EXHIBIT 10(hh)
AMENDMENT OF LEASE
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THIS AMENDMENT OF LEASE effective as of March 31, 1994 between EQUITABLE
FEDERAL STREET REALTY COMPANY LIMITED PARTNERSHIP, a Massachusetts limited
partnership having an address at 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000
("Landlord"), and THE FIRST NATIONAL BANK OF BOSTON, a national banking
association duly organized and existing under the laws of the United States of
America having its principal place of business at 000 Xxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000 ("Tenant").
BACKGROUND
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Landlord and Tenant are Landlord and Tenant, respectively, under an
Indenture of Lease having an effective date as of September 1, 1991 (the
"Original Lease") covering certain premises at 000 Xxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx, as amended by a letter agreement dated February 5, 1992 and by an
Amendment of Lease dated July 1, 1993 (as so amended, the Original Lease shall
be referred to hereinafter as the "Lease"). The parties desire to amend the
Lease in certain respects all as hereinafter set forth. Capitalized terms not
defined herein shall have the meaning ascribed to them in the Lease.
W I T N E S S E T H
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Now therefore, Landlord and Tenant hereby agree that the Lease is hereby
amended as follows:
A. The Lease is hereby amended by adding the following Articles XXI and
XXII thereto:
ARTICLE XXI
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THE CAFETERIA
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1. Schedule P is hereby amended by adding a new classification of Space
entitled Space C, consisting of the area on Floor 1B of the Building presently
used as a cafeteria and shown on Schedule C hereto. The term of the Lease for
Space C shall be ten (10) years commencing on September 1, 1993 and expiring on
August 31, 2003. Space C is leased "as is". Without limitation, Landlord has
no obligation to bring Space C into the condition required by Schedule COND or
into compliance with the Americans With Disabilities Act (except that Landlord
shall bring the employee restrooms in Space C into compliance with such Act, if
required) or to provide any Tenant Improvement Allowance. Except as provided in
the preceding sentence, Tenant shall be responsible for compliance with all
legal requirements applicable to Space C, including the Americans With
Disabilities Act.
Space C is not a part of Space A or Space B during such ten-year term.
However, Tenant shall have the option to extend the term of the Lease for
Space C for a period which will end with the expiration of the initial term of
the Lease for Space B. Tenant shall exercise such option of extension by notice
to Landlord given not later than the last to
occur of (i) August 31, 2002 or (ii) the expiration of thirty (30) days
following notice from Landlord to Tenant, given not sooner than July 1, 2002,
that Tenant's option of extension has not been exercised by Tenant. However, in
any event, the term of the Lease for Space C shall expire on the day scheduled
therefor, viz., August 31, 2003, without extension if such option to extend
shall not have been exercised prior to such day even if Landlord shall not have
given Tenant such notice.
If Tenant shall exercise such option to extend, then Space C shall become a
part of Space B for purposes of establishing the duration of the term of the
Lease for Space C and the rights of Tenant to extend the term of the Lease for
Space C.
2. Tenant agrees, with reference to Space C (the "Cafeteria") and its
operations, as follows:
a) Promptly after the execution hereof, to carry out a program (the
"Program") of capital improvements, including improvements to the
kitchen facilities of the Cafeteria, as may be required, in Tenant's
judgment, to up-grade the existing Cafeteria to first-class quality
and modern condition. The Program shall be subject to Landlord's
approval on the same basis, and subject to the same qualifications, as
are applicable to alterations, additions and improvements to the
Premises as provided in Section 6 of Article V, except that (x) the
reference in the cited Section to "readapt[ation of] the Premises to
normal office use" shall not be applicable, nor shall the reference to
Schedule COND be applicable, (y) Landlord's rights of approval shall
not extend to interior decor and layout (which shall not affect
structure or building systems), except at the points where Space C is
entered from Common Areas of the Building and any other areas which
are visible from such Common Areas, and (z) "$500,000" appearing in
the second paragraph of such Section 6 shall be deemed amended to
"$100,000."
Tenant has represented to Landlord that, in carrying out the Program,
it is Tenant's intention that there shall be expended approximately
SEVEN HUNDRED THOUSAND and 00/100 DOLLARS ($700,000.00). However,
Tenant shall not be in breach of such representation so long as the
aggregate expenditure in the modernization Program is in the order of
magnitude of $700,000.00, the $700,000.00 figure not being intended as
a minimum.
b) Tenant agrees that the Cafeteria shall be operated in a first-class
fashion and in accordance with Schedule REST to the Lease. To that
end, Tenant agrees that, if the Cafeteria is operated by a food
service management company and not by Tenant, such company shall be
obligated in the instrument effecting the legal arrangement between
such company and Tenant so to operate the Cafeteria and such
instrument shall explicitly provide that a failure on the part of such
company to meet such standards shall entitle Tenant to terminate
further employment, or the license or subtenancy, of such company, as
the case may be, for the operation of the Cafeteria. Tenant agrees to
use all reasonable efforts to enforce the food service management
company's undertaking relative to standards of operation.
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Tenant has advised Landlord that Tenant has engaged Sodexho
("Sodexho"), to operate the Cafeteria and has provided Landlord with a
copy of that part of Tenant's contract with Sodexho relating to the
Cafeteria. If Tenant shall at any time propose to make an arrangement
with some other food service operation, the identity of the operator
thereof shall be subject to the prior approval of Landlord, such
approval not unreasonably to be withheld. To facilitate the approval
process, Tenant may submit to Landlord a list of proposed operators
(together with information describing such operators and their other
operations) for Landlord's approval in advance of the selection of a
specific operator, and Landlord shall give or expressly deny such
approval to those operators on such list within ten (10) business days
after such list and information are presented to Landlord. The
failure of Landlord to disapprove any operator on such list shall
constitute approval thereof. Tenant may, thereafter, select any
operator of the Cafeteria from such list which shall not have been
disapproved without further approval by Landlord. Any dispute
relative to the acceptability of a proposed food service management
company or any one or more of such companies in a list thereof
presented by Tenant shall be resolved by arbitration pursuant to
Schedule ARB.
The form of legal arrangement into which Tenant enters with any food
service management company, i.e., whether by way of sublease, license,
management contract or other formulation shall be at Tenant's
discretion but the substance of such arrangement shall be subject to
the approval of Landlord which Landlord agrees not unreasonably to
withhold. Landlord's approval of any such proposed substitute food
management company and the arrangement with reference thereto shall be
given or explicitly denied not later than ten (10) business days after
notice of the identity or identities of food service management
companies (together with information describing such companies and
their other operations) is given to Landlord and, in respect of the
legal arrangement Tenant proposes to enter into, not later than ten
(10) business days after delivery to Landlord of a true and correct
copy of the instrument effecting the legal arrangement to the extent
that such instrument relates to the Cafeteria (to the exclusion of any
part of such instrument solely relating to other locations occupied by
Tenant). The failure by Landlord to disapprove any proposed food
service management company or the legal arrangement embodied in the
instrument delivered to Landlord shall constitute approval thereof.
Landlord's right of approval of the legal arrangement shall relate
solely to the provisions of the relevant instrument intended to assure
operation of the Cafeteria at least to the standards required hereby
and by Schedule REST, and to the term of the arrangement between
Tenant and such food service management company, to assure Landlord
that no claim against Landlord or the Premises might arise upon the
expiration or termination of this Lease, and Landlord shall have no
right of disapproval in respect of any other aspect thereof.
The instrument effecting the legal arrangement with the food service management
company shall require such food service management company to maintain books and
records appropriate to the computation of that part of Cafeteria Rent payable
under paragraph b) of Section 3 below and to make such books and records for any
lease year during which such
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management company is operating Space C available to Tenant for inspection and
audit by Landlord during the thirty-six (36) calendar month period following
such lease year.
3. Tenant agrees to pay Landlord an annual rate of rent (the "Cafeteria
Rent") for the Cafeteria space as follows:
a) an amount equal to the Operating Expenses and Impositions of and for
the Building per square foot of floor area for each twelve (12)
calendar month period of the term of the Lease for Space C multiplied
by twenty-nine thousand five hundred thirty-eight (29,538), which
Landlord and Tenant agree is the number of square feet of rentable
floor area in Space C.
For any partial year, the annual rate of rent shall be prorated
according to the number of days in such partial year Space C is under
lease from Landlord to Tenant.
Inasmuch as Operating Expenses are calculated on a calendar year
basis, Operating Expenses which are payable by Tenant for any partial
calendar year shall be based on a proration of Operating Expenses for
the calendar year in which such partial calendar year falls.
Impositions shall be payable according to that part of the term of
this Lease for Space C which corresponds to the then current fiscal
tax period, i.e., the period over which Impositions are payable; and
Payment of that part of Cafeteria Rent on account of Operating
Expenses shall be made monthly, in advance, concurrently with monthly
installments on account of Base Rent. Each such monthly installment
shall be based on the last computation of actual Operating Expenses,
utilizing the same methodology of payment set forth in the grammatical
paragraph beginning on Page 12 of this Lease as executed prior to any
amendment thereof and ending on the top of Page 13 thereof for
payments by Tenant on account of Operating Expenses, with an
adjustment after the determination of actual Operating Expenses for
any period during the term of this Lease for the Cafeteria space.
Payment of Cafeteria Rent on account of Impositions shall be made
concurrently with payments to be made on account of Impositions for
other space leased to Tenant under this Lease, all as provided in
Article X of this Lease; and
b) the amount, if any, representing fifty percent (50%) of the net income
received by Tenant for each calendar year during the term of this
Lease for Space C, determined as follows.
"Net income" means the amount by which payments to Tenant paid by the
operator of the Cafeteria on account of the operation of the Cafeteria
exceeds the sum of the following items: --
i) a sum equal to SEVENTY-FIVE THOUSAND and 00/100 DOLLARS
($75,000.00), representing an agreed upon allowance for Tenant's
overhead in the operation of the Cafeteria,
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ii) Cafeteria Rent payable for such calendar year, and
iii) a sum on account of Tenant's Capital Cost, as hereinafter
defined.
The amount allocable to Tenant's Capital Cost for any calendar
year shall be the total of: --
A) the annual amortization amount determined by dividing (i)
the dollar amount of each capital expenditure for the
Cafeteria made by Tenant prior to or during such calendar
year by (ii) the number of years, expressed in terms of
whole and fractional numbers, remaining in the initial or
then extended term, as the case may be, at the time such
capital item was first placed in service (the "Annual
Amortization Amount"), and
B) an annual interest amount (adjusted for partial years) equal
to the product achieved by multiplying (i) each capital
expenditure which is the subject of the computation in
clause A) above minus the cumulated Annual Amortization
Amounts theretofore recovered by deductions from net income
by (ii) a percentage equal to the Base Rate plus two percent
(2%).
The purpose of making this computation is to take into
account Tenant's cost of funds in making capital
expenditures.
If Tenant is operating the Cafeteria itself, then for the purpose of this
Section 3, net income means, for each calendar year, the amount by which net
income from such operation computed in accordance with generally accepted
accounting principles determined before the payment of fifty percent (50%) of
net income to Landlord and without any allowance for depreciation or
amortization or for Tenant's general overhead exceeds the sum of (x) SEVENTY-
FIVE THOUSAND and 00/100 DOLLARS ($75,000.00), representing an agreed upon
dollar figure for Tenant's general overhead, and (y) the amount allocable to
Tenant's Capital Cost for such calendar year computed as set forth in clause
iii) above.
Appropriate adjustments to any calculation called for by this Section 3
shall be made where any period of operation of the Cafeteria by Tenant is not
for a full calendar year or is less than a full calendar year and for any period
during which there is a total cessation of Cafeteria operations. For example,
if the services of a food management company are terminated in the middle of a
calendar year and Cafeteria operations are suspended for some period of time,
the computation of net income shall be made for the "short" calendar year, and
the deductions from net income for Tenant's general overhead and allocable
Tenant's Capital Cost shall be proportionately adjusted. Not later than the
later to occur of ninety (90) days following the end of each such calendar year
and thirty (30) days following notice from Landlord to Tenant of the Operating
Expenses and Impositions for such calendar year, Tenant shall compute the amount
of rent, if any, remaining to be paid for such calendar year and, concurrently
therewith, pay the same to Landlord. Tenant shall maintain appropriate records
for the computation of net income from the Cafeteria and shall, on Landlord's
reasonable request from time to time, make available to Landlord Tenant's
records in support of Tenant's computation of net income during
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the thirty-six (36) calendar month period following the expiration of a calendar
year for which such request is made.
4. If Tenant shall exercise Tenant's option to extend the term of the
Lease for Space C following the initial ten (10) year term thereof or following
the expiration of the original term of the Lease for Space B, the annual rate of
rent payable by Tenant to Landlord on account of Space C shall be the amount
payable under Section 3 of this Article, Section 3 of Article III having no
application to Space C.
5. Tenant shall have no obligation continuously to operate a Cafeteria in
Space C but, in all events, Tenant shall be obligated to make payment of the
annual rate of rent specified in paragraph a) of Section 3 above.
If Tenant shall elect to cease operating Space C as a Cafeteria (except for
temporary cessations thereof), Landlord shall have the right to recapture Space
C by giving notice to Tenant of Landlord's desire so to do no later than six (6)
months following Tenant's notice of Tenant's intention to cease operation of
Space C as a Cafeteria. A cessation of operations which is not temporary in
nature but where Tenant shall have failed to give notice to Landlord of Tenant's
election to cease such operation shall be treated as a notice of such intention
given as of such cessation. Any such recapture shall be effective as of the
later of the date of which Tenant notifies Landlord that Tenant's intends to
cease operation of Space C as a Cafeteria or the date of such notice from
Landlord to Tenant. If Landlord elects so to recapture Space C, this Lease
shall terminate as to Space C as of the effective date of recapture with the
same force and effect as if this Lease, only as to Space C, had expired as of
such effective recapture date, and Landlord shall have the right to use Space C
for any use permitted under Article IV of this Lease, subject to all of the
provisions of such Article. Likewise, if Landlord shall not so elect to
recapture Space C, Tenant shall have the right to put Space C to such use as may
be consistent with a first-class office building in the financial district of
Boston.
6. If Landlord shall not have exercised Landlord's right of recapture
thereof, Tenant shall have the right to sublet Space C with the prior consent of
Landlord, such consent not unreasonably to be withheld. If any subletting for a
use other than as a cafeteria shall occur, in lieu of the portion of the
Cafeteria Rent described in Section 3 b) of this Article, the profit ("CS
Profit") shall be divided between Landlord and Tenant on a 50%/50% basis. "CS
Profit" is hereby defined to mean the amount by which rental received by Tenant
from such subletting exceeds the leasing cost (the "Cafeteria Subleasing Cost")
thereof. "Cafeteria Subleasing Cost" is hereby defined to mean Leasing Cost, as
defined in Section 1 of Article VIII of this Lease, except the reference to Base
Rent and additional rent referred to therein shall be treated as referring to
Cafeteria Rent. Further, the last two grammatical paragraphs on Page 36 of this
Lease, as originally executed prior to any amendment thereof, shall govern any
obligation of Tenant to pay a share of profit to Landlord. A subletting by a
Successor or Affiliate (except to a Successor or Affiliate) shall be subject to
the provisions of this Section. The provisions of Section 1 (other than clause
(g) and (i)) and the second sentence of Section 2 of said Article VIII shall
have no application to Space C. The second sentence of clause (i) of Section 1
of said Article VIII, with respect to Space C only, shall be deemed to read:
"Any governmental use, including, without limitation, an office of the Internal
Revenue Service, Post Office or a United States employment office, shall be
prohibited".
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7. If any such subletting shall occur, Landlord shall have the right to
recapture Space C upon the expiration of the term of such subletting, as it may
have been extended according to the terms of the sublease therefor, or earlier
termination of each such sublease by giving notice to Tenant of Landlord's
desire so to do no later than sixty (60) days following notice from Tenant
(given not more than one (1) year prior to the expiration or earlier termination
of such subletting) of the date of such expiration or earlier termination. Such
recapture shall be on the terms and conditions provided above.
ARTICLE XXII
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THE CAFE
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1. Schedule P is hereby further amended by adding another classification
of Space entitled Space S, consisting of approximately the area on the Lobby
Floor of the Building formerly occupied by First Shop and the space on the
loading dock level currently known as the Captain's office, all of which area is
shown on Schedule CAFE, to be used by Tenant as a cafe, serving food, beer and
wine (but beer and wine shall not be served until after 5:00 P.M. of Monday
through Friday of the week; beer and wine may be sold at any lawful time on
Saturday and Sunday) and non-alcoholic beverages for consumption on the premises
and on a take-out basis. When weather permits, Tenant shall also have the right
to use outside areas adjoining Space S and shown on Schedule CAFE, as a cafe and
for no other purpose. During such use, such outside areas shall be treated as a
part of Space S for all purposes, except for the computation of minimum rent.
If Tenant or the operator of Space S shall sell alcoholic beverages
therein, (a) Tenant or such operator shall obtain and maintain, for the benefit
and protection of and naming as insureds Landlord, Landlord's managing agent,
Tenant and such operator, liquor liability insurance in form and amount
reasonably satisfactory to Landlord, and (b) Tenant or such operator shall be
responsible for obtaining all permits and approvals required to so sell
alcoholic beverages.
The term of the Lease for Space S shall commence on the Commencement Date
(hereinafter defined) and expire on August 31, 2003.
The commencement date for Space S shall be the first to occur of (x) the
date when Tenant shall open for business in Space S and (y) the expiration of
ninety (90) days following the date when Landlord delivers to Tenant possession
of Space S free of any other occupant and in the condition in which Space S is
required to be put by Landlord pursuant to Schedule TFI annexed hereto (except
for those items in Schedule TFI which will be performed during or after Tenant's
construction). However, the Commencement Date shall not occur, in any event,
before substantial completion by Landlord of the Congress Street Lobby and Plaza
renovation work which is required by the terms of the Lease. Space S is leased
"as is", without any obligation on the part of Landlord to bring Space S into
the condition required by Schedule COND, but subject to Landlord's obligations
specified in Schedule TFI annexed hereto. No Tenant Improvement Allowance shall
be payable by Landlord except as provided in Schedule TFI.
Space S is not a part of Space A or Space B during such term expiring on
August 31, 2003.
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If at the time Tenant is and intends to continue operating Space S as a
Cafe (and Tenant's exercise of the option hereinafter described shall constitute
a representation that, at the time of such exercise, Tenant intends so to
continue such use of Space S), Tenant shall have the option to extend the term
of this Lease for Space S for a period which will end with the expiration of the
initial term of the Lease for Space B. Tenant shall exercise such option of
extension by notice to Landlord given not later than the last to occur of (i)
August 31, 2002 or (ii) the expiration of thirty (30) days following notice from
Landlord to Tenant, given not sooner than July 1, 2002, that Tenant's option of
extension has not been exercised by Tenant. However, in any event, the term of
the Lease for Space S shall expire on the day scheduled therefor, viz., August
31, 2003, without extension if such option to extend shall not have been
exercised prior to such day even if Landlord shall not have given Tenant such
notice.
If Tenant shall exercise such option to extend, then Space S shall become a
part of Space B for purposes of establishing the duration of the term of the
Lease for Space S and the right of Tenant to extend the term of the Lease for
Space S. Such rights of extension may be exercised only if at the time of such
exercise Tenant is, and intends to continue, operating Space S as a Cafe (and
Tenant's exercise of such rights of extension shall constitute a representation
that, at the time of such exercise, Tenant intends so to continue such use of
Space S).
2. With reference to Space S, Tenant agrees as follows:
a) plans for the interior decor of Space S, and incidental decorative
items proposed to be used on the Plaza which will be operated from
time to time as a part of Space S, shall be submitted to Xxxxxx
Xxxxxxx of Xxxx/Xxxxxxx Associates, Inc. for his approval and Tenant
agrees to follow only those plans for such decor and incidental
decorative features approved by Xx. Xxxxxxx or, if he is unavailable,
by another individual associated with Jung/Xxxxxxx Associates, Inc.
In other respects (i.e., other than interior decor), Tenant shall
comply with the requirements of Section 6 of Article V of this Lease
(even if the cost thereof shall be less than $500,000, but not if the
cost thereof shall be less than $50,000); and
b) the Cafe shall be operated in a first-class fashion suitable to and
compatible with a first-class office building in the financial
district of Boston. All of the terms and provisions of Section 2 b)
of Article XXI shall be applicable to the Cafe, mutatis mutandis.
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Tenant has advised Landlord that Tenant presently intends to retain
Sodexho to operate the Cafe for the account of Tenant, and Landlord
hereby specifically approves Sodexho as an operator for the Cafe. If
the engagement of Sodexho shall expire or is terminated, the
applicable provisions of Section 2 b) of Article XXI shall govern the
substitution of another food service management company, mutatis
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mutandis.
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3. Tenant shall have no obligation continuously to operate a Cafe in Space
S but, in all events, Tenant shall be obligated to make payment of the annual
rate of rent specified in Section 4 a) below. If no Cafe is being operated in
Space S, no payment on account of percentage rent shall be a part of the annual
rate of rent payable by Tenant.
However, if, during the term of this Lease as to Space S, Tenant shall
elect to cease operating Space S as a Cafe (other than a cessation of operations
which is temporary in nature), Landlord shall have the right to recapture Space
S by giving notice to Tenant of Landlord's desire so to do no later than twelve
(12) months (except that, after the first five (5) Lease Years of the term of
this Lease for Space S, the notice period shall be six (6) months rather than
twelve (12) months) following Tenant's notice of Tenant's intention to cease
operation in Space S as a Cafe. A cessation of operations which is not
temporary in nature but where Tenant shall have failed to give notice to
Landlord of Tenant's election to cease such operations shall be treated as a
notice of such intention given as of such cessation.
Any such recapture shall be effective as of the later of the date as of
which Tenant notifies Landlord that Tenant intends to cease operation of Space S
as a Cafe or the date of such notice from Landlord to Tenant. If Landlord
elects so to recapture Space S, this Lease shall terminate as to Space S as of
the effective date of recapture with the same force and effect as if this Lease
as to Space S had expired as of such effective recapture date, and Landlord
shall have the right use Space S for any use which may be consistent with the
street floor of a first-class office building in the financial district of
Boston, subject, however, to the provisions contained in Section 1 of Article IV
of this Lease. Likewise, if Landlord shall not so elect to recapture Space S,
Tenant shall have the right to put Space S to such use as may be consistent with
the street floor of a first-class office building in the financial district of
Boston, which use shall have been approved by Landlord, such approval not to be
unreasonably withheld.
4. Tenant agrees to pay to Landlord an annual rent ("Cafe Rent") for Space
S of the greater of:
a) a minimum annual rent ("Minimum Annual Cafe Rent") at the rate of
FIFTY-FOUR THOUSAND NINE HUNDRED NINETY and 00/100 DOLLARS
($54,990.00), representing $30.00 multiplied by 1,833, the number of
square feet of rentable area in Space S, exclusive of 398 square feet
of adjacent storage space, which is not to be included in the
computation of annual rent, plus the amount, if any, by which
experienced Operating Expenses and experienced Impositions for each
calendar year (or partial calendar year) of the term of this Lease for
Space S exceeds, respectively, the Cafe Operating Expenses Stop and
the Cafe Impositions Expense Stop (the "Escalations").
The "Cafe Operating Expenses Stop" means experienced Operating
Expenses per square foot as computed in accordance with Section 2 of
Article III of this Lease for calendar year 1994.
The "Cafe Impositions Stop" means Impositions (as defined in Article X
of this Lease) experienced during tax fiscal year 1993 on the same per
square foot basis. Both Stops shall be computed on a square foot
basis, and the appropriate
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computations made by reference to the number of square feet of
rentable area for which minimum annual rent for the Cafe is charged;
and
b) the sum of the Minimum Annual Cafe Rent and the Escalations specified
in paragraph a) above and a percentage rent equal to the amount, if
any, by which eight percent (8%) of gross sales from Space S and the
outdoor area exceeds Minimum Annual Cafe Rent and the Escalations
payable for each calendar year (or partial calendar year) of the term
of the Lease for Space S.
The term "gross sales" means the total dollar amount of sales, for
cash or on credit, of all sales of food, beverages, merchandise and
service at, in, on or from Space S and the outdoor area but not
including any sums collected and paid out by Tenant for any sales or
retail tax imposed by governmental authority or gratuities collected
by Tenant and paid out to employees.
Payments on account of Minimum Annual Cafe Rent shall be made in monthly
installments, in advance, on the first day of each calendar month during the
term of the Lease for Space S equal to FOUR THOUSAND FIVE HUNDRED EIGHTY-TWO and
50/100 DOLLARS ($4,582.50), and a proportionate amount thereof for any
fractional month during the term plus one-twelfth (1/12th) of amounts, if any,
payable on account of Operating Expenses and Impositions Escalations, as
reasonably estimated by Landlord for the relevant period.
Landlord shall certify to Tenant the experienced Operating Expenses and
experienced Impositions, each on a square foot basis, for each calendar year.
Upon the later to occur of ninety (90) days following the end of each calendar
year of the term of this Lease for Space S and thirty (30) days following notice
from Landlord to Tenant of such experienced Operating Expenses and experienced
Impositions, respectively, Tenant shall certify to Landlord the dollar amount of
gross sales from Space S and the outdoor area for such calendar year and shall
compute the amount of rent, if any, remaining to be paid for the relevant
calendar year and, concurrently therewith, pay the same to Landlord or Landlord
shall thereupon refund any overpayment of Escalations to Tenant. Tenant shall
maintain appropriate records of gross sales from Space S and the outdoor area
throughout the term of this Lease for Space S and shall, on Landlord's
reasonable request from time to time, make available to Landlord Tenant's
records in support of Tenant's certificate of gross sales during the thirty-six
(36) calendar month period following the expiration of the calendar year for
which such request is made.
5. If Tenant shall exercise Tenant's option to extend the term of this
Lease for Space S following the initial ten (10) year term thereof or following
the expiration of the original term of this Lease for Space B, the annual rate
of rent payable by Tenant to Landlord on account of Space S shall be the amount
payable under Section 4 of this Article, Section 3 of Article III having no
application to Space S.
6. If Landlord shall not have exercised Landlord's right of recapture
thereof upon Tenant discontinuance of a Cafe in Space S, Tenant shall have the
right to sublet Space S with the prior consent of Landlord, such consent not
unreasonably to be withheld. If any subletting shall occur, the profit ("Cafe
Subletting Profit") shall be divided between Landlord and Tenant on a 50%/50%
basis. "Cafe Subletting Profit" is hereby defined to mean the amount by which
rental received by Tenant from such subletting exceeds the leasing cost (the
"Cafe Subleasing
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Cost") thereof. "Cafe Subleasing Cost" is hereby defined to mean Leasing Cost,
as defined in Section 1 of Article VIII of this Lease, except the reference to
Base Rent and additional rent referred to therein shall be treated as referring
to Cafe Rent. Further, the last two grammatical paragraphs on Page 36 of this
Lease, as originally executed prior to any amendment thereof, shall govern any
obligation of Tenant to pay a share of profit to Landlord. A subletting by a
Successor or Affiliate (except to a Successor or Affiliate) shall be subject to
the foregoing provisions of this Section 6. The provisions of Section 1 (other
than clauses (g) and (i)) and the second sentence of Section 2 of said Article
VIII shall have no application to Space S. The second sentence of clause (i) of
Section 1 of said Article VIII, with respect to Space S only, shall be deemed to
read: "Any governmental use, including, without limitation, an office of the
Internal Revenue Service, Post Office or a United States employment office,
shall be prohibited."
7. If Tenant shall sublet Space S pursuant to Section 6 above, Landlord
shall have the right to recapture Space S upon the expiration of the term of
such sublease (as it may be extended pursuant to the provisions of such
sublease) or earlier termination of each such sublease by giving notice to
Tenant of Landlord's desire so to do no later than sixty (60) days following
notice from Tenant (given not more than one (1) year prior to the expiration or
earlier termination of such subletting) of the date of such expiration or
earlier termination. Such recapture shall be on the terms and conditions
provided above.
B. The Schedules attached hereto and referred to in Articles XXI and XXII
added to the Lease by this Amendment are hereby added to the Lease.
C. Tenant agrees with Landlord that the operation of a sundries shop on
Floor 1B of the Building is a permitted use of space on that Floor.
D. Except only as expressly amended hereby, the Lease shall continue in
full force and effect.
WITNESS the execution hereof as an instrument under seal as of the date
first above written.
LANDLORD:
EQUITABLE FEDERAL STREET REALTY
COMPANY LIMITED PARTNERSHIP
By: 000 XXXXXXX XXXXXX REALTY
CORPORATION, Its General Partner
By: /s/ XXXXXXXX X. XXXXXXX
-------------------------
Its President
-11-
TENANT:
THE FIRST NATIONAL BANK OF BOSTON
By: /s/ XXXXXXXX X. XXXXX
-----------------------
Its Director, Facilities
36697
-12-
SCHEDULE TFI
------------
Improvements to Lobby Cafe Area
-------------------------------
Landlord and Tenant have agreed that the division of responsibility for the
lobby cafe area will be as follows:
1. Landlord will provide, at its sole cost, all the requirements of
Schedule COND, as appropriate, and the following:
a. An exterior door to the plaza in the location specified on
Schedule DOOR which complies with the Americans with Disabilities
Act.
b. Final connections to building utility systems of Tenant installed
equipment at the perimeter of the space.
2. Tenant will be responsible for the following:
a. Design and layout of the space, which will be subject to
Landlord's approval, which will not be unreasonably withheld or
delayed. Failure of Landlord to approve or disapprove Tenant's
plans within 30 days of submission shall constitute Landlord's
approval.
b. The procurement and delivery of all trade fixtures to the site.
c. Location of trade fixtures within the site, all prepared for
Landlord's final connection to building systems at the perimeter
of the space.
3. Landlord will pay to Tenant, as a Tenant Improvement Allowance
for the work required in Space S to prepare the same for its intended use, not
exceeding the sum of $137,475. Such Allowance shall be subject to the terms and
condition of Section 3 of Article XVI.
