Xxxxxxx River Associates Incorporated
Xxxx Xxxxxxx Tower
Boston, Massachusetts
FIFTEENTH AMENDMENT OF LEASE
THIS FIFTEENTH AMENDMENT OF LEASE, made and entered into as of this 7th day
of June, 2002, by and between XXXX XXXXXXX LIFE INSURANCE COMPANY, formerly
known as Xxxx Xxxxxxx Mutual Life Insurance Company (hereinafter referred to as
"Landlord") and XXXXXXX RIVER ASSOCIATES INCORPORATED (hereinafter referred to
as "Tenant").
WITNESSETH: THAT
WHEREAS, Landlord and Tenant entered into a lease dated March 1, 1978,
demising certain premises in the Xxxx Xxxxxxx Tower, 000 Xxxxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx (the "Building"), which lease has been amended by First
Amendment of Lease dated December 16, 1981, Second Amendment of Lease dated
February 24, 1984, Third Amendment of Lease dated February 28, 0000, Xxxxxx
Xxxxxxxxx of Lease dated February 7, 1986, Fifth Amendment of Lease dated
February 13, 1987, Sixth Amendment of Lease dated August 24, 1987, Seventh
Amendment of Lease dated January 31, 1990, Eighth Amendment of Lease dated
December 31 1991, Ninth Amendment of Lease dated September 2, 1992 (the "Ninth
Amendment"), Tenth Amendment of Lease dated August 24, 1995, Eleventh Amendment
to Lease dated November 25, 1996, Twelfth Amendment of Lease dated March 19,
1998, Thirteenth Amendment to Lease dated August 13, 1999 and Fourteenth
Amendment to Lease dated April 20, 2000 (which lease and the amendments thereto
are hereinafter collectively referred to as the "Lease"); and
WHEREAS, Tenant wishes to lease certain additional space located on the
31st floor of the Building; and
WHEREAS, Landlord and Tenant wish to make certain revisions to the Lease
to reflect the remeasurement of the Building; and
WHEREAS, the parties hereto are mutually desirous of amending the Lease so
as to provide for the above.
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NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Lease is hereby amended as
follows:
1. Definitions. Defined terms in this Fifteenth Amendment of Lease shall
have the same meaning as provided for in the Lease.
Remeasurement of Building
2. Remeasurement of Building. At the time of execution of the Lease, the
number of square feet of rentable area in the Building was 1,597,533
square feet calculated using Landlord's original building measurement
standard ("Original Standard"). The resultant number of square feet of
rentable area in the Premises and Tenant's Proportionate Share were
similarly calculated using the Original Standard. Effective as of
January 1,2000, Landlord remeasured the Building using a modified BOMA
standard ("Modified BOMA Standard"). Pursuant to the Modified BOMA
Standard the number of square feet of rentable area in the Building is
1,738,779 square feet. Landlord and Tenant hereby confirm and
acknowledge that effective October 1, 2001 all references in the Lease
to the number of square feet of rentable area in the Building, the
Premises, the Expansion Premises, the T-31 Premises (as defined in
Section 5 below), the Additional Expansion Premises (as defined in
Section 10 below), and Tenant's Proportionate Share shall be
calculated using the Modified BOMA Standard, as more specifically
indicated below:
- rentable area included in the Building: 1,738,779 square feet
- rentable area in the Premises:
T-32 28,803 square feet (as
outlined on Exhibit A-1
attached hereto and
incorporated by reference,
herein the "T-32 Premises")
T-33 28,492 square feet (as
outlined on Exhibit A-2
attached hereto and
incorporated by reference,
herein the "T-33 Premises")
Total 57,295 square feet
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- Tenant's Proportionate Share of 3.295% (i.e., 57,295 square
Ownership Taxes: feet of rentable area
included in the Premises
divided by 1,738,779, the
number of square feet of
rentable area included in
the Building)
- T-31 Premises: 6,000 square feet
- Additional Expansion Premises: 22,090 square feet
3. Adjustment to Base Rent re: Remeasurement. As a result of the
remeasurement of the Building the Base Rent must be adjusted to provide
for the same effective Base Rent as is currently provided under the
Lease. As a result, effective October 1, 2001 and continuing for the
balance of the Extended Term (i.e., April 25, 2008) Base Rent for the
Premises (other than the T-31 Premises referenced herein, which Base Rent
shall be payable in such amounts as provided in Section 6 of this
Fifteenth Amendment) shall be payable by Tenant to Landlord as follows:
With respect to T-32:
- For the period from $956,637.95 per year (28,803
October 1, 2001 through rentable square feet at
August 31, 2003: $33.2131 per square foot),
payable in equal monthly
installments of $79,719.83
- For the period from $990,917.70 per year (28,803
September 1, 2003 rentable square feet at
through February 28, $34.4033 per square foot),
2004: payable in equal monthly
installments of $82,576.48
- For the period from $991,916.70 per year (28,803
March 1, 2004 through rentable square feet at
April 25, 2008: $34.4380 per square foot),
payable in equal monthly
installments of $82,659.73
With respect to T-33:
- For the period from $713,322.50 per year (28,492
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October 1, 2001 through rentable square feet at
April 25, 2008: $25.0359 per square foot
payable in equal monthly
installments of $59,443.54
4. Adjustment to Base Rent during Option Term re: Remeasurement. As a
result of the remeasurement of the Building the Base Rent during the
Option Term must be adjusted to provide for the same effective Base
Rent as is currently provided under the Lease. As a result Section 9
of the Ninth Amendment is hereby amended as follows:
(i) By deleting in its entirety the first paragraph on page 18 of the
Ninth Amendment which currently reads:
"Base Rent during the Option Term shall be equal to the Fair
Rental Value for the Extended Premises (as defined and
determined below)."
and by inserting the following in its stead:
"Base Rent during the Option Term shall be equal to ninety-two
(92%) percent of the Fair Rental Value for the T-32 Premises and
T-33 Premises, and equal to one hundred (100%) percent of the
Fair Rental Value for the balance of the Extended Premises,
including but not limited to the T-31 Premises and the
Additional Expansion Premises (as defined and determined
below)."
(ii) By deleting in its entirety subclause (c) on page 18 of the Ninth
Amendment which currently reads:
"(c) the method by which square footage in measured is similar
to the method used to measure the Extended Premises; and"
and by inserting the following in its stead:
"(c) the method by which square footage is measured is similar
to the Modified BOMA Standard; and",
T-31 Premises
5. T-31 Premises. Effective August 1, 2001, the Premises shall be
increased by including 6,000 square feet of space located on the 31st
floor and more particularly described on Exhibit A-3 attached hereto
(herein the "T-31 Premises"). Landlord delivered the T-31 Premises to
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Tenant on August 1, 2001, in "AS IS" condition, vacant, free and clear of
all leases and occupancies.
6. T-31 Premises Base Rent. Providing Tenant is not in default beyond any
applicable grace period, Tenant shall not be obligated to pay Base Rent for
the T-31 Premises during the months of August, September and October of
2001. Effective November 1, 2001 and continuing through September 30, 2004
the Base Rent for the T-31 Premises shall be $360,000.00 per year (6,000
rentable square feet at $60.00 per square foot), payable by Tenant to
Landlord in equal monthly installments of $30,000.00. Effective October 1,
2004 and continuing through April 25, 2008 (i.e. the expiration of the
Extended Term) the Base Rent for the T-31 Premises shall be $372,000.00
(6,000 rentable square feet at $62.00 per square foot), payable by Tenant
to Landlord in equal monthly installments of $31,000.00. Tenant's
Proportionate Share of Ownership Taxes, Operating Expenses and Utility
Expenses with respect to the T-31 Premises shall be as set forth in Section
7 herein.
7. T-31 Premises - Operating Expenses/Ownership Taxes. The Base Year for
purposes of calculating Tenant's rent adjustment for Operating Expenses for
the T-31 Premises shall be calendar year 2001, such that Tenant shall
commence payment of Tenant's rent adjustment for Operating Expenses for the
T-31 Premises from and after January 1, 2002. The Base Year for purposes
of calculating Tenant's Proportionate Share of Ownership Taxes for the T-31
Premises shall be the fiscal year 2002, such that Tenant shall commence
payment of Tenant's Proportionate Share of Ownership Taxes for the T-31
Premises from and after July 1, 2002. Tenant's Proportionate Share of
Ownership Taxes for the T-31 Premises for any fiscal year shall be 0.336%,
the percentage resulting from dividing the number of square feet of
rentable area included in T-31 Premises (6,000 square feet) by the number
of square feet of rentable area in the Building (which is 1,783,779 square
feet).
8. T-31 Premises - Tenant Allowance. Tenant shall be responsible to design
and construct all improvements within the T-31 Premises, at Tenant's sole
expense, which design and construction shall be conducted in accordance
with the provisions of Section 10B of the Lease. Landlord will provide
Tenant with a tenant improvement allowance for construction of
improvements in the T-31 Premises in the aggregate amount of $198,000.00
($33.00 per rentable square foot) (the "T-31 Premises Tenant Allowance").
During construction of the improvements in the T-31 Premises (but no more
often than once per month), Tenant shall submit a xxxx or bills to
Landlord for reimbursement of the actual costs incurred by Tenant to date
to produce plans,
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construct improvements, purchase furniture, fixtures or equipment or
pay moving expenses. Tenant shall attach to such xxxx or bills all
relevant and available invoices and other evidence of the completion
of work as Landlord may require in its reasonable discretion. Within
fifteen (15) business days of its receipt of such xxxx or bills from
Tenant, provided Tenant is not in default hereunder, Landlord shall
reimburse Tenant for all reasonable verifiable costs incurred by
Tenant in constructing the improvements to the T-31 Premises up to the
maximum T-31 Premises Tenant Allowance. In the event that Tenant
completes construction of the improvements to the T-31 Premises and
the actual costs to complete such improvements are less than the T-31
Premises Tenant Allowance, the Base Rent due and payable by Tenant to
Landlord for the T-31 Premises shall be reduced on a dollar for dollar
basis until such T-31 Premises Tenant Allowance is expended in full.
Tenant shall pay Landlord a construction management fee equal to
one and one half (1.5%) percent (1.5) of the total project cost of any
improvements to the T-31 Premises, such fee to be billed on a monthly
basis and due and payable within thirty (30) days of receipt of
Landlord's invoice.
9. T-31 Premises Parking. Notwithstanding the provisions of Section 12 of
the Ninth Amendment, in connection with Tenants's occupancy of the
T-31 Premises Landlord shall make available one (1) parking permit per
2,500 square feet of rentable square feet in the T-31 Premises(vs. one
per 1,500 rentable square feet as provided with respect to the balance
of the Premises), i.e., two (2) parking permits based upon 6,000
rentable square feet in the T-31 Premises. Such parking permits shall
otherwise be made available pursuant to the terms and conditions
recited in Section 12 of the Ninth Amendment. Upon a written request
from Tenant, Landlord will advise Tenant as to whether any additional
parking permits are available (as determined in Landlord's sole and
absolute discretion), and if any parking permits are available
Landlord shall make such permits available to Tenant.
Additional Expansion Option
10. Additional Expansion Option. Section 31B, Additional Expansion
Option of the Lease, as recited in Section 10 of the Ninth Amendment,
is hereby deleted in its entirety and the following substituted
therefor;
"B. Additional Expansion Option. Provided Tenant is not in default of
its obligations under the Lease, beyond the expiration of any
applicable grace period, either at the time Tenant exercises the
option described below or on the commencement date of the Lease with
respect to the
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Additional Expansion Premises (as defined below), and provided that Tenant
has exercised its option to extend the Extended Term as provided in
Paragraph 9 of the Ninth Amendment, and provided Tenant has not assigned
this Lease or sublet all or any portion of the Extended Premises, as so
expanded, Tenant shall have the additional option (the "Additional Option")
to lease during the Option Term 22,090 rentable square feet of space
located on the 31st floor of the Building and outlined on Exhibit A-4
attached hereto and incorporated by reference (the "Additional Expansion
Premises") commencing on the Option Term Commencement Date. If Tenant
elects to exercise the Additional Option, simultaneously with the giving of
Tenant's notice to extend the Extended Term, Tenant will give Landlord
written notice of Tenant's election to exercise the Additional Option at
least twelve (12) months, but not more that fourteen (14) months, prior to
the Option Term Commencement Date. The Additional Expansion Premises will
be leased to Tenant upon the same terms and conditions as contained in the
Lease, except that Base Rent for the Additional Expansion Premises, which
shall be included with the Extended Premises, shall be determined in
accordance with the provisions of Paragraph 9 of the Ninth Amendment. Upon
the commencement of the term of the Lease for the Additional Expansion
Premises, the Additional Expansion Premises shall automatically become a
part of the Extended Premises.
In the event that the Additional Option is duly exercised, Landlord
and Tenant agree to enter into an amendment to this Lease to confirm such
exercise and to document all changes to the Lease, as amended, resulting
from the exercise of such option and all references contained in this Lease
to the Extended Premises shall be construed to refer to the original
Extended Premises, as expanded pursuant to Section 31(a) hereof, as further
expanded by the exercise of the aforesaid Additional Option, whether or not
specific reference thereto is made in the Ninth Amendment. In exercising
its option hereunder, Tenant acknowledges that time is of the essence.
Failure of Tenant to exercise the Additional Option on or before the date
specified above shall constitute a waiver by Tenant of all rights under
such option. At such time as Tenant leases the Additional Expansion
Premises pursuant to the provisions of this Section 31(b), Tenant's
Proportionate Share of Ownership Taxes shall be increased as provided in
Paragraph 5 of the Ninth Amendment and Tenant's obligations to pay rent
adjustments for Operating Expenses shall be adjusted as provided in Section
2(b) of the Lease."
11. No further Expansion Options. Tenant acknowledges that it has no further
expansion options other that the Additional Option to lease the Additional
Expansion Premises referenced in the preceding Section 10 of this Fifteenth
Amendment.
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Right of First Opportunity
12. Right of First Opportunity.
(a) Exercise. From the date hereto through and including April 25,
2008, Tenant shall have a "Right of First Opportunity" to lease the
22,090 Rentable Square Feet of space located on the 31st floor of the
Building and outlined on Exhibit A-4 attached hereto and incorporated
by reference which Landlord offers to lease to any unrelated third
party (the "First Opportunity Space"); provided, however, Tenant shall
not have this Right of First Opportunity if Landlord plans to use,
lease, or make available such portion of the First Opportunity Space to
itself or to any entity controlled by, controlling, or under common
control with Landlord or to a third party engaged in a special project
for Landlord (each of the foregoing is referred to as a "Landlord
Affiliate").
Landlord will notify Tenant of its plans to offer to lease the
First Opportunity Space to any unrelated third party other than a
Landlord Affiliate. Landlord's notice shall specify the date of
availability, rent, allowances, and all other material terms and
conditions which will apply to such space. The term of the Lease with
respect to the First Opportunity Space shall be coterminous with the
Term of this Lease with respect to the Premises. Tenant will notify
Landlord within fifteen (15) days of Landlord's notice if Tenant wishes
to lease such space from Landlord on the terms and conditions so
specified and otherwise on substantially the same terms and conditions
as contained in the Lease. If Tenant notifies Landlord that it wishes
to lease the First Opportunity Space, Landlord and Tenant shall execute
an agreement incorporating such terms and conditions. If Tenant fails
to notify Landlord within said fifteen (15) day period that Tenant
wishes to lease such First Opportunity Space, Landlord shall be
entitled to lease such space to a third party at an effective rent,
considering all pertinent aspects of Landlord's proposed terms such as
concessions, allowances, broker fees and any other costs to Landlord,
no more favorable than that offered to Tenant; provided, however, if
after negotiations with any such third party, Landlord desires to lease
such space at an effective rent or on other terms which are materially
more favorable than those offered to Tenant, Landlord will notify
Tenant, which notice shall include all material terms and conditions of
Landlord's proposed lease to such third party, and Tenant will notify
Landlord within five (5) business days of Landlord's notice if Tenant
wishes to Lease such space from Landlord on the terms and conditions so
specified. If Tenant fails to notify Landlord within said five (5)
business day period that Tenant intends to lease such First Opportunity
Space, Landlord shall be entitled to lease such space to a third party
at an effective rent, considering all pertinent aspects of Landlord's
proposed terms such as concessions, allowances, broker fees and any
other costs to Landlord, no more favorable than that offered to Tenant.
If Landlord does not enter into such a lease for the First Opportunity
Space with another tenant within eighteen (18) months after Landlord's
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original notice to Tenant, then Tenant's rights under this Section 12
shall be reinstated.
(b) Conditions Precedent to Exercise. Notwithstanding any contrary
provisions of this Section 12 or any other provision of this Lease,
any Right of First Opportunity shall be void and of no effect unless
on the date Tenant notifies Landlord that it is exercising the Right
of First Opportunity and on the commencement date for such First
Opportunity Space (i) this Lease is in full force and effect, (ii) no
Event of Default on the part of Tenant has occurred and is continuing
under this Lease, and (iii) Tenant shall not have assigned this Lease
nor sublet any portion of the Premises to any entity or entities other
than a Tenant Affiliate; provided, however, that Landlord reserves the
right to waive the provisions of this Section 12.
Miscellaneous
13. Storage Space. Section 11 - Storage Space of the Ninth Amendment
is hereby deleted in its entirety.
14. T-31 and T-32 Internal Staircase. During the Extended Term of the
Lease, provided Tenant is not in default of its obligations under the
Lease, beyond the expiration of any applicable grace period, Tenant
shall have the right to construct an internal staircase for the
exclusive use and enjoyment of Tenant, which staircase may connect
those portions of the 32nd and 31st floors occupied by Tenant;
provided that the construction of such internal staircase shall be
performed by Tenant in compliance with the requirements of Section 10B
of the Lease.
At any time commencing six (6) months prior to the expiration of
the Extended Term of the Lease or at any time after a default by
Tenant under the Lease which remains uncured beyond any applicable
grace period), upon demand from Landlord, Tenant shall pay to Landlord
as additional rent, the costs estimated by Landlord to cap the
internal staircase constructed by Tenant and to restore the 32nd and
31st floors to their condition prior to the installation of the
internal staircase, provided, however that if Landlord does not in
fact commence capping the staircase and restoring the floors within
one (1) year from the expiration of the Term then Landlord shall
refund such costs previously paid by Tenant above.
15. Miscellaneous. Except as herein expressly modified all of the terms
and conditions of the Lease shall be and remain in full force and
effect, provided, however, if and to the extent that any of the
provisions of this Fifteenth Amendment conflict with or are otherwise
inconsistent with any of the provisions of the Lease, the provisions
of this Fifteenth Amendment shall prevail.
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IN WITNESS WHEREOF, Landlord and Tenant have caused this Fifteenth
Amendment to be duly executed under seal as of the day first above written.
LANDLORD:
XXXX XXXXXXX LIFE
INSURANCE COMPANY
By: /s/ Xxxx X. Xxxxxxx
----------------------------
Xxxx X. Xxxxxxx
Vice President
TENANT:
XXXXXXX RIVER ASSOCIATES,
INCORPORATED
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------
Title: CFO
Exhibits:
Exhibit A-1 T-32 Premises
Exhibit A-2 T-33 Premises
Exhibit A-3 T-31 Premises
Exhibit A-4 Additional Expansion Premises/First Opportunity Space
EXHIBIT A-4
[FLOORPLAN]
[Exhibits A-1 through A-4 consist of floor plans for office space described in
the lease.]
EXHIBIT A-1
[FLOORPLAN]
[Exhibits A-1 through A-4 consist of floor plans for office space described in
the lease.]
EXHIBIT A-2
[FLOORPLAN]
[Exhibits A-1 through A-4 consist of floor plans for office space described in
the lease.]
EXHIBIT A-3
[FLOORPLAN]
[Exhibits A-1 through A-4 consist of floor plans for office space described in
the lease.]
