EXHIBIT 10.89
LEASE FOR ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
L E A S E
ARTICLE 1
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Reference Data
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1.1 Subject Referred To
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Each reference in this Lease to any of the following subjects shall be
construed to incorporate the data stated for that subject in this
Section 1.1.
Date of this Lease: November 30, 2000
Building: The seven (7) story building
containing 234,668 rentable square
feet of floor area (the "Rentable
Floor Area of the Building").
Premises: The building and the parcel of land
on which the Building is situated,
located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ in the park
commonly known as Crown Colony Place
(the "Park"), such parcel of land
being described in Exhibit A hereto
(called the "Land") and the Premises
being shown on Exhibit A-1 attached
hereto.
Landlord: Crownview LLC
Original Notice
Address of Landlord: c/▇ ▇▇▇▇▇▇▇▇ Management Company,
Inc. ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Tenant: SSB Realty LLC, a Delaware limited
liability company
Original Notice
Address of Tenant: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
Expiration Date: March 31, 2011
Commencement Date: The Date of this Lease
Rent Commencement
Date: February 1, 2001
Annual Fixed Rent Rate: $3,421,852.50 from
the Rent Commencement Date through
March 31, 2001; $6,922,706.00 from
April 1, 2001 through the end of the
3rd lease year (as hereinafter
defined); $7,274,708.00 during the
4th through 6th lease years; and
$7,861,378.00 during the 7th lease
year through the Expiration Date.
Monthly Fixed Rent Rate: $285,154.37 from
the Rent Commencement Date through
March 31, 2001; $576,892.16 from
April 1, 2001 through the end of the
3rd lease year (as hereinafter
defined); $606,225.66 during the 4th
through 6th lease years; and
$655,114.83 during the 7th lease
year through the Expiration Date.
Base Operating Costs: $1,173,340.00
Base Taxes: $880,005.00
Tenant's Percentage: The total Rentable Floor Area of the
Building, which is 100%
Permitted Uses: General business offices and such
other uses as are customarily
incidental thereto.
Guarantor: State Street Corporation
Public Liability Insurance Limits:
Commercial General Liability: $3,000,000 per occurrence
$5,000,000 general aggregate
1.2 Exhibits.
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The Exhibits listed below in this section are incorporated in this
Lease by reference and are to be construed as a part of this Lease.
EXHIBIT A Legal Description
EXHIBIT A-1 Plan showing the Premises
EXHIBIT B HVAC Specifications
1.3 Table of Articles and Sections.
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ARTICLE 1 -- Reference Data
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1.1 Subjects Referred To....................................................................... 1
1
1.2 Exhibits................................................................................... 1
1.3 Table of Articles and Sections............................................................. 1
ARTICLE 2 -- Premises and Term
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2.1 Premises................................................................................... 3
2.2 Term....................................................................................... 3
2.3 Extension Option........................................................................... 3
2.3.1 Arbitration.......................................................................... 3
ARTICLE 3 - Condition; Tenant's Work
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3.1 Condition of Premises; Tenant's Work....................................................... 4
3.2 Allowance.................................................................................. 4
ARTICLE 4 -- Rent
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4.1 The Fixed Rent............................................................................. 4
4.2 Additional Rent............................................................................ 4
4.2.1 Real Estate Taxes................................................................. 4
4.2.2 Personal Property Taxes........................................................... 5
4.2.3 Operating Costs................................................................... 5
4.2.4 Insurance......................................................................... 6
4.2.5 Utilities......................................................................... 7
4.3 Late Payment of Rent....................................................................... 7
ARTICLE 5 -- Landlord's Covenants
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5.1 Affirmative Covenants...................................................................... 7
5.1.1 Heat and Air Conditioning......................................................... 7
5.1.1.1 Supplemental Cooling Units............................................... 7
5.1.2 Electricity....................................................................... 7
5.1.2.1 Back-up Generators....................................................... 7
5.1.3 Cleaning; Water................................................................... 7
5.1.4 Elevator; Fire Alarm.............................................................. 7
5.1.5 Repairs........................................................................... 7
5.1.6 Landlord's Insurance.............................................................. 8
5.1.7 Landscaping, Snow Removal; Grounds Maintenance.................................... 8
5.1.8 Building Maintenance Person....................................................... 8
5.2 Interruption............................................................................... 8
5.3 Access..................................................................................... 8
5.4 Union Labor................................................................................ 8
5.5 Tenant's Rights with respect to Management and Services.................................... 8
ARTICLE 6 -- Tenant's Additional Covenants
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6.1 Affirmative Covenants...................................................................... 8
6.1.1 Perform Obligations............................................................... 8
6.1.2 Use............................................................................... 8
6.1.3 Repair and Maintenance............................................................ 8
6.1.4 Compliance with Law............................................................... 9
6.1.5 Indemnification................................................................... 9
6.1.6 Landlord's Right to Enter......................................................... 9
6.1.7 Personal Property at Tenant's Risk................................................ 9
6.1.8 Payment of Cost of Enforcement.................................................... 9
6.1.9 Yield Up.......................................................................... 9
6.1.10 Estoppel Certificate.............................................................. 10
6.1.11 Rules and Regulations............................................................. 10
6.2 Negative Covenants......................................................................... 10
6.2.1 Assignment and Subletting......................................................... 10
6.2.2 Nuisance.......................................................................... 11
6.2.3 Hazardous Wastes and Materials.................................................... 11
6.2.4 Floor Load; Heavy Equipment....................................................... 11
6.2.5 Installation, Alterations or Additions............................................ 11
6.2.5.1 Rooftop Telecommunications Equipment...................................... 11
6.2.5.2 Additional Generator...................................................... 12
6.2.6 Abandonment....................................................................... 12
6.2.7 Signs............................................................................. 12
6.2.8 Parking and Storage............................................................... 12
ARTICLE 7 -- Casualty or Taking
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7.1 Termination................................................................................ 12
7.2 Restoration................................................................................ 13
7.3 Award...................................................................................... 13
ARTICLE 8 -- Defaults
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8.1 Events of Default.......................................................................... 13
8.2 Remedies................................................................................... 13
8.3 Remedies Cumulative........................................................................ 14
8.4 Landlord's Right to Cure Defaults.......................................................... 14
8.5 Effect of Waivers of Default............................................................... 14
8.6 No Waiver, etc............................................................................. 14
8.7 No Accord and Satisfaction................................................................. 14
ARTICLE 9 -- Rights of Holders
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9.1 Rights of Holders.......................................................................... 14
9.2 Lease Superior or Subordinate to Mortgages................................................. 14
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ARTICLE 10 -- Miscellaneous Provisions
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10.1 Notices From One Party to the Other........................................................ 15
10.2 Quiet Enjoyment............................................................................ 15
10.3 Lease Not to be Recorded................................................................... 15
10.4 Limitation of Landlord's Liability......................................................... 15
10.5 Acts of God................................................................................ 15
10.6 Landlord's Default......................................................................... 15
10.7 Brokerage.................................................................................. 15
10.8 Applicable Law and Construction............................................................ 15
10.9 Landlord's Representations................................................................. 15
10.10 Entire Agreement........................................................................... 16
10.11 Guaranty................................................................................... 16
10.12 Tenant's Self-Help......................................................................... 16
10.13 Cafeteria Equipment........................................................................ 16
ARTICLE 2
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Premises and Term
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2.1 Premises. Landlord hereby leases to Tenant and Tenant hereby leases
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from Landlord, subject to and with the benefit of the terms, covenants,
conditions and provisions of this Lease, the Premises, including the
exclusive right to use the roof of the Building for the installation,
operation, repair and replacement of telecommunications equipment, in
accordance with subsection 6.2.5. Tenant shall have, as appurtenant to
the Premises, the right to use all of the parking spaces in the
existing parking area serving the Building.
2.2 Term. TO HAVE AND TO HOLD for a term (the "original term") beginning on
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the Commencement Date and ending on the Expiration Date, unless sooner
terminated as hereinafter provided.
The term "lease year" as used herein shall mean a period of twelve (12)
consecutive full calendar months. The first lease year shall begin on
the Rent Commencement Date, and each succeeding lease year shall
commence upon the anniversary of the Rent Commencement Date.
2.3 Extension Option. Provided that as of the date of the notice specified
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below, Tenant is not in default and has not previously been in monetary
default of its obligations under this Lease beyond any applicable grace
period during the twelve-month period prior to such notice, Tenant
shall have the right to extend the term of this Lease for one
additional period of five (5) years, to begin immediately upon the
expiration of the original term of this Lease (the "extended term").
All of the terms, covenants and provisions of this Lease shall apply to
such extended term except that (i) the Annual Fixed Rent Rate for such
extension period shall be the market rate at the commencement of such
extended term and (ii) the Base Operating Costs and the Base Taxes
shall be adjusted to reflect the actual Operating Costs and Taxes for
the preceding calendar year. If Tenant shall elect to exercise the
aforesaid option, it shall do so by giving Landlord notice in writing
of its intention to do so not later than fourteen (14) months prior to
the expiration of the original term of this Lease. If Tenant gives such
notice, the extension of this Lease shall be automatically effected
without the execution of any additional documents. The original term
and the extended term are hereinafter collectively called the "term".
Within fifteen (15) days following receipt of Tenant's extension notice
(but no earlier than fourteen (14) months prior to the expiration of
the original term), Landlord shall give notice to Tenant setting forth
Landlord's determination of the market rate. Within fifteen (15) days
following receipt of Landlord's notice Tenant shall either propose its
determination of the market rate by giving notice thereof to Landlord
or shall accept Landlord's determination. Failure on the part of Tenant
to give such notice of its determination shall bind Tenant to
Landlord's determination. If Tenant proposes its determination of the
market rate, then Landlord and Tenant shall meet for the purpose of
reaching agreement. If the parties have been unable to reach agreement
within fifteen (15) days following Tenant's notice to Landlord of its
determination, then, within fifteen (15) days thereafter, Tenant shall
either revoke its exercise of the aforesaid option by giving notice
thereof to Landlord (in which case such exercise shall be rendered
ineffective and the right of extension shall expire and be of no
further force and effect), or shall call for arbitration. If Tenant
calls for arbitration, then the dispute as to the market rate shall be
submitted to arbitration as set forth below.
Market rate shall be determined as of the beginning of the extended
term at the then current arms-length negotiated rentals being charged
to new (or renewal tenants for renewals and extensions which do not
have pre-negotiated contract rents) for comparable office space in
comparable buildings located in the Quincy/Braintree area, taking into
account and giving effect to, in determining compatibility, without
limitation, such considerations as size, location, lease term and
amenities. The arbitrator shall also consider and incorporate into the
computation, on a net effective rent basis, the then existing
inducements and allowances customarily being offered to tenants seeking
similar office space for comparable terms in comparable buildings in
the Quincy/Braintree market area.
In any event, the Annual Fixed Rent Rate for the extended term shall
not be less than the Annual Fixed Rent Rate in effect immediately prior
to such extended term.
2.3.1 Arbitration. A. If Tenant shall make a call for arbitration, it
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shall notify Landlord in writing, specifying the name and address
of the arbitrator selected to act on its behalf. The arbitrator
shall be a real estate appraiser or broker with at least ten (10)
years' experience in the field and familiar with the
Quincy/Braintree area office market. Any arbitrator who is an
appraiser shall be a qualified member of the American Institute
of Real Estate Appraisers, or any successor of such Institute (or
if such organization or successor shall not longer be in
existence, a recognized national association or institute of land
appraisers) familiar with the fair market rent of first-class
commercial office space in the Quincy/Braintree area. Failure on
the part of Tenant to make a timely and proper demand for such
appraisal shall constitute a waiver of the right thereto. Within
ten (10) business days after Tenant's notice of demand for
arbitration, Landlord shall give notice to Tenant, specifying the
name and address of the person designated by Landlord to act on
its behalf who shall be similarly qualified. If Landlord fails to
notify Tenant within such 10-day period, then the arbitrator
appointed by Tenant shall be the sole arbitrator to determine the
issue.
B. In the event that two arbitrators are chosen pursuant to
paragraph A above, the arbitrators so chosen shall meet within
ten (10) business days after the second arbitrator is appointed
and, if within ten (10) business days after such first meeting
the two arbitrators shall be unable to agree upon a determination
of market rate, they shall appoint a third arbitrator, who shall
be a competent and impartial person with the same minimum
qualifications and experience as is required of the first two
arbitrators. In the event they are unable to agree upon such
appointment within five (5) business days after expiration of
said 10-day period, the third arbitrator shall be selected by the
parties themselves, if they can agree thereon, within a further
period of ten (10) business days. If the parties do not so agree,
then either party, on behalf of both, may request appointment of
such a qualified person by an officer of the American Arbitration
Association in Boston, Massachusetts. The three arbitrators shall
decide the dispute, if it has not previously been resolved, by
following the procedure set forth below. The arbitrators shall
not have the right to modify any provision of this Lease other
than the Annual Fixed Rent Rate.
C. Where the issue cannot be resolved by agreement of the two
arbitrators selected by Landlord and Tenant or settlement between
the parties during the course of the appraisal process, the issue
shall be resolved by the three arbitrators in accordance with the
following procedure. Within twenty (20) days after the third
arbitrator has been selected, each arbitrator shall state in
writing his determination of the market rate, supported by the
reasons therefor, with counterpart copies to each party. The
arbitrators shall arrange for a
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simultaneous exchange of such proposed determinations. The market
rate shall be the mean of the three appraisals; provided,
however, if an appraisal deviates from the mean by more than 10%,
such deviant appraisal shall be discarded and market rate shall
be, if there is one deviant appraisal, the mean of the two
appraisals remaining, or, if there are two deviant appraisals,
the one appraisal remaining.
D. All such determinations of market rate shall be final and
binding upon the parties. The provision for determination by
appraisal shall be specifically enforceable to the extent such
remedies are available under the applicable law, and any
determination hereunder shall be final and binding upon the
parties hereto, and either party shall have the right to enter
judgment thereon, unless otherwise provided by applicable law. If
a determination of market rate is to be made pursuant to this
Section 2.3.1, Landlord and Tenant shall each pay for the fees
and disbursements of any arbitrator appointed by it and shall
share equally in the fees and expenses of any third arbitrators.
ARTICLE 3
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Condition; Tenant's Work
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3.1 Condition of Premises; Tenant's Work. The Premises are leased to Tenant
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in "as-is" condition, without any obligation by Landlord to construct
or prepare the Premises for Tenant's use or occupancy, and without any
representations or warranties by Landlord as to the condition or
suitability of the Premises for Tenant's use, except as otherwise
specifically set forth in Section 10.9 below. Tenant shall perform all
work (the "Tenant's Work") which is necessary or desirable to prepare
the Premises for Tenant's use and occupancy. During the performance of
the Tenant's Work, Tenant shall not be obligated to pay Fixed Rent to
Landlord unless the Rent Commencement Date has occurred. However,
Tenant shall reimburse Landlord for its actual costs in connection with
the Tenant's Work, including the cost of electrical usage during
construction in excess of the normal kilowatt/hour usage at the
Building during the most recent billing period in which the Building
was vacant, additional janitorial services and trash removal. All
Tenant's Work shall be performed by and at the expense of Tenant in
accordance with all applicable laws and in accordance with and subject
to the applicable provisions of this Lease, including, without
limitation, Section 6.2.5. The architectural, electrical and mechanical
construction drawings, plans and specifications (called "plans")
necessary to perform the Tenant's Work shall be Tenant's sole
responsibility and at its expense, and shall be submitted to Landlord
for its approval. Landlord shall approve or disapprove in writing the
initial submission of any plans within fifteen (15) business days of
receipt thereof, and any revisions thereof within ten (10) business
days of receipt of revisions, as the case may be, failing which, such
plans shall be deemed approved. If any of such plans are disapproved by
Landlord, Landlord shall provide Tenant with specific reasons for such
disapproval and the foregoing submission process shall be repeated
until all plans have been approved by Landlord. Landlord's approval in
each instance shall not be unreasonably withheld, conditioned or
delayed for any plans (i) which do not involve or affect any structural
or exterior element of the Building or any portion thereof, or (ii)
which do not materially and adversely affect the value of the Building
or any portion thereof, or (iii) which do not materially adversely
affect the proper functioning of the Building systems or other
facilities, or (iv) which will not change the character of the exterior
or interior architectural design of the Building. Tenant's Work may
include removal of some or all of the Existing Cafeteria Equipment
(defined in Section 10.13) if Tenant so elects, provided, however, that
simultaneously with its submission to Landlord of the plans for the
Tenant's Work, Tenant shall identify in writing those components of the
Existing Cafeteria Equipment that Tenant intends to so remove and shall
request in writing that Landlord advise Tenant whether such equipment,
if removed, must be replaced at the end of term. If Landlord does not
notify Tenant that the equipment identified by Tenant will have to be
replaced at the end of the term, then Landlord shall have no right
thereafter to request replacement of such equipment at the expiration
or earlier termination of this Lease.
3.2 Allowance. Landlord shall pay to Tenant an allowance of up to
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$2,112,012.00 (the "Allowance") towards the cost of the Tenant's Work
(including the design fees of Tenant's architects and engineers).
Payments shall be made to Tenant no more frequently than monthly and
when and as Landlord receives waivers of lien from all contractors and
subcontractors to the extent required by Landlord's lender, invoices
from contractors, subcontractors and suppliers, and other reasonable
documentation evidencing the costs, including fees of architects and
engineers, incurred by Tenant for the Tenant's Work, to the reasonable
satisfaction of Landlord. Landlord shall, within twenty (20) days of a
requisition therefor, pay to Tenant the amount of each such
requisition. Such payments, in the aggregate, shall not exceed the
Allowance. Landlord shall make final payment to Tenant within thirty
(30) days following the submission by Tenant of a written statement
from Tenant's architect or engineer that the Tenant's Work has been
completed in accordance with the approved plans, a final lien waiver
executed by Tenant's general contractor and a final certificate of
occupancy for the Premises. If Landlord fails to pay Tenant any portion
of the Allowance properly payable by Landlord to Tenant under this
Section 3.2 and such failure continues for thirty (30) days after
written notice thereof from Tenant to Landlord and any holder of a
mortgage of which Tenant has been given notice, then Tenant shall have
the right to set-off the amount thereof, together with interest at the
Interest Rate (defined in Section 8.4 hereof), against the rent next
payable by Tenant hereunder until the aggregate amount so set-off by
Tenant shall equal the amount due from Landlord.
ARTICLE 4
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Rent
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4.1 The Fixed Rent. Commencing on the Rent Commencement Date, Tenant
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covenants and agrees to pay rent to Landlord at the Original Address of
Landlord or at such other place or to such other person or entity as
Landlord may by notice in writing to Tenant from time to time direct,
at the Annual Fixed Rent Rate, in equal installments at the Monthly
Fixed Rent Rate (which is 1/12th of the Annual Fixed Rent Rate), in
advance, on the first day of each calendar month included in the term.
4.2 Additional Rent. Tenant covenants and agrees to pay, as Additional
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Rent, insurance costs, utility charges, personal property taxes and its
pro rata share of increases in real estate taxes and operating costs
with respect to the Premises as provided in this Section 4.2 as
follows:
4.2.1 Real Estate Taxes. If Taxes (as hereinafter defined) for any
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Tax Year during the term shall exceed Base Taxes, Tenant shall
reimburse Landlord, as additional rent, for Tenant's
Percentage of such excess (such amount hereinafter referred to
as "Tax Excess"). Tenant shall remit payments to Landlord on
account of Tax Excess on a quarterly basis as hereinafter set
forth. Landlord shall deliver copies of all tax bills to
Tenant promptly upon Landlord's receipt of the same from the
City of Quincy, together with a written notification setting
forth Landlord's manner of computation of Tax Excess. Tenant
shall remit to Landlord, at least ten (10) days prior to the
date within a Tax Year that any Taxes become due and payable
(but in any event no earlier than twenty (20) days following
Landlord's written notice to Tenant specifying Tax Excess as
aforesaid), a sum equal to the Tax Excess, as reasonably
calculated by Landlord from time to time on the basis of the
most recent tax data available. If the total of such
remittances for any Tax Year is greater than the actual Tax
Excess for such Tax Year, Landlord shall promptly pay to
Tenant, or credit against the next accruing payments to be
made by Tenant pursuant to this subsection 4.2.1, the
difference; if the total of such remittances is less than the
actual Tax Excess for such Tax Year, Tenant shall pay the
difference to Landlord within ten (10) days following a
written notice thereof.
If, after Tenant shall have made reimbursement to Landlord
pursuant to this subsection 4.2.1, Landlord shall receive a
refund of any portion of Taxes paid by Tenant with respect to
any Tax Year during the term hereof as a result of an
abatement of such Taxes by legal proceedings, settlement or
otherwise (without Landlord having any obligation to
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undertake any such proceedings), Landlord shall promptly pay
to Tenant, or if first approved by Tenant, credit against the
next accruing payments to be made by Tenant pursuant to this
subsection 4.2.1, the Tenant's Percentage of the refund (less
the proportional, pro rata expenses, including attorneys' fees
and appraisers' fees, incurred in connection with obtaining
any such refund), as relates to Tax Excess paid by Tenant to
Landlord with respect to any Tax Year for which such refund is
obtained. Provided Landlord is not prosecuting an abatement
with respect thereto, Tenant may prosecute appropriate
proceedings for abatement or reduction of any tax with respect
to which Tenant is required to make payments as hereinbefore
provided, and Tenant agrees to save Landlord harmless from all
costs and expenses incurred on account of Tenant's
participation in such proceedings. Landlord shall cooperate
with Tenant with respect to such proceedings so far as
reasonably necessary. Any abatement or reduction effected by
such proceedings shall accrue to the benefit of Tenant and
Landlord and such other parties as their interests may appear
according to their respective contributions to the taxes
involved in any such proceedings. Whichever party brings the
abatement proceedings shall institute and prosecute them
diligently. Neither Tenant nor Landlord shall settle,
compromise or discontinue the abatement proceedings without
the consent of the other unless such party gives the other
notice thereof and a reasonable opportunity to assume
prosecution.
In the event this Lease shall commence, or shall end (by
reason of expiration of the term or earlier termination
pursuant to the provisions hereof), on any date other than the
first or last day of the Tax Year, or should the Tax Year or
period of assessment of real estate taxes be changed or be
more or less than one (1) year, as the case may be, then the
amount of Tax Excess which may be payable by Tenant as
provided in this subsection 4.2.1 shall be appropriately
apportioned and adjusted.
The term "Taxes" shall mean all taxes, assessments,
betterments and other charges and impositions (including, but
not limited to, fire protection service fees and similar
charges) levied, assessed or imposed at any time during the
term by any governmental authority upon or against the
Premises, or taxes in lieu thereof, and additional types of
taxes to supplement real estate taxes due to legal limits
imposed thereon. If, at any time during the term of this
Lease, any tax or excise on rents or other taxes, however
described, are levied or assessed against Landlord with
respect to the rent reserved hereunder, either wholly or
partially in substitution for, or in addition to, real estate
taxes assessed or levied on the Premises, such tax or excise
on rents shall be included in Taxes but only to the extent
applicable to owners of real estate generally and provided any
such tax or excise on rents shall be calculated as if the
Premises were the only property owned by Landlord; however,
Taxes shall not include franchise, estate, inheritance,
succession, capital levy, transfer, income or excess profits
taxes assessed on Landlord. Taxes shall include any estimated
payment made by Landlord on account of a fiscal tax period for
which the actual and final amount of taxes for such period has
not been determined by the governmental authority as of the
date of any such estimated payment.
4.2.2 Personal Property Taxes. Tenant shall pay all taxes charged,
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assessed or imposed upon the personal property of Tenant in or
upon the Premises.
4.2.3 Operating Costs. If, during the term hereof, Operating Costs
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as hereinafter defined) incurred by Landlord in any calendar
year shall exceed Base Operating Costs, Tenant shall reimburse
Landlord, as additional rent, for Tenant's Percentage of any
such excess (such amount being hereinafter referred to as the
"Operating Costs Excess"). Tenant shall remit to Landlord, on
the first day of each calendar month, estimated payments on
account of Operating Costs Excess, such monthly amounts to be
sufficient to provide Landlord, by the end of the calendar
year, a sum equal to the Operating Costs Excess, as reasonably
estimated by Landlord from time to time based on the actual
Operating Costs for the preceding calendar year; provided,
however, if Landlord desires to charge Tenant amounts in
excess of the actual costs for the prior calendar year,
Landlord shall furnish Tenant with reasonable back-up
documentation to support such increase. If, at the expiration
of the year in respect of which monthly installments of
Operating Costs Excess shall have been made as aforesaid, the
total of such monthly remittances is greater than the actual
Operating Costs Excess for such year, Landlord shall, at
Tenant's election if the refund exceeds 10% of the actual
Operating Costs Excess, promptly pay to Tenant, or credit
against the next accruing payments to be made by Tenant
pursuant to this subsection 4.2.3, the difference; if the
total of such remittances is less than the Operating Costs
Excess for such year, Tenant shall pay the difference to
Landlord within twenty (20) days from the date Landlord shall
furnish to Tenant an itemized statement of the Operating Costs
Excess (called the "Landlord's Statement"), prepared,
allocated and computed in accordance with generally accepted
accounting principles. Landlord shall use reasonable efforts
to furnish the Landlord's Statement within ninety (90) days
after the end of the calendar year in question, provided,
however the failure to furnish the same within such 90-day
period shall not constitute a waiver of Landlord's right to
furnish the same thereafter. Each Landlord's Statement for a
calendar year shall be accompanied by a computation of the
Operating Costs Excess for the Premises in reasonable detail
showing a breakdown among line items. The computation of any
Common Expenses (defined below) shall be broken down in
reasonable detail if a breakdown of the same has been afforded
Landlord by the board of managers of the Park. Upon Tenant's
request therefor, Landlord will provide Tenant with such
back-up documentation relating to Operating Costs as Tenant
shall reasonably request. Landlord's books and records and
back-up documentation relating to Operating Costs shall be
kept by Landlord for at least three (3) years following the
end of the calendar year in question. Tenant shall have the
right, upon reasonable notice and during business hours, to
examine, at Landlord's office, within six (6) months following
Tenant's receipt of the Landlord's Statement, Landlord's books
and records respecting such Landlord's Statement. If it is
determined that an error has been made, appropriate adjustment
will be made by Landlord and paid to Tenant with interest at
the Interest Rate, and if the amount of any such adjustment is
equal to or greater than five (5%) percent of the amount
indicated in Landlord's Statement, then Landlord shall
reimburse Tenant for the reasonable cost of Tenant's audit.
Any reimbursement for Operating Costs due and payable by
Tenant with respect to periods of less than twelve (12) months
shall be equitably prorated. Landlord's books and records
regarding Operating Expenses shall be kept in accordance with
generally accepted accounting principles as applicable to the
real estate industry and consistently maintained from year to
year.
The term "Operating Costs" shall mean all costs and expenses
reasonably and actually incurred for the operation, cleaning,
maintenance, repair and upkeep of the Premises consistent with
first-class office buildings in the suburban Boston area,
including, without limitation, all costs of snow removal,
landscaping and grounds maintenance, maintenance (including
repaving and restriping) and repair of parking lots, including
maintenance and repair of any parking garage constructed on
the Land by or on behalf of Tenant pursuant to subsection
6.2.8, sidewalks, walkways, access roads and driveways at the
Premises, security, operation and repair of heating and
air-conditioning equipment, elevators, lighting and any other
Building equipment or systems and of all repairs and
replacements (other than repairs or replacements for which
Landlord has received full reimbursement or for which Tenant
is paying an annual charge-off pursuant to the last paragraph
of this section) necessary to keep the Premises in good
working order, repair, appearance and condition; all costs,
including material and equipment costs, for cleaning and
janitorial services to the Building (including window cleaning
of the Building); all costs of any reasonable insurance
carried by Landlord relating to the Premises (which shall not
exceed in coverage and amount for Special Form Property
Insurance carried for comparable properties within the
suburban Boston area); all costs related to provision of heat
(including oil, electric, steam and/or gas), air-conditioning,
water (including sewer charges), electricity and other
utilities to the Premises (other than electricity for Tenant's
lights, outlets and fan-powered boxes for which Tenant is
separately check metered); payments under all service
contracts relating to the foregoing; all costs of the
Premises' allocable share of Common Expenses for the Park; all
compensation, fringe benefits, payroll taxes and workmen's
compensation insurance premiums related thereto with respect
to any employees of Landlord or its affiliates engaged in
security and maintenance of the Premises equitably allocated
to the Premises if such employees perform services at other
buildings and properties owned by Landlord; attorneys' fees
and disbursements (exclusive of any such fees and
disbursements incurred in tax abatement proceedings) and
auditing and other professional fees and expenses incurred in
connection with the operation and management of the Property;
costs and expenses resulting from a migration of hazardous
materials from properties in the vicinity of the Premises
(including attorney's fees and costs of testing and
remediation, but less any amounts recovered by Landlord from
the responsible party); and a management fee equal to 2.50% of
the Fixed Rent.
5
The term "Common Expenses" as used herein shall mean all costs
and expenses incurred by the Park board of managers and
charged to Landlord from time to time pursuant to the Park
Covenants (hereinafter defined) to manage, operate, inspect,
maintain, repair and replace the roads, utility lines,
drainage systems and easement areas of the Park which serve
the Premises in common with other premises in the Park, and
all other costs referred to as Common Expenses in that
Declaration of Covenants, Restrictions, Development Standards
and Easements dated October 10, 1986 by Crown Colony Realty
Corp., as Trustee of Presidents' Plaza Realty Trust recorded
with Norfolk Registry of Deeds in Book 7281, Page 352 and
filed in Norfolk County Registry District of the Land Court as
Document No. 503941, as the same may be amended of record (as
amended, "Park Covenants"), a copy of which has been delivered
to Tenant herewith. The Premises' allocable share of Common
Expenses attributable thereto shall be determined and
calculated in accordance with the Park Covenants. Landlord
shall consult with Tenant prior to any vote of building owners
regarding an upcoming special assessment for the Park.
There shall not be included in such Operating Costs brokerage
fees (including rental fees) related to the operation of the
Building; interest and depreciation charges incurred on the
Premises; expenditures made by Tenant with respect to (i)
cleaning, maintenance and upkeep of the Premises, and (ii) the
provision of electricity to the Premises; salaries of
executives above the grade of building or asset manager;
expenditures for capital improvements or capital equipment,
except as specifically authorized in the next paragraph below;
cost of repairs or replacements incurred by reason of fire or
other casualty or condemnation, to the extent of proceeds of
insurance or a taking award received by Landlord; depreciation
and amortization of the Building; payment of principal,
interest or other charges on indebtedness of Landlord;
brokerage fees or commissions and other costs incurred to
lease space in the Building (including advertising, public
relations expenses, marketing, legal and accounting expenses);
rental payments incurred to lease any equipment or other item
which is considered to be capital in nature; costs to cure
violations of building codes and environmental laws, unless
such costs arise out of Tenant's use of the Premises, and
costs to remove or remediate hazardous or toxic substances
which constitute a breach of Landlord's warranty or which are
released during the Term solely by Landlord or any of
Landlord's agents, employees or contractors; any ground lease
or air rights rental and related costs; penalties and interest
incurred as a result of Landlord's negligence or inability or
unwillingness to make tax payments when due; Operating Costs
which are reimbursed to Landlord by third parties, such as
through insurance or any other sources; costs for decoration
and works of art; contributions to employee pension plans;
contributions to charitable or civic organizations in excess
of the amounts thereof charged to tenants by owners of
comparable buildings in the Quincy/Braintree area; costs
attributable to ownership of the Building, including
Landlord's general office overhead and legal, accounting and
other consulting fees properly includable as general and
administrative expenses; costs incurred to bring the Building
in conformity with laws and requirements in effect prior to
the Commencement Date; any cost representing an amount paid to
any person, firm, corporation or other entity related to or
affiliated with Landlord, which amount is in excess of the
amount which would have been paid in the absence of such
relationship for comparable work or services; the Allowance.
The foregoing exclusions shall not apply to the extent the
costs and expenses at issue arise out of the Tenant's use of
the Premises or work performed in the Premises by or on behalf
of Tenant.
If, during the term of this Lease, Landlord shall replace any
capital items or make any capital expenditures which (a) are
intended to reduce Operating Costs or (b) are required to
comply with laws enacted after the date of this Lease or (c)
are required to replace worn-out items as may be necessary to
maintain the Building in good working order, repair,
appearance and in first-class condition, and not to enhance
the Building over and above its current appearance and
condition (but the annual charge-off in this category (c) in
any calendar year shall not exceed $1.75 times the Rentable
Floor Area of the Building, with the $1.75 figure increased at
the beginning of each calendar year by the percentage increase
in the Consumer Price Index-All Urban Consumers, All Items,
▇▇▇▇, ▇▇▇▇▇▇, ▇▇ during the previous calendar year) (the items
in clauses (a), (b) and (c) are collectively called "capital
expenditures"), the total amount of which is not properly
included in Operating Costs for the calendar year in which
they were made, there shall nevertheless be included in
Operating Costs for each calendar year in which and after such
capital expenditure is made the annual charge-off of such
capital expenditure. (Annual charge-off shall be determined by
(i) dividing the original cost of the capital expenditure by
the number of years of the reasonably contemplated useful life
thereof; and (ii) adding to such quotient an interest factor
computed on the unamortized balance of such capital
expenditure based upon an interest rate reasonably determined
by Landlord as being the interest rate then being charged for
long-term mortgages by institutional lenders on like
properties within the locality in which the Building is
located, provided that the annual charge-off included in
Operating Costs for items intended to reduce Operating Costs
for any calendar year shall not exceed the amount of savings
in Operating Costs actually realized thereby in such calendar
year.) If in any calendar year, Common Expenses for the Park
include a special assessment that exceeds $1.50 times the
Rentable Floor Area of the Building, Landlord shall amortize
the cost thereof on an annual charge-off basis, determined in
the same manner for determining the annual charge-off for
capital expenditures as specified in the immediately preceding
parenthetical sentence, and Operating Costs for each calendar
year in which and after such assessment is made shall only
include such annual charge-off.
4.2.4 Insurance. Tenant shall, at its expense, as Additional Rent,
---------
take out and maintain throughout the term the following
insurance protecting Landlord:
4.2.4.1 Commercial general liability insurance naming
Landlord, Tenant, and Landlord's managing agent and
any mortgagee of which Tenant has been given notice
as insureds or additional insureds and indemnifying
the parties so named against all claims and demands
for death or any injury to person or damage to
property which may be claimed to have occurred on the
Premises in amounts which shall, at the beginning of
the term, be at least equal to the limits set forth
in Section 1.1, and, which, from time to time during
the term, shall be for such higher limits, if any, as
are customarily carried in the area in which the
Premises are located on property similar to the
Premises and used for similar purposes; and workmen's
compensation insurance with statutory limits covering
all of Tenant's employees working on the Premises.
4.2.4.2 Fire insurance with the usual extended coverage
endorsements covering all Tenant's furniture,
furnishings, fixtures, equipment, all improvements
located within the Building including those installed
as part of Tenant's Work, and any parking garage
constructed on the Land by Tenant. Tenant may elect
to self-insure some or all of its furniture,
equipment and personal property under a program of
self-insurance reasonably satisfactory to Landlord.
4.2.4.3 All such policies shall be obtained from responsible
companies qualified to do business and in good
standing in Massachusetts, which companies and the
amount of insurance allocated thereto shall be
subject to Landlord's approval. Tenant agrees to
furnish Landlord with certificates evidencing all
such insurance prior to the beginning of the term
hereof and evidencing renewal thereof at least thirty
(30) days prior to the expiration of any such policy.
Each such policy shall be non-cancelable with respect
to the interest of Landlord without at least ten (10)
days' prior written notice thereto. Such insurance
may be carried under a blanket policy covering the
Premises and other locations of Tenant, if any, or by
means of an umbrella policy, or by a combination of
both. In the event provision for any such insurance
is to be by a blanket or umbrella insurance policy,
or both, the policy shall allocate a specific and
sufficient amount of coverage to the Premises.
4.2.4.4 All insurance which is carried by either party with
respect to the Building, Premises or to furniture,
furnishings, fixtures, or equipment therein or
alterations or improvements thereto, whether or not
required, shall include provisions which either
designate the other party as one of the insured or
deny to the insurer acquisition by subrogation of
rights of recovery against the other party to the
extent such rights have been waived by the insured
party prior to occurrence of loss or injury, insofar
as, and to the extent that, such provisions may be
6
effective without making it impossible to obtain
insurance coverage from responsible companies
qualified to do business in the state in which the
Premises are located (even though extra premium may
result therefrom). In the event that extra premium is
payable by either party as a result of this
provision, the other party shall reimburse the party
paying such premium the amount of such extra premium.
If at the request of one party, this non-subrogation
provision is waived, then the obligation of
reimbursement shall cease for such period of time as
such waiver shall be effective, but nothing contained
in this subsection shall derogate from or otherwise
affect releases elsewhere herein contained of either
party for claims. Each party shall be entitled to
have certificates of any policies containing such
provisions. Each party hereby waives all rights of
recovery against the other for loss or injury against
which the waiving party is protected by insurance
containing said provisions or for which such party
self-insures, reserving, however, any rights with
respect to any excess of loss or injury over the
amount recovered by such insurance. Neither Landlord
nor Tenant shall acquire as insured under any
insurance carried by the other party on the Premises
any right to participate in the adjustment of loss or
to receive insurance proceeds and each agrees upon
request from the other party promptly to endorse and
deliver to the other any checks or other instruments
in payment of loss in which Landlord or Tenant is
named as payee.
4.2.5 Utilities. Tenant shall pay to Landlord all charges for
---------
electricity supplied by Landlord and separately chece metered
(which shall include electricity for lights, outlets and
fan-powered boxes), charges for telephone and other utilities
or services not supplied by Landlord pursuant to Subsections
5.1.1, 5.1.2 and 5.1.3, whether designated as a charge, tax,
assessment, fee or otherwise, all such charges to be paid as
the same from time to time become due. Except as otherwise
provided in Article 5, it is understood and agreed that Tenant
shall make its own arrangements for the installation or
provision of all such utilities and that Landlord shall be
under no obligation to furnish any utilities to the Premises
and shall not be liable for any interruption or failure in the
supply of any such utilities to the Premises. All other
charges for electrical usage at the Premises (other than
electricity for lights, outlets and fan-powered boxes as
aforesaid), shall be paid for by Tenant as part of Operating
Costs.
4.3 Late Payment of Rent. If any installment of rent is paid more than
--------------------
fifteen (15) days after the date the same was due, and if on a prior
occasion in the twelve (12) month period prior to the date such
installment was due an installment of rent was paid after the same was
due, then Tenant shall pay Landlord a late payment fee equal to one and
one-half (1.5%) percent of the overdue payment.
ARTICLE 5
---------
Landlord's Covenants
--------------------
5.1 Affirmative Covenants. Landlord covenants with Tenant:
---------------------
5.1.1 Heat and Air-Conditioning. To furnish to the Premises heat
-------------------------
and air-conditioning (reserving the right, at any time, to
change energy or heat sources) by means of a fan-powered box
system sufficient to maintain the Premises at comfortable
temperatures (subject to all federal, state, and local
regulations relating to the provision of heat), on Mondays
through Fridays during the hours of 7:30 a.m. to 6:30 p.m. and
on Saturdays from 9:00 a.m. to 1:00 p.m. (called "Normal
Business Hours"), except on such holidays on which the New
York Stock Exchange is closed. The design criteria for the
heating, ventilating and air conditioning systems serving the
Premises are set forth in the HVAC Specifications attached
hereto as Exhibit B. If Tenant shall require heat or air-
conditioning outside Normal Business Hours, Landlord shall,
upon the request of Tenant received at least 24 hours prior to
the time such additional air conditioning or heat is required,
furnish such service or cause such service to be furnished and
Tenant shall pay, as Additional Rent, such charges as may from
time to time be established by Landlord and be in effect to
cover Landlord's costs of providing such service.
5.1.1.1 Supplemental Cooling Units. As of the date of this
--------------------------
Lease, the Building contains two supplemental cooling
units connected to the Supplemental Generator
(defined below): (i) an eight-ton unit in the 6th
floor computer room serviced by 450 amp electrical
service at 120/208 volts, and (ii) a fifteen-ton unit
in the 2nd floor computer room serviced by 100 amp
electrical service at 277/480 volts. The supplemental
cooling units are collectively referred to herein as
the "Supplemental Cooling Units."
5.1.2 Electricity. To furnish to the Premises, separately metered
-----------
by check meter and at the direct expense of Tenant as
hereinabove provided, reasonable electricity for Tenant's
Permitted Uses. The Building electrical capacity is 14 ▇▇▇▇▇
per square foot of rentable floor area, up to 7 ▇▇▇▇▇ of which
shall be available for Tenant's electrical panels (which
includes power for lights, outlets and fan-powered boxes). If
Tenant shall require electricity in excess of such quantities
for Tenant's Permitted Uses and if (i) in Landlord's
reasonable judgment, Landlord's facilities are inadequate for
such excess requirements, or (ii) such excess use shall result
in an additional burden on the Building utilities systems and
additional cost to Landlord on account thereof, as the case
may be, (a) Tenant shall, upon demand, reimburse Landlord for
such additional cost, as aforesaid, or (b) Landlord, upon
written request, and at the sole cost and expense of Tenant,
will furnish and install such additional wire, conduits,
feeders, switchboards and appurtenances as reasonably may be
required to supply such additional requirements of Tenant (if
electricity therefor is then available to Landlord), provided
that the same shall be permitted by applicable laws and
insurance regulations and shall not cause permanent damage or
injury to the Building or cause or create a dangerous or
hazardous condition or entail excessive or unreasonable
alterations or repairs. Landlord will permit the electrical
risers, feeders and wiring in the Building to be used by
Tenant as necessary to permit Tenant to receive electrical
energy from the electrical service provider of Tenant's
choice, subject to any requirements and use charges or fees of
the existing electrical service provider for the Building.
5.1.2.1 Back-up Generators. As of the date of this Lease, the
------------------
Building contains two generators served by a 4,000
gallon diesel tank: (i) a 400 kilowatt generator
providing back-up power to the fire pump, smoke
control, fire alarm system and elevators (the
"Essential Services Generator"), and (ii) a 500
kilowatt generator providing back-up power to the
computer rooms on the second and sixth floors (the
"Supplemental Generator"). Landlord will permit the
Supplemental Generator to be used by Tenant as
necessary, and Tenant shall have the right to upgrade
the Supplemental Generator, at its sole cost and
expense, subject to and in accordance with the
provisions of Section 6.2.5 below relating to the
approval of plans and the performance of the work in
connection therewith, or replace the Supplemental
Generator with the Additional Generator pursuant to
Section 6.2.5.2 below.
5.1.3 Cleaning; Water. To provide cleaning to the Building in
---------------
accordance with cleaning and janitorial standards generally
prevailing throughout the term hereof in comparable office
buildings within the municipality in which the Building is
located; and to furnish water for ordinary cleaning, lavatory
and toilet facilities.
5.1.4 Elevator; Fire Alarm. To furnish passenger and freight
--------------------
elevator service during Normal Business Hours, and after
Normal Business Hours to keep at least one passenger elevator
on call except in the event of an emergency or any other cause
beyond Landlord's control; and to maintain fire alarm and life
safety systems within the Building.
5.1.5 Repairs. Except as otherwise expressly provided herein, to
-------
make such repairs and replacements to the Premises (including
replacing burned out light bulbs) and to the roof, exterior
walls, floor slabs and other structural components of the
Building, and to the plumbing, electrical, heating,
ventilating and air-conditioning systems of the Building and
to the Essential Services Generator as may be necessary to
properly maintain them in good repair and condition and to
maintain the first-class status of the Building, and to keep
them in compliance with all applicable laws (exclusive of the
7
Supplemental Generator, the Supplemental Cooling Units and
equipment and other generators installed by Tenant and except
for those repairs required to be made by Tenant pursuant to
Sections 6.1.3, 6.2.5.1 and 6.2.5.2 hereof). Notwithstanding
anything to the contrary contained herein, Tenant shall not be
responsible for the cost of any repairs required to correct
violations of laws in effect prior to the Commencement Date,
unless compliance is required on account of Tenant's
particular use of the Premises or any work performed in the
Premises by or on behalf of Tenant. Landlord's repair
obligations with respect to the heating, ventilating and
air-conditioning systems of the Building (exclusive of any
heating, ventilating and air-conditioning systems or equipment
installed by Tenant) shall include, without limitation,
regular cleaning and maintenance of the ducts and outside
components thereof. At Tenant's request, Landlord shall
perform reasonable periodic upgrades to all heating,
ventilating and air-conditioning systems and equipment as
recommended by ASHRAE from time to time, and Tenant shall pay
the costs of such upgrades to Landlord as additional rent.
5.1.6 Landlord's Insurance. To take out and maintain throughout the
--------------------
term all-risk casualty insurance in an amount equal to 100% of
the replacement cost of the Building and the improvements
therein, including "Special Form Property Insurance" for
utilities services - time element, rent insurance, ordinances
and laws coverage and boiler/pressure vessel coverage.
5.1.7 Landscaping, Snow Removal; Grounds Maintenance. To provide
----------------------------------------------
landscaping and grounds maintenance as necessary to keep the
Premises in first-class condition consistent with other
properties in the area; and to treat ice and cause snow to be
removed from the parking area serving the Building and the
sidewalks, driveways and loading area on the Premises; and to
repave and restripe the parking area and maintain and replace
the outdoor lighting therein as and when reasonably necessary.
5.1.8 Building Maintenance Person. A full-time maintenance person
-----------------------------
shall be available during Normal Business Hours to serve the
Premises as needed.
5.2 Interruption. A. Landlord shall be under no responsibility or liability
------------
for failure or interruption of any of the above-described services,
repairs or replacements caused by breakage, accident, strikes, repairs,
inability to obtain supplies, labor or materials, or for any other
causes beyond the control of the Landlord, and in no event for any
indirect or consequential damages to Tenant; and failure or omission on
the part of the Landlord to furnish any of same for any of the reasons
set forth in this paragraph shall not be construed as an eviction of
Tenant, actual or constructive, nor render the Landlord liable in
damages, nor release Tenant from prompt fulfillment of any of its
covenants under this Lease. However, in each instance of interruption
or failure, Landlord shall use diligence to eliminate the cause
thereof. Landlord agrees to provide Tenant with reasonable advance
notice of any scheduled cessation or interruption of services.
B. If Tenant's ability to conduct business at the Premises is
materially adversely affected for a period of three (3) consecutive
days by reason of the failure of Landlord to furnish any of the above
described services, then Tenant shall have the right to an equitable
abatement of Fixed Rent and Additional Rent equal to the proceeds of
insurance recovered and paid to Landlord for rental loss from the date
such services (or any of them) ceased until such time as they are
restored to their level prior to interruption. Landlord shall file a
claim against the rental loss provision of its insurance policy
promptly after notification from Tenant that it is entitled to the
abatement provided hereby. In any event, Landlord shall not be entitled
to retain an amount of (i) rent from Tenant plus (ii) insurance
proceeds for rental loss which is in excess of the amount of Fixed Rent
and Additional Rent that would have been payable during the period of
interruption absent an abatement.
5.3 Access. Tenant shall have access to the Building twenty-four (24) hours
------
per day, seven (7) days per week, fifty-two (52) weeks per year,
subject to Landlord's security measures that may be in place from time
to time. Tenant shall be responsible for installing, maintaining,
repairing and operating, all at its sole expense, a security system
(the "Tenant's Security System") to provide access to the Building
after Normal Business Hours.
5.4 Union Labor. All work to be performed and services to be provided under
-----------
this Article 5 shall be performed or provided by union labor during any
period in which Tenant is performing any construction or alterations,
including the Tenant's Work; but at all other times, non-union labor
may be used if Landlord and Tenant reasonably agree that it is
appropriate for a particular trade, function or service.
5.5 Tenant's Rights With Respect To Management and Services. With respect
-------------------------------------------------------
to the obligations under this Article 5, except for subsection 5.2, if
Tenant, in its reasonable judgment, determines that Landlord, its
agents or its building manager are not performing any such obligations
adequately, then Tenant shall have the right to notify Landlord in
writing of its dissatisfaction, together with the basis therefor, and
Landlord shall promptly take appropriate steps to correct and eliminate
such problems within thirty (30) days after receipt of Tenant's notice,
provided, however, Landlord's failure or inability to correct or
eliminate any problems within such 30-day period shall not be deemed a
default by Landlord if Landlord is using reasonable efforts to address
Tenant's concerns. Tenant shall have the right to propose vendors to
perform and supply any services and materials which are to be provided
under this Article 5, and Landlord shall give reasonable consideration
to such proposals by Tenant, provided, however, either party shall have
the right to object to a particular vendor. In any event, Landlord and
Tenant shall work together to select the most appropriate vendor for a
particular service or material. Tenant shall only be afforded the
aforesaid rights to object to management and the provision of services
and to propose vendors and materials on the condition that (i) Tenant
is not then in default of its obligations under this Lease beyond any
applicable cure period, and (ii) the original named Tenant hereunder,
or a Permitted Transferee, shall then be occupying no less than fifty
(50%) percent of the Premises.
ARTICLE 6
---------
Tenant's Additional Covenants
-----------------------------
6.1 Affirmative Covenants. Tenant covenants at all times during the term
----------------------
and for such further time (prior or subsequent thereto) as Tenant
occupies the Premises or any part thereof:
6.1.1 Perform Obligations. To perform promptly all of the
-------------------
obligations of Tenant set forth in this Lease; and to pay when
due the Fixed Rent and Additional Rent and all charges, rates
and other sums which by the terms of this Lease are to be paid
by Tenant.
6.1.2 Use. To use the Premises only for the Permitted Uses, and from
---
time to time to procure all licenses and permits necessary
therefor, at Tenant's sole expense. With respect to any
licenses or permits for which Tenant may apply relating to
Tenant's use of the Premises or any work performed by or on
behalf of Tenant therein (including the Tenant's Work),
pursuant to this subsection 6.1.2 or any other provision
hereof, Tenant shall furnish Landlord copies of applications
on or before their submission to the governmental authority.
6.1.3 Repair and Maintenance. To maintain the Premises in neat
----------------------
order and condition, and to perform all routine and ordinary
repairs to any plumbing, heating, electrical, ventilating and
air-conditioning systems of the Building installed by Tenant,
including repairs to the Supplemental Cooling Unit, the
Supplemental Generator and any other generator installed
pursuant to Section 6.2.5.2 and other equipment installed by
Tenant (including equipment installed by Tenant pursuant to
Sections 6.2.5.1 and 6.2.5.2) such as are necessary to keep
them in good working order, appearance and condition, as the
case may require, reasonable use and wear thereof and damage
by fire or by casualty only excepted; to keep all glass in
windows and
8
doors of the Building (except glass in the exterior walls of
the Building) whole and in good condition with glass of the
same quality as that injured or broken; and to make as and
when needed as a result of misuse by, or neglect or improper
conduct of Tenant or Tenant's servants, employees, agents,
invitees or licensees or otherwise, all repairs necessary,
which repairs and replacements shall be in quality and class
equal to the original work. Tenant shall also, at its expense,
perform all repairs and maintenance to the cafeteria equipment
now or hereafter installed in the Premises, whether such
equipment is deemed "Existing Cafeteria Equipment" or
"Tenant's Cafeteria Equipment" by the terms of Section 10.13
of this Lease. (Landlord, upon default of Tenant beyond the
expiration of the applicable notice and cure periods hereunder
[except in emergencies where immediate action may be taken],
may elect, at the expense of Tenant, to perform all such
cleaning and maintenance and to make any such repairs or to
repair any damage or injury to the Building or the Premises
caused by moving property of Tenant in or out of the Building,
or by installation or removal of furniture or other property,
or by misuse by, or neglect, or improper conduct of, Tenant or
Tenant's servants, employees, agents, contractors, customers,
patrons, invitees, or licensees.)
6.1.4 Compliance with Law. To make all repairs, alterations,
-------------------
additions or replacements to the Building required by any law
or ordinance or any order or regulation of any public
authority on account of the Tenant's particular use of the
Building or any work performed therein or on the Premises by
or on behalf of Tenant; to keep the Building equipped with all
safety appliances so required; and to comply with the orders
and regulations of all governmental authorities with respect
to zoning, building, fire, health and other codes,
regulations, ordinances or laws applicable to the Premises,
except that Tenant may defer compliance so long as the
validity of any such law, ordinance, order or regulations
shall be contested by Tenant in good faith and by appropriate
legal proceedings, if Tenant first gives Landlord appropriate
assurance or security against any loss, cost or expense on
account thereof. Notwithstanding the foregoing, in no event
shall Tenant be required to make any capital improvements
required by laws applicable to office buildings generally as
opposed to those required on account of work done by or on
behalf of Tenant or Tenant's particular use of the Building.
6.1.5 Indemnification. A. To save harmless, exonerate and
---------------
indemnify Landlord, its agents (including, without limitation,
Landlord's managing agent) and employees (such agents and
employees being referred to collectively as the "Landlord
Related Parties") from and against any and all claims,
liabilities or penalties asserted by or on behalf of any
person, firm, corporation or public authority on account of
injury, death, damage or loss to person or property in or upon
the Premises arising out of the use or occupancy of the
Premises by Tenant or by any person claiming by, through or
under Tenant (including, without limitation, all patrons,
employees and customers of Tenant), or arising out of the use
of the roof of the Building by Tenant, its agents,
contractors, assignees and subtenants, for the installation,
maintenance, repair and operation of telecommunications
equipment, or arising out of any delivery to or service
supplied to the Premises, or on account of or based upon
anything whatsoever done on the Premises, except if the same
was caused by the negligence, fault or misconduct of Landlord
or the Landlord Related Parties. In respect of all of the
foregoing, Tenant shall indemnify Landlord and the Landlord
Related Parties from and against all costs, expenses
(including reasonable attorneys' fees), and liabilities
incurred in or in connection with any such claim, action or
proceeding brought thereon; and, in case of any action or
proceeding brought against Landlord or the Landlord Related
Parties by reason of any such claim, Tenant, upon notice from
Landlord and at Tenant's expense, shall resist or defend such
action or proceeding and employ counsel therefor reasonably
satisfactory to Landlord provided that Landlord shall be
deemed to have approved counsel provided by Tenant's liability
insurer.
B. Landlord shall save harmless, exonerate and indemnify
Tenant, its agents and employees (such agents and employees
being referred to collectively as the "Tenant Related
Parties") from and against any and all claims, liabilities or
penalties asserted by or on behalf of any person, firm,
corporation or public authority on account of injury, death,
damage or loss to person or property in or upon the Premises
arising out of the negligence, fault or misconduct of Landlord
or Landlord's failure to perform and observe the obligations
expressly assumed under the provisions of this Lease, except
if the same was caused by the negligence, fault or misconduct
of Tenant or the Tenant Related Parties. In respect of all of
the foregoing, Landlord shall indemnify Tenant and the Tenant
Related Parties from and against all costs, expenses
(including reasonable attorneys' fees), and liabilities
incurred in or in connection with any such claim, action or
proceeding brought thereon; and, in case of any action or
proceeding brought against Tenant or the Tenant Related
Parties by reason of any such claim, Landlord, upon notice
from Tenant and at Landlord's expense, shall resist or defend
such action or proceeding and employ counsel therefor
reasonably satisfactory to Tenant provided that Tenant shall
be deemed to have approved counsel provided by Landlord's
liability insurer.
6.1.6 Landlord's Right to Enter. To permit Landlord and its agents
-------------------------
to enter into and examine the Premises at reasonable times and
with reasonable prior notice (except in emergencies, in which
case notice shall be as is reasonable under the circumstances)
and to show the Premises, and to make repairs to the Premises,
and, during the last six (6) months prior to the expiration of
this Lease, to keep affixed in suitable places notices of
availability of the Premises. Notwithstanding anything to the
contrary contained in this Lease, neither Landlord nor any of
its agents, employees, contractors or invitees shall be
permitted to enter any part of the Premises, except in a
manner consistent with the safe and proper conduct of Tenant's
business, insofar as reasonably practicable during Normal
Business Hours; and, in particular, they or any of them shall
not be permitted to enter into any part of the Premises where
monies, securities, confidential data or valuables are kept
any time unless accompanied by a representative of Tenant.
Tenant agrees to furnish such representative promptly upon
request.
6.1.7 Personal Property at Tenant's Risk. All of the furnishings,
----------------------------------
fixtures, equipment, effects and personal property of every
kind, nature and description of Tenant and of all persons
claiming by, through or under Tenant which, during the
continuance of this Lease or any occupancy of the Premises by
Tenant or anyone claiming under Tenant, may be on the
Premises, shall be at the sole risk and hazard of Tenant and
if the whole or any part thereof shall be destroyed or damaged
by fire, water or otherwise, or by the leakage or bursting of
water pipes, steam pipes, or other pipes, by theft or from any
other cause, no part of said loss or damage is to be charged
to or to be borne by Landlord, except that Landlord shall in
no event be indemnified or held harmless or exonerated from
any liability to Tenant or to any other person, for any
injury, loss, damage or liability to the extent prohibited by
law.
6.1.8 Payment of Cost of Enforcement. To pay on demand Landlord's
------------------------------
expenses, including reasonable attorneys' fees, incurred in
successfully enforcing any obligation of Tenant under this
Lease or in curing any default by Tenant under this Lease as
provided in Section 8.4. Likewise, Landlord shall pay on
demand Tenant's expenses, including reasonable attorney's
fees, incurred in successfully enforcing any obligation of
Landlord under this Lease.
6.1.9 Yield Up. At the expiration of the term or earlier
--------
termination of this Lease: to surrender all keys to the
Premises; to remove the Tenant's Cafeteria Equipment (except
as hereinafter set forth) and all of its trade fixtures and
personal property in the Premises; to deliver to Landlord
stamped architectural plans showing the Premises at yield up
(which may be the initial plans if Tenant has made no
installations after the Commencement Date); to replace the
components of the Existing Cafeteria Equipment previously
removed as part of Tenant's Work with the same or comparable
equipment only if Landlord had requested replacement at the
time it approved the plans for Tenant's Work pursuant to
Section 3.1 hereof; to remove such installations made by it
that are not suited for general office use as Landlord may
request, if Landlord had so designated such installations for
removal at the time Landlord approved the plans therefor; to
remove all rooftop telecommunications equipment, Tenant's
Cabling [defined below] and any other computer and
telecommunications wiring and cabling, and all Tenant's signs
wherever located; to repair all damage caused by such removal
and to yield up the Premises (including the Tenant's Security
System and all installations and improvements made by Tenant
except for trade fixtures and such of said installations,
improvements or equipment as Landlord shall request Tenant to
remove), broom-clean and in the same good order and repair in
which Tenant is obliged to keep and maintain the Premises by
the provisions of this Lease. All of Tenant's Cafeteria
Equipment which has been permanently affixed to the Premises
and Tenant's
9
Security System shall remain upon the Premises at the end of
the term without compensation to Tenant. Tenant, at the time
of making any installations or improvements, including the
Tenant's Work, may request in writing Landlord's written
permission to leave such installation or improvement in the
Premises at the expiration or earlier termination of this
Lease. Landlord shall, after receipt of Tenant's written
request and the plans for such installations (if any), notify
Tenant as to whether such installation may or may not remain
in the Premises at the expiration or earlier termination of
this Lease. If Landlord so notifies Tenant that such
installation or improvement may remain in the Premises at the
expiration or earlier termination of this Lease, Landlord
shall thereafter have no right to request or require that such
installation be removed at the expiration or earlier
termination of the Lease. Any property not so removed shall be
deemed abandoned and, if Landlord so elects, deemed to be
Landlord's property, and may be retained or removed and
disposed of by Landlord in such manner as Landlord shall
determine and Tenant shall pay Landlord the entire cost and
expense incurred by it in effecting such removal and
disposition and in making any incidental repairs and
replacements to the Premises and for use and occupancy during
the period after the expiration of the term and prior to its
performance of its obligations under this subsection 6.1.9.
Tenant shall further indemnify Landlord against all loss, cost
and damage resulting from Tenant's failure and delay in
surrendering the Premises as above provided; however, Tenant
shall only be responsible for those indirect or consequential
damages which Landlord can prove were primarily caused by
Tenant's failure and delay in surrendering the Premises. By
way of examples only, such indirect or consequential damages
could be (i) the loss of a prospective tenant engaged in
serious negotiations with Landlord of which Tenant has been
given prior notice and which would have been consummated but
for such failure or delay by Tenant, or (ii) amounts payable
by Landlord to, or the loss of, a tenant because of Landlord's
inability to timely perform its obligations under a new lease
because of such failure and delay by Tenant. Except as
provided in this Section 6.1.9, Tenant shall not be liable for
any indirect or consequential damages whatsoever.
If the Tenant remains in the Premises beyond the expiration or
earlier termination of this Lease, such holding over shall be
without right and shall not be deemed to create any tenancy,
but the Tenant shall be a tenant at sufferance only at a daily
rate of rent equal to two (2) times the rent and other charges
in effect under this Lease as of the day prior to the date of
expiration of this Lease.
6.1.10 Estoppel Certificate. Upon not less than ten (10) business
--------------------
days' prior written request by Landlord, to execute,
acknowledge and deliver to Landlord a statement in writing, in
such form as Landlord may provide from time to time,
certifying all or any of the following: that this Lease is
unmodified and in full force and effect and that Tenant has no
defenses, offsets or counterclaims against its obligations to
pay the Fixed Rent and Additional Rent and any other charges
and to perform its other covenants under this Lease (or, if
there have been any modifications, that the Lease is in full
force and effect as modified and stating the modifications
and, if there are any defenses, offsets or counterclaims,
setting them forth in reasonable detail), and the dates to
which the Fixed Rent and Additional Rent and other charges
have been paid, whether or not Landlord is in default in
performance of any of the terms of this Lease, and such
further information with respect to the Lease or the Premises
as Landlord may reasonably request. Any such statement
delivered pursuant to this subsection 6.1.1o may be relied
upon by any prospective purchaser or mortgagee of the
Premises, or any prospective assignee of such mortgage. Tenant
shall also deliver to Landlord such financial information as
may be reasonably required by Landlord to be provided to any
mortgagee or prospective purchaser of the Premises. Upon not
less than ten (10) business days' prior written request by
Tenant, Landlord shall execute a similar certificate that may
be relied upon by any transferee of all or a portion of
Tenant's leasehold including any entity acquiring Tenant, and
for Tenant's financings.
6.1.11 Rules and Regulations. To comply with the Park Covenants and
---------------------
any rules and regulations relating to the use of the Premises,
and any other reasonable rules and regulations that may be
adopted by Landlord from time to time.
6.2 Negative Covenants. Tenant covenants at all times during the term and
------------------
such further time (prior or subsequent thereto) as Tenant occupies the
Premises or any part thereof:
6.2.1 Assignment and Subletting. Except where Landlord's consent is
-------------------------
not required, not to assign, transfer, mortgage or pledge this
Lease or to sublease (which term shall be deemed to include
the granting of concessions and licenses and the like) all or
any part of the Premises or suffer or permit this Lease or the
leasehold estate hereby created or any other rights arising
under this Lease to be assigned, transferred or encumbered, in
whole or in part, whether voluntarily, involuntarily or by
operation of law, or permit the occupancy of the Premises by
anyone other than Tenant (subject to the next paragraph below)
without the prior written consent of Landlord. In the event
Tenant desires to assign this Lease or sublet any portion or
all of the Premises, Tenant shall notify Landlord in writing
of Tenant's intent to so assign this Lease or sublet the
Premises and the proposed effective date of such subletting or
assignment, and shall request in such notification that
Landlord consent thereto. Landlord's consent shall not be
unreasonably withheld, delayed or conditioned to an assignment
or to a subletting, provided that the assignee or subtenant
shall use the Premises only for the Permitted Uses. If
Landlord consents thereto, no such subletting or assignment
shall in any way impair the continuing primary liability of
Tenant hereunder, and no consent to any subletting or
assignment in a particular instance shall be deemed to be a
waiver of the obligation to obtain the Landlord's written
approval in the case of any other subletting or assignment.
It is understood and agreed that Tenant's affiliate, State
Street Bank and Trust Company, and any other related
corporation or entity, shall have the right to use and occupy
the Premises for the Permitted Uses and the use and occupancy
by such corporation or entity, or any combination of them, for
such purposes shall be deemed to be the same as the permitted
use by the Tenant originally named under this Lease. No
further act, documentation or consent shall be required with
respect to such usage by any or all of such entities, and such
usage shall not impair the continuing primary liability of
Tenant hereunder.
If for any assignment or sublease consented to by Landlord
hereunder Tenant receives rent or other consideration
specifically allocated to the transfer of the leasehold
interest under this Lease (as opposed to consideration which
is properly allocable to a larger, bona fide transaction that
includes the transfer of other leases and interests of Tenant
in addition to this Lease), either initially or over the term
of the assignment or sublease, in excess of the rent called
for hereunder, or in case of sublease of part, in excess of
such rent fairly allocable to the part, or if Tenant shall
sublease or license space on the roof at a rental rate in
excess of the rental rate payable hereunder fairly allocable
to such space, after appropriate adjustments to assure that
all other payments called for hereunder are appropriately
taken into account and after deduction for reasonable expenses
of Tenant in connection with the assignment or sublease,
including brokerage fees and commissions, the amortized costs
of fitting out the space for the prospective sublessee
(amortized over the term of the sublease in question),
financial concessions or inducements, and the like, to pay to
Landlord as additional rent fifty (50%) percent of the excess
of each such payment of rent or other consideration received
by Tenant promptly after its receipt.
Any other provision of this Section 6.2.1 notwithstanding,
Tenant shall have the right, without Landlord's prior consent
and without any right of Landlord to terminate or suspend this
Lease and without any obligation to pay any excess rent or
other consideration to Landlord to assign the Lease or
sublease all or a portion of the Premises to any of the
following entities ("Permitted Transferees"): (a) an entity
succeeding to the business and assets of Tenant, whether by
way of merger or consolidation or by way of acquisition of all
or substantially all of the assets of Tenant; provided that
the acquiring entity is, as a matter of law, or otherwise
agrees by written instrument to become directly obligated
under this Lease; and provided further that the resulting
entity has a net worth equal to or greater than the net worth
of Tenant immediately prior to such transfer and proof
reasonably satisfactory to Landlord of such net worth is
delivered to Landlord within thirty (30) days after the
transfer; (b) an entity which is either the parent of the
Tenant, controlled by Tenant ("control" for the purposes
hereof meaning ownership of fifty (50%) percent or more of all
financial interest and fifty (50%) percent or more of the
voting interest) or controlled by the same persons who own
Tenant; provided Tenant remains primarily liable
10
hereunder; (c) a partnership or joint venture in which Tenant
is a bona fide partner or joint venturer; or (d) an entity
which is defined as an "affiliate" under the Bank Holding
Company Act.
6.2.2 Nuisance. Not to injure, deface or otherwise harm the
--------
Premises; nor commit any nuisance; nor permit in the Premises
any vending machine (except such as is used for the sale of
merchandise and prepared foods to employees of Tenant) or
inflammable fluids or chemicals (except such as are
customarily used in connection with standard office equipment
or normal and customary office usage); nor permit any cooking
to such extent as requires special exhaust venting, except
that Tenant may use microwave ovens; nor permit the emission
of any objectionable noise or odor; nor make, allow or suffer
any waste; nor make any use of the Premises which is improper,
offensive or contrary to any law or ordinance or which will
invalidate any of Landlord's insurance; nor conduct any
auction, fire, "going out of business" or bankruptcy sales.
Notwithstanding the foregoing, Landlord agrees that Tenant may
utilize the cafeteria in the Building to serve food and
non-alcoholic beverages to Tenant's office employees;
provided, however, that Tenant shall obtain all necessary
permits and licenses and install a special ventilation and
exhaust system (if necessary) and will remove all trash and
refuse from the Building to a dumpster on the Premises
designated for Tenant's use and contract for periodic pest
control services, all which shall be installed, operated,
maintained, repaired, replaced and performed, as the case may
be, by and at the expense of Tenant.
6.2.3 Hazardous Wastes and Materials. Except as normal and customary
------------------------------
in office usage, not to dispose of any hazardous wastes,
hazardous materials or oil in, on, or at the Premises, or into
any of the plumbing, sewage, or drainage systems thereon, and
to indemnify and save Landlord harmless from all claims,
liability, loss or damage arising on account of the use or
disposal of hazardous wastes, hazardous materials or oil,
including, without limitation, liability under any federal,
state, or local laws, requirements and regulations, or damage
to any of the aforesaid systems. Tenant shall comply with all
governmental reporting requirements with respect to hazardous
wastes, hazardous materials and oil, and shall deliver to
Landlord copies of all reports filed with governmental
authorities. If there are any hazardous materials, hazardous
wastes or oil at, on or under the Premises which migrated from
land in the immediate vicinity of the Premises on or after the
Commencement Date, Landlord shall immediately after notice,
properly and in compliance with applicable laws, clean-up,
remediate or remove such hazardous materials, hazardous wastes
or oil and diligently pursue recovery for the costs associated
therewith from the responsible party, including attorney's
fees, at Tenant's expense as part of Operating Costs (less any
amounts actually recovered by Landlord from the responsible
party).
6.2.4 Floor Load; Heavy Equipment. Not to place a load upon any
---------------------------
floor of the Building exceeding the floor load per square foot
area which such floor was designed to carry and which is
allowed by law. Landlord reserves the right to prescribe the
weight and position of all heavy business machines and
equipment, including safes, which shall be placed so as to
distribute the weight. Business machines and mechanical
equipment which cause vibration or noise shall be placed and
maintained by Tenant at Tenant's expense in settings
sufficient to absorb and prevent vibration, noise and
annoyance. Tenant shall not move any safe, heavy machinery,
heavy equipment, freight or fixtures into or out of the
Premises except in such manner and at such time as Landlord
shall in each instance authorize.
6.2.5 Installation, Alterations or Additions. Not to make any
--------------------------------------
installations, alterations or additions in, to or on the
Premises nor to permit the making of any holes in the walls,
partitions, ceilings or floors nor the installation or
modification of any locks or security devices without on each
occasion obtaining the prior written consent of Landlord, and
then only pursuant to plans and specifications approved by
Landlord in advance in each instance (which consent and
approval shall not be required for non-structural, interior
alterations costing less than $150,000.00 in each instance
which do not materially and adversely affect the Building
structure or systems or the interior architectural design, and
which will not reduce the value of the Building or affect the
structural integrity thereof; and which consent and approval
shall not be required in any event for nonstructural, cosmetic
or decorative changes or installations, such as painting,
carpeting, and the like); Tenant shall pay promptly when due
the entire cost of any work to the Building or Premises
undertaken by Tenant so that the Premises shall at all times
be free of liens for labor and materials. In any event, Tenant
shall within thirty (30) days bond against or discharge any
mechanics' liens or other encumbrances that may arise out of
such work, provided, however, that if Tenant has notice of any
mechanics' liens and has received a request from Landlord
relating to a possible default of Landlord under its financing
documentation on account of such lien, then Tenant shall bond
against or discharge the same promptly. Tenant shall procure
all necessary licenses and permits from the applicable
governmental authorities at Tenant's sole expense before
undertaking such work. Tenant agrees to employ for all such
work responsible contractors approved by Landlord in advance
and to cause such contractors employed by Tenant to carry
worker's compensation insurance in accordance with statutory
requirements and so-called "builder's risk" insurance covering
Landlord and Tenant, as their interests appear, to the full
insurable value of the work in question, and to submit
certificates evidencing such coverage before commencement of
the work. All such work shall be done in a good and
workmanlike manner employing materials of good quality and so
as to conform with all applicable zoning, building, fire,
health and other codes, regulations, ordinances and laws.
Tenant shall save Landlord harmless and indemnified from all
injury, loss, claims or damage to any person or property
occasioned by or growing out of such work.
6.2.5.1 Rooftop Telecommunications Equipment. A. Without
------------------------------------
waiver of any of the provisions of the above paragraph
of this Section 6.2.5 as they relate to the approval
of plans and the performance of the work in connection
with such installation, Tenant shall have the right to
install, maintain, operate, repair and replace
telecommunications equipment on the roof of the
Building, subject to Landlord's approval regarding
size, location and the manner of installation in each
instance, including conformance with Landlord's
reasonable design criteria (including visual shielding
such that it cannot be seen from street level) and
provided that such installation (i) does not void any
roof bonds or affect the integrity of the roof, and
(ii) complies with the requirements, if any, of the
Park Covenants. The installation, operation,
maintenance and removal of such equipment shall be at
Tenant's sole cost and expense and shall be performed
in accordance with all applicable laws and
requirements of applicable governmental authorities.
Tenant shall indemnify, defend and hold Landlord
harmless from and against any liability, claims,
damage or loss arising from the installation,
maintenance, repair replacement and operation of all
telecommunications equipment on the roof, unless
caused by Landlord, its agents, employees or
contractors.
B. Tenant shall also have the right to install,
maintain, repair and replace, in areas of the Building
designated by Landlord, its cables, conduits and
related lines ("Tenant's Cabling") necessary to
connect the telecommunications equipment on the roof
to the interior of the Building and for the
transmission of data using the existing chases, ducts,
shafts and other facilities of the Building, provided
that no modification or upgrade of any of the Building
systems is required as a result of Tenant's Cabling
and provided further that Tenant complies with the
requirements of the first paragraph of this Section
6.2.5. Any such installation, maintenance and
repairing of Tenant's Cabling shall be at Tenant's
sole cost and expense. Tenant agrees that upon the
expiration or earlier termination of this Lease,
Tenant shall, at Tenant's expense, remove any or all
of Tenant's Cabling rooftop equipment and related
materials as Landlord may request pursuant to Section
6.1.9.
C. Tenant, its contractors, agents or employees shall
have access to the roof at all times in order to
install, repair, replace, maintain, use and operate
its telecommunications equipment, upon the following
terms and conditions: (i) all access by Tenant to the
roof shall be subject to Landlord's reasonable
safeguards for the security and protection of the
Building; (ii) any damage to the Building or to the
personal property of Landlord arising as a result of
such access shall be repaired and restored, at
Tenant's sole cost, to the condition existing prior to
such access; and (iii) Tenant shall indemnify, defend
and hold Landlord harmless from and against any
liability, damage or loss arising from such access,
unless caused by Landlord, its agents, employees or
contractors.
D. Tenant may assign its rights under this subsection
6.2.5.1 to a Permitted Transferee.
11
6.2.5.2 Additional Generator. A. Without waiver of the
--------------------
provisions of the first paragraph of this section
6.2.5, Tenant shall have the right to install,
maintain, repair, replace and operate a back-up
generator, and a fuel tank if necessary, having
capacities no greater than what are then permitted by
the applicable local building code (the generator and
the fuel tank are collectively referred to as the
"Additional Generator") in an area in the Building
mutually agreed upon by Landlord and Tenant (the
"Generator Area"), provided Tenant shall promptly
repair any damage caused to the Building or to the
Premises caused by reason of such installation. Tenant
shall not install the Generator in the Generator Area
without Landlord's prior approval of the manner of and
plans and specifications for such installation and
screening if reasonably required by Landlord (which
approval shall not be unreasonably withheld,
conditioned or delayed), notwithstanding that the
first paragraph of section 6.2.5 above may excuse the
requirement if certain conditions are satisfied. If
such installation shall result in an increase in
premiums for Landlord's insurance coverage for the
Building, then Tenant shall be liable for the increase
as additional rent hereunder.
B. Tenant agrees that upon the expiration or earlier
termination of this Lease, Tenant shall, in accordance
with subsection 6.1.9 hereof, remove the Additional
Generator, at Tenant's expense, and promptly repair
and restore any damage to the Premises or the Building
due to such removal. If the Additional Generator is
not so removed by Tenant upon the expiration of the
term of this Lease, then they it shall become the
property of Landlord and, if Landlord so elects,
Landlord shall remove the same and charge Tenant for
the cost of removal, including costs, if any,
associated with restoration of the Building due to
such removal.
C. Tenant shall indemnify, defend and hold harmless
Landlord from and against any and all claims, costs,
expenses, fees or suits arising out of accidents,
damage, injury or loss to any and all persons and
property, arising from the installation, maintenance,
operation and repair of the Additional Generator,
unless caused by the fault or negligence of Landlord,
its agents, employees and contractors. Tenant shall
obtain insurance coverage for the benefit of Landlord
and its managing agent in such amount and of such type
as Landlord may reasonably require.
D. The installation, maintenance and operation of the
Additional Generator shall be at Tenant's sole cost
and expense, and shall be performed in accordance with
all applicable laws and requirements of applicable
governmental authorities.
E. It is expressly understood that the right to
install (as opposed to the right to operate) the
Additional Generator is personal to the initial Tenant
named herein. Notwithstanding the foregoing, any
assignment or subletting to a Permitted Transferee
may, at Tenant's option, include the right (if
unexercised) to install the Additional Generator.
Except as specifically permitted by the preceding
sentence, Tenant shall not assign its right under this
subsection 6.2.5.2 to install the Additional
Generator; provided, however, that Landlord shall give
reasonable consideration to a request to assign the
aforesaid right in connection with an assignment or
subletting to any party which is not a Permitted
Transferee.
6.2.6 Abandonment. Not to abandon the Premises during the term, it
-----------
being understood and agreed that vacancy of the Premises shall
not be construed as abandonment so long as all of Tenant's
other obligations under this Lease continue to be timely
performed and reasonable measures are taken by Tenant to
manage the vacant space.
6.2.7 Signs. Not without Landlord's prior written approval to paint
-----
or place any signs or place any curtains, blinds, shades,
awnings, aerials, or the like, visible from outside the
Premises. Tenant shall be permitted to install its
identification signage on the existing monument sign at the
entrance to the Premises and in the Building lobby at Tenant's
sole expense, in conformance with the Park Covenants and
subject to Landlord's approval (which shall not be
unreasonably withheld, conditioned or delayed)and any
approvals that may be required by the City of Quincy. Tenant
shall maintain all such signage in good condition during the
term, at its sole expense.
6.2.8 Parking; Storage. A. Not to permit any storage of materials
----------------
outside of the Building; nor to permit the use of the Premises
for either temporary or permanent storage of trucks; nor
permit the use of the Premises for any use for which heavy
trucking to or from the site would be customary, other than as
are reasonably required during the performance of the Tenant's
Work and in the ordinary course of Tenant's business for
deliveries and the like; and to use reasonable diligence to
prevent Tenant's employees and customers and others visiting
the Premises from using any street abutting the Premises for
parking.
B. Without waiver of the provisions of subsection 6.2.5
relating to the approval of plans and the performance of work,
Tenant shall be permitted, at its sole expense, to expand the
existing parking area to all other areas on the Land on which
parking is permitted under applicable laws.
C. Without waiver of the provisions of subsection 6.2.5
relating to the approval of plans and the performance of work,
Tenant shall have the right to construct a parking garage on
the Land if and to the extent permitted by the City of Quincy,
and once constructed, such garage shall be deemed part of the
Premises for all purposes under this Lease. All aspects of the
design of the parking garage shall be subject to Landlord's
written approval and the construction shall be performed
solely by Tenant at Tenant's expense and shall otherwise
comply with the requirements of Subsection 6.2.5 above.
D. Notwithstanding anything to the contrary contained in this
Lease, Tenant shall have the right to restripe the existing
parking area serving the Building, at its sole expense,
provided Tenant does so in compliance with all applicable
laws, codes, regulations, and ordinances, including those
specifying allocation of handicapped parking spaces.
E. Landlord will cooperate with Tenant so far as reasonably
necessary in connection with obtaining approvals and the like
from the City of Quincy with respect to garage construction,
or restriping and expanding the parking area.
ARTICLE 7
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Casualty or Taking
------------------
7.1 Termination. In the event that the Premises or the Building, or any
-----------
material part thereof, shall be taken by any public authority or for
any public use, or shall be destroyed or substantially damaged by fire
or casualty, or by the action of any public authority, then this Lease
may be terminated at the election of Landlord or Tenant. The term
"substantially damaged" as used herein shall mean (i) damage of such an
extent that in the opinion of an independent architect or engineer
selected by Landlord and approved by Tenant (which approval shall not
be unreasonably withheld or delayed) and having at least ten (10) years
experience in constructing buildings comparable to the Building, the
time required to repair and restore the Building will require in excess
of nine (9) months from the date the work would be commenced, or (ii)
damage so extensive that fifty (50%) percent or more of the Rentable
Floor Area of the Building is destroyed. Such election by either
Landlord or Tenant, which may be made notwithstanding the fact that
Landlord's entire interest may have been divested, shall be made by the
giving of notice to the other party within sixty (60) days after the
date of the taking or casualty. In the event that the Building is
destroyed or damaged by fire or casualty during the last two (2) years
of the original term, or the extended term as the case may be, Landlord
shall advise Tenant of the extent of the damage, and if it exceeds
thirty-five (35%) percent of the Rentable Floor Area of the Building,
this Lease may be terminated at the election of Landlord or Tenant,
which election shall be made within thirty (30) days after Landlord so
advises Tenant of the extent of the damage. If any
12
taking reduces the number of parking spaces available for Tenant's use
by more than twenty-five (25%) percent, Landlord shall provide Tenant
with reasonable temporary parking as soon as practicable and if
Landlord does not provide Tenant with permanent, reasonable substitute
parking within ninety (90) days of such taking, then this Lease may be
terminated at the election of Tenant at the expiration of such 90-day
period.
7.2 Restoration. A. If this Lease is not terminated under Section 7.1
-----------
above, this Lease shall continue in force and a just proportion of the
rent reserved, according to the nature and extent of the damages
sustained by the Premises, shall be suspended or abated until the
Premises, or what may remain thereof, shall be restored by Landlord to
its prior condition (provided, however, Landlord's restoration
obligations shall be collectively referred to herein as "Landlord
Restoration Work" and shall be limited to the base building structural
and core elements, any common area and other base building
improvements, and any parking garage constructed on the Land by Tenant,
but shall exclude the Tenant's Work and other improvements made in or
on the Premises by or on behalf of Tenant), which Landlord covenants to
do with reasonable diligence to the extent permitted by the net
proceeds of insurance recovered or damages awarded for such taking,
destruction or damage and any contribution required to be made by
Landlord and Tenant hereunder, and subject to zoning and building laws
or ordinances then in existence. All other repair and restoration work,
including the Tenant's Work and all other leasehold improvements
(collectively, the "Tenant's Restoration Work"), shall be performed by
and at the expense of Tenant, promptly and with due diligence. The
Fixed Rent and Additional Rent shall be equitably abated during the
period in which Tenant is performing the Tenant's Restoration Work, but
in no event longer than ninety (90) days after the date when Landlord's
Restoration Work has been substantially completed. Tenant shall use
reasonable efforts not to interfere with Landlord's Restoration Work
during the performance of Tenant's Restoration Work. "Net proceeds of
insurance recovered or damages awarded" refers to the gross amount of
such insurance or damages less the reasonable expenses of Landlord
incurred in connection with the collection of the same, including
without limitation, fees and expenses for legal and appraisal services
(provided, however, Landlord shall be required to fund the amount of
any deductible under its insurance policy and any deficiency in
proceeds because of Landlord's failure to carry the insurance required
by this Lease). Tenant shall make available to Landlord for restoration
of any parking garage on the Land that portion of the proceeds of
Tenant's insurance recovered and attributable to the parking garage and
required to be insured by Tenant hereunder, provided, however, Tenant
shall be required to fund the amount of any deductible under its
insurance policy and any deficiency in proceeds because of its failure
to carry the insurance required by this Lease.
B. If this Lease has not been terminated pursuant to Section 7.1, and
Landlord shall not have restored the base building as specified above
within nine (9) months from the date the work commenced (subject to
extension pursuant to Section 10.5), and such failure is not a result
of delays caused by Tenant, Tenant shall have the right to either
terminate this Lease or complete the Landlord's Restoration Work by
giving notice thereof to Landlord, effective at the expiration of
thirty (30) days from the giving of such notice; provided however, that
such termination or election to restore will be rendered ineffective
if, prior to the expiration of said 30-day period, Landlord shall have
completed such restoration. If Tenant elects to complete the Landlord's
Restoration Work, Tenant shall be deemed to have waived its right to
terminate this Lease pursuant to this Section 7.2, and Landlord shall
deliver to Tenant that portion of the net proceeds of insurance
recovered or damages awarded and released to Landlord by its mortgagee
and attributable to the unfinished portion of the Landlord's
Restoration Work and required to be insured by Landlord hereunder. If
the net proceeds of insurance are insufficient for Tenant to complete
the Landlord's Restoration Work because (i) Landlord has failed to
carry the insurance required to be carried hereunder, (ii) Landlord has
misappropriated any proceeds previously released to it, or (iii)
Landlord's lender has not released sufficient insurance proceeds, then
Tenant shall have the right to setoff each month, from payments of
Fixed Rent first coming due hereunder after the expiration of any
abatement period specified above, amounts equal to the insurance
proceeds which would have been available for the Landlord's Restoration
Work if not for such failure or misappropriation by Landlord until the
total amount of all such proceeds is recovered.
7.3 Award. Irrespective of the form in which recovery may be had by law,
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all rights to damages or compensation shall belong to Landlord in all
cases. Tenant hereby grants to Landlord all of Tenant's rights to such
damages and covenants to deliver such further assignments thereof as
Landlord may from time to time request.
ARTICLE 8
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Defaults
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8.1 Events of Default. (a) If Tenant shall default in the performance of
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any of its obligations to pay the Fixed Rent or Additional Rent
hereunder and if such default shall continue for ten (10) days after
written notice from Landlord designating such default or if within
thirty (30) days after written notice from Landlord to Tenant
specifying any other default or defaults Tenant has not commenced
diligently to correct the default or defaults so specified or has not
thereafter diligently pursued such correction to completion, or (b) if
any assignment shall be made by Tenant or any Guarantor of Tenant for
the benefit of creditors, or (c) if Tenant's leasehold interest shall
be taken on execution, or (d) if a lien or other involuntary
encumbrance is filed against Tenant's leasehold interest or Tenant's
other property, including said leasehold interest, and is not
discharged within thirty (30) days thereafter, or (e) if a petition is
filed by Tenant or any Guarantor of Tenant for liquidation, or for
reorganization or an arrangement under any provision of any bankruptcy
law or code as then in force and effect, or (f) if an involuntary
petition under any of the provisions of any bankruptcy law or code is
filed against Tenant or any Guarantor of Tenant and such involuntary
petition is not dismissed within ninety (90) days thereafter, then, and
in any of such cases, Landlord and the agents and servants of Landlord
lawfully may, in addition to and not in derogation of any remedies for
any preceding breach of covenant, immediately or at any time thereafter
without demand or notice and with or without process of law (forcibly,
if necessary) enter into and upon the Premises or any part thereof in
the name of the whole or mail a notice of termination addressed to
Tenant, and repossess the same as of landlord's former estate and expel
Tenant and those claiming through or under Tenant and remove its and
their effects (forcibly, if necessary) without being deemed guilty of
any manner of trespass and without prejudice to any remedies which
might otherwise be used for arrears of rent or prior breach of
covenants, and upon such entry or mailing as aforesaid this Lease shall
terminate, Tenant hereby waiving all statutory rights to the Premises
(including without limitation rights of redemption, if any, to the
extent such rights may be lawfully waived) and Landlord, without notice
to Tenant, may store Tenant's effects, and those of any person claiming
through or under Tenant, at the expense and risk of Tenant, and, if
Landlord so elects, may sell such effects at public auction or private
sale and apply the net proceeds to the payment of all sums due to
Landlord from Tenant, if any, and pay over the balance, if any, to
Tenant.
8.2 Remedies. In the event that this Lease is terminated under any of the
--------
provisions contained in Section 8.1 or shall be otherwise terminated
for breach of any obligation of Tenant, Tenant covenants to pay
punctually to Landlord all the sums and to perform all the obligations
which Tenant covenants in this Lease to pay and to perform in the same
manner and to the same extent and at the same time as if this Lease had
not been terminated. In calculating the amounts to be paid by Tenant
pursuant to the preceding sentence, Tenant shall be credited with the
net proceeds of any rent obtained by Landlord by reletting the
Premises, after deducting all Landlord's expense in connection with
such reletting, including, without limitation, all repossession costs,
brokerage commissions, fees for legal services and expenses of
preparing the Premises for such reletting, it being agreed by Tenant
that Landlord may (i) relet the Premises or any part or parts thereof,
for a term or terms which may at Landlord's option be equal to or less
than or exceed the period which would otherwise have constituted the
balance of the term and may grant such concessions and free rent as
Landlord in its sole judgment considers advisable or necessary to relet
the same and (ii) make such alterations, repairs and decorations in the
Premises as Landlord in its sole judgment considers advisable or
necessary to relet the same, and no action of Landlord in accordance
with the foregoing or failure to relet or to collect rent under
reletting shall operate or be construed to release or reduce Tenant's
liability as aforesaid. However, Landlord shall use its reasonable
efforts to re-let the Premises after Tenant vacates the Premises in the
event this Lease is terminated because of a default by Tenant. In lieu
of full recovery by Landlord of the sums payable under the foregoing
provisions of this Section 8.2 (except for the amount of any rent of
any kind accrued and unpaid at the time of termination), Landlord may
by written notice to Tenant no later than one (1) year after the date
this Lease is terminated on account of a default by Tenant, elect to
recover, and Tenant shall thereupon pay forthwith to Landlord, as
compensation, an amount equal to the discounted value (calculated using
a discount factor equal to the then current U.S. Treasuries having a
maturity equal to the then balance of the
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term), the excess of the total rent reserved for the residue of the
term over the rental value of the Premises for said residue of the
term. In calculating the rent reserved there shall be included, in
addition to the Fixed Rent and Additional Rent, the value of all other
considerations agreed to be paid or performed by Tenant for said
residue. For the purposes of this paragraph, marketing of the Premises
in a manner similar to the way Landlord markets its other premises in
the suburban market shall be deemed to satisfy Landlord's obligation to
use such "reasonable efforts." In no event shall Landlord be required
(i) to solicit or entertain negotiations with any other prospective
tenants for the Premises until Landlord obtains full and complete
possession of the Premises including, without limitation, the
undisputed right to re-let the Premises free of any claim of Tenant,
(ii) to lease the Premises to a tenant whose proposed use, in
Landlord's sole but bona fide judgment, would violate any restrictions
by which Landlord is bound, (iii) to re-let the Premises before leasing
other comparable vacant space in the Building, (iv) to lease the
Premises for a rental less than the current fair market rental then
prevailing for similar office space in the Building, or (v) to enter
into a lease with any proposed tenant that does not have, in Landlord's
reasonable opinion, sufficient financial resources or operating
experience to operate the Premises in a manner comparable to other
tenants in the Building. In no event, however, shall Tenant's liability
hereunder be diminished or reduced if or to the extent such reasonable
efforts of Landlord to re-let are not successful.
In lieu of any other damages or indemnity and in lieu of full recovery
by Landlord of all sums payable under all the foregoing provisions of
this Section 8.2 (except for the amount of any rent of any kind accrued
and unpaid at the time of termination), Landlord may by written notice
to Tenant, at any time within one (1) year after this Lease is
terminated under any of the provisions contained in Section 8.1 or is
otherwise terminated for breach of any obligation of Tenant and before
such full recovery, elect to recover, and Tenant shall thereupon pay,
as liquidated damages, the discounted value (calculated using a
discount factor equal to the then Prime Rate as published in the Wall
Street Journal) of the excess of the total rent reserved for the
residue of the term over the rental value of the Premises for said
residue of the term. In calculating the rent reserved there shall be
included, in addition to the Fixed Rent and Additional Rent, the value
of all other considerations agreed to be paid or performed by Tenant
for said residue Nothing contained in this Lease shall, however, limit
or prejudice the right of Landlord to prove for and obtain in
proceedings for bankruptcy or insolvency by reason of the termination
of this Lease, an amount equal to the maximum allowed by any statute or
rule of law in effect at the time when, and governing the proceedings
in which, the damages are to be proved, whether or not the amount be
greater than, equal to, or less than the amount of the loss or damages
referred to above.
8.3 Remedies Cumulative. Any and all rights and remedies which Landlord may
-------------------
have under this Lease, and at law and equity, shall be cumulative and
shall not be deemed inconsistent with each other, and any two or more
of all such rights and remedies may be exercised at the same time
insofar as permitted by law.
8.4 Landlord's Right to Cure Defaults. Landlord may, but shall not be
---------------------------------
obligated to, cure, at any time after the expiration of the applicable
grace period under Section 8.1 (but without notice in any emergency
situation to prevent immediate or imminent forfeiture of Landlord's
interest in the Premises or to prevent reasonably anticipated damage to
the Building or injury to persons), any default by Tenant under this
Lease; and whenever Landlord so elects, all costs and expenses incurred
by Landlord, including reasonable attorneys' fees, in curing a default
shall be paid, as Additional Rent, by Tenant to Landlord on demand,
together with interest thereon at the rate of one (1%) percentage point
over the then Prime Rate as published in the Wall Street Journal (the
"Interest Rate") from the date of payment by Landlord to the date of
payment by Tenant.
8.5 Effect of Waivers of Default. Any consent or permission by either party
----------------------------
to any act or omission which otherwise would be a breach of any
covenant or condition herein, shall not in any way be held or construed
(unless expressly so declared) to operate so as to impair the
continuing obligation of any covenant or condition herein, or
otherwise, except as to the specific instance, operate to permit
similar acts or omissions.
8.6 No Waiver, etc. The failure of either party to seek redress for
--------------
violation of, or to insist upon the strict performance of, any covenant
or condition of this Lease shall not be deemed a waiver of such
violation nor prevent a subsequent act, which would have originally
constituted a violation, from having all the force and effect of an
original violation. The receipt by Landlord of rent with knowledge of
the breach of any covenant of this Lease shall not be deemed to have
been a waiver of such breach by Landlord. No consent or waiver, express
or implied, by either party to or of any breach of any agreement or
duty shall be construed as a waiver or consent to or of any other
breach of the same or any other agreement or duty.
8.7 No Accord and Satisfaction. No acceptance by Landlord of a lesser sum
--------------------------
than the Fixed Rent, Additional Rent or any other charge then due shall
be deemed to be other than on account of the earliest installment of
such rent or charge due, nor shall any endorsement or statement on any
check or any letter accompanying any check or payment as rent or other
charge be deemed an accord and satisfaction, and Landlord may accept
such check or payment without prejudice to Landlord's right to recover
the balance of such installment or pursue any other remedy in this
Lease provided.
ARTICLE 9
---------
Rights of Mortgage Holders
--------------------------
9.1 Rights of Mortgage Holders. The word "mortgage" as used herein includes
---------------------------
mortgages, deeds of trust or other similar instruments evidencing other
voluntary liens or encumbrances, and modifications, consolidations,
extensions, renewals, replacements and substitutes thereof. The word
"holder" shall mean a mortgagee, and any subsequent holder or holders
of a mortgage. Until the holder of a mortgage shall enter and take
possession of the Premises for the purpose of foreclosure, such holder
shall have only such rights of Landlord as are necessary to preserve
the integrity of this Lease as security. Upon entry and taking
possession of the Premises for the purpose of foreclosure, such holder
shall have all the rights of Landlord. No such holder of a mortgage
shall be liable either as mortgagee or as assignee, to perform, or be
liable in damages for failure to perform, any of the obligations of
Landlord unless and until such holder shall enter and take possession
of the Premises for the purpose of foreclosure. Upon entry for the
purpose of foreclosure, such holder shall be liable to perform all of
the obligations of Landlord, subject to and with the benefit of the
provisions of Section 10.4, provided that a discontinuance of any
foreclosure proceeding shall be deemed a conveyance under said
provisions to the owner of the equity of the Premises.
The covenants and agreements contained in this Lease with respect to
the rights, powers and benefits of a holder of a mortgage
(particularly, without limitation thereby, the covenants and agreements
contained in this Section 9.1) constitute a continuing offer to any
person, corporation or other entity, which by accepting a mortgage
subject to this Lease, assumes the obligations herein set forth with
respect to such holder; such holder is hereby constituted a party of
this Lease as an obligee hereunder to the same extent as though its
name were written hereon as such; and such holder shall be entitled to
enforce such provisions in its own name. Tenant agrees on request of
Landlord to execute and deliver from time to time any agreement which
may be necessary to implement the provisions of this Section 9.1.
9.2 Lease Superior or Subordinate to Mortgages. It is agreed that the
-------------------------------------------
rights and interest of Tenant under this Lease shall be (i) subject or
subordinate to any present or future mortgage or mortgages and to any
and all advances to be made thereunder, and to the interest of the
holder thereof in the Premises if Landlord shall elect by notice to
Tenant to subject or subordinate the rights and interest of Tenant
under this Lease to such mortgage or (ii) prior to any present or
future mortgage or mortgages, if Landlord shall elect, by notice to
Tenant, to give the rights and interest of Tenant under this Lease
priority to such mortgage; in the event of either of such elections and
upon notification by Landlord to that effect, the rights and interest
of Tenant under this Lease should be deemed to be subordinate to, or
have priority over, as the case may be, said mortgage or mortgages,
irrespective of the time of execution or time of recording of any such
mortgage or mortgages (provided, however, that as a condition to the
subordination of this Lease to any future mortgages, the holder thereof
agrees not to disturb the possession of Tenant so long as Tenant is not
in default hereunder). This Section shall be self-operative and no
further instrument of subordination shall be required. In confirmation
of such subordination, Tenant agrees it will, upon
14
not less than ten (10) days' prior written request by Landlord,
execute, acknowledge and deliver any and all instruments deemed by
Landlord necessary or desirable to give effect to or notice of such
subordination or priority. Any Mortgage to which this Lease shall be
subordinated may contain such terms, provisions and conditions as the
holder deems usual or customary. Landlord agrees to obtain from its
current lender an agreement that the possession of Tenant will not be
disturbed so long as Tenant is not in default hereunder. Landlord
agrees to obtain from any future lenders, and to use reasonable efforts
to obtain from its current lender, an agreement that the proceeds of
insurance will be released to Landlord for Landlord's Restoration Work,
unless this Lease is otherwise terminated in accordance with the
provisions hereof.
ARTICLE 10
----------
Miscellaneous Provisions
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10.1 Notices from One Party to the Other. All notices required or permitted
-----------------------------------
hereunder shall be in writing and addressed, if to the Tenant, at the
Original Notice Address of Tenant or such other address as Tenant shall
have last designated by notice in writing to Landlord and, if to
Landlord, at the Original Notice Address of Landlord or such other
address as Landlord shall have last designated by notice in writing to
Tenant. Any notice shall be deemed duly given when mailed to such
address postage prepaid, certified mail, return receipt requested, or
when delivered to such address by hand.
10.2 Quiet Enjoyment. Landlord agrees that upon Tenant's paying the rent and
----------------
performing and observing the agreements, conditions and other
provisions on its part to be performed and observed, Tenant shall and
may peaceably and quietly have, hold and enjoy the Premises during the
term hereof without any manner of hindrance or molestation from
Landlord or anyone claiming under Landlord or by paramount or adverse
title, subject, however, to the terms of this Lease; provided, however,
Landlord reserves the right, without the same constituting a breach of
Landlord's covenant of quiet enjoyment, to make such changes,
alterations, additions, improvements repairs or replacements in or to
the Premises as Landlord may deem necessary or desirable, provided,
further, however, that there shall be no unreasonable interference with
Tenant's use of the Premises, or deprivation of reasonable access
thereto, or which jeopardizes the security of the Premises for the
conduct of Tenant's business.
10.3 Lease not to be Recorded. Tenant agrees that it will not record this
------------------------
Lease. Both parties shall, upon the request of either, execute and
deliver a notice or short form of this Lease in such form, if any, as
may be permitted by applicable statute.
10.4 Limitation of Landlord's Liability. The term "Landlord" as used in this
----------------------------------
Lease, so far as covenants or obligations to be performed by Landlord
are concerned, shall be limited to mean and include only the owner or
owners at the time in question of the Land, and in the event of any
transfer or transfers of title to said property, the Landlord (and in
case of any subsequent transfers or conveyances, the then grantor)
shall be concurrently freed and relieved from and after the date of
such transfer or conveyance, without any further instrument or
agreement of all liability as respects the performance of any covenants
or obligations on the part of the Landlord contained in this Lease
thereafter to be performed, it being intended hereby that the covenants
and obligations contained in this Lease on the part of Landlord, shall,
subject as aforesaid, be binding on the Landlord, its successors and
assigns, only during and in respect of their respective successive
periods of ownership of said leasehold interest or fee, as the case may
be. Tenant, its successors and assigns, shall not assert nor seek to
enforce any claim for breach of this Lease against any of Landlord's
assets other than Landlord's interest in the Premises and in the rents,
issues and profits thereof or the proceeds of insurance or taking, and
Tenant agrees to look solely to such interest for the satisfaction of
any liability or claim against Landlord under this Lease, it being
specifically agreed that in no event whatsoever shall Landlord (which
term shall include, without limitation, any general or limited partner,
trustees, beneficiaries, officers, directors, or stockholders of
Landlord) ever be personally liable for any such liability.
10.5 Acts of God. In any case where either party hereto is required to do
-----------
any act, delays caused by or resulting from Acts of God, war, civil
commotion, fire, flood or other casualty, labor difficulties, shortages
of labor, materials or equipment, government regulations, unusually
severe weather, or other causes beyond such party's reasonable control
shall not be counted in determining the time during which work shall be
completed, whether such time be designated by a fixed date, a fixed
time or a "reasonable time," and such time shall be deemed to be
extended by the period of such delay. The foregoing shall not extend
the time periods after which Tenant may terminate this Lease pursuant
to Section 7.2 or exercise self-help pursuant to Section 10.12 for more
than ninety (90) days.
10.6 Landlord's Default. Landlord shall not be deemed to be in default in
------------------
the performance of any of its obligations hereunder unless it shall
fail to perform such obligations and such failure shall continue for a
period of thirty (30) days or such additional time as is reasonably
required to correct any such default after written notice has been
given by Tenant to Landlord specifying the nature of Landlord's alleged
default. Landlord shall not be liable in any event for incidental or
consequential damages to Tenant by reason of Landlord's default,
whether or not notice is given. Tenant shall have no right to terminate
this Lease for any default by Landlord hereunder and no right, for any
such default, to offset or counterclaim against any rent due hereunder.
10.7 Brokerage. Tenant warrants and represents that it has dealt with no
---------
broker in connection with the consummation of this Lease, other than
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, Insignia/ESG and ▇▇▇▇▇▇▇▇ Company (collectively, the
"Brokers"), and in the event of any brokerage claims, other than by the
Brokers, against Landlord predicated upon prior dealings with Tenant,
Tenant agrees to defend the same and indemnify and hold Landlord
harmless against any such claim.
10.8 Applicable Law and Construction. This Lease shall be governed by and
-------------------------------
construed in accordance with the laws of the Commonwealth of
Massachusetts and, if any provisions of this Lease shall to any extent
be invalid, the remainder of this Lease shall not be affected thereby.
There are no oral or written agreements between Landlord and Tenant
affecting this Lease. This Lease may be amended, and the provisions
hereof may be waived or modified, only by instruments in writing
executed by Landlord and Tenant. The titles of the several Articles and
Sections contained herein are for convenience only and shall not be
considered in construing this Lease. Unless repugnant to the context,
the words "Landlord" and "Tenant" appearing in this Lease shall be
construed to mean those named above and their respective heirs,
executors, administrators, successors and assigns, and those claiming
through or under them respectively. If there be more than one tenant,
the obligations imposed by this Lease upon Tenant shall be joint and
several.
10.9 Landlord's Representations. A. Landlord represents to Tenant to the
--------------------------
best of Landlord's knowledge and belief that, except as may be
disclosed in that certain environmental report prepared by ▇▇▇▇▇ &
▇▇▇▇▇▇▇ dated September, 1999 (the "▇▇▇▇▇ & ▇▇▇▇▇▇▇ Report"), as of the
Date of this Lease (i) no hazardous or toxic materials or substances
(including, without limitation, asbestos) are present in, on, under or
at the Premises, the Building or the Land in violation of laws, nor has
there been a release of the same, in, on, under or at the Premises, the
Building or the Land; (ii) no investigative order, settlement,
agreement, enforcement order or litigation with respect to hazardous or
toxic materials or substances is proposed, threatened, anticipated or
in existence with respect to the Premises, the Building or the Land;
and (iii) no notice, demand, claim, citation, complaint, request for
information or similar communication has been received by Landlord with
respect to hazardous or toxic materials or substances in, on, under or
at the Premises, the Building or the Land. Tenant hereby acknowledges
and confirms its receipt of the ▇▇▇▇▇ & ▇▇▇▇▇▇▇ Report.
B. Landlord represents to Tenant that as of the Date of this
Lease (i) the Building has not been constructed in violation of any
applicable laws, codes, ordinances and regulations; (ii) the existing
electrical and plumbing systems, the existing heating, ventilating and
air conditioning systems (the "hvac facilities"), the elevators and
other existing mechanical systems in the Building are in good working
order and condition; (iii) the Premises are served by water, sewer,
electricity and other utilities sufficient for general office use; and
(iv) the hvac facilities are of sufficient capacity for general office
use by the number of persons which the Building was designed to
accommodate.
C. Landlord makes no other representations to Tenant other
than the representations specifically contained in subparagraphs A and
B of this Section 10.9.
15
10.10 Entire Agreement. This Lease contains all of the agreements between the
----------------
parties hereto, and there are no prior oral or written agreements
between Landlord and Tenant affecting this Lease. This Lease may not be
modified in any manner other than by agreement in writing signed by
both Landlord and Tenant.
10.11 Guaranty. The obligations of Tenant under this Lease are guaranteed by
--------
Guarantor pursuant to the provisions of that Guaranty of even date
herewith.
10.12 Tenant's Self-Help. Tenant may, but shall not be obligated to, cure,
------------------
after thirty (30) days' prior written notice (or without notice in an
emergency), any default by Landlord under this Lease that is materially
detrimental to Tenant's business not to have cured, and whenever Tenant
so elects, all costs and expenses incurred by Tenant in curing a
default shall be paid by Landlord to Tenant on demand; provided,
however, that Tenant shall indemnify Landlord against any damage to the
Building resulting from Tenant's effecting such cure. However, if
Landlord has undertaken to cure the default in question and is
proceeding with diligence, but has been unable to fully complete such
cure by the expiration of thirty (30) days from Tenant's notice as
aforesaid, Landlord shall be afforded a reasonable time thereafter in
which to complete its curative efforts before Tenant may effect a cure.
For the purposes of this Section 10.12, the phrase "reasonable time"
shall mean an additional period of time reasonably determined by
Landlord given the nature of the default and the steps reasonably
necessary to rectify the same, but not to exceed an additional sixty
(60) days.
10.13 Cafeteria Equipment. The equipment currently installed and located in
-------------------
the Building cafeteria as of the Commencement Date is and will remain
Landlord's property during the term and shall be called the "Existing
Cafeteria Equipment" for the purposes of this Lease. All equipment and
personal property (including replacements of the Existing Cafeteria
Equipment) that may be installed or added to the cafeteria by Tenant
after the Commencement Date shall be at Tenant's expense and deemed
Tenant's personal property during the term hereof, and shall be called
"Tenant's Cafeteria Equipment" for the purposes of this Lease. During
the term, Tenant shall perform all repairs to the Existing Cafeteria
Equipment and the Tenant's Cafeteria Equipment at its expense as
necessary to keep them in good working order and condition pursuant to
the applicable provisions of Section 6.1.3 of this Lease. At the
expiration or earlier termination of this Lease, Tenant may remove the
Tenant's Cafeteria Equipment (unless permanently affixed to the
Premises) in accordance with the provisions of Section 6.1.9 hereof.
Tenant shall not be required to remove the Existing Cafeteria
Equipment.
WITNESS the execution hereof under seal on the day and year first above
written:
Landlord:
CROWNVIEW LLC
By: Nordic Holdings III LLC, Manager
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Manager
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Manager
Tenant:
SSB REALTY LLC
By: /s/ [ILLEGIBLE]
-------------------------
Its: President
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16
EXHIBIT A
The land with the buildings thereon situated in Quincy, Norfolk County,
Massachusetts and shown as Lot 13 on a plan entitled "Crown Colony Place,
Quincy, MA, Subdivision Plan" dated March 29, 1988 by ▇. ▇. ▇▇▇▇▇ Associates,
Inc., Engineers and Planners, Boston, MA ("Lot 13" and the "Plan" respectively)
recorded with Norfolk County Registry of Deeds ("Deeds") as Plan No. 530 of 1988
in Plan Book 368.
Beginning at a point on the Southwesterly side of Crown Colony Drive, being the
Northerly corner of said Lot 13 and thence running.
Southeasterly and Easterly by Crown Colony Drive by a line curving to the left
having a radius of 645.00 feet, a distance of 647.03 feet; thence turning and
running
South 00 degrees 51' 42" East 19.46 feet; thence continuing
Southeasterly and Easterly by a line turning to the left having a radius of
385.00 feet, a distance of 221.09 feet; thence continuing
South 33 degrees 45' 52" East 324.95 feet; thence turning and running
South 67 degrees 32' 52" West 234.04 feet; thence turning and running
North 75 degrees 21' 07" West 88.44 feet; thence turning and running
North 26 degrees 42' 08" West 93.47 feet; thence turning and running
North 49 degrees 49' 37" West 79.83 feet; thence continuing
North 74 degrees 25' 51" West 135.99 feet; thence continuing
North 74 degrees 12' 41" West 150.68 feet; thence continuing
North 53 degrees 41' 24" West 284.55 feet; thence turning and running
North 86 degrees 03' 17" West 66.86 feet; thence continuing
South 63 degrees 43' 53" West 69.14 feet; thence turning and running
North 45 degrees 00' 00" West 91.92 feet; thence turning and running
North 05 degrees 44' 20" East 229.44 feet; thence turning and running
2
North 50 degrees 46' 37" East 411.62 feet to the point of beginning, the last
fifteen course being by Lot 1 as shown on the Plan.
Said Lot 13 being a subdivision of Lot 1 as shown on a plan untitled
"Subdivision Plan of Land 'Crown Colony Place' Quincy, MA" dated May 18, 1987 by
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Inc. recorded as Plan No. 53 of 1988 in Plan Book 3654.
Appurtenant Rights
All the rights and easements for the benefit of Owners in Crown Colony Place set
forth in a Declaration of Covenants, Restrictions, Development Standard and
Easements ("Declaration of Covenants") for Crown Colony Place by Crown Colony
Realty Corp., as Trustee of Presidents' Plaza Realty Trust dated October 10,
1986 recorded in Book 7281, Page 352 and filed as Document No. 503941, as
amended by First Amendment to Declaration of Covenants, Restrictions,
Development Standards and Easements dated October 30, 1987 recorded in Book
7864, Page 493 and filed as Document No. 538949, as amended by Second Amendment
to Declaration of Covenants, Restrictions, Development Standards and Easements
dated as of February 4, 1988 recorded in Book 7978, Page 368 and filed as
Document No. 545752, as amended by Succession Developer under Declaration of
Covenants, Restrictions, Development Standards and Easements dated January 21,
1988 and recorded in Book 7864, Page 501 and filed as Document No. 538953 and as
modified by Easement Relocation Instrument dated May 26, 1988, recorded in Book
7978, Page 466 and filed as Document No. 545753 as affected by Design Review
Decision dated May 26, 1988, recorded May 27, 1989 in Book 7978, Page 443, as
affected by Confirmation of Easement Locations dated June 9, 1988 and filed as
Document No. 550330 and recorded in Book 8066, Page 271 as amended by Third
Amendment to Declaration of Covenants, Restrictions, Development Standards and
Easements dated July 11, 1988 filed as Document No. 550331 and recorded in Book
8066, Page 279 as affected by a Certificate of Compliance dated September 21,
1989 recorded October 5, 1989 in Book 8451, Page 543 and as further affected by
an Estopple Certificate dated as of September 21, 1989 recorded October 5, 1989
in Book 8451, Page 541 as amended by Fourth Amendment to Declaration of
Covenants, Restrictions, Development Standards and Easement dated June 29, 1989,
recorded October 5, 1989 in Book 8451, Page 423 and filed as Document No.
575918, and as amended by Fifth Amendment to Declaration of Covenants
Restrictions Development Standards and Easements dated as of September 21, 1989
recorded October 5, 1989 in Book 8451, Page 430 and filed as Document No.
575919.
The right in common with Quincy One Associates Limited Partnership, and its
successors and assigns, to lay, construct, reconstruct, repair, replace,
operate, maintain, install and use water and sewer pipes, electric and telephone
utility lines, and other utility lines or pipes, underground within the arc
shown on the Plan as "Utility Easement Area = 2,457 S.F. - ,056 A.C." as set
forth in a deed from Quincy One Associates Limited Partnership to ▇▇▇▇▇▇ ▇.
Fish, et als, dated May 26, 1988 recorded with said Deeds on May 27, 1988 as
Instrument No. 42521 Book 7978 Page 376.
3
Rights reserved for the benefit of "Grantor's Other Land" in deed dated March 5,
1985 from Crown Colony Realty Corp, as Trustee of President's Plaza Realty Trust
to ▇. ▇▇▇▇▇▇▇▇ Low, as Trustee of Low Realty Trust, recorded in Book 6633, Page
320 and filed as Document No. 464286.
Rights granted in deed from ▇. ▇▇▇▇▇▇▇▇ Low, as Trustee of Low Realty Trust, to
Crown Colony Realty Corp., as Trustee of President's Plaza Realty Trust dated
March 5, 1985 recorded in Book 6633, Page 310.
Easements granted in an Easement Agreement between Quincy One Associates Limited
Partnership and 1200 Crown Colony Limited Partnership, dated June 19, 1991
recorded in Book 8961, Page 515.
All other rights and easements which may be appurtenant to Lot 13.
For title see deed recorded with Norfolk Registry of Deeds in Book 13785, Page
405 and filed with the Northfolk Land Registration Office as Document No.
142271.
4