Third Amendment to Lease
This Third Amendment to Lease (this "Amendment"), is made as of the 15th
day of December, 1997, by and between ONE TWENTY FIVE HIGH STREET LIMITED
PARTNERSHIP, a Massachusetts limited partnership, with an address c/o The
Travelers Insurance Company-Real Estate Investments, Xxx Xxxxx Xxxxxx-0XX,
Xxxxxxxx, Xxxxxxxxxxx 00000-0000, Attn: Asset Manager-RE JVN-NO. 00070 (the
"Landlord") and KEYPORT LIFE INSURANCE COMPANY, a Rhode Island Corporation,
having a business address of 000 Xxxx Xxxxxx, Xxxxxx Xxxxxx Xxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000 (the "Tenant").
WITNESSETH:
Reference is hereby made to the following facts:
A. Landlord and Tenant entered into that certain lease (as heretofore
amended, and modified and amended hereby, the "Lease"), dated May 21, 1991, as
amended by that certain First Amendment to Lease, dated August 28, 1992, and
that certain Second Amendment to Lease, dated as of September 21, 1994, for
certain premises (the "Existing Premises") located on the 11th, 12th, 13th and
14th floors of the building commonly known as the Xxxxxx Street Tower in the
project known as 000 Xxxx Xxxxxx xx Xxxxxx, Xxxxxxxxxxxxx (as more particularly
described in the Lease, the "Project"), all as more particularly described in
the Lease. All capitalized words and phrases not otherwise defined herein shall
have the meanings ascribed to them in the Lease.
B. Landlord and Tenant have agreed to extend the term of the Lease, to add
an additional 39,905 square feet of Gross Rentable Area located in the building
in the Project commonly known as 000 Xxxxxx Xxxxxx ("131 Xxxxxx Street") to the
premises demised under the Lease, to remove the portion of the premises located
on the 11th floor of the Xxxxxx Street Tower (containing 24,256 square feet of
Gross Rentable Area) from the premises, and to modify and amend the Lease, all
in the manner hereinafter set forth.
NOW THEREFORE, in consideration of Ten Dollars ($10.00) and other good and
valuable consideration, the receipt, sufficiency and delivery of which are
hereby acknowledged, the parties hereby agree that the Lease is hereby further
amended as follows:
1. Extension of Term. The term of the Lease is hereby extended for an
additional seventy-five (75) month period, commencing on January 1, 2002 and
continuing through March 31, 2008 (the "Extension Period"), unless sooner
terminated, all in accordance with and subject to the terms and conditions set
forth in the Lease. Without limitation, all references in the Lease to the
"Lease Term" shall be deemed to include the Extension Period in all respects.
2. Renewal Term: Expiration of Early Termination Right. Sections 23.1.1,
23.1.2 and 23.2 of the Lease are hereby deleted in their entirety, and none of
the provisions contained in said Sections shall be of any further force or
effect. Section 23.1.1 of the Lease is restated in its entirety with the
following:
"Tenant shall have the option (the "Renewal Option") to extend the Lease
Term for an additional 5-year period (the "Renewal Term"), which Renewal
Term shall commence on April 1, 2008 and end on March 31, 2013, provided
that this Lease is in full force and effect on the date Tenant gives
Landlord notice (the "Renewal Notice") of Tenant's election to exercise
the Renewal Option. The Renewal Option shall be exercisable by Tenant
delivering the Renewal Notice to Landlord not later than April 1, 2007. If
Tenant exercises the Renewal Option in accordance with the terms of this
Section 23.1.1, the Renewal Term shall become part of the Lease Term and
be upon the same terms, covenants and conditions as those contained in
this Lease, except that (i) the Base Rent for the Renewal Term shall be
determined in accordance with Section 23.1.3; (ii) there shall be no Base
Rent Concession or Supplemental Base Rent Concession; and (iii) Article
III and this Section 23.1.1 shall not apply to the Renewal Term."
The first sentence of Section 23.1.3 of the Lease is hereby deleted in its
entirety and replaced with the following:
"Landlord and Tenant shall attempt to mutually agree upon the Fair Market
Rent (as hereinafter defined) for the Renewal Term during the 90-day
period commencing on April 1, 2007."
Except as provided in this Paragraph 2, Tenant acknowledges that it has no
further rights or options to extend the Lease Term, and that the early
termination right afforded to Tenant pursuant to Section 23.2 of the Lease has
expired and is of no further force or effect. Without limiting the foregoing,
(i) all references in the Lease to the "First Renewal Term" shall mean the
"Renewal Term" and all references in the Lease to the "Second Renewal Term" are
hereby deleted, and (11) except as provided in this Paragraph 2, Tenant shall
have no further rights or options of any kind, pursuant to Sections 23.1 and
23.2 of the Lease.
3. Surrender and Yield Up of Premises on Eleventh Floor of Xxxxxx Street
Tower. The "l1th Floor Surrender Date" shall mean the date which is the earlier
to occur of (i) forty-five (45) days after Substantial Completion (hereinafter
defined) of the TI Work (hereinafter defined) required to prepare the Third
Amendment Additional Premises (hereinafter defined) for occupancy or (ii) June
3O, 1998. As used herein, "Substantial Completion" shall mean completion of the
TI Work to the point where the Third Amendment Additional Premises are ready for
occupancy without material interference to Tenant's use thereof, and an
occupancy certificate may be issued with respect to the Third Amendment
Additional Premises. Notwithstanding any provision in the Lease to the contrary,
by not later than the 11th Floor Surrender Date, the Tenant shall yield up and
surrender the portion of the Premises located on the eleventh (11th) floor of
the Xxxxxx Street Tower, containing 24,256 square feet of Gross Rentable Area
(the "11th Floor Premises"). The Tenant shall surrender and deliver the 11th
Floor Premises to Landlord in broom-clean condition and otherwise in the
condition in which
the Premises are required to be surrendered pursuant to the Lease at the
expiration of the term thereof. Without limitation, Tenant shall remove from the
11th Floor Premises all of its personal property, trade fixtures (excluding
permanent leasehold improvements), inventory and equipment located therein and
shall repair any and all damage caused by such removal. All property of any
kind, nature or description contained in the 11th Floor Premises on or after the
11th Floor Surrender Date shall be and become the property of the Landlord,
without payment from Landlord and without the necessity to account therefor in
any manner whatsoever to Tenant.
Effective as of the 11th Floor Surrender Date, the 11th Floor Premises
shall be removed from the Premises, and the rights of the Tenant with respect
thereto shall terminate and expire with the same force and effect as if such
date had originally been specified in the Lease as the expiration date of the
term for and with respect to the 11th Floor Premises. Through the period ending
on the 11th Floor Surrender Date, the Tenant shall comply with all of the terms
and provisions of the Lease relating thereto, and shall fully perform all of its
obligations thereunder, including, without limitation, the payment of Base Rent,
Escalation Rent, and all other Additional Rent due under the Lease on account
thereof. Effective as of the 00xx Xxxxx Xxxxxxxxx Xxxx, Xxxxxxxx shall be
released from any and all obligations to Tenant thereafter accruing under the
Lease relating to the 11th Floor Premises.
Provided that Tenant performs all of its obligations under the Lease and
this Amendment, including, without limitation, the obligation to surrender the
11th Floor Premises on the 11th Floor Surrender Date in the condition required
by the Lease and this Amendment, Tenant shall be released from all liabilities
and obligations under the Lease relating to the 11th Floor Premises which first
accrue after the 11th Floor Surrender Date. The portions of the Existing
Premises located on the twelfth (12th), thirteenth (13th) and fourteenth (14th)
floors of the Xxxxxx Street Tower are sometimes referred to herein collectively
as the "Xxxxxx Street Tower Premises." Nothing contained herein shall
constitute, a waiver, limitation or modification of any of the liabilities and
obligations of the Tenant or Landlord relating to the 11th Floor Premises which
accrue prior to the 11th Floor Surrender Date, or a waiver or limitation of any
of the liabilities and obligations of the Tenant or Landlord relating to the
Xxxxxx Street Tower Premises.
4. Rent for the Xxxxxx Street Tower Premises for the Extension Period. For
and with respect to the Xxxxxx Street Tower Premises, during the Extension
Period the Tenant shall pay Base Rent, Escalation Rent and all other Additional
Rent payable pursuant to the Lease, all in accordance with the terms and
provisions of the Lease.
The Base Rent payable with respect to the Xxxxxx Street Tower Premises for
the Extension Period shall be as follows: (a) for and with respect to the period
commencing on January 1, 2002 and terminating on June 30, 2004, at the per annum
rate of Forty Dollars ($40.00) per square foot of Gross Rentable Area of the
Xxxxxx Street Tower Premises; (b) for and with respect to the period commencing
on July 1, 2004 and terminating on December 31, 2005, at the per annum rate of
Forty-One Dollars ($41.00) per square foot of Gross Rentable Area of the Xxxxxx
Street Tower Premises; and (c) for and with respect to the period
commencing on January 1, 2006 and terminating on March 31, 2008, at the per
annum rate of Forty-Two and 50/100 Dollars ($42.50) per square foot of Gross
Rentable Area of the Xxxxxx Street Tower Premises.
For purposes of determining the Escalation Rent payable with respect to
the Xxxxxx Street Tower Premises during the Extension Period, (i) the Operating
Expense Base for the Xxxxxx Street Tower Premises shall be the actual
unextrapolated amount of Operating Expenses attributable to the Xxxxxx Street
Tower incurred with respect to calendar year 1998, and (ii) the Tax Base shall
be the actual unextrapolated real estate taxes (excluding all other components
of the definition of Taxes) attributable to the Xxxxxx Street Tower for the 1998
tax fiscal year, which commenced on July 1, 1997 and ends on June 30, 1998.
5. Demise of Third Amendment Additional Premises. Landlord hereby demises
and leases to Tenant, and Tenant hereby hires and takes from Landlord, from and
after December 12, 1997 (the "Delivery Date"), additional premises consisting of
39,905 square feet of Gross Rentable Area within 000 Xxxxxx Xxxxxx ("the Third
Amendment Additional Premises"), which Third Amendment Additional Premises are
depicted on the plans attached hereto as Exhibit B-1 and incorporated herein by
this reference, for a term commencing on the Delivery Date and terminating on
the expiration or earlier termination of the Lease Term. The demise and use of
the Third Amendment Additional Premises shall be upon and subject to all of the
other terms and conditions of the Lease, except as expressly set forth in this
Amendment. Without limitation, in accordance with the provisions of this
Amendment, Tenant shall not be obligated to commence paying Base Rent for the
Third Amendment Additional Premises prior to the Rent Commencement Date
(hereunder defined).
From and after the Delivery Date, the Third Amendment Additional Premises
shall be considered to be part of the Premises in all respects. From and after
the Delivery Date, all references contained in the Lease to the "Premises" shall
be deemed to refer to the Existing Premises and the Third Amendment Additional
Premises, collectively. From and after the 11th Floor Surrender Date, all
references contained in the Lease to the "Premises" shall be deemed to refer to
the Xxxxxx Street Tower Premises and the Third Amendment Additional Premises,
collectively. From and after the Delivery Date, all references in the Lease to
the "Building" shall be deemed to refer to the Xxxxxx Street Tower and 000
Xxxxxx Xxxxxx, collectively and individually, as the context requires.
6. Rent for Third Amendment Additional Premises. For and with respect to
the Third Amendment Additional Premises, the Tenant shall commence paying Base
Rent, Escalation Rent and all other Additional Rent payable pursuant to the
Lease on the earlier to occur of (i) the date Tenant first occupies the Third
Amendment Additional Premises, or (ii) April 1, 1998 (the "Rent Commencement
Date"). All such amounts shall be payable in accordance with the terms and
provisions of the Lease.
The Base Rent payable with respect to the Third Amendment Additional
Premises shall be as follows: (a) for and with respect to the period commencing
on the Rent Commencement Date and terminating on January 31, 2001, at the per
annum rate of Twenty Five Dollars
($25.00) per square foot of Gross Rentable Area of the Third Amendment
Additional Premises; (b) for and with respect to the period commencing on
February 1, 2001 and terminating on January 31, 2005, at the per annum rate of
Twenty Seven Dollars ($27.00) per square foot of Gross Rentable Area of the
Third Amendment Additional Premises; and (c) for and with respect to the period
commencing on February 1, 2005 and terminating on March 1, 2008, at the per
annum rate of Twenty Nine Dollars ($29.00) per square foot of Gross Rentable
Area of the Third Amendment Additional Premises.
For purposes of determining the Escalation Rent payable with respect to
the Third Amendment Additional Premises, (i) the Operating Expense Base for the
Third Amendment Additional Premises shall be the Operating Expenses attributable
to 000 Xxxxxx Xxxxxx with respect to the twelve (12) month period immediately
following the date on which Tenant first occupies the Third Amendment Additional
Premises (or any part thereof), and (ii) the Tax Base shall be ninety seven
percent (97%) of the actual unextrapolated real estate taxes (excluding all
other components of the definition of Taxes) attributable to 000 Xxxxxx Xxxxxx
for the 1999 tax fiscal year, which commences on July 1, 1998 and ends on June
30, 1999.
Notwithstanding any provision to the contrary contained in the Lease or in
this Amendment, the provisions of Section 2.4.10 of the Lease shall have no
applicability and be of no force or effect with respect to the Third Amendment
Additional Premises, or the payment of Rent on account thereof, and none of the
Rent Concessions shall apply to the payment of Base Rent, Escalation Rent and
other Additional Rent payable with respect to the Third Amendment Additional
Premises. Tenant shall make all payments of Base Rent and Escalation Rent with
respect to the Third Amendment Additional Premises on the due date thereof,
without giving effect to the provisions of Section 2.4.10 of the Lease.
7. As-Is Condition. Notwithstanding anything contained in the Lease to the
contrary, the Landlord shall deliver and Tenant shall take the Third Amendment
Additional Premises "-as-is", "where is", and in all respects in the condition
in which the Third Amendment Additional Premises are in as of the Delivery Date,
without any obligation on the part of Landlord to prepare or construct the Third
Amendment Additional Premises for Tenant's occupancy, or to construct any
additional improvements therein or in 000 Xxxxxx Xxxxxx or in the Xxxxxx Street
Tower, and without any representation or warranty (express or implied) on the
part of Landlord as to the condition of the Third Amendment Additional Premises.
8. Construction of Tenant Improvements. Tenant shall, subject to and in
accordance with the provisions of the Lease (including, without limitation,
Article VII thereof) perform all leasehold improvement work required to prepare
the Third Amendment Additional Premises for occupancy (collectively, the "TI
Work"), in accordance with the terms and provisions of the Work Letter Agreement
attached hereto as Exhibit A (the "Work Letter Agreement") and by this reference
made a part hereof and incorporated herein. Notwithstanding the foregoing, the
provisions of Article III of the Lease shall have no applicability and be of no
force and effect with respect to the Third Amendment Additional Premises. Except
for the Tenant Allowance (as defined in the Work Letter Agreement), the Tenant
shall be responsible for all costs and expenses of preparing the Third Amendment
Additional Premises for its occupancy. In the event of any conflict between the
provisions of this Amendment and the provisions of the Work Letter Agreement,
the provisions of the Work Letter Agreement shall govern and control.
9. Reference Information. Effective as of the Delivery Date, Section 1.1
of the Lease is hereby amended by deleting subsections 1.1.2, 1.1.3, 1.1.8.,
1.1.9, 1.1.10, 1.1.11, 1.1.12, 1.1.13, 1.1.14 and 1.1.15, and replacing said
definitions with the following:
1.1.2. LANDLORD'S ORIGINAL
ADDRESS: c/o Tishman Speyer Properties
Office of the Building
000 Xxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 021 10
Attn: Property Management
1.1.3 LANDLORD'S
CONSTRUCTION
REPRESENTATIVE: Xxxx Xxxxxxx
1.1.8 PROJECT: The three (3) buildings bearing the
following addresses: 000 Xxxx Xxxxxx-Xxxxxx
Xxxxxx Tower, 000 Xxxx Xxxxxx-Xxxxxx Xxxxxx
Tower, and 000 Xxxxxx Xxxxxx, including,
without limitation, the atrium ("Atrium")
joining one or more of such buildings,
together with all appurtenant site
improvements situated upon the Site. A City
of Boston fire station and ambulance
facility are located physically within the
Project and a garage for tenant and visitor
vehicles is located below-grade within the
Project (the "Garage"). The land upon which
the Project has been constructed, as more
particularly described in Exhibit A attached
hereto and incorporated herein by this
reference, is sometimes referred to herein
as the "Site." The Site, the Project, and
all other improvements now or hereafter
constructed on the Site are sometimes
referred to herein as the "Property."
1.1.9 PREMISES: (i) the "Xxxxxx Street Tower Premises"
consisting of the following: 23,614 square
feet of Gross Rentable Area located on the
00xx Xxxxx xx xxx Xxxxxx Xxxxxx Xxxxx;
24,604 square feet of Gross Rentable Area
located on the 00xx Xxxxx xx xxx Xxxxxx
Xxxxxx Xxxxx; 3,808 square feet of Gross
Rentable Area located on the 14th Floor of
the Xxxxxx Street Tower, all as depicted on
the floor
plans attached hereto as Exhibit B and
incorporated herein by this reference; (ii)
the "Third Amendment Additional Premises"
consisting of 39,905 square feet of Gross
Rentable Area located in 000 Xxxxxx Xxxxxx;
and (iii) the "11th Floor Premises"
consisting of 24,256 square feet of Gross
Rentable Area located on the 11th floor of
the Xxxxxx Street Tower, as depicted on the
floor plan attached hereto as Exhibit B-1.
The Xxxxxx Street Tower Premises and the
11th Floor Premises are sometimes referred
to herein collectively as the "Existing
Premises." From and after the 11th Floor
Surrender Date, all references in the Lease
to the "Premises" shall be deemed to refer
to the Xxxxxx Street Tower Premises and the
Third Amendment Additional Premises,
collectively.
1.1.11 ANNUAL BASE RENT: (i) $27.00 per square foot of Gross
Rentable Area of the Existing Premises for
each of Lease Years 1-5; $33.00 per square
foot of Gross Rentable Area of the Existing
Premises for each of Lease Years 6-10;
$40.00 per square foot of Gross Rentable
Area of the Xxxxxx Street Tower Premises for
the period commencing on January 1, 2002 and
terminating on June 30, 2004; $41.00 per
square foot of Gross Rentable Area of the
Xxxxxx Street Tower Premises for the period
commencing on July 1, 2004 and terminating
on December 31, 2005; and $42.50 per square
foot of Gross Rentable Area of the Xxxxxx
Street Tower Premises for the period
commencing on January 1, 2006 and
terminating on March 31, 2008; (ii) $25.00
per square foot of Gross Rentable Area of
the Third Amendment Additional Premises for
the period commencing on the Rent
Commencement Date (as defined in this
Amendment) and terminating on January 31,
2001; $27.00 per square foot of Gross
Rentable Area of the Third Amendment
Additional Premises for the period
commencing on February 1, 2001 and
terminating on January 31, 2005; and $29.00
per square foot of Gross Rentable Area of
the Third Amendment Additional Premises for
the period commencing
on February 1, 2005 and terminating on March
31, 2008.
1.1.12 GROSS RENTABLE AREA
OF THE PREMISES: 116,187 square feet of Gross Rentable Area;
after the surrender of the 11th Floor
Premises and the removal thereof from the
Premises in accordance with the provisions
of this Amendment, the Premises shall
consist of 91,931 square feet of Gross
Rentable Area.
1.1.13 GROSS RENTABLE
AREA OF BUILDING: (1) Xxxxxx Street Tower-508,157 square feet
of Gross Rentable Area; (ii) 000 Xxxxxx
Xxxxxx- 41,679 square feet of Gross Rentable
Area.
1.1.14 TAX BASE: (i) For and with respect to the Existing
Premises for each of Lease Years 1-10, an
amount equal to the greater of (a) the
product of $5.50 times the number of square
feet of Gross Rentable Area of the Xxxxxx
Street Tower, or (b) the actual
unextrapolated amount of real estate taxes
attributable to the Xxxxxx Street Tower for
the 1993 Fiscal Tax Year, which commenced
July 1, 1992 and ended on June 30, 1993,
excluding all other components of the
definition of Taxes (as hereinafter
defined); (ii) for and with respect to the
Xxxxxx Street Tower Premises for the
Extension Period, the actual unextrapolated
real estate taxes (excluding all other
components of the definition of Taxes)
attributable to the Xxxxxx Street Tower for
the 1998 Tax Fiscal Year, which commences on
July 1, 1997 and ends on June 30, 1998;
(iii) for and with respect to the Third
Amendment Additional Premises, 97% of the
actual unextrapolated real estate taxes
(excluding all other components of the
definition of Taxes) attributable to 000
Xxxxxx Xxxxxx for the 1999 Tax Fiscal Year,
which commences on July 1, 1998 and ends on
July 30, 1999.
1.1.15 OPERATING EXPENSE
BASE: (i) For and with respect to the Existing
Premises for each of Lease Years 1-10, an
amount equal to the greater of (a) the
product of $5.50 times the
number of square feet of Gross Rentable Area
of the Xxxxxx Street Tower, or (b) the
actual unextrapolated amount of Operating
Expenses (as hereinafter defined)
attributable to the Xxxxxx Street Tower
incurred with respect to calendar year 1992;
(ii) for and with respect to the Xxxxxx
Street Tower Premises for the Extension
Period, the actual unextrapolated amount of
Operating Expenses attributable to the
Xxxxxx Street Tower incurred with respect to
calendar year 1998; (iii) for and with
respect to the Third Amendment Additional
Premises, the actual unextrapolated
Operating Expenses attributable to 000
Xxxxxx Xxxxxx incurred with respect to the
twelve (12) month period immediately
following the date on which Tenant first
occupies the Third Amendment Additional
Premises (or any part thereof).
10. Floor Plans. Exhibit B attached to the Lease is hereby amended by
adding thereto the floor plan(s) set forth in Exhibit "B-1" attached to this
Amendment and incorporated herein by this reference.
11. Brokerage. Tenant warrants and represents to Landlord, and Landlord
warrants and represents to Tenant, that it has dealt with no broker or agent in
connection with this Amendment, other than Tishman Speyer Properties and/or
Xxxxxxxxx & Xxxx. Each of Tenant and Landlord shall indemnify and hold harmless
the other from and against any and all loss, cost and expense (including
attorneys' fees) involving any claims for a brokerage commission, finder's fee
or similar compensation made by any person other than Tishman Speyer Properties
and/or Xxxxxxxxx & Xxxx, arising out of or in connection with this Amendment.
The Landlord shall be responsible for payment of all fees payable to Tishman
Speyer Properties and/or Xxxxxxxxx & Xxxx arising out of and in connection with
this Amendment.
12. Miscellaneous. Landlord and Tenant represent and warrant to each other
that the execution and delivery of this Amendment have been duly authorized by
all required partnership and corporation actions, as applicable. Except as
expressly and specifically set forth herein, the Lease is hereby ratified and
confirmed, and all of the terms, covenants, agreements and provisions of the
Lease shall remain unaltered and unmodified and in full force and effect
throughout the balance of the term of the Lease, as extended hereby. Except as
expressly set forth herein, all of the covenants, representations and warranties
made by the Tenant contained in the Lease are hereby remade, reaffirmed and
ratified as of the date hereof.
EXECUTED as an instrument under seal as of the date first above-written.
ONE TWENTY FIVE HIGH STREET
LIMITED PARTNERSHIP
By: The Prospect Company, d/b/a
The Prospect - Massachusetts
Company, General Partner
By: ---------------------------------
Name: XXXXXXX X'XXXXXXX
------------------------
Title: DIRECTOR
------------------------
KEYPORT LIFE INSURANCE COMPANY,
a Rhode Island Corporation
By: -------------------------------
Name: -------------------------
Title: ------------------------
Fourth Amendment to Lease
This Fourth Amendment to Lease (this "Amendment"), is made as of the 1st
day of May, 1998, by and between TST 000 XXXX XXXXXX, L.L.C., a Delaware limited
liability company, with an address c/o Tishman Speyer Properties, 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, XX 00000 (the "Landlord") and KEYPORT LIFE INSURANCE COMPANY,
a Rhode Island Corporation, having a business address of 000 Xxxx Xxxxxx, Xxxxxx
Xxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (the "Tenant").
WITNESSETH:
Reference is hereby made to the following facts:
A. The predecessor-in-interest to Landlord and Tenant entered into that
certain lease (as heretofore amended, and modified and amended hereby, the
"Lease"), dated May 21, 1991, as amended by that certain First Amendment to
Lease, dated August 28, 1992, that certain Second Amendment to Lease, dated as
of September 21, 1994, and that certain Third Amendment to Lease, dated as of
December _, 1997, for certain premises (the "Existing Premises") located on the
12th, 13th and 14th floors of the building commonly known as the Xxxxxx Street
Tower and in the building commonly known as 000 Xxxxxx Xxxxxx, both in the
project known as 000 Xxxx Xxxxxx xx Xxxxxx, Xxxxxxxxxxxxx (as more particularly
described in the Lease, the "Project"), all as more particularly described in
the Lease. All capitalized words and phrases not otherwise defined herein shall
have the meanings ascribed to them in the Lease.
B. Landlord and Tenant have agreed to add an additional 4,520 square feet
of Gross Rentable Area located in the Xxxxxx Street Tower to the premises
demised under the Lease, and to modify and amend the Lease, all in the manner
hereinafter set forth.
NOW THEREFORE, in consideration of Ten Dollars ($10.00) and other good and
valuable consideration, the receipt, sufficiency and delivery of which are
hereby acknowledged, the parties hereby agree that the Lease is hereby further
amended as follows:
1. Demise of Fourth Amendment Additional Premises. Landlord hereby demises
and leases to Tenant, and Tenant hereby hires and takes from Landlord, from and
after May 1, 1998 (the "Delivery Date"), additional premises consisting of 4,520
square feet of Gross Rentable Area on the 14th floor of the Xxxxxx Street Tower
(the "Fourth Amendment Additional Premises"), which Fourth Amendment Additional
Premises are depicted on the plans attached hereto as Exhibit B-2 and
incorporated herein by this reference, for a term commencing on the Delivery
Date and terminating on the expiration or earlier termination of the Lease Term.
The demise and use of the Fourth Amendment Additional Premises shall be upon and
subject to all of the other terms and conditions of the Lease, except as
expressly set forth in this Amendment.
From and after the Delivery Date, the Fourth Amendment Additional Premises
shall be considered to be part of the Premises in all respects. From and after
the Delivery Date, all references contained in the Lease to the "Premises" shall
be deemed to refer to the Existing Premises and the Fourth Amendment Additional
Premises, collectively.
2. Rent for Fourth Amendment Additional Premises. For and with respect to
the Fourth Amendment Additional Premises, the Tenant shall commence paying Base
Rent, Escalation Rent and all other Additional Rent payable pursuant to the
Lease on the Delivery Date. All such amounts shall be payable in accordance with
the terms and provisions of the Lease,
The Base Rent payable with respect to the Fourth Amendment Additional
Premises shall be as follows: (a) for and with respect to the period commencing
on the Delivery Date and terminating on December 31, 2001, at the per annum rate
of Fifty Dollars ($50.00) per square foot of Gross Rentable Area of the Fourth
Amendment Additional Premises; (b) for and with respect to the period commencing
on January 1, 2002 and terminating on June 30, 2004, at the per annum rate of
Fifty-Two Dollars ($52.00) per square foot of Gross Rentable Area of the Fourth
Amendment Additional Premises; (c) for and with respect to the period commencing
on July 1, 2004 and terminating on December 31, 2005, at the per annum rate of
Fifty-Four Dollars ($54.00) per square foot of Gross Rentable Area of the Fourth
Amendment Additional Premises; and (d) for and with respect to the period
commencing on January 1, 2006 and terminating on March 31, 2008 at the per annum
rate of Fifty-Seven Dollars ($57.00) per square foot of Gross Rentable Area of
the Fourth Amendment Additional Premises.
For purposes of determining the Escalation Rent payable with respect to
the Fourth Amendment Additional Premises, (i) the Operating Expense Base for the
Fourth Amendment Additional Premises shall be the Operating Expenses
attributable to the Xxxxxx Street Tower with respect to the twelve (12) month
period between January 1, 1998 and December 31, 1998, and (ii) the Tax Base
shall be the actual unextrapolated real estate taxes (excluding all other
components of the definition of Taxes) attributable to the Xxxxxx Street Tower
for the 1998 Tax Fiscal Year, which commences on July 1, 1997 and ends on June
30, 1998.
Notwithstanding any provision to the contrary contained in the Lease or in
this Amendment, the provisions of Section 2.4.10 of the Lease shall have no
applicability and be of no force or effect with respect to the Fourth Amendment
Additional Premises, or the payment of Rent on account thereof, and none of the
Rent Concessions shall apply to the payment of Base Rent, Escalation Rent and
other Additional Rent payable with respect to the Fourth Amendment Additional
Premises. Tenant shall make all payments of Base Rent and Escalation Rent with
respect to the Fourth Amendment Additional Premises on the due date thereof,
without giving effect to the provisions of Section 2.4.10 of the Lease.
3. As-Is Condition. Notwithstanding anything contained in the Lease to the
contrary, the Landlord shall deliver and Tenant shall take the Fourth Amendment
Additional Premises "as-is", "where is", and in all respects in the condition in
which the Fourth
Amendment Additional Premises are in as of the Delivery Date, without any
obligation on the part of Landlord to prepare or construct the Fourth Amendment
Additional Premises for Tenant's occupancy, or to construct any additional
improvements therein or in the Xxxxxx Street Tower, and without any
representation or warranty (express or implied) on the part of Landlord as to
the condition of the Fourth Amendment Additional Premises.
4. Construction of Tenant Improvements. Tenant shall, subject to and in
accordance with the provisions of the Lease (including, without limitation,
Article VII thereof) perform all leasehold improvement work required to prepare
the Fourth Amendment Additional Premises for occupancy (collectively, the "TI
Work"), in accordance with the terms and provisions of the Work Letter Agreement
attached hereto as Exhibit A (the "Work Letter Agreement") and by this reference
made a part hereof and incorporated herein. Notwithstanding the foregoing, the
provisions of Article III of the Lease shall have no applicability and be of no
force and effect with respect to the Fourth Amendment Additional Premises.
Except for the Tenant Allowance (as defined in the Work Letter Agreement), the
Tenant shall be responsible for all costs and expenses of preparing the Fourth
Amendment Additional Premises for its occupancy. In the event of any conflict
between the provisions of this Amendment and the provisions of the Work Letter
Agreement, the provisions of the Work Letter Agreement shall govern and control.
5. Reference Information. Effective as of the Delivery Date, Section 1.1
of the Lease is hereby amended by deleting subsections 1.1.9, 1.1.10, 1.1.11,
1.1.12, 1.1.14, and 1.1.15, and replacing said definitions with the following:
1.1.9 PREMISES: (i) the "Xxxxxx Street Tower Premises"
consisting of the following: 23,614 square
feet of Gross Rentable Area located on the
00xx Xxxxx xx xxx Xxxxxx Xxxxxx Xxxxx;
24,604 square feet of Gross Rentable Area
located on the 00xx Xxxxx xx xxx Xxxxxx
Xxxxxx Xxxxx; 3,808 square feet of Gross
Rentable Area located on the 14th Floor of
the Xxxxxx Street Tower, all as depicted on
the floor plans attached hereto as Exhibit B
and incorporated herein by this reference;
(ii) the "Third Amendment Additional
Premises" consisting of 39,905 square feet
of Gross Rentable Area located in 000 Xxxxxx
Xxxxxx, as depicted on the floor plan
attached hereto as Exhibit B-1; and (iii)
the "Fourth Amendment Additional Premises"
consisting of 4,520 square feet of Gross
Rentable Area located on the 14th floor of
the Xxxxxx Street Tower, as depicted on the
floor plan attached hereto as Exhibit B-2.
1.1.11 ANNUAL BASE
RENT: (i) $27.00 per square foot of Gross Rentable
Area of the Existing Premises for each of
Lease Years 1-5; $33.00 per square foot of
Gross Rentable Area of the Existing Premises
for each of Lease Years 6-10; $40.00 per
square foot of Gross Rentable Area of the
Xxxxxx Street Tower Premises for the period
commencing on January 1, 2002 and
terminating on June 30, 2004; $41.00 per
square foot of Gross Rentable Area of the
Xxxxxx Street Tower Premises for the period
commencing on July 1, 2004 and terminating
on December 31, 2005; and $42.50 per square
foot of Gross Rentable Area of the Xxxxxx
Street Tower Premises for the period
commencing on January 1, 2006 and
terminating on March 31, 2008; (ii) $25.00
per square foot of Gross Rentable Area of
the Third Amendment Additional Premises for
the period commencing on the Rent
Commencement Date (as defined in the Third
Amendment) and terminating on January 31,
2001; $27.00 per square foot of Gross
Rentable Area of the Third Amendment
Additional Premises for the period
commencing on February 1, 2001 and
terminating on January 31, 2005; and $29.00
per square foot of Gross Rentable Area of
the Third Amendment Additional Premises for
the period commencing on February 1, 2005
and terminating on March 31, 2008; and (iii)
$50.00 per square foot of Gross Rentable
Area of the Fourth Amendment Additional
Premises for the period commencing on the
Delivery Date (as defined in this Fourth
Amendment) and termination on December 1,
2001; $52.00 per square foot of Gross
Rentable Area of the Fourth Amendment
Additional Premises for the period
commencing on January 1, 2002 and
terminating on June 30, 2004; $54.00 per
square foot of Gross Rentable Area of the
Fourth Amendment Additional Premises for the
period commencing on July 1, 2004 and
terminating on December 31, 2005; and $57.00
per square foot of Gross Rentable Area of
the Fourth Amendment Additional Premises for
the period commencing on January 1, 2006 and
terminating on March 31, 2008.
1.1.12 GROSS RENTABLE
AREA OF THE
PREMISES: The Premises consist of 96,451 square feet
of Gross Rentable Area.
1.1.14 TAX BASE: (i) For and with respect to the Xxxxxx
Street Tower Premises for each of Lease
Years 1-10, an amount equal to the greater
of (a) the product of $5.50 times the number
of square feet of Gross Rentable Area of the
Xxxxxx Street Tower, or (b) the actual
unextrapolated amount of real
estate taxes attributable to the Xxxxxx
Street Tower for the 1993 Fiscal Tax Year,
which commenced July 1, 1992 and ended on
June 30, 1993, excluding all other
components of the definition of Taxes (as
hereinafter defined); (ii) for and with
respect to the Xxxxxx Street Tower Premises
for the Extension Period. the actual
unextrapolated real estate taxes (excluding
all other components of the definition of
Taxes) attributable to the Xxxxxx Street
Tower for the 1998 Tax Fiscal Year, which
commences on July 1, 1997 and ends on June
30, 1998; (iii) for and with respect to the
Third Amendment Additional Premises, 97% of
the actual unextrapolated real estate taxes
(excluding all other components of the
definition of Taxes) attributable to 000
Xxxxxx Xxxxxx for the 1999 Tax Fiscal Year,
which commences on July 1, 1998 and ends on
June 30, 1999; and (iv) for and with respect
to the Fourth Amendment Additional Premises,
the actual unextrapolated real estate taxes
(excluding all other components of the
definition of Taxes) attributable to the
Xxxxxx Street Tower for the 1998 Tax Fiscal
Year, which commences on July 1, 1997 and
ends on June 30, 1998.
1.1.15 OPERATING EXPENSE
BASE: (i) For and with respect to the Existing
Premises for each of Lease Years 1-10, an
amount equal to the greater of (a) the
product of $5.50 times the number of square
feet of Gross Rentable Area of the Xxxxxx
Street Tower, or (b) the actual
unextrapolated amount of Operating Expenses
(as hereinafter defined) attributable to the
Xxxxxx Street Tower incurred with respect to
calendar year 1992; (ii) for and with
respect to the Xxxxxx Street Tower Premises
for the Extension Period, the actual
unextrapolated amount of Operating Expenses
attributable to the Xxxxxx Street Tower
incurred with respect to calendar year 1998;
(iii) for and with respect to the Third
Amendment Additional Premises, the actual
unextrapolated Operating Expenses
attributable to 000 Xxxxxx Xxxxxx incurred
with respect to the twelve (12) month period
immediately following the date on which
Tenant first occupies the Third Amendment
Additional Premises (or any part thereof);
and (iv) for and with respect to the Fourth
Amendment Additional Premises, the actual
unextrapolated amount of Operating Expenses
attributable to the Xxxxxx Street Tower
incurred with respect to calendar year 1998.
6. Floor Plans. Exhibit B attached to the Lease is hereby amended by
adding thereto the floor plan(s) set forth in Exhibit "B-2" attached to this
Amendment and incorporated herein by this reference.
7. Brokerage. Tenant warrants and represents to Landlord, and Landlord
warrants and represents to Tenant, that it has dealt with no broker or agent in
connection with this Amendment, other than Tishman Speyer Properties. Each of
Tenant and Landlord shall indemnify and hold harmless the other from and against
any and all loss, cost and expense (including attorneys' fees) involving any
claims for a brokerage commission, finder's fee or similar compensation made by
any person other than Tishman Speyer Properties, arising out of or in connection
with this Amendment. The Landlord shall be responsible for payment of all fees
payable to Tishman Speyer Properties arising out of and in connection with this
Amendment.
8. Miscellaneous. Landlord and Tenant represent and warrant to each other
that the execution and delivery of this Amendment have been duly authorized by
all required partnership and corporation actions, as applicable. Except as
expressly and specifically set forth herein, the Lease is hereby ratified and
confirmed, and all of the terms, covenants, agreements and provisions of the
Lease shall remain unaltered and unmodified and in full force and effect
throughout the balance of the term of the Lease, as extended hereby. Except as
expressly set forth herein, all of the covenants, representations and warranties
made by the Tenant contained in the Lease are hereby remade, reaffirmed and
ratified as of the date hereof.
EXECUTED as an instrument under seal as of the date first above-written.
TST 000 XXXX XXXXXX, L.L.C.,
a Delaware limited liability company
By: _____________________________________
Name:
Its:
KEYPORT LIFE INSURANCE COMPANY,
a Rhode Island Corporation
By: _____________________________________
Name:
Its:
