption shall
not occur again during the Lease Term. Upon the third occurrence within
a twelve (12) month period, of any failure to provide a particular
service, Tenant may, at its sole option, seek the judicial remedy of
specific performance or terminate this Lease by notice to Landlord.
8.04. ARBITRATION
If Landlord and Tenant cannot reach agreement upon the interpretation of
any of the following described terms or conditions of this Lease, the
dispute shall be subject to arbitration as provided in this Lease. Each
party shall choose an impartial arbitrator. If the two arbitrators
cannot agree, then the parties shall choose a third impartial
arbitrator. The arbitrators will have minimum of ten (10) years
experience in a profession related to the subject matter of the dispute
and the then prevailing Commercial Arbitration Rules of the American
Arbitration Association shall govern the proceeding. Both parties shall
continue performing their Lease obligations pending the determination of
the arbitration proceeding, except as otherwise provided for in this
Lease. The arbitrators shall have no power to change the Lease
provisions and the arbitrators shall base their decisions upon the
provisions of this Lease and, as appropriate, shall apply the law stated
in Section 8.05 (GOVERNING LAW) of this Lease. The arbitrators shall
submit their findings In writing, signed by each of them, within thirty
(30) days. The findings of the arbitrators shall be binding on both
Landlord and Tenant and the expense of the arbitration shall be shared
equally by Landlord and Tenant. If the arbitrators shall err in the
application of law or shall fail to base their judgment on this Lease,
the case may be entered into any court having jurisdiction for decision.
The following disputes shall be subject to arbitration:
a. any dispute which the parties mutually agree to submit to
arbitration;
b. the date when the Premises was Substantially Complete;
c. the amount of any abatement of Rent because of damages or eminent
domain;
d. the amount of any Operating Cost Escalation or Real Estate Tax
Escalation or any component part of the calculation;
39
Form Revised 8/1/93
e. which party must comply with any applicable laws;
f. whether the services furnished by Landlord are being provided in
the manner described in this Lease;
g. whether Tenant is entitled to an abatement of Rent and Operations
Cost Escalation and Real Estate Tax Escalation as provided in this
Lease;
h. whether Landlord's or Tenant's withholding of consent is
unreasonable or unduly delayed;
i. whether either party has the right to cancel this Lease as provided
in this Lease; or
j. whether or not a proposed assignee or sublessee has adequate
creditworthiness and whether Tenant's continued liability under
this Lease would be required in light of such assignment or
sublease.
8.05. GOVERNING LAW
This Lease, and the rights and obligations of the parties hereto, shall
be construed and enforced in accordance with the laws of the
Commonwealth of Massachusetts.
8.06. WAIVER OF CONSEQUENTIAL DAMAGES
Neither Landlord nor Tenant shall be liable to the other under or
in connection with this Lease for any consequential damages and both
Landlord and Tenant waive, to the full extent permitted by law, any
claim for consequential damages.
ARTICLE IX. MISCELLANEOUS
9.01. FORCE MAJEURE
After the Lease Commencement Date, neither party shall be responsible to
the other for any losses resulting from the failure to perform any terms
or provisions of this Lease if the party's failure to perform is
attributable to war, riot, acts of God or the elements or any other
unavoidable act not within the control of the party whose performance is
interfered with and which by reasonable diligence such party is unable
to prevent. However, neither party shall be excused from the timely
performance of its obligations under this Lease for a period of time
greater than ninety (90) days on account of force majeure.
9.02. END OF TERM
Upon the termination of this Lease, Tenant shall return the Premises in
the same condition as when Tenant took possession, excluding ordinary
wear and tear, loss from fire or other casualty, removal of
communications cabling and the restoration of the Premises to its
condition prior to any Tenant Improvements or Alterations made to it
during the Lease Term.
40
9.03. ENTIRE AGREEMENT
This Lease and all of its written and attached Exhibits, riders,
addendums, modifications, and amendments constitutes the entire
agreement between Landlord and Tenant with respect to the Premises and
the Common Area Facilities and may be amended or altered only by written
agreement executed by both parties. Landlord warrants that it owns the
Building and the Land as described herein, and each party warrants that
it is authorized to enter into this Lease.
9.04. NON-DISCRIMINATION
Landlord and Tenant shall not discriminate on the basis of race, age,
color, religion, sex, national origin, disability or veteran's status in
the use or occupancy of the Premises or the Building.
Landlord and Tenant shall not discriminate on the basis of race, age,
color, religion, sex, national origin, disability or veteran's status in
their employment or choice of contractors, subcontractors, or suppliers
of materials for or used for the installation of any improvements in the
Premises or the Building.
9.05. BINDING ON SUCCESSORS
This Lease shall bind the parties heirs, successors, representatives and
permitted assigns.
9.06. AMBIGUITIES
Any rule of construction to the effect that any ambiguities are to be
resolved against the drafting party shall not apply to the
interpretation of this Lease or any amendments or exhibits hereto.
9.07. FIRST-CLASS BUILDING
Whenever in this Lease the phrase or phrases "first-class building",
"first-class manner", "first-class condition" or phrases of similar
import are used, said phrases mean that the Building, the Common Area
Facilities, the Land and the Premises are to be maintained, repaired,
operated and generally treated in the manner and custom consistent with
that used for other buildings which are substantially similar to the
Building in geographic location, use, size, type, age, and amenities and
services provided.
9.08. BROKER'S WARRANTY
Landlord and Tenant warrant and represent that they have dealt with no
real estate broker in connection with this Lease and that no broker is
entitled to any commission on account of this Lease. The party who
breaches this warranty shall defend, hold harmless and indemnify the
other from any loss, cost, damage or expense, including reasonable
attorney fees, arising from the breach. Landlord is solely responsible
for paying the commission of said broker in accordance with a separate
agreement.
41
9.09. PARTIAL INVALIDITY
If any Lease provision is or becomes invalid or unenforceable to
any extent, then that provision and the remainder of this Lease shall
continue in effect and be enforceable to the fullest extent permitted by
law.
9.10. CAPTIONS
The captions appearing in this Lease are inserted only as a matter of
convenience and in no way define, limit, construe or describe the scope
or intent of such sections of the Lease nor in any way affect the Lease.
9.11. NON-MERGER OF PARTIES
Unless subsequently or otherwise provided in a written agreement
executed by both of the undersigned parties, neither Landlord nor Tenant
hereunder intend that there be, and there shall not in any event be, by
operation of law or otherwise, a merger of the tenancy with the fee
title or any other interest or estate of Landlord by virtue of this
Lease. The parties hereto expressly agree that the estate of each
Landlord and Tenant shall be and remain at all times separate and
distinct. The foregoing shall be binding upon all successors and assigns
of Landlord and Tenant, it being expressly intended that there shall be
no such merger upon any subsequent assignment or transfer of any type,
whether by operation of law or otherwise.
9.12. SURVIVAL
The following provisions or Sections, as appropriate, of this Lease and
Landlord's and Tenant's obligations thereunder shall survive the Lease
Expiration Date or any earlier termination of this Lease by either
Landlord or Tenant:
A. For a period of one (1) year, Tenant's obligation to pay the
Building Operating Cost Escalation and the Real Estate Tax
Escalation for the Lease Term, subject to any termination of this
Lease by Tenant due to a Landlord Default;
B. Landlord's obligation to refund to Tenant any excess payment of the
Base Rent, the Building Operating Cost Escalation and the Real
Estate Tax Escalation;
C. All indemnifications, hold harmless agreements, representations,
warranties and covenants made by Landlord, including those
representations set forth in Section 5.02
(ENVIRONMENTAL COMPLIANCE);
D. Any representation or warranty regarding either Landlord's or
Tenant's use of a broker or agent and any fee or commission which
may be due or owing to said broker or agent;
E. Any reimbursement or payment obligation from Landlord to Tenant
with respect to Tenant's rent or other expenses for leasing other
premises prior to the Lease Commencement Date or for leasing
substitute or alternate premises;
42
F. Any indemnification or hold harmless agreement or obligation of
either Landlord or Tenant;
G. Any remedy of Landlord or Tenant pursuant to any provision of this
Lease.
9.13. ATTACHMENTS
The following exhibits are part of this Lease and were attached before
this Lease was signed by the parties:
Exhibits: A-1. Legal Description of Land
A-2. Tax Assessor's Plan of Land
A-3. Plan of Premises
A-4. Plan of Parking Areas
A-5. Right of First Offer Space
B-1. Operating Cost Information Form
B-2. Operating Cost Example
B-3. Real Estate Tax Information Form
C. Base Building Improvements
D. Work Letter Agreement
E. Janitorial Service and Supplies
F. Direct Deposit Form
G. Base Rent Schedule
H. Commencement Date Agreement
I. Subordination, Non-Disturbance and
Attornment Agreement
J. Building Rules and Regulations
K. Short Form Memorandum
L. BOMA Modifications
43
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease, as of the date
first above written.
LANDLORD: THE TRAVELERS INSURANCE CO. TENANT: THE TRAVELERS INSURANCE CO.
BY /s/ [ILLEGIBLE] BY /s/ Xxxx X. Xxxxxxxx
-------------------------- ----------------------------
Xxxx X. Xxxxxxxx
Title Assistant Secretary Title National Director of
----------------------- -------------------------
Leasing & Finance
IDENTIFYING NUMBER
_________________________________________
For Reporting to U.S. Treasury Department
Internal Revenue Service
44
EXHIBIT A-1
WESTWOOD BUSINESS CENTRE
Business Plan
August 7, 1992
--------------------------------------------------------------------------------
LEGAL DESCRIPTION OF LOT
A certain parcel of land situated in Westwood Norfolk County, Massachusetts,
shown as two contiguous lots numbered Lot 83 and Lot 83A on a plan designated
as:
"PLAN OF LAND IN WESTWOOD, MASS.", dated September 17, 1981 by Xxxxxx X.
Xxxxxx Inc., civil Engineers, said plan being recorded in the Land Court
Engineer's Office as Plan 26294-3 ("Plan No. 26294-3") and more particularly
described as follows:
. Beginning at a point on the northeasterly sideline of Canton Street at the
southerly corner of Lot 83A as shown on said plan;
. thence running N 38 degrees 22' 19" E a distance of 77.00 feet by land now
or formerly of Blue Hills Realty Trust to a point;
. thence running by an arc having a radius of 128.00 feet in a general
northeasterly direction a distance of 91.04 feet by Land now or formerly of
Blue Hills Realty Trust to a point;
. thence running N 79 degrees 07' 19" E a distance of 44.00 feet by land now
or formerly of Blue Hills Realty Trust to a point;
. thence turning and running S 10 degrees 52' 41" E a distance of 20.00 feet
by land now or formerly of Blue Hills Realty Trust to a point;
. thence turning and running N 73 degrees 27' 19" E a distance of 74.00 feet
by land now or formerly of Blue Hills Realty Trust to a point;
. thence turning and running N 47 degrees 54' 15" E a distance of 272.76 feet
by land now or formerly of Blue Hills Realty Trust to a point;
. thence turning and running S 54 degrees 26' 46" E a distance of 125.36 feet
by land now or formerly of Blue Hills Realty Trust to a point;
WESTWOOD BUSINESS CENTRE
Business Plan
August 7, 1992
--------------------------------------------------------------------------------
LEGAL DESCRIPTION OF LOT (Continued)
. thence running in the same direction S 54 degrees 26' 46" E, a distance of
114.88 feet by land now or formerly of Blue Hills Realty Trust so a point;
. thence turning and running N 37 degrees O5' 11" E a distance of 123.11 feet
by land now or formerly of MBZ Trust so a point;
. thence running N 43 degrees 30' 43" E a distance of 140.00 feet by land now
or formerly of MBZ Trust so a point
. thence running N 44 degrees 28' 43" E a distance of 297.16 fees by land now
or formerly or MBZ Trust so a point;
. thence running N 44 degrees 43' 43" E a distance of 101.44 feet by land now
or formerly of MBZ Trust to a point;
. thence turning and running N 70 degrees 31' x 17" W a distance of 110.56
feet by land now or formerly of the Boston Company to a point;
. thence turning and running S 44 degrees 43' 43" W a distance of 54.58 feet
by land now or formerly of LIX Corporation to a point;
. thence running S 44 degrees 28' 43" W a distance of 215.85 feet by land now
or formerly of LIX Corporation to a point;
. thence turning and running N 52 degrees 25' 14" W a distance of 364.03 feet
by land now or formerly of LIX Corporation to a point;
. thence turning and running N 87 degrees 40' 53" W a distance of 349.02 feet
by land now or formerly of LIX Corporation to a point;
. thence turning and running S 56 degrees 13' 15" W a distance of 665.00 feet
by land now or formerly of LIX Corporation to a point;
WESTWOOD BUSINESS CENTRE
Business Plan
August 7, 1992
--------------------------------------------------------------------------------
LEGAL DESCRIPTION OF LOT (Continued)
. thence turning and running by an arc having a radius of 2000.00 feet in a
general southeasterly direction a distance of 363.22 feet along the
northeasterly sideline of Canton Street to a point;
. thence running S 51 degrees 37' 41" E a distance of 167.20 feet along the
northeasterly sideline of Canton Street to the point and place of
beginning.
. Containing according to said plan 12.465 +/- acres.
. REGISTERED LAND: A portion of the above-described premises consists of a
registered land shown as LOT 83 on the aforesaid plan dated September 17,
1981, said plan being filed in the Land Court Engineer's Office as Plan
No. 26294-3.
. Said Lot 83 is bounded and described as follows:
. Southwesterly by Lot 82, 114.88 feet;
. Southeasterly by Los 59, 661.71 feet;
. Northeasterly by Xxx 00 xx xxxxx xx Xxxx Xxxxx Xxxx 00000-0, 110.56 feet;
. Northwesterly by Lot 1, 270.51 feet;
. Northwesterly again by Lot 83A, 361.29 feet.
EXHIBIT B-1
OPERATING COST INFORMATION
A. CATEGORY
---------------------------
BASE YEAR CURRENT
Year 19X1 Year 19X2
Cleaning ------- -------
Repairs & Maintenance ------- -------
Roads/Grounds/Security ------- -------
Heating/Ventilating/Air Cond. ------- -------
Insurance ------- -------
Administration ------- -------
*Utilities ------- -------
Capital Expenditures
======= =======
Total ------- -------
* Utilities shall be excluded from the calculation of CPICAP
B. CALCULATION OF CPI CAP
----------------------------
Year Index
Prior Year = _______ = _______ **
Current Year = _______ = _______ **
(**) - All Items less Food and Energy
CPI CAP = ------- = -------
CAP Amount = X Prior Year Allowable
Building Operating Costs
(less utilities)
= ------- X -------- = (CAP Amt.)
CURRENT Year Expenses = ----------
(less utilities)
CAP Amount Expenses = ----------
Total Allowable Expenses (lesser of
CURRENT Year or CAP Amt. Expenses) -----------
EXHIBIT 8-1
Page 2
C. CALCULATION OF TRAVELERS PROPORTIONATE SHARE:
-------------------------------------------------
Premises - Rentable Sq. Ft.
--------- = %
---------
Building - Rentable Sq. Ft. (Tenant's Proportionate Share)
D. CALCULATION OF ESCALATION DUE:
----------------------------------
Step 1
------
Total Allowable Operating Expenses (section B) $-------
Utilities $-------
Less: BASE YEAR Total Operating Expenses (-------)
Increase Over BASE YEAR $-------
Step 2
------
Increase over BASE YEAR $------
Multiplied: Tenant's Proportionate Share X
(Section C) ======
TOTAL AMOUNT DUE ------
E. CALCULATION OF "OPERATING COSTS ESCALATION PAID ON ACCOUNT" (OCEPOA) :
--------------------------------------------------------------------------
Year 19X3
Total Allowable Expenses (section B) $-------
Utilities $-------
Less: BASE YEAR Expenses (-------)
=======
Total Expenses -------
Tenant's Proportionate Share =======
Tenant's OCEPOA Expenses $-------
Monthly OCEPOA Amount Due $-------
EXHIBIT B-2
OPERATING COST INFORMATION
(Sample Only)
A. CATEGORY
-----------------------
BASE YEAR CURRENT
Year 1990 Year 1991
Cleaning S125,000 $135,000
Repairs & Maintenance $100,000 $105,000
Roads/Grounds/Security $ 85,000 $ 85,000
Heating/Ventilating/Air Cond. $ 75,000 $ 75,000
Insurance $ 50,000 $ 55,000
Administration $ 65,000 $ 75,000
*Utilities $100,000 $110,000 *
Capital Expenditures $ 20,000 $ 25,000
======== ========
Total $620,000 $665,000
* Utilities shall be excluded from the calculation of CPI CAP.
B. CALCULATION OF CPI CAP
----------------------------
Year Index
---- -----
Prior Year = 1990 = 100 ** **
Current Year = 1991 = 104 ** **
(**) - All Items less Food and Energy
104
CPICAP = ------ = 1.04
100
CAP Amount = 1.04 X Prior Year Allowable Building
Operating Costs (less utilities)
= 1.04 X $520,000 = $540,800 (CAP Amt.)
CURRENT Year Expenses = $555,000
(less utilities)
CAP Amount Expenses = $540,800
Total Allowable Expenses (lesser of
CURRENT Year or CAP Amt. Expenses) $540,800
C. CALCULATION OF TRAVELERS PROPORTIONATE SHARE:
--------------------------------------------------
Premises-Rentable Sq. Ft. 25,000 = 25%
-------
Building-Rentable Sq. Ft. 100,000 (Tenant's Proportionate Share)
EXHIBIT B~2
Page 2
SAMPLE ONLY
D. CALCULATION OF ESCALATION DUE:
----------------------------------
Step 1
------
Total Allowable Operating Expenses (section B) $540,800
Utilities $110,000
Less: BASE YEAR Total Operating Expenses ($620,000)
========
Increase Over BASE YEAR $ 30,800
Step 2
-----
Increase over BASE YEAR $ 30,800
Multiplied : Proportionate Share (Section C) X 25%
----------
TOTAL AMOUNT DUE $ 7,700
E. CALCULATION OF "OPERATING COST ESCALATION PAID ON ACCOUNT" (OCEPOA) :
--------------------------------------------------------------------------
Year 1992
Total Allowable Expenses (section B) $540,800
Utilities $110,000
Less: BASE YEAR Expenses (620,000)
--------
Total Expenses 30,800
Travelers' Proportionate Share 25X
--------
Travelers OCEPOA Expenses $ 7,700
Monthly OCEPOA Amount Due $ 641.67
EXHIBIT B-3
REAL ESTATE TAX ESCALATION
A. CALCULATION OF REAL ESTATE TAX ESCALATION
----------------------------------------------
Current Real Estate Taxes $________
Base Year Real Estate Taxes ($________)
Increase Over Base Year Taxes $________
Multiplied: Tenant's Proportionate Share (section B) X________
CURRENT AMOUNT DUE
B. CALCULATION OF TRAVELERS PROPORTIONATE SHARE:
-------------------------------------------------
Premises-Rentable Sq. Ft. _________ = ________% Tenant's
Proportionate
Share
Building-Rentable Sq. Ft.
C. COPIES OF REAL ESTATE TAX RECEIPTS ARE ATTACHED
----------------------------------------------------
EXHIBIT C
BASE BUILDING IMPROVEMENTS
The Base Building improvements and systems as described below shall be
furnished by Landlord at Landlord's sole cost and expense. These include:
1. The Building structure will be designed for a minimum floor load of
80 lb. live load plus a 20 lb. partition dead load.
2. The Building shell will include a built out and finished interior
core, stairwell enclosures and exterior perimeter walls and all
building columns. The interior core on each floor will include men's
and women's rest room facilities, one drinking fountain per floor,
electrical, telephone, Janitorial and mechanical closets, stairways
and an elevator lobby. All walls adjacent to public traffic areas
will be finished. There are two (2) restrooms per floor with nine
(9) toilets per restroom. At least one handicapped accessible water
closet will be provided for both men and women on each floor, as
required per applicable laws or building codes.
3. A concrete floor will be installed with a smoothed trowel finish for
installation of glued-down carpet. The floor will be poured level and
finished in accordance with current ACI Standard Specifications
117. A topping of Gyp-Crete 2000 or an approved equivalent shall be
used to level the floor to within 1/4" overall.
4. The Ground-level building lobby will be fully finished.
5. A Life Safety system will be installed in accordance with the more
stringent of applicable national, state and local codes or the
Americans with Disabilities Act Regulations, throughout the Building,
including all corridors and stairwells. It shall consists of
sprinklers, smoke detectors, internal fire alarm and annunciator
system, emergency lighting, self-illuminating exit signs and
extinguishers as required by applicable codes or Tenant's safety
requirements. Smoke detectors will also be installed in the ceiling
of any telecommunication room with both smoke and water detectors
installed under the raised floor. The sprinkler system will have an
approved water flow alarm connection and tamper-proof detection
device, connected to a central station or direct to the fire/police
departments. It will include all distribution of mains, laterals,
uprights and upright heads. Finished heads or "armovers" will be
configured to Tenant's space layout.
Exhibit C
Page Two
6. Electrical distribution will be provided to the main panel boxes in
the electrical closet on each floor. The electrical system shall be
sized for 7 1/2 xxxxx per usable square foot for Tenant's
consumption.
7. A suspended, revealed edge acoustical ceiling will be installed. It
will be listed by Underwriter's Laboratories, Inc. (Materials List)
as to Fire Hazard Classification and will have a minimum thickness of
3/4" with a foil back. The ceiling height will be a minimum of 8'6"
and a maximum of 9'6". Fissured acoustical tile will be installed on
a 2' x 2' mechanically suspended grid system. It will have a minimum
noise reduction coefficient of .65, a minimum sound transmission
classification rating of 40, and a minimum combustibility rating of
Class I or equal to that of local code requirements, whichever is
greater.
8. Modern fluorescent lighting will be installed in accordance with the
most recent edition of the Illuminating Engineering Society Lighting
Handbook. A maintained minimum of 60 foot candles will be furnished
at desk height and the fixtures will be arranged so as to provide an
even distribution of light. The light fixtures will be 2' x 4', 3
lamp fixtures. Recessed parabolic fixtures will be provided with
parabolic 18 cell or 78 cell louvers. Lamps are to be of the "warm
white" energy saving type. Ballasts shall also be energy efficient,
high power factor U.L. listed, class P, and have a sound rating of
`A'. All fixtures will have two-level switching. The ceiling grid
will be configured to Tenant's space layout.
9. The Building will be equipped with a variable air volume (VAV)
heating, ventilation and air conditioning system. The system will
contain polyester air filters with an efficiency of no less than 35%.
The fan system shall run continuously during business hours, no duty
cycling. All ducts shall be separately zoned by floor, with
individual controls provided within Tenant's Premises. These
individual zones, thermostatically controlled, shall be preset and
tamper proof. The minimum allowable rate is one (1) thermostat and
VAV box per 5000 rentable square feet for exterior zone and one (1)
thermostat per 2,500 rentable square feet for interior zones, and a
minimum of one (1) diffuser for each 200 square feet of usable areas.
The location of these thermostats and diffusers will be configured
according to Tenant's final space plan. The system will be designed
to maintain a space temperature between 72 - 76 degrees F, based upon
a dry bulb measurement, on a year-round basis, based on a maximum
average occupancy of one (1) person for each 120 square feet of
usable area. The requirements for ventilation shall comply with
present ASHRAE (American Society of Heating, Refrigeration and
Air-Conditioning Engineers) standard 62-1989 as a minimum
requirement.
Exhibit C
Page Three
10. Telephone service, as provided by the local utility, will be brought
to Tenant's main telephone room. If conduit or sleeves are required
by local code, Base Building will include necessary conduit/sleeves
to distribute data and telephone cables between floors.
11. Vertical window blinds will be installed on all windows.
12. Two (2) automatic passenger elevators and zero (0) freight elevators
will be provided. If no freight elevator is provided, one passenger
elevator will be designed to serve both as passenger and freight
elevator and will be equipped to carry supplies and furniture when
necessary. Elevator cabs will be equipped with an emergency
communications/alarm system, including a xxxx annunciator, connected
to the building security guard station or to a central alarm system.
The elevator controls will have Braille lettering for eyesight
impaired persons.
13. A loading dock will be provided, with maximum tractor/van clearance.
14. An electronically controlled card access building security system, or
equivalent system will be provided. This system will control all
entry areas to Tenant's Premises from elevator lobbies on full floors
which Tenant occupies or at suite entrances from public corridors.
This system will control main building systems to ensure that
Tenant's employees and property are adequately safeguarded. Each card
is to be separately coded for individual employee access and the
system will be configured for a multitude of authorized access
levels.
15. Demising walls, including common corridor walls and walls between
tenant suite will be provided. These walls will include tenant entry
doors from public corridors. Demising walls will be
soundproofed/insulated to the floor deck above.
16. Carpeting will be installed in elevator lobbies and in common
corridors on all multiple-tenancy floors, in color and type as
selected by Landlord.
17. All roadways necessary for Tenant's access to and egress from the
Building will be completed.
Exhibit C
Page Four
18. A directory shall be provided in the lobby of the Building and Tenant
shall be allowed space on the directory in proportion to the total
rentable area which Tenant occupies in the Building. Landlord shall
also provide exterior signs on or adjacent to the Building in
accordance with Tenant's specifications, which specifications shall
be provided to the Landlord. Such signs shall comply with all
applicable local sign ordinances. Landlord shall be fully responsible
for all costs and liability pertaining to the erection, maintenance
and removal of such signs as necessary.
Landlord shall allow Tenant to place its name and logo on the
monument sign which identifies the Building and the address at the
entrance of the Building driveway, at Tenant's expense. In addition,
Landlord shall provide signage for Tenant on the monument sign
adjacent to the Building identification sign, at Landlord's expense.
Landlord shall obtain any necessary zoning permits or approvals for
such identification, at Landlord's expense. If Landlord is unable to
obtain such zoning approval, Landlord shall provide similar monument
signage for Tenant's use on the Land, in an area which will be
visible to traffic entering the Building driveway.
EXHIBIT D
WORK LETTER AGREEMENT
THIS WORK LETTER AGREEMENT is entered into as of the 12/th/ day of October,
1993, by and between The Travelers Insurance Co., A Connecticut corporation
("Landlord") and THE TRAVELERS INSURANCE COMPANY, A Connecticut Corporation
("Tenant").
ARTICLE I
RECITALS:
1.01 Concurrently with the execution of this Work Letter Agreement,
Landlord and Tenant have entered into a lease (the "Lease") covering
certain premises (the "Premises") which is more specifically
specified and defined in the Lease.
1.02 This Work Letter has been executed for the purpose of describing and
providing the requirements, standards, and specifications and a
timetable for Landlord's performance of the work for the Premises to
render it suitable for the use and occupancy of Tenant.
1.03 In order to induce Tenant to enter into the Lease (which is hereby
incorporated by reference) and in consideration of the mutual
covenants hereinafter contained, Landlord and Tenant hereby agree as
follows:
ARTICLE II
PLANS AND SPECIFICATIONS:
2.01 TENANT IMPROVEMENTS
References to "Tenant Improvements" or "Work" shall include all work to be
done in the Premises pursuant to Tenant's plans and drawings as described
below. Landlord shall provide all Tenant Improvements on a "turn-key" basis
at Landlord's sole cost and expense and these improvements are itemized in
Tenant Specifications attached hereto as Schedule 1 and shown on the plans
----------
attached hereto as Schedule 3.
----------
2.02 COMPLIANCE WITH APPLICABLE LAW
Landlord, at its sole cost and expense, shall comply with and shall be
solely responsible for compliance with all applicable laws relative to the
build-out of the Premises, the filing of any construction or engineering
documents with, and obtaining any required approvals or permits from any
applicable federal, state, county or local governmental body or agency; and
Landlord shall do so in accordance with any timetable established herein.
Exhibit D
Page 2
2.03 PAYMENT FOR THE TENANT IMPROVEMENTS
Landlord shall provide Tenant with an allowance of $25.00 per rentable
square foot to be allocated to the cost of performing the Tenant
Improvements, telecommunications wiring and cabline, design services, and
to offset moving expenses (the "Allowance"). Landlord shall pay all costs
associated with the Tenant Improvements and in addition, Tenant shall
submit to Landlord, applications for payment or reimbursement from the
Allowance, in the amount of the costs of the work performed or for services
provided. Landlord will make payment to the appropriate vendor or to the
Tenant, at Tenant's option, within fifteen (15) days after Landlord's
receipt of such application for payment. As soon as all the subject work
has been performed, Landlord and Tenant shall make a final computation of
the application of the Allowance and for any portion of the Allowance that
remains or which has been overspent, the Base Rental Rate shall be either
decreased or increased, respectively by the portion of the Allowance
remaining or that has been excluded (the "Base Rental Rate Adjustment").
2.04 BUILDING PLANS
At Landlord's sole cost and expense, Landlord shall provide Tenant with the
building specifications and a complete and detailed set of CAD generated,
architecturally dimensioned drawings of the Premises on intergraph,
compatible electronic media no later than October 4, 1993. If Landlord
fails to provide these plans by this date, then Tenant may apply the
remedies provided for in Section 3.05 of this Work Letter Agreement.
From Landlord's complete set of fully dimensioned and detailed
architectural drawings, Tenant shall develop Tenant's office layout plans
and provide Landlord with "design intent" drawings which are not intended
for construction. The design intent drawings shall include dimensioned,
full height partition, electrical/cabling plans based on furniture layout,
furniture and finish plans. Tenant shall submit the design intent drawings
to Landlord no later than December 17, 1993. Landlord, at Landlord's sole
cost and expense, shall be responsible for any necessary stamped contract
documents or any additional drawings required for construction.
Any additional architectural work necessary to complete the Premises in
accordance with the plans which Tenant submits, shall be at Landlord's sole
cost and expense.
ARTICLE III
TIMETABLE
3.01 SCHEDULE OF COMPLETION
The design and construction of the Premises shall be substantially
completed in accordance with the dates shown in the "Schedule of
Completion" attached hereto as Schedule 2.
----------
Exhibit D
Page 3
Tenant and Tenant's agents, contractors and employees may enter the
Building, the Common Area Facilities and the Premises prior to the Lease
Commencement Date for purposes of installing Tenant's equipment, furniture
and supplies. Landlord shall be responsible for the coordination of such
installations with Tenant and shall, at Landlord's sole cost and expense,
provide elevator service at reasonable hours and other facilities and work
conditions satisfactory to Tenant and Tenant's agents, contractors and
employees.
Any overtime costs incurred by Landlord in order to complete the Building
and the Premises in accordance with the Schedule of Completion shall be
paid by Landlord and shall not be considered part of the Tenant Improvement
Allowance. At Landlord's sole cost and expense, Landlord shall provide
Building security prior to the Lease Commencement Date adequate to protect
Tenant's furniture, equipment and supplies as they are installed in the
Premises.
3.02 SUBSTANTIAL COMPLETION
Landlord shall use its best efforts to substantially complete the Premises
by the Scheduled Lease Commencement Date. "Substantially Complete" means:
(1) The improvements described in this Work Letter Agreement, and the
Base Building Improvements described in Exhibit C of the Lease have
been completed so that Tenant can use the Premises for their intended
purposes without material interference to Tenant conducting its
ordinary business activities;
(2) The only incomplete items are minor or insubstantial details of
construction, mechanical adjustments or finishing touches like touch-
up plastering or painting as identified on a punchlist prepared by
Tenant in accordance with Section 3.03 of this Work Letter Agreement.
(3) Landlord has secured a permanent certificate of occupancy or the
equivalent, as required by the appropriate governmental authority
having jurisdiction over the Building, permitting the Building, the
Common Area Facilities and the Premises to be occupied by Tenant,
other tenants of the Building or by the public, as appropriate, in
accordance with all public health, safety and building codes;
(4) Tenant, its employees, agents and invitees, have ready access to and
egress from the Building and the Premises through the lobby,
entranceways, elevators and hallways and such areas are installed,
clean, free of construction equipment and materials and are in good
working order;
Exhibit
Page 4
(5) All major building systems, including the electrical, heating,
ventilation and air conditioning systems, plumbing, utilities, and
elevators are installed and are in good working order;
(6) The Premises are broom clean.
3.03 INSPECTION AND PUNCHLIST
Prior to the Lease Commencement Date Tenant shall inspect the Premises,
Landlord shall demonstrate all systems and Landlord and Tenant shall
prepare and execute a punchlist. The punchlist shall list incomplete, minor
and insubstantial details of construction, necessary mechanical
adjustments, and needed finishing touches. Landlord shall complete the
punchlist items within thirty (30) days after the Lease Commencement Date.
Landlord will promptly correct any latent defects as they become known to
Landlord or if Tenant notifies Landlord within thirty (30) days after
Tenant first learns of the defect. If Landlord fails to complete the
punchlist items, Landlord shall pay Tenant, as liquidated damages, a sum
equivalent to the cost to complete or correct such items, as reasonably
estimated by Tenant. If Tenant so elects, Tenant shall have the option to
withhold the liquidated damages from its monthly rental payments.
3.04 EARLY OCCUPANCY
Tenant shall have the option to move into, occupy and conduct business in
all or a portion of the Premises prior to the Scheduled Lease Commencement
Date (August 1, 1994). Tenant shall exercise such option by: (i) giving
Landlord ninety (90) days prior notice; (ii) specifying such area of space
to be occupied; and (iii) providing Landlord with final "design intent"
drawings for such space. Landlord shall substantially complete (pursuant to
Section 3.02 hereof) the Tenant Improvements for such area within ninety
(90) days of Tenant's notice. If Tenant does occupy all or a portion of the
Premises prior to the Scheduled Lease Commencement Date, such occupancy
shall be subject to the terms and conditions of the Lease and Tenant shall
not be obligated to pay Base Rent until the Lease Commencement Date. There
shall be no limit as to the number of notices Tenant may give Landlord
pursuant to this provision.
Exhibit D
Page 5
3.05 DELAYED OCCUPANCY
If the Premises shall not be Substantially Complete prior to the Scheduled
Lease Commencement Date, Landlord shall notify Tenant at least sixty (60)
days prior to the Scheduled Lease Commencement Date. Commencing with the
Scheduled Lease Commencement Date and continuing until the Premises are
Substantially Complete, Landlord shall reimburse Tenant, without penalty or
default, for the following amounts incurred:
(1) Any amount of rent in excess of the Base Rent which Tenant must pay
for temporary or alternate premises, or for Tenant's continued
occupancy in the Tenant's present location; and
(2) Any additional expenses which Tenant incurs in continuing to occupy
space beyond the expected lease expiration date of Tenant's present
location or in moving to a temporary location; and
(3) Any cost or damages, including attorney's fees, caused by such
delay in occupancy.
If the Premises are not Substantially Completed within forty-five (45) days
after the Scheduled Lease Commencement Date, Tenant shall have the option
to terminate this Lease upon giving written notice to Landlord.
3.0.6 MOVE-IN PROCEDURES
Tenant shall have access to the Building on Fridays and weekends for
purposes of moving into the Building. During the move, Tenant shall have
exclusive use of both sets of double doors on either side of the first
floor atrium, for purposes of loading and unloading its moving trucks.
IN WITNESS WHEREOF, this Work Letter Agreement is executed as of the date
first above written.
LANDLORD: THE TRAVELERS INS. CO. TENANT: THE TRAVELERS INS. CO.
By /s/ [ILLEGIBLE] By /s/ Xxxx X. Xxxxxxxx
--------------------------- ---------------------------
Title Assistant Secretary Title Xxxx X. Xxxxxxxx
-------------------------- --------------------------
National Director of
Leasing & Finance
SCHEDULE 1
TENANT SPECIFICATIONS
Tenant Improvements as described below shall be furnished by Landlord in
accordance with Section 1.08 (IMPROVEMENTS) and the Work Letter Agreement.
1. Substitution for Building Standard Improvements
Tenant may substitute materials, equipment and fixtures for installation
in the Premises instead of those specified as building standard, provided:
A. All substituted items are of a quality which are equal to or exceed
building standard; and
B. All substituted items are purchased, delivered and installed properly
without unnecessarily delaying the completion of the Premises.
2. Tenant Improvements
A. Partitions
(1) The Partitions will be 3 3/4" thick, consisting of 2 1/2" metal
studs, a sound attenuation blanket between the exterior of a 5/8"
thick gypsum board and will have a 4" high vinyl contrasting
resilient base. Tenant will select the wall finishes.
(2) On entire floors which Tenant occupies, vinyl wall covering on
elevator lobbies and common corridor walls will be used.
B. Doors, Door Frames and Hardware
(1) Solid core, flush white oak veneer doors -- 36" wide, with
painted hollow metal frames will be provided. Interior doors in
the Premises will be equipped with latch sets, door stops and
closers. Double glass entrance doors with aluminum joinery will
be provided, where indicated. A Dutch door will be provided,
where indicated. A Dutch door will be provided in the mail and
supply room.
(2) All doors will be equipped with lever-style latch sets. locks
will be furnished on doors in the mail and supply rooms, security
closets and double-glass entrance doors. All locks will be master
keyed. Simplex locks will be installed on all cable closets and
telecommunication room doors.
(3) Entrance doors to the rest rooms will be equipped with Simplex
locks, as requested by Tenant.
Schedule 1
Page 2
C. Electrical Outlets
(1) Landlord will furnish duplex electrical outlets per the approved
construction drawings.
(2) Landlord will furnish wall light switches per the approved
construction drawings.
D. Telephone/Data Outlets
Landlord will furnish telephone/data outlets per the approved
construction drawings.
E. Flooring
(1) Vinyl tile will be installed per the approved construction
drawings.
(2) Broadloom carpeting, or carpet tile, and base selected by Tenant
will be installed per the approved construction drawings.
3. Plumbing
Plumbing in the employee lunch room to accommodate vending machines and a
sink with hot and cold water and a cabinet will be supplied.
4. Telecommunications Room and Cable Closets
A. A telecommunications room, designed by Tenant to accommodate Tenant's
specified voice and data communications equipment, will be provided.
This room will be fully demised, secured, environmentally controlled
and will typically include the following requirements, based upon
final Tenant Specifications:
(1) Separately controlled HVAC and electrical current to be
operational seven days a week, 24 hours a day;
(2) Dedicated electrical service terminating at a separate
electrical panel installed within the telecommunications room;
(3) Dedicated electrical circuits for all equipment and access to a
cold water ground;
(4) Raised floor with a minimum clearance of seven inches. Floor will
utilize 24" x 24" uncarpeted access floor tile with entry ramp,
railing and tile cutouts as specified by Tenant;
Schedule 1
Page 3
(5) 3/4" x 4' x 8' plywood telephone backboards in specified
locations;
(6) Entry door with minimum width of 36" and equipped with push
button Simplex type combination lock with key bypass;
(7) Smoke detectors and, where potential water retention exists,
water detectors will be provided under raised floor; and
(8) Standard office lighting.
B. Cable closets will be fully demised and provided on each full or
partial floor occupied by Tenant. Built to Tenant's specifications,
these rooms will house data and/or voice cable racks and connections.
3/4" x 4' x 8' plywood telephone backboards will be wall mounted. Each
room will have a raised floor with a minimum 7" clearance, and a 36"
entry door equipped with a push button (Simplex type) combination lock
with key bypass. The size of each closet, typically one per floor,
will range from 56 sq. ft. to 104 sq. ft. depending on Tenant
Specifications.
5. Drive-in Claims parking enclosure
Reserved underground parking spaces with a suitable office facility to be
occupied by claims personnel will be provided for the inspection of
automobiles and minor damage appraisal. This structure will conform with
the architectural design of the Building and will be located as to allow
reasonable public identification and access. The enclosure will have a
minimum overhead clearance of 9' and will be equipped with overhead
lighting. The area will be provided with a conduit sufficient for the
installation of telephone cables from the Building. The area will also have
an all weather duplex electrical outlet. Additional Tenant Specifications
will be dependent upon geographic location, proximity to the Building and
local zoning requirements.
SCHEDULE 2
SCHEDULE OF COMPLETION
1. Landlord will provide Tenant with building specifications as described in
Section 2.04 of the Work Letter Agreement on or before 10/04/93.
2. Tenant will submit "design intent" drawings to Landlord as described in
Section 2.04 of the Work Letter Agreement on or before 12/17/93.
3. The area(s) designated for Tenant's telecommunications room and cable
closet will be completed on or before 04/01/94.
4. The Premises will be sufficiently completed to accommodate the installation
of Tenant's modular furniture systems on or before 06/20/94.
EXHIBIT E
JANITORIAL AND OFFICE SERVICE AND SUPPLIES
DAILY CLEANING AND MAINTENANCE
1. At least twice daily check main building entr vator
cabs for cleanliness.
2. At least twice daily check ladies' rest rooms
tissue, paper towel and sanitary supplies dispensers and remove trash as
necessary.
3. At least twice daily, check men's lavatories. Fill soap, and paper
towel dispensers and remove trash as necessary.
4. Keep all stairwells clean; wash stairs as necessary.
5. Properly maintain appearance of building exterior at ground level,
including building entrance areas.
OFFICE AREAS - NIGHTLY
1. Sweep all hard flooring.
2. Vacuum all carpeting and rugs, moving light furniture and office equipment.
3. Empty and wipe clean all wastebaskets, ashtrays, etc.
4. Dust and wipe clean all furniture, equipment, fixtures and window xxxxx.
5. Clean all glass furniture tops as necessary.
6. Dust baseboards, moldings and trim.
7. Wet mop and/or vacuum lunch and lounge room.
LAVATORIES - NIGHTLY
1. Sweep and wash all flooring.
2. Wash and polish mirrors, shelves and bright work.
3. Wash and disinfect all basins, bowls, urinals and both sides of toilet
seats.
4. Dust and wipe clean all partitions, tile walls and dispensers.
Exhibit E
Page 2
OFFICE AREAS - PERIODIC
At least every three months:
1. Dust all pictures, wall hangings, etc. not reached in nightly cleaning.
2. Dust all venetian blinds, ventilating louvers, grills, lighting fixtures,
partitions and other surfaces not reached in nightly cleaning. Replace
blinds and/or Building standard drapes as necessary.
3. Remove fingerprints and other marks from all elevators, stairways and
office doors.
4. Wash all non-carpeted areas as applicable.
5. Furnish and replace light tubes and ballasts, as necessary.
6. Shampoo and spot clean carpeting. Replace worn or discolored carpet as
necessary.
7. Repaint ceilings and door frames as necessary.
WINDOW AND GLASS CLEANING
1. Wash entrance doors, lobby glass and glass in directory daily.
2. At least once every three months wash inside and outside of office area
windows.
3. Clean all interior glass and normal amount of partition glass at least once
a month.
[LOGO OF THE TRAVELERS APPEARS HERE]
EXHIBIT F
OFFICE RENT PAYMENTS - ELECTRONIC DIRECT DEPOSIT
Please type or print all requested information in the spaces provided at the
bottom of this form.
1. Enter current monthly rent amount.
2. Check box for either Checking or Savings Account. If checking account,
attach a copy of your deposit slip. If savings account, enter number
here:_____________________________
3. Enter Bank Name, Address, Branch and City.
4. Enter name account is under, and the Federal Taxpayer Identification number
or Social Security number for the account. Date and sign the authorization.
5. Return both copies of authorization to us, the `Depositors's copy will be
returned to you.
AUTHORIZATION AGREEMENT FOR AUTOMATIC DEPOSITS (CREDITS)
I (We) Hereby Authorize The Travelers. Hereinafter Called COMPANY. To Make
Payment of___________. Owing To Me (Either Of Us) For Instalment Payments
And The Bank Indicated Below, Hereinafter Called BANK. To Credit With The
Amounts Thereof My (Our') [_] Checking [_] Savings Account Indicated Below.
--------------------------------------------------------------------------
BANK ADDRESS*
NAME
--------------------------------------------------------------------------
BRANCH CITY*
--------------------------------------------------------------------------
This Authority Is To Remain In Full Effect Until COMPANY Or BANK Has
Received Written Notification From Me (Or Either Of Us) Of Its Termination
In Such Time And Manner As To Afford COMPANY Or BANK A Reasonable
Opportunity To Act On it. Or Until COMPANY Or BANK Has Sent Me (Either Of
Us) Ten (10) Day Written Notice Of COMPANY Or BANK'S Termination Of This
Arrangement.
---------------------------------------------------------------------------
NAME IDENTIFICATION NUMBER
---------------------------------------------------------------------------
DATE* SIGNED* SIGNED*
---------------------------------------------------------------------------
SECTION BELOW TO BE COMPLETED BY COMPANY
---------------------------------------------------------------------------
COMPANY COMPANY
NAME The Travelers ID NUMBER 00-0000000
---------------------------------------------------------------------------
TRANSIT A
TRANSIT ROUTING NUMBERS CHECK DIGIT ACCOUNT NUMBER INFORMATION
-------------------------- ----- -------------------------------
-------------------------- ----- -------------------------------
TRANSIT ASA
DESIGNATED BY
FEDERAL RESERVE
EXHIBIT G
BASE RENT SCHEDULE
Period Base Rental
------ Rate per RSF
------------
Year 1-3 $18.46
Year 4-5 $18.96
Year 6-7 $19.71
Year 8 $20.21
Year 9-10 $20.71
EXHIBIT H
COMMENCEMENT DATE AGREEMENT
LEASE DATED ___________
BETWEEN ________________________ ("LANDLORD")
AND THE TRAVELERS INSURANCE COMPANY ("TENANT")
THIS COMMENCEMENT DATE AGREEMENT IS MADE THIS _____ DAY OF ______________,
19 ____ BY AND BETWEEN Landlord and Tenant pertaining to certain space (the
"Premises") in _____________________________________ (the "Building").
WITNESSETH:
WHEREAS, by Lease executed the _____________ day of _______________ 19___,
Landlord leased to Tenant the Premises known as Suite/Floor __________________,
located in the Building; and the Scheduled Lease Commencement Date was
______________________.
WHEREAS, Landlord and Tenant now desire to establish the Lease Commencement
and Lease Expiration Dates of the Lease.
NOW, THEREFORE, Landlord and Tenant hereby agree as follows:
1. The Lease Commencement Date shall be __________, 19__ and the Lease
Expiration Date shall be _________________, 19__, unless sooner
terminated or extended as provided by the Lease.
2. By execution hereof, Tenant hereby acknowledges that all improvements
required of Landlord have been satisfactorily performed and Tenant
does hereby accept the Premises delivered by Landlord as being in full
compliance with the terms of the Lease except for the items contained
in the punch list, or otherwise as provided in the Lease.
3. Except as hereby amended, the Lease shall continue in full force and
effect.
4. This Agreement shall be binding upon the parties hereto, their heirs,
executors, successors and assigns.
EXHIBIT I
AGREEMENT OF SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT
This AGREEMENT is entered into on ________________, 19__, by and between
___________________________________________ ("Lender"), a
________________________________________________ corporation having an office at
_____________________________________ and THE TRAVELERS INSURANCE COMPANY
("Tenant"), a Connecticut corporation having an office at Xxx Xxxxx Xxxxxx,
Xxxxxxxx, Xxxxxxxxxxx 00000, on the basis that:
A. THE TRAVELERS INSURANCE COMPANY and _______________________,
("Landlord") entered into a Lease dated_____________________, 19___,
for premises described in that Lease as __________________________
(the "Premises").
B. Lender holds a mortgage which encumbers the Premises and other
property the ("Mortgage").
C. Tenant has agreed that the Lease shall be subject and subordinate to
the Mortgage.
D. Lender and Tenant wish to recognize Tenant's right to occupy the
Premises according to the terms and conditions of the Lease.
IT IS HEREBY AGREED, in consideration of the promises and covenants contained
herein, that during the term of the Lease and any extension thereof:
1. So long as Tenant is not in default in the performance of the terms,
covenants or conditions of the Lease, Lender shall not terminate
Tenant's interest in the Premises under the Lease because of any
default under the Mortgage and Lender shall not disturb Tenant's
possession or any other right of Tenant under the Lease.
2. Tenant agrees that if the interests of Landlord shall be transferred
to and owned by Lender by reason of foreclosure or by any other legal
manner, then Tenant shall attorn to Lender or the then owner and
recognize Lender or the then owner (the "Successor Landlord") as the
Landlord under the Lease.
3. If the Mortgage is foreclosed, the Lease shall continue in full force
and effect, except that the Successor Landlord shall not:
(a) be bound by any prepayment of more than one month's rent (except
for any free rent or other rent abatement which shall have
accrued);
Exhibit I
Page 2
(b) be bound by any amendment, modification or termination of the
Lease made without the Successor Landlord's name, after the
foreclosure, unless the amendment, modification or ending is
specifically authorized by this Lease and does not require prior
agreement or consent by Landlord.
4. Lender agrees no property owned or removable by Tenant shall be
subject to the lien of the Mortgage held by Lender or any mortgage
made paramount to the Lease by means of this Agreement.
5. The terms of this Agreement shall not be affected by the renewal,
modification, amendment, replacement or extension of the Lease.
6. This Agreement shall bind and inure to the benefit of the parties
hereto and their respective successors and assigns.
LENDER: TENANT: THE TRAVELERS INSURANCE
COMPANY
By: _________________________ By: _________________________
Its _________________________ Its _________________________
EXHIBIT "J"
RULES AND REGULATIONS
---------------------
This Exhibit "F" is attached to and made a part of that Agreement of Lease
dated ________________, 19___ (the "Lease"), between THE TRAVELERS INSURANCE
COMPANY (hereinafter called "Landlord"), and , (hereinafter called "Tenant").
Unless the context otherwise requires, the terms used in this Exhibit that are
defined in the Lease shall have the same meaning as provided in the Lease.
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
governmental 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 of its premises in the Building.
Landlord may, upon request of any tenant, waive the compliance by such
tenant of any of the following rules and regulations, provided that (i) no
waiver shall be effective unless signed by Landlord's authorized agent, (ii) any
such waiver shall not relieve such tenant from the obligation to comply with
such rule or regulation in the future unless otherwise agreed to by Landlord,
(iii) no waiver granted to any tenant shall relieve any other tenant from the
obligation of complying with these rules and regulations, unless such other
tenant has received a similar written waiver from Landlord, and (iv) any such
waiver shall not relieve such tenant from any liability to Landlord for any loss
or damage occasioned as a result of such tenant's failure to comply.
1. The sidewalks, entrances, passages, courts, elevators, vestibules,
stairways, corridors, roof, halls and other parts of the Building not
exclusively occupied by any tenant shall not be obstructed or
encumbered by any tenant or used for any purpose other than ingress
and egress to and from each tenant's premises. Landlord shall have the
right to control and operate the public portions of the Building, and
the facilities furnished for common use of the tenants, in such manner
as Landlord deems best for the benefit of the tenants generally. No
tenant shall permit the visit to its premises of persons in such
numbers or under such conditions as to interfere with the use and
enjoyment of the entrances, corridors, elevators and other public
portion or facilities of the Building by other tenants.
2. No awnings or other projections shall be attached to the outside walls
of the Building without the prior
