BOSTON DESIGN CENTER Standard Office Lease Agreement
EXHIBIT 10.50
[ * ] DENOTES EXPURGATED INFORMATION
BOSTON DESIGN CENTER
THIS LEASE AGREEMENT (the “Lease”) is made and entered into as of March 24, 2006, by and
between Boston Design Center LLC, a Delaware limited liability company (herein called the
“Landlord”), which expression shall include its successors and assigns where the context so admits,
whose address is Xxx Xxxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxxxxx 00000 and Boston Beer
Corporation, a Massachusetts corporation (herein called the “Tenant”, whether one or more) whose
address is: 00 Xxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 and whose telephone number is:
000-000-0000. If there shall be more than one Tenant, their obligations hereunder shall be joint
and several. As used in this Lease, the terms set forth in Articles I and VIII of this Lease shall
have the respective meanings indicated in such Articles.
Subject to all of the terms and conditions of this Lease, and in consideration of the covenants and
obligations contained in this Lease, Landlord and Tenant agree as follows:
Leased Premises shall mean Spaces No. 828, 835 and 840 in the Building, as outlined or marked on
the floor plan of the Building attached to this Lease as Exhibit A, the useable square feet of
which premises are measured from the exterior face of the exterior building to the exterior face of
the glass storefront frame and from the center of each demising wall forming the perimeter of the
Leased Premises.
Lease Term shall mean a term beginning on the Commencement Date and continuing in full force and
effect for one hundred and twenty-four (124) months thereafter.
Commencement Date shall mean October 1, 2006.
Base Rental shall mean the rental payments as outlined in Exhibit D.
Permitted Use shall mean office use by a company engaged in the manufacture, marketing and sale of
alcoholic beverages and/or general office use and for no other use or purpose. Provided, however,
that in no event will the Leased Premises be used for any purpose not permitted under the Prime
Lease referred to in Article 8.1 hereof.
Rentable Area is hereby stipulated for all purposes to be 30,938 rentable square feet (“Leased
Premises Area”) with respect to the Leased Premises and 539,448 rentable square feet (“Building
Area”) with respect to the Building (which includes the Leased Premises), as the same may be
appropriately adjusted by Landlord in the event that any part of the Building is demolished or
expanded.
[ *
] Indicates that information has been omitted and filed
separately with the Securities and Exchange Commission pursuant to a
request for confidential treatment.
Tenant’s Proportionate Share shall mean a fraction, the numerator of which is the Leased Premises
Area and the denominator of which is the Building Area of the Building. The parties hereto
stipulate and agree that Tenant’s Proportionate Share is 5.735%. The parties hereto further
stipulate and agree that Tenant’s Proportionate Share of Operating Costs shall be deemed a
separately enumerated amount for purposes of the Prime Lease, particularly, but without limitation,
for purposes of Exhibit D of the Prime Lease.
Security Deposit shall mean $[ * ] cash.
Broker shall mean GVA Xxxxxxxx Xxxxx Xxxxxxxxx and Xxxxxxx and XXX Xxxxxxxx.
Guarantor shall mean [ * ].
Initial Limits for Tenant’s Comprehensive General Liability Insurance: $[ * ] single combined
limit.
ARTICLE II
Landlord specifically excepts and reserves to itself the use of the roof, the exterior portions of
the Leased Premises other than the storefront, and such areas within the Leased Premises required
for
[ * ] Indicates that information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a request for confidential treatment.
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installation, maintenance, replacement and repair of utility lines and other installations
required to service other tenants of the Building from time to time during the Lease Term, it being
agreed that such utility lines and other installations upon completion shall not materially
interfere with Tenant’s general use and occupancy of the Leased Premises consistent with this Lease
without Tenant’s specific consent. No rights are conferred on Tenant, and Landlord specifically
excepts and reserves to itself, unless otherwise specifically provided, all rights to the land and
improvements below the floor level of the Leased Premises and to the air rights above the Leased
Premises and to the land and improvements located on and within the common areas.
(a) Tenant shall pay to Landlord, either (i) in the form of a lump sum payment due and payable in
arrears upon five (5) days of demand by Landlord or (ii) in monthly installments of 1/12th each on
a monthly basis contemporaneously with the payment of Base Rental, as Landlord may from time to
time elect, an amount reasonably estimated by Landlord to be Tenant’s Proportionate Share of all
Operating Costs for each calendar year or portion thereof during the term of this Lease.
[ * ] Indicates that information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a request for confidential treatment.
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(b) If at any time Landlord shall have reasonable grounds to believe that the amount of actual
Operating Costs incurred and to be incurred will vary from such estimates, then Landlord reserves
the right to revise such estimates accordingly. Upon any such revision, Landlord shall notify
Tenant of the revised amount, which notice shall include reasonable backup for the revision, and at
Landlord’s election, either (i) Landlord may require Tenant to make a lump sum payment to Landlord
in an amount equal to such revision in arrears or (ii) the monthly payments due and payable to
Landlord by Tenant under this Section shall be increased to an amount which will amortize such
revised estimate over the remainder of the calendar year in which any such revision is made by
Landlord.
(c) Within ninety (90) days after the end of any calendar year during which such payments were made
by Tenant, a lump sum payment (or credit against the next succeeding installments of Additional
Rent, if any, in case of amounts owed by Landlord to Tenant) shall be made from Tenant to Landlord
or from Landlord to Tenant, as the case may be, so that Tenant shall have paid to Landlord only
Tenant’s Proportionate Share of Operating Costs for the previous calendar year and no more or less,
which obligation to make such reconciliation payment shall survive the termination of this Lease.
(d) If the Commencement Date is a day other than the first day of a calendar month or if this Lease
terminates on other than the last day of a calendar month, then the amounts due and owing by Tenant
to Landlord under this Section shall be prorated accordingly. Upon written request made by Tenant
within sixty (60) days after the end of any calendar year during which such payments were made by
Tenant, Landlord shall furnish to Tenant a statement reflecting actual Operating Costs for the
previous calendar year, with appropriate backup, if requested.
[ * ] Indicates that information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a request for confidential treatment.
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and a lump sum payment (or credit against the next succeeding installments of Additional Rent, if
any, in case of amounts owed by Landlord to Tenant) shall be made from Tenant to Landlord or from
Landlord to Tenant, as the case may be, so that Tenant shall have paid to Landlord such actual
amount (vs. estimated amount) allocable to the previous calendar year and no more or less, which
obligation to make such reconciliation payment shall survive the termination of this Lease.
ARTICLE III
(a) Central heating and air conditioning to the Leased Premises (to the extent that equipment
therefor has been provided by Landlord or Tenant at the Leased Premises) and enclosed public areas
of the Building in season;
(b) Non-exclusive passenger elevator service and non-exclusive freight elevator service;
[ * ] Indicates that information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a request for confidential treatment.
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(c) Maintenance and repair of the roof, exterior walls and other public areas of the Building
and Project, and electric lighting service for all public areas of the Building and the Project;
(d) Janitorial service for the corridors and other public areas of the Building; and
(e) Public toilets and restrooms and public drinking fountains.
Except as specified above, such services shall be provided during normal business hours reasonably
established by Landlord from time to time (“Normal Business Hours”), at such locations, in such
manner and to the extent deemed by Landlord to be adequate for the use and occupancy of the
Building, with due regard for the prudent control of energy.
ARTICLE IV
(a) Commencing after the date that Landlord completes the installation of the new windows as
noted in Paragraph E of Exhibit E, Tenant shall be obligated to repair any glass in the
[ * ] Indicates that information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a request for confidential treatment.
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windows that may be broken and take such actions, if any, as are necessary to cause the Leased Premises
and any existing alterations and improvements to comply with the requirements set forth in
subsection (f) of this Section 4.2, and furnish, equip and improve the Leased Premises with
partitions, lighting fixtures, HVAC equipment and ducting (to the extent not required hereunder to
be provided by Landlord), including any needed for Tenant’s computer room, wall and floor
coverings, paintings, and other interior decoration suitable for a professional office and of a
quality and design consistent with the standards generally observed by Landlord and by the other
tenants of the Building, to the extent necessary or appropriate for the proper operation of the
Leased Premises for the Permitted Use, all subject to any construction work of Landlord then being
undertaken, which shall not be interfered with. Said standards are currently contained in the
Tenant Design & Construction Guide issued by Landlord (receipt of which Tenant acknowledges), as
from time to time modified or replaced (the “Tenant Design & Construction Guide”). Prior to the
commencement of any such work, Tenant shall submit to Landlord for its written approval detailed
plans and specifications and the names of all major contractors providing for the initial
furnishing, equipping and improving or for altering of the Leased Premises. Landlord’s approval
shall not unreasonably be withheld as to non-structural items which are not visible from the
exterior of the Leased Premises or any corridor. Any further alterations, improvements or
additions to the Leased Premises (including constructing partitions, installing light fixtures or
painting or use of any mastic, solvents or other materials that may give off offensive or noxious
fumes) shall be done only after reasonable advance written notice to Landlord describing the same
in detail and if Landlord shall so demand in writing, only after submission of plans and
specifications as aforesaid and after obtaining prior written approval, which approval by Landlord
shall not unreasonably be withheld, conditioned or delayed as to non-structural items which are not
visible from the exterior of the Leased Premises or corridor.
(b) Any and all furnishing, equipping or improving of or other alteration, improvement or
addition to the Leased Premises shall be:
(i) made and kept at the Leased Premises at Tenant’s sole cost, risk, and expense;
(ii) performed in a prompt, good and workmanlike manner with labor and materials of such
quality as Landlord may reasonably require in full compliance with Landlord’s requirements and with
the Tenant Design & Construction Guide, as then in effect, and with all applicable governmental
laws, statutes, codes, rules and regulations and rules and regulations of
Landlord’s insurers, and, after Tenant has obtained, at Tenant’s sole cost and expense, all
required governmental permits, consents and approvals;
(iii) constructed in accordance with plans and specifications approved in writing by Landlord
prior to the commencement of any such work (which approval shall not unreasonably be withheld in
the case of non-structural work which is not visible from the exterior of the Leased Premises or
any corridor);
[ * ] Indicates that information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a request for confidential treatment.
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(iv) Prosecuted diligently and continuously to completion so as to minimize interference with
the normal business operations of other tenants in the Building, the performance of Landlord’s
obligations under this Lease or any mortgage or underlying lease covering or affecting all or any
part of the Building or the land upon which the Building is situated and any work being done by
contractors engaged by Landlord with respect to or in connection with the Building; and
(v) performed by contractors approved in writing by Landlord (which approval shall not
unreasonably be withheld) and if requested by Landlord all such contractors and work shall be
bonded in a manner reasonably satisfactory to Landlord.
(c) Any and all alterations, improvements and additions to the Leased Premises shall
constitute a part of the Leased Premises. All alterations, improvements and additions constructed
by Landlord, shall be, and remain, the property of Landlord. All alterations, improvements and
additions constructed by Tenant shall remain the property of Landlord at the end of the term of
this Lease. Tenant shall be entitled to the exclusive right to depreciate and amortize any
alterations or improvements that it constructs at its sole cost and take investment tax credits
with respect thereto. Tenant shall have no (and hereby waives all) other rights to payment or
compensation for such alteration, improvement or addition to the Leased Premises.
(d) any alterations, improvements or additions (including, without limitation, signage) which
are visible from the exterior of the Building or any corridor are subject to removal or change, at
Landlord’s reasonable discretion, at any time notwithstanding approval by Landlord of plans and
specifications therefor.
(e) no sign may be installed or maintained by Tenant at the Leased Premises except with the
prior written consent of Landlord and in accordance with rules and regulations therefore adopted
from time to time by Landlord. In addition to usual tenant signage in the first floor lobby and on
the entrance to the tenant’s space, and subject to Landlord’s approval which shall not be
unreasonably delayed, withheld or conditioned, Tenant shall be permitted to install and maintain
signage of not less than four square feet at the front elevator lobby of the eighth floor.
(f) all alterations, additions and/or improvements shall be made in such a manner as (1) will
not at any point in the Leased Premises separate all or any portion of the pipes from the remainder
of the space, whether by creation of a full or partial wall or otherwise, (2) will not restrict
airflow or heat to any pipes along or near exterior walls or thermostats associated with any
heating
systems for all or any portion of the Building or Leased Premises, and (3) shall provide access
panels in sufficient number and location to allow for reasonable, direct access to windows, control
valves, switches, thermostats and the like for the purposes of testing, repair and replacement.
(g) no approval which may be given by Landlord to Tenant pursuant to this Lease, if any, shall
(i) constitute an approval (or even be deemed to have confirmed Landlord’s review) with respect to
compliance with any codes, building laws or other governmental requirements or (ii)
[ * ] Indicates that information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a request for confidential treatment.
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relieve Tenant
of any of its obligations in the immediately preceding clause (f) or as set forth elsewhere in this
Lease.
[ * ] Indicates that information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a request for confidential treatment.
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[ * ] Indicates that information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a request for confidential treatment.
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enforcement by the holder of or trustee or the beneficiary under any such mortgage or deed of
trust of the remedies provided for by law or by such mortgage or deed of trust, upon request of any
person or party succeeding to the interest of Landlord as a result of such enforcement, Tenant will
automatically attorn to and become the tenant of such successor in interest without change in the
terms or provisions of this Lease; provided, however, that such successor in interest shall not be
bound by (i) any payment of rent or Additional Rent for more than one month in advance except
prepayments actually delivered to such successor in the nature of security for the performance by
Tenant of its obligations under this Lease, (ii) any payment of the security deposit or any other
deposit unless such security deposit or other deposit has actually been delivered to such successor
or (iii) any amendment or modification of this Lease made without the written consent of such
holder or such trustee or such beneficiary or such successor in interest, and Tenant shall execute
and deliver an instrument or instruments confirming the attornment and other agreements provided
for herein provided that such successor shall recognize this Lease as remaining in full force and
effect and Tenant’s rights to possession remain undisturbed so long as Tenant is not in default
hereunder. Provided the Tenant signs and delivers the Prime Landlord’s form SNDA, a copy of which
is attached as Exhibit G, Landlord agrees to use good faith efforts to obtain the Prime Landlord’s
signature thereon within the thirty (30) days next after the date this Lease is fully signed and
delivered. Further, notwithstanding anything contained in this Lease to the contrary, in the event
of any default by Landlord in the performance of its covenants or obligations hereunder which would
give Tenant the right to terminate this Lease, Tenant shall not exercise such right unless and
until (i) Tenant gives written notice of such default (which notice shall specify the exact nature
of said default and the steps necessary to cure same) to the holder of any mortgage or deed of
trust encumbering the Building who has theretofore notified Tenant in writing of its interest and
the address to which notices are to be sent, and (ii) such holder fails to commence to cure, or
cause to be commenced to be cured, such default within thirty (30) days from the giving of such
notice by Tenant.
[ * ] Indicates that information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a request for confidential treatment.
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Landlord and its duly authorized agents to examine, and shall make available for audit, copy and
inspection, during Normal Business Hours, by Landlord and its duly authorized agents, Tenant’s
books, contracts and records relating to its employment practices with respect to compliance with
Exhibit C attached hereto. Further, and except as Landlord believes is reasonably necessary so as
not to default in its obligations under the Prime Lease, Landlord shall not default Tenant
hereunder due to Tenant’s failure to comply with the terms of Exhibit C. Tenant agrees that if,
as a result of any audit, copy or inspection of such books, contracts, records or other papers,
Landlord becomes aware of any default by Tenant hereunder, Tenant shall pay all costs and expenses
incurred by Landlord in connection with such audit, copy or inspection. Landlord shall not
disclose such information to third parties except as may be required by the Prime Lease with
respect to employment practices, or by law or legal process or order of any governmental authority
or agency, or except to Landlord’s lenders and prospective purchasers.
ARTICLE V
[ * ] Indicates that information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a request for confidential treatment.
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untenantable in whole or in part and to such an extent that Landlord determines that such damage
can be repaired with the application of reasonable diligence within two hundred forty (240) days,
Tenant shall be entitled to a fair diminution of the rent hereunder until such time as the Leased
Premises are made tenantable as determined by Landlord. Landlord shall notify Tenant within 60
days after receipt of Tenant’s notice of destruction or damage whether Landlord intends to proceed
with repairs. If the Leased Premises or any other portion of the Building, through no fault or
neglect of Tenant, its agents, employees, customers, invitees or visitors, shall be destroyed or
damaged by fire or any other casualty to such an extent that Landlord determines that such damage
cannot be repaired with the application of reasonable diligence within two hundred forty (240)
days, and if the Leased Premises are rendered untenantable in whole or in part by reason of such
casualty, then, Landlord shall so notify Tenant and (a) at the option of Landlord, (i) Tenant shall
be entitled to a fair diminution of the rent hereunder until such time as the Leased Premises are
made tenantable as determined by Landlord, or (ii) Landlord may terminate this Lease whereupon all
rent accrued up to the time of such termination shall be paid by Tenant to Landlord or (b) at the
option of the Tenant exercised by a 30 day advance written notice to Landlord given while Tenant is
not in default and received within 60 days after Landlord’s notice to Tenant, Tenant may terminate
this Lease by notice to Landlord accompanied by payment of sums due and to become due under the
Lease through the termination date. In addition to the foregoing, if for any cause the Leased
Premises or Building shall be so damaged that Landlord shall in its sole judgment decide not to
rebuild, then by notice in writing to Tenant, this Lease shall forthwith terminate and all rent
owed up to the time of such termination as set forth in such notice shall be paid by Tenant to
Landlord. In no event shall Landlord have any obligation to repair or restore any of Tenant’s
goods, Trade Fixtures, furniture or other property placed in or incorporated in the Leased Premises
which is destroyed or damaged by fire or any other casualty.
(a) Landlord shall not be obligated to insure any of Tenant’s goods, Trade Fixtures, furniture
or any other property placed in or incorporated in the Leased Premises.
(b) Tenant shall, at its sole cost and expense, procure, and maintain and comply with during
the Lease Term comprehensive general liability insurance on an “occurrence basis”, comprehensive
automobile liability insurance, property insurance with respect to Tenant’s personal property,
inventory and leasehold improvements written on an “All Risk” basis for full replacement cost,
worker’s compensation and employer’s liability insurance an umbrella liability insurance and
such other insurance as Landlord may, from time to time, reasonably require. All such insurance
shall be maintained by companies and on forms reasonably satisfactory to Landlord, and initially in
the amounts specified in Article 1 (where applicable) and to the extent required by Landlord, all
policies of comprehensive general liability insurance, umbrella liability and “All Risk” property
insurance and such other insurance as Landlord shall reasonably specify, if any, shall name
Landlord, Landlord’s managing agent, any mortgagee and the Prime Lessor as additional insureds or
loss payees.
[ * ] Indicates that information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a request for confidential treatment.
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(c) All policies of insurance required to be maintained by Tenant shall provide that the
Landlord shall be given at least thirty (30) days’ prior written notice of any cancellation or
non-renewal of any such policy. A duly executed certificate of insurance with respect to each such
policy will be deposited with Landlord by Tenant on or before the Commencement Date, and a duly
executed certificate of insurance with respect to each subsequent policy shall be deposited with
the Landlord at least fifteen (15) days prior to the expiration of the policy.
(d) Tenant shall not do or permit anything to be done in or about the Leased Premises nor
bring nor keep nor permit anything to be brought to or kept therein, which will in any way increase
the existing rate of or affect any fire or other insurance which Landlord carries upon any part of
the Building or any of its contents, or cause the cancellation or invalidation of any such
insurance. If the annual premium to be paid by Landlord with respect to any insurance obtained by
Landlord covering any part of the Building or any of its contents shall exceed the standard rates
because Tenant’s operations, contents of the Leased Premises or improvements with respect to the
Leased Premises result in extra hazardous exposure, Tenant shall pay the excess amount of the
premium upon demand by Landlord.
(e) All insurance carried by either Landlord or Tenant covering losses arising out of
destruction or damage to the Leased Premises or its contents or to other portions of the Building,
or to Tenant’s occupancy and operation of the Leased Premises shall provide for a waiver of rights
of subrogation against Prime Lessor, Landlord and Tenant on the part of the insurance carrier, to
the extent that the same is permitted under the laws and regulations governing the writing of
insurance within the Commonwealth of Massachusetts. Anything in this Lease to the contrary
notwithstanding and so long as the following does not invalidate any policy of insurance, Landlord
and Tenant each hereby waive to the extent of insurance carried by either party any and all rights
of recovery, claims, actions, or causes of action against the other, its agent, officers or
employees, or any loss or damage that may occur to the Leased Premises or the Building, or any
improvements thereto, which is insured against or should have been insured against under the terms
of any insurance policy required to be maintained pursuant to this Section. The waivers set forth
in the immediately preceding sentence shall be in addition to, and not in substitution for, any
other waivers, indemnities or exclusions of liability set forth in this Lease, including without
limitation Sections 5.5 and 5.6 of this Lease.
[ * ] Indicates that information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a request for confidential treatment.
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installation
of such Trade Fixtures or other property or the making of any such alteration, improvement,
addition or change, all such demolition, removal and restoration to be performed in accordance with
the conditions set forth in Section 4.2 (b). Landlord agrees that Tenant shall not be requested to
demolish usual office improvements for clerical offices, but reserves the right to require removal
(and restoration to a clean shell condition, including without limitation, with walls patched and
paint ready, and with electrical and other utility lines appropriately boxed and terminated) with
respect to other improvements (e.g., and without limitation, such kitchens, baths, raised floors,
and computer related improvements hereafter installed and, if hereafter relocated or significantly
modified, the existing fire suppression system). Upon termination of this Lease, Tenant will also
surrender to Landlord all keys to the Leased Premises and inform Landlord of all combinations on
locks, safes and vaults, if any, at the Leased Premises.
ARTICLE VI
[ * ] Indicates that information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a request for confidential treatment.
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(a) Failure of the Tenant to timely pay rent or any other amounts payable under this Lease as
and when first due and payable and because Tenant is paying by electronic funds transfer (unless
only Landlord elects otherwise), Tenant shall hereunder be in default if (i) Landlord’s authority
concerning electronic payments is revoked or terminated, or (ii) if Tenant does not have adequate
funds in the account for which Tenant has granted Landlord authority for Landlord or Landlord’s
bank to timely effect the necessary transfer on the date when the rent is first due and payable
hereunder, or (iii) if Tenant or Tenant’s bank fails or refuses to authorize or otherwise take the
actions necessary to timely effect the necessary transfer on the date when the rent is first due
and payable hereunder, provided however that, except as hereafter noted, the foregoing shall not be
a default unless Landlord fails to receive the payment within 5 days after notice to Tenant that
the payment is due, and provided further that Landlord shall not be required to give more than two
notices of non-payment in any 12 month period and thereafter, the Tenant’s failure to timely pay
shall be a default without notice or opportunity to cure;
(b) Intentionally Deleted
(c) Intentionally Deleted;
(d) Excepting matters specifically addressed by another subsection of this Section 6.1 and in
Section 4.14, failure of Tenant to perform, observe, or comply with or default under any of the
terms, covenants, conditions, agreements or provisions contained in this Lease including, without
limitation, the Rules and Regulations attached hereto as Exhibit B, as the same may be reasonably
modified from time to time if such failure or default is not cured to Landlord’s satisfaction
within thirty (30) calendar days after the Landlord has given Tenant written notice thereof or such
longer period as may reasonably be required, provided that Tenant shall commence to cure such
default within the first 15 days of said thirty (30) day period and thereafter diligently prosecute
the same to conclusion;
(e) The interest of Tenant under this Lease shall be levied on under execution or other legal
process;
(f) Any petition in bankruptcy or other insolvency proceedings shall be filed by or against
Tenant or any guarantor of this Lease, or any petition shall be filed or other action taken to
declare Tenant or any such guarantor a bankrupt or to delay, reduce or modify Tenant’s or any such
guarantor’s debts or obligations or to reorganize or modify Tenant’s or any such guarantor’s
capital structure of indebtedness or to appoint a trustee, receiver or liquidator of Tenant or such
guarantor or of any property of Tenant or such guarantor, or any proceeding or other action shall
be commenced or taken by any governmental authority for the dissolution or liquidation of Tenant or
any such guarantor;
(g) (i) Tenant or any guarantor of this Lease shall become insolvent or otherwise fail to pay
its monetary obligations in due course as they mature, or (ii) Tenant or any such
[ * ] Indicates that information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a request for confidential treatment.
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guarantor shall
make an assignment for the benefit of creditors, or (iii) a receiver or trustee shall be appointed
for Tenant or any such guarantor or any of his or their properties and not discharged within five
(5) days;
(h) Intentionally Deleted;
(i) Tenant shall do or permit to be done anything whereby a lien, security interest or other
encumbrance (whether consensual or created by operation of law or otherwise) is created or filed
against all or any part of the Leased Premises, the Building or any property situated therein or
Tenant’s interest in this Lease which is not discharged within five (5) days;
(j) Any default or event of default under any guaranty of this Lease and such default or event
of default is not cured within the applicable cure period (if any) set forth in any such guaranty;
(k) The death or legal incapacity of Tenant or any guarantor of this Lease if Tenant or any
such guarantor is an individual person or the termination, dissolution, or liquidation of Tenant or
any such guarantor if Tenant or any such guarantor is corporation, partnership or other entity; or
(l) Any assignment of this Lease by Tenant in contravention of Section 4.7 of this Lease.
(a) Landlord may terminate this Lease and/or Tenant’s right to possession of the Leased
Premises, whereupon Tenant’s right of possession shall thereupon cease and terminate and Landlord
shall be entitled to the possession of the Leased Premises, any process of law, any notice to quit,
or of intention to re-enter being hereby exercised by entry, or in lieu thereof, by written notice
to Tenant terminating this Lease and Tenant’s right to possession. Tenant hereby expressly waives
any and all rights of redemption granted by or under any present or future laws in the event of
Tenant being evicted or dispossessed for any cause or in the event Landlord terminates this Lease
or Tenant’s right of possession as provided in this Section 6.2. In the event of such re-entry by
process of law or otherwise, Tenant nevertheless shall remain liable for any and all damage,
deficiency or loss and Landlord shall have the power and right, which is hereby acceded to by
Tenant, to re-let the Leased Premises, and whether or not there has been such re-letting, Landlord
shall have the right each month to xxx for and recover all sums previously due and not previously
paid as well as all sums thereafter due and payable including, without limitation, any loss of
rents (or monthly deficit) with the right reserved to Landlord to bring any action(s) or
proceeding(s) for the recovery of any deficit(s) remaining unpaid without being obligated to await
the expiration of the Lease Term for a final determination of Tenant’s account. Additionally,
Landlord may elect at any time, upon notice to Tenant, to accelerate the payment of Base Rental,
Additional Rent and all other sums due or to become due under the Lease, as reasonably estimated by
Landlord, in which case Tenant shall forthwith pay such sums to Landlord after receiving a credit
for (i) such sums as
[ * ] Indicates that information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a request for confidential treatment.
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may previously have been paid under this Section 6.2 net of such expenses as
may be deducted under clause (b) of this Section 6.2; and (ii) the reasonable value of Tenant’s
leasehold estate for the balance of the term fixed herein. The commencement or maintenance of any
one or more actions shall not bar Landlord from bringing other or subsequent actions for future
accruals pursuant to provisions of this Section 6.2. It is further understood that no waiver of
any breach of any covenant, condition or agreements herein contained shall operate as a waiver of
the covenant, condition or agreement itself or of any subsequent breach thereof. No provision of
this Lease shall be deemed to have been waived by Landlord unless such waiver shall be in writing
signed by the Landlord. No payment by Tenant or receipt by Landlord of a lesser amount than the
monthly installment of rent herein stipulated or otherwise payable under this Lease shall be deemed
to be other than on account of the earliest stipulated rent nor shall any endorsement or statement
on any check or any letter accompanying any check or payment as rent be deemed an accord and
satisfaction. The Landlord may accept such check or payment without prejudice to the Landlord’s
right to pursue or continue to pursue any of the Landlord’s rights or remedies provided for in this
Lease. The proceeds of any such re-letting shall first be applied to the expenses thereof,
including all costs in refitting and redecorating the Leased Premises, leasing commissions and
other costs and expenses incurred therein. The remaining proceeds resulting therefrom, if any,
shall then be applied to Tenant’s liability under this Lease. Nothing herein shall obligate the
Landlord to re-let or attempt to make an effort to re-let the Leased Premises following the
Tenant’s default. Landlord’s re-letting of the Leased Premises following a default by Tenant under
this Lease may be on such terms, provisions and conditions as Landlord shall deem reasonably
appropriate and may be for such term (or terms) as the Landlord may select whether longer or
shorter than the remaining Lease Term. Tenant shall, following default under this Lease, reimburse
Landlord for interest upon all sums due to the Landlord (from the date such sums shall have been
due to the date of payment thereof) at the maximum lawful rate then allowed by law.
(b) Without waiving any other remedy, including the right to terminate this Lease upon
Tenant’s failure to perform, observe or comply with the covenants set forth in Section 4.1 or 4.7
of this Lease, Landlord may, without terminating this Lease and without taking possession of the
Leased Premises, collect from Tenant, in addition to any rent payable by Tenant to Landlord under
this Lease, as liquidated damages, a sum equal to the greater of $500 or twice the per diem Base
Rental for each day or any portion thereof that such default by Tenant continues, Landlord and
Tenant agreeing that actual damages which might be sustained by Landlord by reason of such failure
are uncertain and difficult of ascertainment and that said sum would be reasonable and just
compensation for such failure.
(c) Notwithstanding anything hereinabove contained in this Article VI, no default by Tenant
which would be violative of the Prime Lease or the Economic Development Plan pursuant to which the
Boston Marine Industrial Park is operated and has been developed will be permitted, particular
reference is made to Section 2.2 hereof and the Permitted Use.
[ * ] Indicates that information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a request for confidential treatment.
- 18 -
and notice, or should Landlord reasonably determine that immediate action is needed to
prevent damage to either the Leased Premises or the Building, Landlord may (but shall not be
obligated to), upon prior written notice to Tenant, enter upon the Leased Premises and perform all
or any part of such obligations and/or take such action as it deems necessary to prevent or limit
such damage, as applicable. Upon demand, Tenant shall reimburse Landlord for the reasonable cost
to Landlord of performing such obligations plus profit and overhead in an amount equal to fifteen
percent (15%) of such cost and/or, if Landlord reasonably took such action to prevent or limit
damage to the Leased Premises or Building or the need for action arose from a cause within the
Premises, for the costs associated with such action. No action taken by Landlord under this
Section shall relieve Tenant from any of its obligations under this Lease or from any consequences
or liabilities arising from the failure to perform such obligations. The expiration of applicable
grace periods as aforesaid shall not be required if payment or other action is in the opinion of
Landlord, necessary to protect Landlord’s property and interest.
[ * ] Indicates that information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a request for confidential treatment.
- 19 -
ARTICLE VII
Further, if the Tenant shall request the Landlord’s consent to or joinder in any instrument
pertaining to this Lease, the Tenant agrees promptly to reimburse the Landlord for the legal fees
and expenses and such fees as are required to be paid by any mortgagee or other lender incurred by
the Landlord in processing such request, whether or not the Landlord consents thereto; and if the
Tenant shall fail promptly so to reimburse the Landlord, same shall be deemed to be a default in
the Tenant’s monetary obligations under this Lease.
Whenever the Tenant shall request approval by the Landlord or the Landlord’s architect of plans,
drawings, specifications, or otherwise with respect to initial alteration of the Leased Premises,
subsequent remodeling thereof, installation of signs including subsequent changes thereof, or the
like, the Tenant specifically agrees promptly to pay to the Landlord’s architect (or reimburse the
Landlord for the payment the Landlord makes to said architect for) all charges involved in the
review (and re-review, if necessary) and approval or disapproval thereof whether or not approval
shall ultimately be given.
[ * ] Indicates that information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a request for confidential treatment.
- 20 -
delivery or refusal of delivery. Either party shall have the right to change its address to which
notices shall thereafter be sent by giving the other written notice thereof and to request that
additional parties be given a copy of such notice, but not more than one (1) such additional party
in the case of Tenant.
Section 7.9. Legal Interpretation. This Lease and the rights and obligations of the parties
hereto shall be interpreted, construed and enforced in accordance with the laws of the Commonwealth
of Massachusetts and the United States. All obligations of the parties hereto are independent and
shall be performable in, and all legal actions to enforce or construe this Lease shall be
instituted in the courts of, Suffolk County, Massachusetts. The determination that one or more
provisions of this Lease is invalid, void, illegal or unenforceable shall not affect or invalidate
the remainder. All obligations of either party requiring any performance after the expiration of
the Lease Term shall survive the expiration of the Lease Term and shall be fully enforceable in
accordance with those provisions pertaining thereto. Section titles appearing in this Lease are
for convenient reference only and shall not be used to interpret or limit the meaning of any
provision of this Lease.
[ * ] Indicates that information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a request for confidential treatment.
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and obligations hereunder or in the Building. Any successor Landlord by assignment shall be
bound by the terms of this Lease. Tenant agrees to look only to the Landlord hereunder for
performance of such of the Landlord’s obligations hereunder as arise during its period of ownership
of the tenant’s interest in the Prime Lease.
Section 7.12. Authority. Each of Landlord and Tenant represents and warrants to the other that it
has the full right, power and authority to enter into this Lease and to perform its obligations
hereunder, and that upon execution of this Lease by such party, this Lease shall constitute a valid
and legally binding obligation of such party. If Tenant signs as a corporation, each of the
persons executing this Lease on behalf of Tenant does hereby covenant and warrant that Tenant is a
duly and validly existing corporation, that the execution of this Lease by such persons on behalf
of Tenant has been duly authorized by all necessary corporate action and that Tenant is qualified
to do business in the Commonwealth of Massachusetts.
[ * ] Indicates that information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a request for confidential treatment.
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war, governmental laws, regulations or restrictions or any act, omission, delay or
neglect of the other party hereto or any of such other party employees or agents, or any other
cause whatsoever beyond the control of such party.
[ * ] Indicates that information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a request for confidential treatment.
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after the expiration of the
Term, Tenant shall hold as a tenant at sufferance, at a charge for use and occupancy, and not as
rent, of the Leased Premises equal to [ * ] of the highest monthly installment of Base Rental
applicable during the Term plus all Additional Rent for each month or portion thereof for which
Tenant remains in possession. In all other respects Landlord and Tenant shall be subject to the
terms, provisions and conditions of this Lease provided Tenant shall be liable for all damages
incurred by Landlord as a result of Tenant holding over. No surrender to Landlord of this Lease or
of the Leased Premises or any part thereof or of any interest therein by Tenant shall be valid or
effective unless required by the provisions of this Lease or unless agreed to and accepted in
writing by Landlord. No act on the part of any representative or agent of Landlord, and no act on
the part of Landlord other than such a written agreement acceptance by Landlord, shall constitute
or be deemed an acceptance of any such surrender.
ARTICLE VIII
Building shall mean that certain building known as the Boston Design Center located in Boston,
Massachusetts, as the same may now or hereafter exist or as it may from time to time hereafter be
expanded or modified.
[ * ] Indicates that information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a request for confidential treatment.
- 24 -
Building Rules shall mean rules and regulations adopted and altered by Landlord from time to time
for the safety, care and cleanliness of the Leased Premises and the Building and for the
preservation of good order therein, all of which will be sent by Landlord to Tenant in writing and
shall thereafter be carried out and observed by Tenant. The initial Building Rules are attached
hereto as Exhibit B and no such rules and regulations shall be enforced against Tenant in a
discriminatory fashion as between Tenant and other tenants of like size and nature.
Commencement Date shall mean the date shown in Article I hereof.
Operating Costs shall mean all operating expenses of the Project and shall consist of all
expenditures by Landlord to maintain all of the Project in operation at the beginning of the Lease
Term and such additional facilities in subsequent years as may be determined by Landlord to be
necessary and beneficial to the operation of the Project. The term “operating expenses” as used
herein shall mean all expenses, costs and disbursements (but, except as otherwise herein provided,
not replacement of capital investment items except as provided in (g) below nor specific costs
specifically billed to and paid by specific tenants) of every kind and nature which Landlord shall
pay or become obligated to pay because of or in connection with the ownership, maintenance,
promotion, insuring or operation of the Project, including, but not limited to, the following:
(a) Wages and salaries of all employees engaged in operation and maintenance or security (to
the extent provided) of all or any part of the Project, including taxes, insurance and benefits
relating to such employees.
(b) All supplies and materials used in the operation and maintenance of any part of the
Project.
(c) Costs of all utilities for the Project, including the cost of water and power, heating,
lighting, air conditioning and ventilating for all or any part of the Project.
(d) Costs of all maintenance, janitorial, security (to the extent provided) and service
agreements for the Project, and the equipment therein, including alarm service, window cleaning,
snow removal and elevator maintenance.
(e) Costs of all insurance relating to the Project, including cost of casualty and liability
insurance and Landlord’s personal property used in connection therewith.
(f) Costs of repairs and general maintenance of any part of the Project (excluding repairs and
general maintenance paid by proceeds of insurance or by Tenant or other third parties, and
alterations attributable solely to tenants of the Building other than Tenant) including, without
limitation, landscaping of any part of the Project.
[ * ] Indicates that information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a request for confidential treatment.
- 25 -
(g) Amortization of the cost of installation of capital improvements to the extent that in the
judgment of Landlord the same are reasonably necessary to continue the Project as a first class
real estate project or will reduce, or reduce the rate of increase of, other Operating Costs or are
required to cause the Project or any part thereof to be in compliance with any applicable law or
with the request of any insurer or board of underwriters. All of such costs shall be amortized
over the reasonable life of such improvements, and a pro rata portion thereof included within
Operating Costs for each year the same is so amortized, together with interest at the rate of
fifteen percent (15%) per annum on all unamortized balances. The reasonable life and amortization
schedule of the foregoing shall be determined in accordance with generally accepted accounting
principles and in no event shall such reasonable life extend beyond the reasonable life of the
Building or other part of the Project to which such costs are related.
(h) Landlord’s central accounting and overhead costs applicable to the Project.
(i) All fees, costs and charges paid to any person or entity who provides services, including
management and marketing services to any part of the Project.
(j) All amounts payable by Landlord as real estate taxes or payments in lieu of real estate
taxes or Tax Rent payable by the Landlord under the Prime Lease, all herein collectively referred
to as “Taxes”. The term “Taxes” includes, without limitation, the following: any fire service or
other charges for municipal services and all governmental impositions and taxes imposed upon the
Building and the land thereunder (the “Land”), and assessments, as well as all ad valorem, license
or other taxes imposed upon the Building or the Land and/or imposed upon Landlord by reason of its
ownership thereof or this Lease other than state or federal inheritance or succession taxes. If at
any time during the Lease Term, the methods of taxation of real estate prevailing at the
commencement of the execution hereof shall be altered so that in lieu of, in addition to, or as a
substitute for, the whole or any part of the Taxes, there shall be levied, assessed or imposed (i)
a tax, assessment, levy, imposition or charge, wholly or partially as capital levy or otherwise, on
the rents received therefrom; or (ii) a tax, assessment, levy, imposition or charge measured by or
based in whole or in part upon the Leased Premises and imposed upon Landlord; or (iii) a tax
license fee or the like measured by the rents payable, the same shall be included as Taxes
hereunder.
(k) All amounts payable by Landlord to Prime Lessor under the Prime Lease.
Operating Costs for any calendar year during the Lease Term shall be computed and adjusted upward
so that Operating Costs shall at all times equal the product of actual Operating Costs incurred
during such year, as reasonably adjusted by Landlord to cause Operating Costs to be the amount that
would have been incurred had there been 100% occupancy in the
Building for the period in question, times the fraction, the numerator of which is the Rentable Area of the Building and the denominator of which is the average number (determined on annualized basis) of the Rentable Area of the Building which is, during such year, subject to a lease agreement with Landlord under which the tenant thereunder is required to pay its proportionate share of
Building for the period in question, times the fraction, the numerator of which is the Rentable Area of the Building and the denominator of which is the average number (determined on annualized basis) of the Rentable Area of the Building which is, during such year, subject to a lease agreement with Landlord under which the tenant thereunder is required to pay its proportionate share of
[ * ] Indicates that information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a request for confidential treatment.
- 26 -
Operating Costs. Debt service and leasing commissions payable by Landlord shall be
excluded from any computation of Operating Costs.
Prime Lease shall mean that certain long term lease agreement dated March 21, 1985 by and between
The Economic Development and Industrial Corporation of Boston, a corporation organized under the
laws of the Commonwealth of Massachusetts, as Prime Lessor and Landlord as Prime Lessee, covering
the Building and certain real property on which the Building is situated, as the same may be
amended from time to time.
Project shall mean the Building, the land upon which the Building is situated and all other
improvements now or hereafter situated on such land.
Trade Fixtures shall mean any and all signs placed by Tenant within the Leased Premises pursuant to
provisions hereof and any and all items of property used by Tenant in the Leased Premises
including, but not limited to, furniture and equipment; provided, however, that the term “Trade
Fixtures” shall not include any permanent leasehold improvements including, but not limited to, any
floor, wall or ceiling coverings, any interior walls or partitions, any lighting fixtures, track
lights or any property a part of or associated with any electrical, plumbing or mechanical system,
notwithstanding that the same may have been installed within the Leased Premises.
Section 8.2. Exhibits, Supplements and Riders. The Exhibits, Supplements and Riders attached to
this Lease are hereby incorporated herein and hereby made a part of this Lease. To the extent the
terms of Exhibit E attached to this Lease are inconsistent with the terms of this Lease, the
Exhibit E terms shall be deemed to modify the terms of this Lease.
“LANDLORD”
BOSTON DESIGN CENTER LLC,
a Delaware limited liability company
BOSTON DESIGN CENTER LLC,
a Delaware limited liability company
By: VORNADO REALTY L.P., its managing member
By: VORNADO REALTY TRUST, its general partner
By: VORNADO REALTY TRUST, its general partner
By: /S/ XXXXXXXXXXX X. XXXXXXX
Date: 3/24/06
Name: Xxxxxxxxxxx X. Xxxxxxx
Name: Xxxxxxxxxxx X. Xxxxxxx
“TENANT”
BOSTON BEER CORPORATION
BOSTON BEER CORPORATION
By:
|
/S/ XXX XXXX | Date: | March 22, 2006 | |||||
Title:
|
Chairman | |||||||
Hereunto Duly Authorized |
[ * ] Indicates that information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a request for confidential treatment.
- 27 -
Exhibit A — Floor Plan
Exhibit B — Building Rules and Regulations
Exhibit C — Non-Discrimination and Employment Requirements
Exhibit D — Rental Payment Schedule
Exhibit E — Terms & Conditions
Exhibit F — Authorization Agreement for Automatic Rental Payments
Exhibit G — EDIC Form SNDA
Exhibit H — Tenant’s Work
[ * ] Indicates that information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a request for confidential treatment.
- 28 -
EXHIBIT A
{see attached Floor Plan}
(Image of Floor Plan)
EXHIBIT B
BUILDING RULES AND REGULATIONS
BUILDING RULES AND REGULATIONS
The following rules shall apply, where applicable, to the Leased Premises, the Building, the
land situated beneath the Building and the appurtenances thereto:
1. The Leased Premises shall be used only for the purposes set forth in the Lease.
2. Landlord reserves the right to require any tenant to cease construction activity if in
Landlord’s reasonable opinion such activity interferes with any market exhibition.
3. Intentionally Deleted.
4. With respect to work being performed by Tenant in the Leased Premises, Tenant will refer
all contractors, contractors’ representatives and installation technicians rendering any service to
Tenant to Landlord for Landlord’s supervision, approval and control before the performance of any
contractual services. All such contractors, representatives and technicians must be approved by
Landlord, which approval shall not be unreasonably withheld. All of the same shall at all times
comply with the provisions of Exhibit C.
5. Electric current shall not be used for heating without Landlord’s prior written consent.
Under no condition shall the Tenant disconnect or override any thermostats or other heat sensors or
controls, adjust or close any valves for any portion of any heating or cooling system, take any
action which would tend to prevent or restrict the flow through that system, or fail to repair any
window that would allow air infiltration which might allow a pipe to freeze.
6. Plumbing, fixtures and appliances shall be used only for the purposes for which designed,
and no sweepings, rubbish, rags or other unsuitable material shall be thrown or placed therein.
7. In the event that any check or other instrument delivered to Landlord in payment of any
rent due under this Lease is returned to the Landlord as a result of insufficient funds or for any
other reason whatsoever without payment in full to the Landlord of the sums specified in such check
or instrument, Tenant shall pay to Landlord, upon demand by Landlord, the greater of the actual
costs and expenses incurred by the Landlord as a result of its inability to collect the sums
specified in such check or other instrument or Forty-Five Dollars ($45.00); provided, however, the
minimum amount payable to Landlord may be adjusted upward by Landlord from time to time in order to
approximate actual costs and expenses customarily incurred by Landlord in such connection.
8. When Tenant assumes possession of the Leased Premises, Tenant is required to replace the
existing lock with Tenant’s own lock. Landlord shall not be liable to Tenant or any other person
for (and Tenant shall indemnify and hold Landlord harmless from) any damage or injury resulting
from, but not limited to, damage or injury to doors, windows and other portions of the Leased
Premises done by Landlord in order to obtain immediate access to the Leased Premises
in the event that Landlord in its sole discretion determines that such immediate access is
necessary. Upon termination of the Lease, Tenant shall deliver all keys to the Leased Premises to
Landlord. Tenant shall pay any charges imposed by Landlord for additional keys, changing the locks
or failing to return keys at rates established by Landlord from time to time. Upon termination of
the Lease, Tenant shall, upon request of Landlord, at its sole cost and expense, remove any
additional locks placed on the doors to the Leased Premises by Tenant and restore any locks on the
doors to the Leased Premises changed by Tenant to the condition of such locks prior to such change
by Tenant.
9. No signs (including, without limitation, “samples for sale” signs and any electrically or
gas lighted signs), tags, labels, advertisements or other notices shall be installed, displayed,
inscribed, painted or affixed on, upon, within or to any windows or doors or other part of the
Building or the Leased Premises except in accordance with written rules regarding signage adopted
from time to time by Landlord. No item of decoration to be situated within the Leased Premises
visible from outside of the Leased Premises, including but not limited to carpet, lamps, graphics,
paintings, furniture, calendars, equipment, and plants shall be placed in or situated within the
Leased Premises if reasonably objected to by Landlord.
10. Tenant shall not display a “For Rent” sign upon the Leased Premises or otherwise advertise
the Leased Premises for rent in any manner. During the thirty (30) day period preceding expiration
of the Lease, Landlord may place on the doors or windows of the Leased Premises one or more “For
Rent” signs of reasonable dimensions, and otherwise advertise the Leased Premises for rent.
11. Tenant shall not make or permit any improper, objectionable or unpleasant noises or odors
in the Building or use any loudspeaker, phonograph, radio or sound amplifier heard outside the
Leased Premises or otherwise interfere in any way with other tenants or persons having business
with them.
12. Nothing shall be swept or thrown into the corridors, halls, elevator shafts or stairways.
No birds or animals shall be brought into or kept in, on or about the Building or the Leased
Premises.
13. Tenant shall not install, put up or operate any steam engine, boiler, machinery upon the
Leased Premises or use or permit to be used or kept upon the Leased Premises any kerosene,
camphene, bottled gas, oil or any other inflammable or explosive materials. No portion of the
Leased Premises shall at any time be used or occupied as sleeping or lodging quarters.
14. Landlord shall have the right to prescribe the weight and position of safes and other
heavy equipment or objects to be placed in the Leased Premises by Tenant, which shall in all cases,
be located as to distribute weight, and shall stand on supporting devices approved by Landlord.
Tenant shall bear any reasonable and necessary expense incurred by Landlord in connection with such
determination, including, without limitation, the cost of any engineering studies or surveys
conducted by engineers to be selected by Landlord. Tenant shall notify Landlord when safes or
other heavy objects are to be taken in or out of the Building, and the moving shall be done under
the
B-2
supervision of Landlord. Persons employed by Tenant to move such property must be acceptable to
Landlord.
15. Tenant shall keep the Leased Premises neat and clean. Tenant shall not employ any person
for the purpose of such cleaning except such persons as Landlord shall have approved, and who are
bonded and insured with companies and in amounts satisfactory to Landlord. No janitorial services
are provided by Landlord within the Leased Premises.
16. Except to the extent required by applicable law, Landlord shall be in no way responsible
to the Tenant, its agents, employees, or invitees for any loss of property from the Leased Premises
or public areas or for any damages to any property thereon from any cause whatsoever, nor shall
Landlord be responsible for lost or stolen personal property, money or jewelry from the Leased
Premises, regardless of whether such loss occurs when the area is locked.
17. Movement in or out of the Building of furniture or office equipment, or dispatch or
receipt by Tenant of any bulky material, merchandise or materials shall be under the supervision of
Landlord and shall be performed in the manner agreed between the Tenant and Landlord by
prearrangement before performance. The Landlord shall have the right to determine in its sole
discretion the time, method and routing of such movement and to impose all such other reasonable
restrictions or limitations which in Landlord’s opinion are required under the circumstances. All
loading and unloading in connection with such movement shall be performed at docks designated by
Landlord. In no event shall the front and side doors of the Building be used for loading and
unloading. The Tenant shall assume all risk of damage to articles moved and injury to persons or
property arising out of such movement including equipment, property and personnel of Landlord
furnished as a service to Tenant. Except to the extent required by applicable law, Landlord shall
not be liable for the acts of any person engaged in, or any damage or loss to any of said property
or persons resulting from, any act in connection with such service performed for Tenant.
18. Landlord may at its election (but shall have no obligation to do so) receive and store
articles of merchandise delivered to Tenant at the Building, provided, that such articles of
merchandise are properly addressed and identified and all postage, handling and delivery charges
are prepaid by Tenant. Except to the extent required by applicable law, Landlord assumes no
responsibility whatsoever for the loss, damage or destruction of such articles of merchandise
received at the Building by Landlord on behalf of Tenant, and Tenant hereby waives all claims
against Landlord for any damage or loss arising at any time for the loss, damage or destruction of
such articles of merchandise. Any expenses incurred by Landlord at the request or for the account
of the Tenant for labor, material, packing, shipping, postage, freight or express upon articles of
merchandise delivered to the Building shall be due and payable to Landlord by Tenant upon demand.
19. Landlord reserves the right to prescribe reasonable hours, conditions and qualifications
for admission into the Building or any part thereof.
20. Canvassing, peddling, soliciting, buttonholing, selling and distributing of handbills or
any other written material in or about the Building or the Building’s parking areas are prohibited.
B-3
21. Sidewalks, doorways, vestibules, corridors, stairways and other similar areas shall not be
obstructed by Tenant or used by Tenant for any purpose other than ingress or egress to and from the
Leased Premises and for going from one to another part of the Building. Placement of show cases
and other property and storage of merchandise or showroom materials in such areas is strictly
prohibited.
22. Landlord shall not be obligated to set up or furnish display items (tables, chairs, etc.)
or any other items of equipment for use by Tenant.
23. Tenant shall not, without the prior written consent of Landlord, install within the Leased
Premises any food, soft drink or other vending machine or any machinery or other equipment which
shall require for its use other than normal electrical current or other utility service.
24. Tenant shall not conduct any fire, auction, “going out of business”, bankruptcy, “lost our
lease” or similar sale and shall not make any unlawful use of the Leased Premises or permit any
unlawful use thereof and shall not commit any act which is a nuisance or annoyance to Landlord or
to other tenants in the Building, or which might, in the exclusive judgment of Landlord,
appreciably damage Landlord’s goodwill or reputation, or tend to damage, injure or depreciate the
Building.
25. To the extent of any conflict between any provision of these Rules and Regulations and any
provision in the Lease, the provisions of the Lease shall control.
26. Landlord may waive any one or more of these Rules and Regulations for the benefit of
Tenant or any other tenant of the Building, but no such waiver by Landlord shall be construed as a
waiver of such Rules and Regulations in favor of any other tenant nor prevent Landlord from
thereafter enforcing any such Rules and Regulations against Tenant or any or all of the tenants in
the Building.
27. Except only to the extent noted in Section 3.1 of the Lease and in Paragraph P of Exhibit
E, Landlord has no obligation to furnish plumbing or water to the Leased Premises.
28. “Normal Business Hours” as used in the Lease shall mean 8:00 a.m. to 6:00 p.m., five (5)
days a week from Monday through Friday inclusive, exclusive of the following holidays: New Years
Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day and Christmas Day and any other
official holiday recognized as such by the Commonwealth of Massachusetts on which Landlord elects
to close the Building.
29. Intentionally deleted.
30. Tenants are responsible for breaking down all cardboard boxes as well as parking crates
and leaving them in designated trash areas.
31. Landlord reserves the right to rescind any of these Rules and Regulations and to make such
other and further rules as in its judgment shall from time to time be needed for the
B-4
safety, protection, care and cleanliness of the Building, the operation thereof, the preservation
of good order therein and the protection and comfort of the tenants in the Building and their
agents, employees and invitees, which rules, when made and written notice thereof is given to
Tenant, shall be binding upon it in like manner as if originally herein prescribed, notwithstanding
anything in these Rules and Regulations or the Lease to which they are attached to the contrary.
32. The Boston Design Center is a smoke-free building. No smoking is allowed in the public
spaces of the building including, but not limited to, the stairways, bathrooms, and hallways.
33. Tenants are required to turn off their lights at the end of each day.
/S/ JK
|
||||
Tenant Initials |
B-5
EXHIBIT C
NON-DISCRIMINATION AND EMPLOYMENT REQUIREMENTS
NON-DISCRIMINATION AND EMPLOYMENT REQUIREMENTS
1. Purpose. This Exhibit C contains the requirements of this Lease with respect to
non-discrimination, employment and related matters. These requirements are imposed because the
Leased Premises were acquired with funds made available under Title I of the Housing and Community
Development Act of 1974 as amended, and are leased to Tenant as part of an overall plan to provide
jobs for unemployed and underemployed persons in the City of Boston, all within the intent and
purposes of Chapter 1097 of the Acts of 1971 and the Economic Development Plan for the Boston
Marine Industrial Park.
2. Non-Discrimination Requirements. Tenant covenants that it will not and shall require its
subtenants to covenant that they will not discriminate on the basis of race, color, age (other than
as permitted by the Age Discrimination in Employment Act of 1975 as amended and applicable state
law), sex (except where sex is a bona fide occupational qualification), creed, national origin, or
mental or physical handicap (other than as permitted by the Rehabilitation Act of 1973 as amended
and applicable state law) in their employment practices, their contractual arrangements, the
accommodations they offer to the public, and in their other business operations relating to or
involving the Leased Premises. (By virtue of the non-discrimination covenant in the deed of the
Project dated July 19, 1983 from the General Services Administration to the Prime Lessor, the
United States may be deemed a beneficiary of and may have the right to enforce this covenant
independently of this Lease.)
3. General Contract Requirements. Tenant shall use all reasonable efforts to insure that
contracts entered into by Tenant for activities or services relating to the Leased Premises shall
be with persons residing in the City of Boston, or firms which are located in, or owned, in
substantial part by persons residing in, the City of Boston. Tenant shall also use all reasonable
efforts to insure that jobs and training under these contracts shall be given to low and moderate
income persons residing in the City of Boston and to contract with small, minority-owned (minority
refers to Asian American, Black, Hispanic American, North American Indian and Cape Verdian), and
female-owned businesses for supplies, equipment, construction and services, as small businesses are
defined by the Small Business Administration. Tenant shall include the foregoing provisions in any
sublease or assignment.
4. Permanent Employment Requirements. Tenant shall use all reasonable efforts, in the conduct
of its own business activities and, consistent with the requirements of Article 6 of the Prime
Lease by its selection of sublessees, to create jobs on the Leased Premises that will benefit low
and moderate income persons. Tenant shall use all reasonable efforts to fill all vacancies for
permanent jobs on the Leased Premises with:
a. fifty-one percent (51%) low or moderate income persons;
b. twenty-five percent (25%) women:
c. twenty-five percent (25%) minorities;
d. fifty percent (50%) City of Boston residents; and
e. fifteen percent (15%) JTPA-eligible persons (JTPA refers to Job Training Partnership Act of
1982).
Any such person may satisfy more than one of the above categories. Low and moderate income persons
shall be persons whose annual wage level is below that of eighty percent (80%) of the median family
income for the Boston Metropolitan Statistical Area. Jobs shall include all job openings whether
full-time or part-time, or created by attrition or expansion. Tenant shall obligate its sublessees
and assignees to use all reasonable efforts to comply with the foregoing standards.
5. Cooperation With City of Boston Agencies. To fill all jobs on or relating to the Leased
Premises, whether full-time, part-time, or seasonal, or created by expansion or attrition, Tenant
agrees to cooperate with the City of Boston, Prime Lessor and any other public or private agency
named by Prime Lessor as its designee, including but not limited to the City of Boston Neighborhood
Development and Employment Agency, the Boston Job Exchange and the South Boston Community
Development Corporation. Tenant shall notify, and shall obligate its sublessees or assignees to
notify, Prime Lessor or Prime Lessor’s designee of all new jobs and training on the Leased Premises
during the Term of this Lease. Tenant will allow, and shall require its assignees and sublessees
to allow, five (5) working days for Prime Lessor or Prime Lessor’s designee to provide at least one
(1) satisfactory applicant for an available permanent position. If Prime Lessor or Prime Lessor’s
designee has not within five (5) days provided a satisfactory applicant or has notified Tenant of
its inability to find a qualified applicant Tenant may then fill such a position.
6. Tenant’s Quarterly Reports to Landlord and Prime Lessor. Tenant shall submit quarterly
employment reports to Landlord and Prime Lessor in the form of Prime Lessor’s then current form,
showing changes in total employment and the number of new or replacement employees hired since the
last reporting period, the total number of employees on the Leased Premises and the number of
Boston residents, minorities, women, and low and moderate income persons employed on the Leased
Premises by Tenant, its assignees, or sublessees.
7. Tenant’s Records Available to Landlord and Prime Lessor. Tenant shall make available for
the Landlord’s and Prime Lessor’s inspection at reasonable times all records of the Tenant, its
successors, sublessees, and assignees directly related to employment, necessary for Landlord and
Prime Lessor to ascertain compliance with all provisions of this Exhibit.
/S/ JK
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Tenant’s Initials |
C-2
EXHIBIT D
BASE RENTAL PAYMENT SCHEDULE
BASE RENTAL PAYMENT SCHEDULE
[ * ]
[ * ] Indicates that information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a request for confidential treatment.
EXHIBIT E
TERMS & CONDITIONS
TERMS & CONDITIONS
A.
Tenant shall have one option to renew this Lease for an additional
successive 5-year period (the
“Renewal Period”) upon the same terms and conditions in effect during the initial Lease Term,
except (i) for the amounts of Base Rental which shall be equal to the greater of the prior year
Base Rent or [ * ] of the applicable fair market rent, (ii) all Landlord Work shall be deemed
satisfied and (iii) there shall be no further renewal or extension rights and no free rent or
Landlord contributions. The option may not be exercised if Tenant is in default, beyond applicable
grace and cure periods.
1. To exercise the option, Tenant must notify Landlord in writing that it is exercising
its right to extend the term for a 5-year period, which notice must be received by Landlord not
later than [ * ] . If Tenant fails to provide Landlord with such notice, the Term
shall end at the original end of the Lease Term.
2. If Tenant gives Landlord timely notice of its intention to renew this Lease, then
within sixty (60) days thereafter, Landlord shall give Tenant written notice of the amounts
to be the Base Rental amounts for each year of the option term for Tenant’s space.
3. In the event that Tenant disputes the amounts set by Landlord, Tenant may, within
fifteen (15) days of its receipt of notice from Landlord establishing such rent, give notice
to Landlord of such dispute (“Tenant’s Dispute Notice”) and thereupon the matter shall be
submitted to arbitration in accordance with the terms set forth in Subsection 4. below,
otherwise Base Rental shall be as set by Landlord. Notwithstanding the submission of the
issue of “fair market rent” to arbitration, Base Rental for the first and next ensuing years
of the Renewal Period shall be paid at the Landlord’s amount until the arbitration is
completed. If, upon completion of the arbitration, it is determined that Base Rental is
less or more than that set by Landlord, then an adjustment based upon such lower or greater
rent shall be made based on the number of months paid by Tenant and the adjustment shall be
payable in full within the next 60 days. In no event shall the extension of the term of
this Lease be affected by the determination of the rent, such exercise of extension being
fixed at the time at which notice is given.
4. In the event Landlord and Tenant shall be unable to agree on the amount to be the
Base Rental for each year of the option term within the 30 days next after Landlord’s
receipt of Tenant’s Dispute Notice, the amount shall be established in the following manner
of arbitration:
(a) | Each of Tenant and Landlord shall, within the next 15 days choose and notify the other of an arbitrator knowledgeable in the field of establishing fair rental values in this area and with no less than ten years commercial experience doing so; |
[ * ] Indicates that information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a request for confidential treatment.
(b) | The arbitrators selected in accordance with “(a)” above shall select a third such arbitrator within the next 15 days; | ||
(c) | Within thirty (30) days after their appointment, the arbitrators shall determine the a fair market rent for the Leased Premises for each year of the Renewal Period which in no event, for any arbitrator or any year, shall be less than the Base Rental payable for the prior year, and shall notify Tenant and Landlord of such determination. Subject to the foregoing, such determination shall be final and binding upon Tenant and Landlord. If the arbitrators are unable to agree upon the fair market rent for any year, the fair market rent will be deemed to be the average of the fair market rents proposed by the arbitrators for such year, except that (i) if the lowest proposed fair market rent is less than [ * ] of the second to lowest proposed fair market rent, the lowest proposed fair market rent will automatically be deemed to be [ * ] of the second to lowest proposed fair market rent and (ii) if the highest proposed fair market rent is greater than [ * ] of the second to highest proposed fair market rent, the highest proposed fair market rent will automatically be deemed to be [ * ] of the second to highest proposed fair market rent. | ||
(d) | The foregoing arbitration shall be conducted in accordance with the rules of the American Arbitration Association or its successors; | ||
(e) | Landlord and Tenant shall each pay one-half (1/2) of the cost of the arbitration proceedings. |
Whether determined by the Landlord and Tenant or the arbitrators, fair market rent shall be
determined based on the following rents in the following order of priority (most weighted to least
weighted): rent for space on the same floor in the Premises; rent for similar space in the
Building; other space in the Building; and other comparable space in comparable areas of the City
of Boston.
B. Tenant shall be granted a right to have a number of non-exclusive parking spaces in the
Building’s tenant parking lots, available on a “first come, first serve” basis, [ * ] or (ii) the
average same year annual per space cost charged tenants by Landlord for parking spaces in the
Building’s tenant parking lots, which amount shall be payable as additional rent, in advance, for
each year for all or any portion thereof for use at any time prior to the date on which (i) there
is a default not timely cured or (ii) there is any transfer or assignment of the lease or any
interest in the Tenant (other than a Landlord consented to transfer). Landlord shall have the
right to relocate the tenant parking area at any time, without notice. Absent Landlord’s specific
written agreement referencing this paragraph to the contrary, the number of spaces to which tenant
shall be entitled and deemed to have elected to rent in any calendar year shall be the least of (i)
[ * ],
[ * ] Indicates that information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a request for confidential treatment.
E-2
(ii) the number of spaces which Tenant notifies Landlord on or before October 1 of a calendar year
that it desires for the following calendar year or (iii) the number of spaces which Tenant
previously notified Landlord that it desired for a calendar year, and the cost of such spaces shall
be due and payable within thirty (30) days of Landlord’s invoice therefor. The parties agree that
any fees otherwise due from Tenant for such parking are deemed received by Landlord as payment for
surface parking.
C. [ * ].
D. If in Tenant’s opinion, Tenant’s computer room requires any additional air conditioning, Tenant,
at tenant’s sole cost and election, and subject to Landlord’s prior written approval, which
approval shall not be unreasonably withheld, delayed or conditioned, shall have the right to
install supplemental air conditioning units on the roof of the Building. All costs associated with
such units, including without limitation any associated with installation, operations (including
without limitation electricity, and separate metering for such electricity), repair, removal
(whether temporary for roof work, permanently at the end of the term or otherwise) shall be borne
by Tenant and, to the extent not paid directly by Tenant and paid by Landlord, shall be due and
payable as additional rent upon demand. All work shall be subject to the other terms and
provisions of this Lease, including without limitation the terms of Section 4.2. Tenant agrees to
indemnify and hold Landlord harmless from any loss, cost, damage or claim arising from such
additional air conditioning units.
E. [ * ].
F. [ * ].
G. [ * ].
H. Provided that on the applicable reduction date the Tenant has maintained this Lease without a
default not cured within the grace or cure period applicable to that default and there is then no
outstanding default, Landlord agrees that the amount of the Security Deposit shall be reduced by [
* ].
I. Tenant agrees that the terms of this Lease will be kept confidential by it and any Guarantor and
shall not be disclosed to any third parties without Landlord’s prior written consent. Tenant shall
treat the terms of this Lease as confidential information in the same manner as it treats its own
confidential information. Tenant further acknowledges that any disclosure may cause Landlord
irreparable harm, and agrees that any such disclosure may be enjoined. Notwithstanding anything to
the contrary, Tenant may disclose the terms of this Lease if required to do so by law or court
order.
J. [ * ].
[ * ] Indicates that information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a request for confidential treatment.
E-3
K. Wherever used in this lease concerning Landlord’s consent or approval, the words “shall not
unreasonably be withheld” shall be interpreted to mean, “shall not unreasonably be withheld,
conditioned or delayed”.
L. [ * ].
M. The sale or distribution of alcoholic beverages at the Property (i) to the public, is generally
prohibited, and (ii) to the Tenant’s employees and business guests is prohibited absent all
applicable permits and approvals required in accordance with applicable laws and ordinances.
N. Tenant may use and occupy the Premises on or after July 1, 2006 for the purpose of performing
the initial tenant improvement work necessary to ready the Leased Premises for Tenant’s occupancy
(“Tenant’s Initial Work”), including the work more particularly described on Exhibit H, which work
and occupancy shall be subject to all of the terms and conditions of this Lease, except that Tenant
shall not be obligated to pay Base Rent, Tenant’s Proportionate Share of Operating Costs or
Separately Metered Utilities and Utility Usage under Sections 2.3, 2.4 or 2.5 of this Lease for
such occupancy prior to October 1, 2006. However, Tenant shall pay Landlord $[ * ] ] on July 1,
2006 and on the first of each of the two months next thereafter as a contribution toward
electricity in exchange for such right of early occupancy. If Tenant’s work as set forth on
Exhibit G does not refer to complete plans and specifications approved by Landlord, then Tenant
shall promptly following execution of this Lease cause such complete plans and specifications to be
prepared at Tenant’s cost and submitted to Landlord for Landlord’s prior written approval before
Tenant’s work is commenced. Landlord shall not unreasonably withhold, condition or delay such
approval.
O. Provided Tenant notifies Landlord in writing in advance that it desires use and occupancy
earlier than July 1, 2006 and such notice includes payment of the June Occupancy Fee, Tenant may
occupy the Premises for all or any portion of the month of June 2006 for the purpose of performing
the Tenant’s Initial Work, which work and occupancy shall be subject to all of the terms and
conditions of this Lease, except that Tenant shall not be obligated to pay Base Rent, Tenant’s
Proportionate Share of Operating Costs or Separately Metered Utilities and Utility Usage under
Sections 2.3, 2.4 or 2.5 of this Lease for such June occupancy. The term “June Occupancy Fee”
shall mean [ * ].
P. Notwithstanding anything to the contrary elsewhere in the Lease, but subject to the following
and other terms of this Lease, Landlord shall permit Tenant access to an existing waste stack and
an existing source of water so as to allow disposal of sanitary waste from and the supply of water
to no more than two bathrooms (each having no greater number of water using fixtures than one sink
and a total of two urinals or toilets) and a shower in each bathroom, plus such other fixtures
commonly found in an office environment such as sinks, dishwashers, coffee makers, bubblers, and
the like that Tenant may wish to construct as part of the Tenant Work. Tenant shall be wholly
responsible for installing, maintaining and servicing the bathrooms and the associated waste and
supply lines not now existing that are located within or without the
[ * ] Indicates that information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a request for confidential treatment.
E-4
Leased Premises and for obtaining all necessary permits and approvals for such use, installation,
maintenance and repair. All such work shall be done at such times as may be reasonably convenient
for Landlord’s supervisor and so as to minimize interference with other tenants, and shall require
prior written approval by the Landlord, which approval shall not be unreasonably withheld,
conditioned or delayed, and, if involving significantly more water use than a few sinks, shall
include appropriate separate metering. The separately metered water and sewer charges paid for by
Tenant hereunder shall not be included in Operating Costs. Tenant shall indemnify Landlord for any
and all losses damages and claims, including costs of defense and reasonable attorneys’ fees,
arising from the bathrooms or such water or waste lines, whether from water damage, odors, insects
or otherwise, except if caused by Landlord or Landlord’s agent.
Q. [ * ].
R. [ * ].
[ * ] Indicates that information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a request for confidential treatment.
E-5
EXHIBIT F
AUTHORIZATION AGREEMENT FOR AUTOMATIC RENTAL PAYMENTS
(DIRECT DEBITS)
(DIRECT DEBITS)
TENANT
hereby authorizes
“LANDLORD”, whose tax identification number is , to initiate
Debit Entries in the amount permitted by the terms of the Lease Agreement between LANDLORD and
TENANT, from TENANT’S account with the following depository:
DEPOSITORY NAME:
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BRANCH: |
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CITY, STATE & ZIP:
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DEPOSITORY ABA #:
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TENANT’S ACCOUNT #:
|
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This authority shall remain in full force and effect until LANDLORD and the DEPOSITORY have
received written notification from TENANT of its termination and LANDLORD and DEPOSITORY have had a
reasonable opportunity to act on it.
TENANT TAX ID NUMBER:
|
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TENANT NAME:
|
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TENANT SIGNATURE:
|
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NAME (please print):
|
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TITLE (please print):
|
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DATE SIGNED:
|
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#329829 v10/2700/10090
[ * ] Indicates that information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a request for confidential treatment.
[ * ] Indicates that information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a request for confidential treatment.
F-2