EX-99.2
AMENDED AND RESTATED
OFFICE
LEASE
ONE BOSTON PLACE
BETWEEN
BRE/ONE BOSTON, L.L.C.,
A DELAWARE LIMITED LIABILITY COMPANY,
AND
CAMBRIDGE STRATEGIC MANAGEMENT GROUP, INC.,
A DELAWARE CORPORATION
TABLE OF CONTENTS
ARTICLE 1 REFERENCE DATA................................................. 2
ARTICLE 2 DEMISE......................................................... 4
ARTICLE 3 BASE RENT...................................................... 4
ARTICLE 4 ADDITIONAL RENT................................................ 5
Section 4.1 Taxes.......................................................... 5
Section 4.2 Operating Expenses............................................. 5
Section 4.3 Manner of Payment.............................................. 5
Section 4.4 Proration...................................................... 6
Section 4.5 Landlord's Records............................................. 6
Section 4.6 Electricity.................................................... 7
Section 4.7 Rent and Other Charges......................................... 7
ARTICLE 5 COMMENCEMENT OF TERM........................................... 7
ARTICLE 6 CONDITION OF PREMISES.......................................... 8
ARTICLE 7 USE AND RULES.................................................. 8
ARTICLE 8 SERVICES AND UTILITIES......................................... 8
ARTICLE 9 ALTERATIONS AND LIENS..........................................11
ARTICLE 10 REPAIRS........................................................12
ARTICLE 11 CASUALTY DAMAGE................................................13
ARTICLE 12 INSURANCE, SUBROGATION, AND WAIVER OF CLAIMS...................14
ARTICLE 13 CONDEMNATION...................................................15
ARTICLE 14 RETURN OF POSSESSION...........................................16
ARTICLE 15 HOLDING OVER...................................................17
ARTICLE 16 NO WAIVER......................................................17
ARTICLE 17 ATTORNEYS' FEES AND JURY TRIAL.................................18
ARTICLE 18 PERSONAL PROPERTY TAXES, RENT TAXES AND OTHER TAXES............18
ARTICLE 19 SUBORDINATION, ATTORNMENT AND MORTGAGEE PROTECTION.............18
ARTICLE 20 ESTOPPEL CERTIFICATE...........................................20
ARTICLE 21 ASSIGNMENT AND SUBLETTING......................................20
Section 21.1. Transfers......................................................20
Section 21.2. Approval.......................................................21
Section 21.3. Transfer Premium...............................................22
Section 21.4. Recapture......................................................22
Section 21.5. Terms of Consent...............................................22
Section 21.6. Certain Transfers..............................................23
Section 21.7. Related Party Transfers........................................23
Section 21.8. Named Assignee Transfer........................................23
ARTICLE 22 RIGHTS RESERVED BY LANDLORD....................................24
ARTICLE 23 LANDLORD'S REMEDIES............................................26
Section 23.1. Default........................................................26
Section 23.2. Remedies.......................................................27
Section 23.3. Remedies Cumulative............................................30
Section 23.4. Late Charges and Interest......................................30
Section 23.5. Certain Definitions............................................30
Section 23.6. Removal........................................................30
Section 23.7. Landlord Action................................................31
Section 23.8. Other Default Matters..........................................31
ARTICLE 24 LANDLORD'S RIGHT TO CURE.......................................31
ARTICLE 25 CAPTIONS, DEFINITIONS AND SEVERABILITY.........................32
ARTICLE 26 CONVEYANCE BY LANDLORD AND LIABILITY...........................38
ARTICLE 27 INDEMNIFICATION................................................39
ARTICLE 28 SAFETY AND SECURITY DEVICES, SERVICES AND PROGRAMS.............40
ARTICLE 29 COMMUNICATIONS AND COMPUTER LINES..............................40
Section 29.1. Tenant Lines...................................................40
Section 29.2. Landlord Lines.................................................41
Section 29.3. Removal of Lines at Termination................................41
Section 29.4. Line Problems..................................................41
ARTICLE 30 HAZARDOUS MATERIALS............................................42
ARTICLE 31 MISCELLANEOUS..................................................43
ARTICLE 32 OFFER..........................................................44
ARTICLE 33 NOTICES........................................................44
ARTICLE 34 REAL ESTATE BROKERS............................................44
ARTICLE 35 CONSTRUCTION ALLOWANCE.........................................45
ARTICLE 36 EXCULPATORY PROVISIONS.........................................45
ARTICLE 37 OPTION TO EXTEND...............................................46
ARTICLE 38 PARKING........................................................47
ARTICLE 39 SECURITY DEPOSIT...............................................47
ARTICLE 40 INTENTIONALLY OMITTED..........................................50
ARTICLE 41 ENTIRE AGREEMENT...............................................50
Rider One Rules
Exhibit A (Floor plan showing the portion of the 31st floor of the
Premises cross-hatched on Sheet A-1 and the portion of the
32nd floor of the Premises cross-hatched on Sheet A-2 which
comprise the Premises demised hereunder)
Exhibit B Landlord Workletter
Exhibit C Workletter Agreement
Exhibit D Subordination, Nondisturbance and Attornment Agreement
OFFICE LEASE
THIS AMENDED AND RESTATED LEASE made as of the ___ day of
_______________, 2002, between BRE/ONE BOSTON, L.L.C., A DELAWARE LIMITED
LIABILITY COMPANY ("Landlord"), and CAMBRIDGE STRATEGIC MANAGEMENT GROUP, INC.,
a Delaware corporation, having a mailing address of ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ("Tenant") 02108.
WHEREAS, Landlord and Tenant's predecessor (Tenant's predecessor,
Cambridge Strategic Management Group, Inc., a Massachusetts corporation
reincorporated in Delaware by merging into Tenant, a wholly-owned subsidiary of
Tenant's predecessor) entered into a lease (the "Original Lease") dated November
21, 2000, of certain premises comprised of the thirty-first (31st) and
thirty-second (32nd) floors (containing approximately 40,070 rentable square
feet) depicted on Exhibit A attached thereto in the building known as One Boston
Place ("Building") located at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇; and
WHEREAS, the term of the Original Lease has commenced and Tenant's
construction has been completed and Landlord has paid in full the construction
allowance referred to in Article 35 of the Original Lease; and
WHEREAS, Tenant desires to divide the Original Lease into three separate
leases, under one of which (this "Lease") Tenant will remain fully liable
demising a portion of the premises demised under the Original Lease and being
amended as more particularly set forth below and the other two leases
(collectively, the "Assignable Leases") under which space comprising the balance
of the premises demised under the Original Lease which may be assigned by Tenant
to third parties (with Tenant remaining liable only to pay monthly as and when
due the difference in monthly installments of Base Rent payments under the
Original Lease with respect to the premises demised under the Assignable Leases,
Landlord's security for the payment of such difference being limited to a letter
of credit described in the Assignable Leases); and
WHEREAS, Tenant intends to assign this Lease to CSMG Acquisition Sub,
Inc. and Landlord is willing to permit such assignment on the terms and
conditions described in this Lease; and
WHEREAS, Landlord is willing to modify the terms of the Original Lease
to accommodate the Tenant in consideration of certain guarantees and security
otherwise provided by the Tenant.
NOW, THEREFORE, Landlord and Tenant have agreed to amend and restate the
Original Lease on the terms herein described while simultaneous with the
execution and delivery hereof leasing under the Assignable Leases the balance of
the premises originally demised to Tenant and accepting certain third parties as
direct tenants of Landlord under the Assignable Leases.
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WITNESSETH:
ARTICLE 1
REFERENCE DATA
Each reference in this Lease to one of the following terms shall
incorporate the data set forth with respect to such term:
A. PREMISES: Initially, that certain space comprised of
the thirty-first (31st) and thirty-second
(32nd) floors (containing approximately 40,070
rentable square feet) depicted on Exhibit A
attached hereto in the building known as One
Boston Place ("Building") located at ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
("Property", as further described in Article
25) and from and after the date of this
Amended and Restated Lease set forth above
(the "Reduction Date"), that certain space
comprised of a portion of the thirty-first
(31st) floor and a portion of the
thirty-second (32nd) floors (containing
approximately 21,884 rentable square feet)
depicted on Exhibit A-1 attached hereto in
the Building.
B. TERM: The period commencing on the Commencement
Date and ending on the Termination Date,
unless sooner terminated as provided herein.
C. COMMENCEMENT DATE: The date which Landlord delivers the Premises
to Tenant with the Landlord's Work set forth
on the Landlord Work Letter, attached hereto
as Exhibit B substantially completed or, if
earlier, the date on which Tenant commences
Tenant Improvement Work (as defined in
Exhibit C). The parties have agreed that
the Commencement Date was March 10, 2001.
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D. TENANT CONSTRUCTION PERIOD
END DATE ("TCPE DATE") The earlier of (1) the date when Tenant's
Work is substantially completed, or
(2) one hundred twenty (120) days
after the Commencement Date.
E. RENT COMMENCEMENT DATE: The day on which is 105 calendar days
following the TCPE Date (e.g., if the TCPE
Date is January 30, 2001, the Rent
Commencement Date shall be May 15, 2001).
The parties have agreed that the Rent
Commencement Date is June 25, 2001.
F. TERMINATION DATE: January 31, 2011, unless the Term is sooner
terminated as provided herein.
G. BASE RENT: Subject to the provisions of Article 3, for
the first Lease Year and through the day
immediately prior to the Reduction Date, Base
Rent shall be at an annual rate of
$2,764,830.00 and monthly at a rate of
$230,402.50 and thereafter through the last
day of the fifth Lease Year Base Rent shall
be at an annual rate of $1,509,996.00 and
monthly at a rate of $125,833.00 and
thereafter through the Termination Date, Base
Rent shall be at an annual rate of
$1,575,648.00 and monthly at a rate of
$131,304.00.
H. OPERATING EXPENSE BASE YEAR: Calendar Year 2001
I. TAX BASE YEAR: The fiscal year ending June 30, 2001
J. TENANT'S PRORATA SHARE: Initially, 5.210% until the day immediately
prior to the Reduction Date and thereafter
2.845%, subject to adjustment as set forth in
Section 25 (gg).
K. SECURITY DEPOSIT: Letter of Credit, in the initial principal
amount of $1,856,576, reduced to $1,012,762
on the Reduction Date, subject to the terms
of Article 39.
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L. GUARANTOR: None
M. TENANT'S BROKER: CB ▇▇▇▇▇▇▇ ▇▇▇▇▇--N.E. Partners, L.P.
Further explanation of the terms set forth above may be set forth in the
remaining Articles of this Lease. Capitalized terms used in this Lease shall
have the meanings set forth in Article 25 of this Lease, except for (i) terms
used in Exhibit B and Exhibit C and which are defined therein or name those
Exhibits, (ii) terms which are commonly used names and (iii) terms which are
defined above in this Article 1.
ARTICLE 2
DEMISE
Landlord hereby leases to Tenant and Tenant hereby leases from Landlord
the Premises, subject to the provisions herein contained. The Term of this Lease
shall commence on the Commencement Date and shall continue until the Termination
Date, unless sooner terminated as provided herein. Tenant shall have, as
appurtenant to the Premises, rights to use in common, subject to the Rules: (a)
the common lobbies, hallways, stairways, elevators and loading platform of the
Building, and the pipes, ducts, conduits, wires and appurtenant meters and
equipment serving the Premises in common with others and if the Premises include
less than the entire rentable area of any floor, the common toilets and other
common facilities in the central core area of such floor (the areas described in
clauses (a) and (b) being referred to in this Lease, collectively, as the
"Common Areas").
ARTICLE 3
BASE RENT
Tenant shall pay Landlord the applicable Base Rent during each month of
the Term beginning on the Rent Commencement Date, in advance on or before the
first day of each calendar month during the Term. If the Rent Commencement Date
is on a day other than the first day of a calendar month, or if the Term ends on
a day other than the last day of a calendar month, then the Base Rent for such
month shall be prorated on the basis of 1/30th of the monthly Base Rent for each
day of such month. Rent shall be paid without any prior demand or notice
therefore, and shall in all events be paid without any deduction, recoupment,
set-off or counterclaim, and without relief from any valuation or appraisement
laws. Landlord may apply payments received from Tenant to any obligations of
Tenant then accrued, without regard to such obligations as may be designated by
Tenant.
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ARTICLE 4
ADDITIONAL RENT
Section 4.1 TAXES. Subject to Section 4.4, Tenant shall pay Landlord an
amount equal to Tenant's Prorata Share of the amount by which Taxes for any
calendar year exceed Taxes for the Tax Base Year.
Section 4.2 OPERATING EXPENSES. Subject to Section 4.4, Tenant shall pay
Landlord an amount equal to Tenant's Prorata Share of the amount by which
Operating Expenses for any calendar year exceed Operating Expenses for the
Operating Expense Base Year.
Section 4.3 MANNER OF PAYMENT. Taxes and Operating Expenses shall be
paid in the following manner:
(a) Landlord may reasonably estimate in advance the amounts Tenant
shall owe for Taxes and Operating Expenses for any full or partial calendar year
of the Term. In such event, Tenant shall pay such estimated amounts, on a
monthly basis, commencing July 2001 with respect to Taxes and January 2002 with
respect to Operating Expenses, in installments equal to one-twelfth of the
annual estimate, on or before the first day of each calendar month, together
with Tenant's payment of Base Rent. Such estimate may be reasonably adjusted
from time to time by Landlord.
(b) Within one hundred and twenty (120) days after the end of each
calendar year, or as soon thereafter as practicable, Landlord shall provide a
statement (the "Statement") to Tenant showing: (a) the amount of actual Taxes
and Operating Expenses for such calendar year, with a listing of amounts for
major categories of Operating Expenses, (b) any amount paid by Tenant towards
Taxes and Operating Expenses during such calendar year on an estimated basis,
and (c) any revised estimate of Tenant's obligations for Taxes and Operating
Expenses for the current calendar year.
(c) If the Statement shows that Tenant's estimated payments were
less than Tenant's actual obligations for Taxes and Operating Expenses for such
year, Tenant shall pay the difference. If the Statement shows an increase in
Tenant's estimated payments for the current calendar year, Tenant shall pay the
difference between the new and former estimates, for the period from January 1
of the current calendar year through the month in which the Statement is sent.
Tenant shall make such payments within thirty (30) days after Landlord sends the
Statement.
(d) If the Statement shows that Tenant's estimated payments exceeded
Tenant's actual obligations for Taxes and Operating Expenses, Tenant shall
receive a credit for the difference against payments of Rent next due; provided,
however, if Tenant's estimated payments exceeded Tenant's actual obligation by
ten percent (10%) or more, Tenant may elect, by notice to Landlord, to receive a
refund of the unreimbursed excess. If the Term shall have expired and no further
Rent shall be due, Tenant shall
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receive a refund of such difference, within thirty (30) days after Landlord
sends the Statement.
(e) So long as Tenant's obligations hereunder are not materially
adversely affected thereby, Landlord reserves the right to reasonably change,
from time to time, the manner or timing of the foregoing payments. In lieu of
providing one Statement covering Taxes and Operating Expenses, Landlord may
provide separate statements, at the same or different times. No delay by
Landlord in providing the Statement (or separate statements) shall be deemed a
default by Landlord or a waiver of Landlord's right to require payment of
Tenant's obligations for actual or estimated Taxes or Operating Expenses.
Section 4.4 PRORATION. If the Term commences other than on January 1, or
ends other than on December 31, Tenant's obligations to pay estimated and actual
amounts towards Taxes and Operating Expenses for such first or final calendar
years shall be prorated to reflect the portion of such years included in the
Term. Such proration shall be made by multiplying the total estimated or actual
(as the case may be) Taxes and Operating Expenses, for such calendar years and,
respectively for the Tax Base Year and the Operating Expense Base Year, by a
fraction, the numerator of which shall be the number of days of the Term during
such calendar year, and the denominator of which shall be three hundred and
sixty-five (365).
Section 4.5 LANDLORD'S RECORDS. Landlord shall maintain records
respecting Taxes and Operating Expenses and determine the same in accordance
with sound accounting and management practices, consistently applied. This Lease
contemplates the computation of Taxes and Operating Expenses on a full accrual
basis. Landlord reserves the right to change to a cash system of accounting and,
in such event, Landlord shall make reasonable and appropriate accrual
adjustments to ensure that each calendar year, includes substantially the same
recurring items. Tenant or its representative shall have the right to examine
such records upon reasonable prior notice specifying such records Tenant desires
to examine, during normal business hours at the place or places where such
records are normally kept by sending such notice no later than ninety (90) days
following the furnishing of the Statement. Tenant may take exception to matters
included in Taxes or Operating Expenses, or Landlord's computation of Tenant's
Prorata Share of either, by sending notice specifying such exception and the
reasons therefore to Landlord no later than sixty (60) days after Landlord makes
such records available for examination. Such Statement shall be considered
final, except as to matters to which exception is taken after examination of
Landlord's records in the foregoing manner and within the foregoing times.
Tenant acknowledges that Landlord's ability to budget and incur expenses depends
on the finality of such Statement, and accordingly agrees that time is of the
essence of this Section. If Tenant takes exception to any matter contained in
such records as provided herein, Landlord shall refer the matter to an
independent certified public accountant reasonably acceptable to Tenant, whose
certification as to the proper amount shall be final and conclusive as between
Landlord and Tenant. Tenant shall promptly pay the cost of such certification
unless such certification determines that Tenant was overbilled by more than
three percent (3%). Landlord shall promptly reimburse Tenant
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for any amount so overbilled together with interest at the Default Rate on such
overbilled amount from the last day of the period examined. Pending resolution
of any such exceptions in the foregoing manner, Tenant shall continue paying
Tenant's Prorata Share of Taxes and Operating Expenses in the amounts determined
by Landlord, subject to adjustment after any such exceptions are so resolved.
Section 4.6 ELECTRICITY. If the same shall be separately metered, Tenant
shall pay, when due without penalty, directly to the utility company supplying
the same all electrical charges for standard office lighting fixtures, and
equipment and accessories customary for offices and for any special electrical
equipment installed by Tenant in the Premises. If the same is submetered by
Landlord, Tenant shall pay the amount of such charges within thirty (30) days of
billing, directly to the Landlord using the rates that do not exceed those that
would be applicable if Tenant were purchasing electricity directly from the
utility. During such periods as the Premises are neither metered by the utility
company nor submetered by Landlord, Tenant shall pay Landlord an electricity
charge of $40,070 per Lease Year prior to the Reduction Date and $21,884.00 per
Lease Year from and after the Reduction Date, proportionately increased for any
Lease Year of more than 365 days, and proportionately decreased for any part of
a Lease Year within the Term. Landlord may elect to ▇▇▇▇ a proportionate amount
of such electricity charge on a monthly or quarterly basis.
Section 4.7 RENT AND OTHER CHARGES. Base Rent, Taxes, Operating Expenses
and any other amounts which Tenant is or becomes obligated to pay Landlord under
this Lease or other agreement entered in connection herewith, are sometimes
herein referred to collectively as "Rent," and all remedies applicable to the
non-payment of Rent shall be applicable thereto. Rent shall be paid at any
office maintained by Landlord or its agent at the Property or at such other
place as Landlord may designate.
ARTICLE 5
COMMENCEMENT OF TERM
If the Commencement Date does not occur by January 15, 2000, Tenant
shall have the right to terminate this Lease by written notice to Landlord any
time thereafter up until the date on which the Commencement Date occurs. Upon
any such termination, Landlord and Tenant shall be entirely relieved of their
obligations hereunder, and any Security Deposit and Rent payments shall be
returned to Tenant. Any delay in the Commencement Date shall not subject
Landlord to liability for loss or damage resulting therefrom, and Tenant's sole
recourse with respect thereto shall be the right to terminate this Lease
described above. Landlord and Tenant shall enter into a supplement to this Lease
setting forth the Commencement Date promptly after delivery to Tenant of the
Premises with the Landlord's Work substantially completed. So long as Tenant,
its architects, engineers, designers and contractors do not interfere with
substantial completion of Landlord's Work, such persons shall be permitted
access to the Premises prior to the Commencement Date for the purpose of
designing, planning and constructing Tenant's Work. If Tenant shall be permitted
to enter the Premises prior to the
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Commencement Date for the purpose of occupying the same or commencing Tenant's
Work under the Workletter attached hereto as Exhibit C, Tenant shall comply with
all terms and provisions of this Lease, except those provisions requiring the
payment of Rent. For purposes of this Article 5, Landlord's Work shall be
substantially complete when Landlord's Work has been completed except for such
incomplete items as would not materially interfere with the Commencement and
substantial completion of Tenant's Work under the Workletter.
ARTICLE 6
CONDITION OF PREMISES
Tenant has inspected the Premises, Property, Systems and Equipment, or
has had an opportunity to do so, and agrees to accept the same "as is" without
any agreements, representations, understandings or obligations on the part of
Landlord to perform any alterations, repairs or improvements except (i) as
expressly provided in this Lease or in any separate agreement that may be signed
by the parties (ii) for any latent defects in the work to be performed under
Exhibit B.
ARTICLE 7
USE AND RULES
Tenant shall use the Premises for offices and uses incidental and
customary to an office use and no other purpose whatsoever, in compliance with
all applicable Laws, and without materially disturbing or interfering with any
other tenant or occupant of the Property. Tenant shall not use the Premises in
any manner so as to cause a cancellation of Landlord's insurance policies, or an
increase in the premiums thereunder. Tenant shall comply with all rules set
forth in Rider One attached hereto (the "Rules"). Landlord shall have the right
reasonably to amend such Rules and supplement the same with other reasonable
Rules (not expressly inconsistent with this Lease) relating to the Property, or
the promotion of safety, care, cleanliness or good order therein, and all such
amendments or new Rules shall be binding upon Tenant after five (5) days notice
thereof to Tenant. All Rules shall be applied on a non-discriminatory basis, but
nothing herein shall be construed to give Tenant or any other Person any claim,
demand or cause of action against Landlord arising out of the violation of such
Rules by any other tenant, occupant, or visitor of the Property, or out of the
enforcement or waiver of the Rules by Landlord in any particular instance.
ARTICLE 8
SERVICES AND UTILITIES
Landlord shall provide the following services and utilities (the cost of
which shall be included in Operating Expenses unless otherwise stated herein or
in any separate rider hereto):
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(a) Electricity for standard office lighting fixtures, and equipment and
accessories customary for offices provided: (1) the connected electrical load of
all of the same does not exceed an average of 8 ▇▇▇▇▇ per rentable square foot
of the Premises (or such lesser amount as may be available, based on the safe
and lawful capacity of the existing electrical circuit(s) and facilities serving
the Premises), (2) the electricity will be at 120 volts, subject to standard and
customary deviations in such voltage, and (3) the safe and lawful capacity of
the existing electrical circuit(s) serving the Premises is not exceeded.
(b) Heat and air-conditioning to provide a temperature required, in
Landlord's reasonable opinion and in accordance with applicable Law, for
occupancy of the Premises under normal business operations, from 8:00 A.M. until
6:00 P.M. Monday through Friday and 8:00 A.M. until 1:00 P.M. on Saturday,
except on Holidays. Landlord shall not be responsible for inadequate
air-conditioning or ventilation to the extent the same occurs because Tenant's
use of power exceeds 8 ▇▇▇▇▇ per rentable square feet without providing adequate
air-conditioning and ventilation therefore or if the number of individuals in
the Premises exceeds one (1) per one hundred fifty (150) rentable square feet.
If Tenant shall require air conditioning (during the air conditioning season) or
heating or ventilation during any season outside the hours and days above
specified, Landlord shall furnish such for the area or areas specified in
written request of Tenant delivered to building superintendent of Landlord
before 3:00 P.M. of the business day preceding the extra usage period. For such
services Tenant shall pay Landlord upon receipt of billing therefore, the
standard charges from time to time established by Landlord; provided, however,
during the first five (5) Lease Years, Tenant shall not incur any charges for
the first thirty (30) hours per calendar week of extra usage and in no event
will charges for such usage exceed the lowest rate charged by Landlord to any
other tenant for extra usage by such tenant.
(c) Water for drinking, lavatory and toilet purposes at those points of
supply provided for nonexclusive general use of other tenants at the Property.
(d) Customary office cleaning and trash removal service Monday through
Friday or Sunday through Thursday in and about the Premises.
(e) Signage representation on the Building Directory commensurate with
the representation afforded to other similarly sized tenants
(f) Fully automatic elevator service as designed for the use of all
tenants and the general public for access to and from all floors of the Building
by passenger elevators daily from 8:00 A.M. to 6:00 P.M. (Saturdays to 1:00
P.M.), Sundays and Holidays excepted. Subject to Force Majeure Delay, reduced
service, consisting of at least two automatic or manually operated elevators
accessing the Premises from the lobby area, will be provided at all other times.
Freight elevator service shall be available in common with other tenants from
7:00 A.M. to 6:00 P.M. daily (Saturdays, Sundays and Holidays excepted), with a
thirty (30) minute time limit for deliveries, and at other times with
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longer time limits at reasonable charges and only by arrangement in advance with
Building management. The Building will be operated as a building with
twenty-four hour, seven day access, such access to be controlled during
non-business hours.
(g) Except with respect to heat and air conditioning for which provision
is made in paragraph (b), Landlord shall seek to provide such extra utilities or
services as Tenant may from time to time request, if the same are reasonable and
feasible for Landlord to provide and do not involve modifications or additions
to the Property or existing Systems and Equipment, and if Landlord shall receive
Tenant's request within a reasonable period prior to the time such extra
utilities or services are required. Landlord may comply with written or oral
requests by any officer or employee of Tenant, unless Tenant shall notify
Landlord of, or Landlord shall request, the names of authorized individuals (up
to three (3) for each floor on which the Premises are located) and procedures
for written requests. Tenant shall, for such extra utilities or services, pay
such charges as Landlord shall from time to time reasonably establish. All
charges for such extra utilities or services shall be due at the same time as
the installment of Base Rent with which the same are billed, or if billed
separately, shall be due within thirty (30) days after such billing.
Landlord may install and operate meters or any other reasonable system
for monitoring or estimating any services or utilities used by Tenant in excess
of those required to be provided by Landlord under this Article (including a
system for Landlord's engineer to reasonably estimate any such excess usage). If
such system indicates such excess services or utilities, Tenant shall pay
Landlord's reasonable charges for installing and operating such system and any
supplementary air-conditioning, ventilation, heat, electrical or other systems
or equipment (or adjustments or modifications to the existing Systems and
Equipment), and Landlord's reasonable charges for such amount of excess services
or utilities used by Tenant.
Landlord does not warrant that any services or utilities will be free
from shortages, failures, variations, or interruptions caused by repairs,
maintenance, replacements, improvements, alterations, changes of service,
strikes, lockouts, labor controversies, accidents, inability to obtain services,
fuel, steam, water or supplies, governmental requirements or requests, or other
causes beyond Landlord's reasonable control. None of the same shall be deemed an
eviction or disturbance of Tenant's use and possession of the Premises or any
part thereof, or render Landlord liable to Tenant for abatement of Rent, or
relieve Tenant from performance of Tenant's obligations under this Lease,
provided that if any such shortages, failures, variations or interruptions
result in the Premises or a portion thereof being untenantable for more than
seventy-two (72) consecutive hours, Base Rent and additional Rent shall
thereafter ▇▇▇▇▇ in proportion to the untenantable portion of the Premises and
for so long as such portion remains untenantable. Landlord in no event shall be
liable for damages by reason of loss of profits, business interruption or other
consequential damages.
Landlord shall have the exclusive right 1) to choose the company or
companies to provide electrical service to the Property and the Premises, 2) to
aggregate the electrical
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service for the Property and the Premises with other buildings or properties, 3)
to purchase electrical service through an agent, broker or buyer's group, and 4)
to change the electrical service provider or manner of purchasing electrical
service from time to time. Landlord shall be entitled to receive a reasonable
fee (over and above any management fees or other fees) for the services Landlord
performs in connection with the selection of utility companies and the
administration and negotiation of contracts for the provision of electrical
service, but in no event will such fee plus the cost of electrical service
exceed that which Tenant would otherwise have paid if the service supplier had
not changed.
Landlord shall furnish and install at Tenant's expense all replacement
lighting tubes, lamps, bulbs, and ballasts required in the Premises.
Landlord reserves the right to stop any service or utility system, when
necessary by reason of accident or emergency, or until necessary repairs have
been completed, provided, however, that in each instance of stoppage, Landlord
shall exercise reasonable diligence to eliminate the cause thereof. Except in
case of emergency repairs, Landlord will give Tenant reasonable advance notice
of any contemplated stoppage and will use reasonable efforts to avoid
unnecessary inconvenience to Tenant by reason thereof.
ARTICLE 9
ALTERATIONS AND LIENS
Tenant shall make no additions, changes, alterations or improvements
(the "Alteration Work") to the Premises or the Systems and Equipment pertaining
to the Premises without the prior written consent of Landlord, which so long as
not affecting structure or any other area of the Property and not requiring an
expenditure aggregating more than $25,000, shall not be unreasonably withheld or
delayed. Landlord may impose reasonable requirements as a condition of such
consent including without limitation the submission of plans and specifications
for Landlord's prior written approval, obtaining necessary permits, posting
bonds, obtaining insurance, prior approval of contractors, subcontractors and
suppliers, prior receipt of copies of all contracts and subcontracts, contractor
and subcontractor lien waivers, affidavits listing all contractors,
subcontractors and suppliers, use of union labor (if Landlord uses union labor),
affidavits from engineers acceptable to Landlord stating that the Alteration
Work will not adversely affect the Systems and Equipment or the structure of the
Property, and requirements as to the manner and times in which such Alteration
Work shall be done. All Alteration Work shall be performed in a good and
workmanlike manner and all materials used shall be of a quality comparable to or
better than those in the Premises and Property and shall be in accordance with
plans and specifications approved by Landlord, and Landlord may require that all
such Work be performed under Landlord's supervision. In all cases, Tenant shall
pay Landlord a reasonable fee to cover Landlord's overhead in reviewing Tenant's
plans and specifications (not to exceed $1,000.00) and a charge of three percent
(3%) of the cost of such Alteration Work, for performing any supervision of the
Alteration Work. If Landlord consents or supervises, the same shall not be
deemed a
-11-
warranty as to the adequacy of the design, workmanship or quality of materials,
and Landlord hereby expressly disclaims any responsibility or liability for the
same. Landlord shall under no circumstances have any obligation to repair,
maintain or replace any portion of the Alteration Work.
Tenant shall keep the Property and Premises free from any mechanic's,
materialman's or similar liens or other such encumbrances in connection with any
Alteration Work on or respecting the Premises not performed by or at the request
of Landlord, and shall indemnify and hold Landlord harmless from and against any
claims, liabilities, judgments, or costs (including attorneys' fees) arising out
of the same or in connection therewith. Tenant shall give Landlord notice at
least twenty (20) days prior to the commencement of any Alteration Work (once
the same has been approved by Landlord and only after such approval) on the
Premises (or such additional time as may be necessary under applicable Laws), to
afford Landlord the opportunity of posting and recording appropriate notices of
non-responsibility. Tenant shall remove any such lien or encumbrance by bond or
otherwise within thirty (30) days after written notice by Landlord, and if
Tenant shall fail to do so, Landlord may pay the amount necessary to remove such
lien or encumbrance, without being responsible for investigating the validity
thereof. The amount so paid shall be deemed additional Rent under this Lease
payable upon demand, without limitation as to other remedies available to
Landlord under this Lease. Nothing contained in this Lease shall authorize
Tenant to do any act which shall subject Landlord's title to the Property or
Premises to any liens or encumbrances whether claimed by operation of law or
express or implied contract. Any claim to a lien or encumbrance upon the
Property or Premises arising in connection with any Work on or respecting the
Premises not performed by or at the request of Landlord shall be null and void,
or at Landlord's option shall attach only against Tenant's interest in the
Premises and shall in all respects be subordinate to Landlord's title to the
Property and Premises.
ARTICLE 10
REPAIRS
Except for customary cleaning and trash removal provided by Landlord
under Article 8, and damage covered under Article 11, Tenant shall keep the
Premises in good and sanitary condition, working order and repair (including
without limitation, carpet, wall-covering, doors, plumbing and other fixtures,
equipment, alterations and improvements whether installed by Landlord or
Tenant). In the event that any repairs, maintenance or replacements are
required, Tenant shall promptly arrange for the same either through Landlord for
such reasonable charges as Landlord may from time to time establish, or such
contractors as Landlord generally uses at the Property or such other contractors
as Landlord shall first approve in writing, and in a first class, workmanlike
manner approved by Landlord in advance in writing. If Tenant does not promptly
make such arrangements, Landlord may, but need not, make such repairs,
maintenance and replacements, and the costs paid or incurred by Landlord
therefore shall be reimbursed by Tenant promptly after request by Landlord.
Except for the negligence or willful misconduct of Landlord, Tenant shall
indemnify Landlord and pay for any repairs,
-12-
maintenance and replacements to areas of the Property outside the Premises,
caused, in whole or in part, as a result of moving any furniture, fixtures, or
other property to or from the Premises, or by Tenant or its employees, agents,
contractors, or visitors (notwithstanding anything to the contrary contained in
this Lease). Except as provided in the preceding sentence, or for damage covered
under Article 11, Landlord shall keep the Building structure and Common Areas
and the Systems and Equipment in good and sanitary condition, working order and
repair (the cost of which, other than if caused by the negligence or willful
misconduct of Landlord, shall be included in Operating Expenses to the extent
set forth in Article 25).
ARTICLE 11
CASUALTY DAMAGE
If the Premises or any Common Areas providing access thereto shall be
damaged by fire or other casualty, unless the lease of the Premises is
terminated as described below, Landlord shall restore the Premises to the extent
of available insurance proceeds. Such restoration, to the extent such proceeds
permit, shall be to substantially the condition prior to the casualty, except
for modifications required by zoning and building codes and other Laws or by any
Holder which result in immaterial reconfiguration or de minimis reduction in
area, any other modifications to the Common Areas deemed desirable by Landlord
(provided access to the Premises is not materially impaired), and except that
Landlord shall not be required to repair or replace any of Tenant's furniture,
furnishings, fixtures or equipment, or any alterations or improvements in excess
of any work performed or paid for by Landlord under any separate agreement
signed by the parties in connection herewith. Landlord shall not be liable for
any inconvenience or annoyance to Tenant or its visitors, or injury to Tenant's
business resulting in any way from such damage or the repair thereof. However,
Landlord shall allow Tenant a proportionate abatement of Rent during the time
and to the extent the Premises are unfit for occupancy for the purposes
permitted under this Lease and not occupied by Tenant as a result thereof.
Notwithstanding the foregoing to the contrary, Landlord may elect to terminate
this Lease by notifying Tenant in writing of such termination within sixty (60)
days after the date of damage (such termination notice to include a termination
date providing at least ninety (90) days for Tenant to vacate the Premises), or
if the Property shall be damaged by fire or other casualty or cause such that:
(a) repairs to the Premises and access thereto cannot reasonably be completed
within one hundred and twenty days (120) after the casualty without the payment
of overtime or other premiums, (b) more than twenty-five percent (25%) of the
Premises is affected by the damage, and fewer than twenty-four (24) months
remain in the Term, or any material damage occurs to the Premises during the
last twelve (12) months of the Term, (c) any Holder shall require that the
insurance proceeds or any portion thereof be used to retire the Mortgage debt
(or shall terminate the ground lease, as the case may be), or the damage is not
fully covered by Landlord's insurance policies, or (d) the cost of the repairs,
alterations, restoration or improvement work would exceed twenty-five percent
(25%) of the replacement value of the Building. Tenant may elect to terminate
this Lease by notifying Landlord in writing of such termination within sixty
(60) days after the date of damage if the Property shall
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be damaged by fire or other casualty or cause such that: (a) repairs to the
Premises and access thereto cannot reasonably be completed within three hundred
sixty (360) days after the casualty, or (b) more than twenty-five percent (25%)
of the Premises is affected by the damage, and fewer than twenty-four (24)
months remain in the Term, or any material damage occurs to the Premises during
the last twelve (12) months of the Term. Tenant agrees that Landlord's
obligation to restore, and the abatement of Rent provided herein, shall be
Tenant's sole recourse in the event of such damage, and waives any other rights
Tenant may have under any applicable Laws to terminate the Lease by reason of
damage to the Premises or Property. Tenant acknowledges that this Article 11
represents the entire agreement between the parties respecting damage to the
Premises or Property.
ARTICLE 12
INSURANCE, SUBROGATION, AND WAIVER OF CLAIMS
Tenant shall maintain during the Term commercial general liability
insurance, with limits of not less than $3,000,000 combined single limit for
personal injury, bodily injury or death, or property damage or destruction
(including loss of use thereof) for any one occurrence. Tenant shall also
maintain during the Term worker compensation insurance as required by statute,
and primary, noncontributory, "all-risk" property damage insurance covering
Tenant's personal property, business records, fixtures and equipment for, damage
or other loss caused by fire or other casualty or cause including, but not
limited to, vandalism and malicious mischief, theft, water damage of any type,
including sprinkler leakage, bursting or stoppage of pipes, explosion, business
interruption, and other insurable risks in amounts not less than the full
insurable replacement value of such property and full insurable value of such
other interests of Tenant (subject to reasonable deductible amounts). Tenant's
insurance shall be maintained with insurance companies licensed to do business
in the Commonwealth of Massachusetts and having a Best's rating of not less than
A-11.
Landlord shall, as part of Operating Expenses, maintain during the Term
comprehensive (or commercial) general liability insurance, with limits of not
less than $3,000,000 combined single limit for personal injury, bodily injury or
death, or property damage or destruction (including loss of use thereof) for any
one occurrence. Landlord shall also, as part of Operating Expenses, maintain
during the Term worker compensation insurance as required by statute, and
primary, non-contributory, extended coverage or "all-risk" property damage
insurance, in an amount equal to at least the full insurable replacement value
of the Building (exclusive of the costs of excavation, foundations and footings,
and such risks required to be covered by Tenant's insurance, and subject to
reasonable deductible amounts), or such other amount necessary to prevent
Landlord from being a co-insured, as well as rental insurance and such other
coverage as Landlord shall deem appropriate or that may be required by any
Holder.
Tenant shall provide Landlord with certificates evidencing such coverage
(and, with respect to liability coverage, showing Landlord and such other
parties as Landlord may designate from time to time as additional insureds)
prior to the Commencement
-14-
Date, which shall state that such insurance coverage may not be changed or
cancelled without at least twenty (20) days' prior written notice to Landlord,
and shall provide renewal certificates to Landlord at least twenty (20) days
prior to expiration of such policies. Landlord may periodically, but not more
often than once in any five year period during the Term, require that Tenant
reasonably increase the aforementioned coverage. Except as provided to the
contrary herein, any insurance carried by Landlord or Tenant shall be for the
sole benefit of the party carrying such insurance. Any insurance policies
hereunder may be "blanket policies." By this Article, Landlord and Tenant intend
that their respective property loss risks shall be borne by responsible
insurance carriers to the extent above provided, and Landlord and Tenant hereby
agree to look solely to, and seek recovery only from, their respective insurance
carriers in the event of a property loss to the extent that such coverage is
agreed to be provided hereunder by the party suffering such damage. The parties
each hereby waive all rights and claims against each other for such losses, and
waive all rights of subrogation of their respective insurers. The parties agree
that their respective insurance policies are now, or shall be, endorsed such
that said waiver of subrogation shall not affect the right of the insured to
recover thereunder, so long as no material additional premium is charged
therefore.
ARTICLE 13
CONDEMNATION
If the whole or any material part of the Premises or Property shall be
taken by power of eminent domain or condemned by any competent authority for any
public or quasi-public use or purpose, or if any adjacent property or street
shall be so taken or condemned, or reconfigured or vacated by such authority in
such manner as to require the use, reconstruction or remodeling of any part of
the Premises or Property, or if Landlord shall grant a deed or other instrument
in lieu of such taking by eminent domain or condemnation, Landlord shall have
the option to terminate this Lease upon ninety (90) days notice, provided such
notice is given no later than one hundred and eighty (180) days after the date
of such taking, condemnation, reconfiguration, vacation, deed or other
instrument. Tenant shall have reciprocal termination rights to be exercised
within such period if the whole or any material part of the Premises is
permanently taken, or if access to the Premises is permanently materially
impaired. Landlord shall be entitled to receive the entire award or payment in
connection therewith, except that Tenant shall have the right to file any
separate claim available to Tenant for any taking of Tenant's personal property
and fixtures belonging to Tenant and removable by Tenant upon expiration of the
Term, and for moving expenses (so long as such claim does not diminish the award
available to Landlord or any Holder, and such claim is payable separately to
Tenant). All Rent shall be apportioned as of the date of such termination, or
the date of such taking, whichever shall first occur. If any part of the
Premises shall be taken, and this Lease shall not be so terminated, the Rent
shall be proportionately abated to the extent any portion of the Premises
becomes untenantable by reason of such taking.
-15-
ARTICLE 14
RETURN OF POSSESSION
At the expiration or earlier termination of this Lease or Tenant's right
of possession, Tenant shall surrender possession of the Premises in the
condition required under Article 10, ordinary wear and tear excepted, and shall
surrender all keys, any key cards, and any parking stickers or cards in the
possession of Tenant or its employees (with an accounting of any that are
missing and which were furnished by Landlord), to Landlord, and advise Landlord
as to the combination of any locks or vaults then remaining in the Premises, and
shall remove all trade fixtures and personal property. All improvements,
fixtures and other items in or upon the Premises (except trade fixtures and
personal property belonging to Tenant), whether installed by Tenant or Landlord,
shall be Landlord's property and shall remain upon the Premises, all without
compensation, allowance or credit to Tenant. However, if prior to such
termination or within thirty (30) days thereafter Landlord so directs by notice,
Tenant shall promptly remove such of the foregoing items as are designated in
such notice (other than items included in Tenant's Work set forth in Exhibit C
and not noted by Landlord on the approved Working Drawings as subject to removal
at the end of the Term) and restore the Premises to the condition prior to the
installation of such items; provided, Landlord shall not require removal of
customary office improvements installed pursuant to any separate agreement
signed by both parties in connection with entering this Lease (except as
expressly provided to the contrary therein), or installed by Tenant with
Landlord's written approval (except as expressly required by Landlord in
connection with granting such approval). Notwithstanding any implication to the
contrary in this Lease, in the event Tenant constructs an interior staircase
between the two floors constituting the Premises, and obtains Landlord's consent
thereto as provided in this Lease, Landlord shall not require that Tenant remove
such staircase and restore the floor slab at the Termination Date. If Tenant
shall fail to perform any repairs or restoration, or fail to remove any items
from the Premises or the Building required hereunder, Landlord may do so, and
Tenant shall pay Landlord the cost thereof upon demand. All property removed
from the Premises or the Building by Landlord pursuant to any provisions of this
Lease or any Law may be handled or stored by Landlord at Tenant's expense, and
Landlord shall in no event be responsible for the value, preservation or
safekeeping thereof. All property not removed from the Premises or retaken from
storage by Tenant within thirty (30) days after expiration or earlier
termination of this Lease or Tenant's right to possession, shall at Landlord's
option be conclusively deemed to have been conveyed by Tenant to Landlord as if
by ▇▇▇▇ of sale without payment by Landlord. Unless prohibited by applicable
Law, Landlord shall have a lien against such property for the costs incurred in
removing and storing the same.
-16-
ARTICLE 15
HOLDING OVER
Unless Landlord expressly agrees otherwise in writing, if Tenant shall
retain possession of the Premises or any part thereof after expiration or
earlier termination of this Lease, Tenant shall be treated as a tenant at
sufferance and Tenant's occupancy shall be otherwise on the terms and conditions
as set forth in this Lease, as far as applicable, except that Tenant shall pay
in lieu of Rent, as a use and occupancy charge, for each calendar day or partial
calendar day of holdover an amount equal to the Daily Holdover Rent: provided,
however, in the event Landlord so elects by notice to the Tenant at any time
during a period of holdover, from and after such notice is effective under the
terms hereof, Tenant shall pay an amount equal to thirty-one (31) times the
Daily Holdover Rent for each thirty (30) day period or part thereof during which
Tenant continues to holdover in the Premises. Tenant shall, in addition, be
liable for all damages sustained by Landlord on account of such retention. The
foregoing provisions shall not serve as permission for Tenant to hold over, nor
serve to extend the Term. Notwithstanding the foregoing, if Tenant notifies
Landlord not less than six (6) months prior to the Termination Date that Tenant
will hold over and stipulates the length of the holdover (not to exceed sixty
(60) days), the Tenant shall be permitted to hold over during the stipulated
period at a rate per day for the first thirty (30) days of such holdover of 75%
of the Daily Holdover Rent and of 100% of the Daily Holdover Rent for the next
succeeding thirty (30) days but shall not be liable for any other damages of
Landlord relating to the holdover for the so stipulated period, but, in all
events if the Tenant holds over beyond the stipulated period, the Tenant shall,
in addition to liability of the Daily Holdover Rent as set forth above in the
first sentence of this Article 15, be liable for all damages sustained by
Landlord on account of such retention. The foregoing provisions shall not serve
as permission for Tenant to hold over except as specifically provided on notice
timely given, nor serve to extend the Term.
ARTICLE 16
NO WAIVER
No provision of this Lease will be deemed waived by either party unless
expressly waived in writing signed by the waiving party. No waiver shall be
implied by delay or any other act or omission of either party. No waiver by
either party of any provision of this Lease shall be deemed a waiver of such
provision with respect to any subsequent matter relating to such provision, and
Landlord's consent or approval respecting any action by Tenant shall not
constitute a waiver of the requirement for obtaining Landlord's consent or
approval respecting any subsequent action. Acceptance of Rent by Landlord shall
not constitute a waiver of any breach by Tenant of any term or provision of this
Lease. No acceptance of a lesser amount than the Rent herein stipulated shall be
deemed a waiver of Landlord's right to receive the full amount due, nor shall
any endorsement or statement on any check or payment or any letter accompanying
such check or payment be deemed an accord and satisfaction, and Landlord may
accept such check or payment
-17-
without prejudice to Landlord's right to recover the full amount due. The
acceptance of Rent or of the performance of any other term or provision from any
Person other than Tenant, including any Transferee, shall not constitute a
waiver of Landlord's right to approve any Transfer.
ARTICLE 17
ATTORNEYS' FEES AND JURY TRIAL
In the event of any litigation between the parties, the prevailing party
shall be entitled to obtain, as part of the judgment, all reasonable attorneys'
fees, costs and expenses incurred in connection with such litigation, except as
may be limited by applicable Law. In the interest of obtaining a speedier and
less costly hearing of any dispute, the parties hereby each irrevocably waive
the right to trial by jury. Attorneys' fees in connection with this amendment
and restatement of the Original Lease and its trifurcation as described in the
preamble to this Lease shall be paid by Tenant.
ARTICLE 18
PERSONAL PROPERTY TAXES, RENT TAXES AND OTHER TAXES
Tenant shall pay prior to delinquency all taxes, charges or other
governmental impositions assessed against or levied upon Tenant's fixtures,
furnishings, equipment and personal property located in the Premises, and any
Work to the Premises under Article 9 which is deemed to be personal property by
any governmental agency or subdivision thereof. Whenever possible, Tenant shall
cause all such items to be assessed and billed separately from the property of
Landlord, In the event any such items shall be assessed and billed with the
property of Landlord, Tenant shall pay Landlord its share of such taxes, charges
or other governmental impositions within thirty (30) days after Landlord
delivers a statement and a copy of the assessment or other documentation
separately stating the amount of such impositions applicable to Tenant's
property, Tenant shall pay any rent tax or sales tax, service tax, transfer tax
or value added tax, or any other applicable tax on the Rent or services herein
or otherwise respecting this Lease.
ARTICLE 19
SUBORDINATION, ATTORNMENT AND MORTGAGEE PROTECTION
This Lease is subject and subordinate to all Mortgages now or hereafter
placed upon the Property, and all other encumbrances and matters of public
record applicable to the Property. If any foreclosure proceedings are initiated
by any Holder or a deed in lieu is granted (or if any ground lease is
terminated), Tenant agrees to attorn and pay Rent to any Holder which is a
successor to Landlord hereunder or a purchaser at a foreclosure sale and to
execute and deliver any instruments necessary or appropriate to evidence or
effectuate such attornment (provided such Holder or purchaser shall agree to
accept this Lease and not disturb Tenant's occupancy, so long as Tenant does not
default and fail to
-18-
cure within the time permitted hereunder). However, in the event of attornment,
no Holder shall be: (i) liable for any act or omission of Landlord, or subject
to any offsets or defenses which Tenant might have against Landlord (prior to
such Holder becoming Landlord under such attornment), (ii) liable for any
security deposit or bound by any prepaid Rent not actually received by such
Holder, (iii) bound by any future modification of this Lease not consented to by
such Holder, (iv) liable for any accrued obligation, act or omission of any
prior landlord (including, without limitation, Landlord), whether prior to or
after foreclosure or termination of the superior lease, as the case may be, (v)
bound by any covenant to undertake or complete any improvement to the Building
or the Premises, or to reimburse or pay Tenant for the cost of any such
improvement, (vi) required to perform or provide any services not related to
possession or quiet enjoyment of the Premises, or (vii) required to abide by any
provisions for the diminution or abatement of Rent, other than the abatement
resulting by reason of the Rent Commencement Date being after the TCPE Date. Any
Holder may elect to make this Lease prior to the lien of its Mortgage, by
written notice to Tenant, and if the Holder of any prior Mortgage shall require,
this Lease shall be prior to any subordinate Mortgage. As long as any Mortgage
is outstanding, Tenant agrees that Tenant shall not cancel, surrender,
terminate, assign, amend or modify, or enter into any agreement to cancel,
surrender, terminate, assign, amend or modify the Lease, without the prior
written approval of such Holder. Any purported cancellation or surrender of this
Lease without the prior written consent of the Holder shall be voidable by the
Holder. In the event of any default on the part of Landlord, arising out of or
accruing under the Lease, whereby the validity or the continued existence of the
Lease might be impaired or terminated by Tenant, or Tenant might have a claim
for partial or total eviction or abatement of Rent, Tenant shall not pursue any
of its rights with respect to such default or claim, and no notice of
termination of the Lease as a result of such default shall be effective, unless
and until Tenant has given written notice of such default or claim to the
applicable Holder (but not later than the time that Tenant notifies Landlord of
such default or claim) and granted to such Holder a reasonable time, which shall
not be less than the greater of (i) the period of time granted to Landlord under
the Lease, or (ii) thirty (30) days, after the giving of such notice by Tenant
to such Holder, to cure or to undertake the elimination of the basis for such
default or claim, after the time when Landlord shall have become entitled under
the Lease to cure the cause of such default or claim; it being expressly
understood that (a) if such default or claim cannot reasonably be cured within
such cure period, such Holder shall have such additional period of time to cure
same as Tenant reasonably determines is necessary, so long as it continues to
pursue such cure with reasonable diligence, and (b) such Holder's right to cure
any such default or claim shall not be deemed to create any obligation for such
Holder to cure or to undertake the elimination of any such default or claim.
Tenant shall execute such documentation as Landlord may reasonably request from
time to time, in order to confirm the matters set forth in this Article in
recordable form. Landlord agrees to use reasonable commercial efforts to obtain
from each such Holder an agreement in the form attached hereto as Exhibit D
under which the Tenant, so long as it timely pays the Rent and other charges
payable hereunder and otherwise timely complies with the terms and provisions of
this Lease and agrees to attorn to such Holder in the event such Holder succeeds
to the interest of the Landlord in the Building, will not be disturbed in its
use and occupancy of
-19-
the Premises under the terms and conditions of this Lease notwithstanding the
foreclosure by such Holder of the interest of the Landlord.
ARTICLE 20
ESTOPPEL CERTIFICATE
Tenant shall from time to time, within twenty (20) days after written
request from Landlord, execute, acknowledge and deliver a statement (i)
certifying that this Lease is unmodified and in full force and effect or, if
modified, stating the nature of such modification and certifying that this Lease
as so modified, is in full force and effect (or if this Lease is claimed not to
be in force and effect, specifying the ground therefore) and any dates to which
the Rent has been paid in advance, and the amount of any Security Deposit, (ii)
acknowledging that there are not, to Tenant's knowledge, any uncured defaults on
the part of Landlord hereunder, or specifying such defaults if any are claimed,
and (iii) certifying such other matters as Landlord may reasonably request, or
as may be requested by Landlord's current or prospective Holders, insurance
carriers, auditors, and prospective purchasers. Any such statement may be relied
upon by any such parties. If Tenant shall fail to execute and return such
statement within the time required herein, Tenant shall be deemed to have agreed
with the matters set forth therein.
ARTICLE 21
ASSIGNMENT AND SUBLETTING
Section 21.1. TRANSFERS. Tenant shall not, without the prior written
consent of Landlord, which consent shall not be unreasonably withheld and which
is hereby given with respect to the Named Assignee, as further described below:
(i) assign, mortgage, pledge, hypothecate, encumber, or permit any lien to
attach to, or otherwise transfer, this Lease or any interest hereunder, by
operation of law or otherwise, (ii) sublet the Premises or any part thereof, or
(iii) permit the occupancy of the Premises by any Persons other than Tenant and
its employees (all of the foregoing are hereinafter sometimes referred to
collectively as "Transfers" and any Person to whom any Transfer is made or
sought to be made is hereinafter sometimes referred to as a "Transferee"). If
Tenant shall desire Landlord's consent to any Transfer, Tenant shall notify
Landlord in writing, which notice shall include: (a) the proposed effective date
(which shall not be less than thirty (30) nor more than one hundred and eighty
(180) days after Tenant's notice), (b) the portion of the Premises to be
Transferred (herein called the "Subject Space"), (c) the terms of the proposed
Transfer and the consideration therefore, the name and address of the proposed
Transferee, and a copy of all documentation pertaining to the proposed Transfer,
(d) current financial statements of the proposed Transferee certified by an
officer, partner or owner thereof, and any other information to enable Landlord
to determine the financial responsibility, character, and reputation of the
proposed Transferee, nature of such Transferee's business and proposed use of
the Subject Space, and such other information as Landlord may reasonably require
and (e) an offer executed by Tenant to the tenant under Lease dated November 24,
1980 from Cabot, Cabot & Forbes Co., Landlord's
-20-
predecessor in interest, to The Boston Company Inc., to make an assignment or
sublease to it upon the same terms and provisions applicable to such proposed
assignment or sublease, provided that Tenant shall not be obligated to make such
an offer if the proposed assignment or sublease is to be made to a Tenant
Affiliate or if the aggregate amount of rentable floor area proposed to be
assigned or sublet (whether pursuant to one or more subleases) is less than
10,000 square feet.
Upon receipt from Tenant of such request, information and offer,
Landlord shall promptly transmit such offer to tenant under said Lease dated
November 24, 1980 who shall have a period of ten (10) days after its receipt
thereof to accept the same in writing and if such an offer is not so accepted,
or if such an offer is not required to be made, the provisions of Section 21.4
shall be applicable.
The terms and provisions of any assignment or subletting permitted
hereunder shall specifically make applicable to the assignee or sublessee all of
the provisions of this Section 21 so that Landlord and the aforesaid tenant
under said Lease dated November 24, 1980 shall have against the assignee or
sublessee all rights with respect to any further assignment and subletting which
are set forth herein. Any Transfer made without complying with this Article
shall, at Landlord's option, be null, void and of no effect, or shall constitute
a Default under this Lease. Whether or not Landlord shall grant consent, Tenant
shall pay Seven Hundred and Fifty and 00/100 Dollars ($750.00) towards
Landlord's review and processing expenses, as well as any reasonable legal fees
incurred by Landlord, within thirty (30) days after written request by Landlord.
Section 21.2. APPROVAL. Landlord will not unreasonably withhold its
consent to a Transfer of any Subject Space which Landlord does not elect to
recapture, or which Landlord does not have the right to recapture, as provided
in Section 21.4 below, provided the Transfer is on the terms specified in the
notice under Section 21.1. The parties hereby agree that it shall be reasonable
under this Lease and under any applicable Law for Landlord to withhold consent
to any proposed Transfer where one or more of the following applies (without
limitation as to other reasonable grounds for withholding consent): (i) the
Transferee is of a character or reputation or engaged in a business which is not
consistent with the quality of the Property, or would be a significantly less
prestigious occupant of the Property than Tenant, (ii) the Transferee intends to
use the Subject Space for purposes which are not permitted under this Lease,
(iii) the Subject Space is not regular in shape with appropriate means of
ingress and egress suitable for normal renting purposes, (iv) the Transferee is
either a government (or agency or instrumentality thereof) or an occupant of the
Property, (v) the proposed Transferee does not have a reasonable financial
condition in relation to the obligations to be assumed in connection with the
Transfer, (vi) Tenant has committed and failed to cure a Default at the time
Tenant requests consent to the proposed Transfer, (vii) in the reasonable
judgment of Landlord, such a Transfer would violate any material term,
condition, covenant, or agreement of the Landlord involving the Property or any
other tenant's lease within it; or (viii) Transferee is a tenant or an affiliate
of a tenant of the Property or Landlord has proposed and is actively proposing
that the Transferee or an affiliate shall become a tenant of the Property. If
Landlord wrongfully withholds its consent to any
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Transfer, Tenant's sole and exclusive remedy therefore shall be to seek specific
performance of Landlord's obligation to consent to such Transfer.
Section 21.3 TRANSFER PREMIUM. If Landlord consents to a Transfer, and
as a condition thereto which the parties hereby agree is reasonable, Tenant
shall pay Landlord fifty percent (50%) of any Transfer Premium derived by Tenant
from such Transfer. "Transfer Premium" shall mean all rent, additional rent or
other consideration paid by such Transferee in excess of the Rent payable by
Tenant under this Lease (on a monthly basis during the Term, and on a per
rentable square foot basis, if less than all of the Premises is transferred),
after deducting the reasonable expenses incurred by Tenant for any changes,
alterations and improvements to the Premises, any other economic concessions or
services provided to the Transferee, and any customary brokerage commissions and
marketing expense paid in connection with the Transfer. If part of the
consideration for such Transfer shall be payable other than in cash, Landlord's
share of such non-cash consideration shall be in cash unless an alternate form
proposed is satisfactory to Landlord. The percentage of the Transfer Premium due
Landlord hereunder shall be paid within ten (10) days after Tenant receives any
Transfer Premium from the Transferee.
Section 21.4 RECAPTURE. Notwithstanding anything to the contrary
contained in this Article, Landlord shall have the option, subject to the rights
of the tenant under said Lease dated November 24, 1980, by giving written notice
to Tenant within thirty (30) days after receipt of Tenant's notice of any
proposed Transfer under Section 21.1., to recapture the Subject Space if the
Subject Space comprises more than 50% of the Premises at the time the Transfer
is proposed. Such recapture notice shall cancel and terminate this Lease with
respect to the Subject Space as of the date stated in Tenant's notice as the
effective date of the proposed Transfer (or at Landlord's option, shall cause
the Transfer to be made to Landlord or its agent, in which case the parties
shall execute the Transfer documentation promptly thereafter). If this Lease
shall be cancelled with respect to less than the entire Premises, the Rent
reserved herein shall be prorated and Tenant's Prorata Share redetermined on the
basis of the number of rentable square feet retained by Tenant in proportion to
the number of rentable square feet contained in the Premises, this Lease as so
amended shall continue thereafter in full force and effect, and upon request of
either party, the parties shall execute written confirmation of the same.
Section 21.5. TERMS OF CONSENT. Except as provided below with regard to
the Named Assignee, if Landlord consents to a Transfer: (a) the terms and
conditions of this Lease, including among other things, Tenant's liability for
the Subject Space, shall in no way be deemed to have been waived or modified,
(b) such consent shall not be deemed consent to any further Transfer by either
Tenant or a Transferee, (c) no Transferee shall succeed to any rights provided
in this Lease or any amendment hereto to extend the Term of this Lease, expand
the Premises, or lease additional space, any such rights being deemed personal
to Tenant, (d) Tenant shall deliver to Landlord promptly after execution, an
original executed copy of all documentation pertaining to the Transfer in form
reasonably acceptable to Landlord, and (e) Tenant shall furnish upon Landlord's
request a complete statement, certified by an independent certified public
accountant, or Tenant's
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chief financial officer, setting forth in detail the computation of any Transfer
Premium Tenant has derived and shall derive from such Transfer. Landlord or its
authorized representatives shall have the right at all reasonable times to audit
the books, records and papers of Tenant relating to any Transfer, and shall have
the right to make copies thereof. If the Transfer Premium respecting any
Transfer shall be found understated, Tenant shall within thirty (30) days after
demand pay the deficiency, and if understated by more than five percent (5%),
Tenant shall pay Landlord's costs of such audit. Any sublease hereunder shall be
subordinate and subject to the provisions of this Lease, and if this Lease shall
be terminated during the term of any sublease, Landlord shall have the right to:
(i) treat such sublease as cancelled and repossess the Subject Space by any
lawful means, or (ii) require that such subtenant attorn to and recognize
Landlord as its landlord under any such sublease. If Tenant shall Default and
fail to cure within the time permitted for cure under Section 23.1, Landlord is
hereby irrevocably authorized, as Tenant's agent and attorney-in-fact, to direct
any Transferee to make all payments under or in connection with the Transfer
directly to Landlord (which Landlord shall apply towards Tenant's obligations
under this Lease) until such Default is cured.
Section 21.6 CERTAIN TRANSFERS. For purposes of this Lease, the term
"Transfer" shall also include (a) if Tenant is a partnership or a limited
liability company, the withdrawal or change, voluntary, involuntary or by
operation of law, of a majority of the partners or members, as the case may be,
or a transfer of a majority of partnership interests or membership interests, as
the case may be, within a twelve month period, or the dissolution of the
partnership or the limited liability company, as the case may be, and (b) if
Tenant is a corporation whose stock is not publicly held and not traded through
an exchange or over the counter, the dissolution, merger, consolidation or other
reorganization of Tenant, or within a twelve month period: (i) the sale or other
transfer of more than an aggregate of fifty percent (50%) of the voting shares
of Tenant (other than to immediate family members by reason of gift or death or
in connection with a public offering) or (ii) the sale, mortgage, hypothecation
or pledge of more than an aggregate of fifty percent (50%) of Tenant's net
assets.
Section 21.7 RELATED PARTY TRANSFERS. Notwithstanding the provisions of
Section 21.1, Landlord's consent to a Transfer shall not be required (a) if the
Transferee controls, is controlled by or is under common control with the Tenant
originally named in this Lease or the Named Assignee, or (b) if the Transferee
succeeds to the business of the Tenant originally named herein or the Named
Assignee and is an entity into which Tenant or the Named Assignee has merged or
with which Tenant or the Named Assignee has consolidated. In the event consent
of the Landlord is not required as provided in this Section 21.7, the provisions
of Section 21.3 and 21.4 shall not be applicable to such Transfer.
Section 21.8 NAMED ASSIGNEE TRANSFER. Landlord hereby consents to the
assignment of this Lease to CSMG Acquisition Sub, Inc., a Delaware corporation,
("Named Assignee"), a wholly-owned subsidiary of The Management Network Group,
Inc., a Delaware corporation, ("TMNG"); TMNG by separate instrument, being
executed and delivered simultaneously with such assignment, shall guarantee
payment and
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performance of Named Assignee's obligations hereunder. Named Assignee, upon
accepting such assignment and assuming the obligations of the Tenant hereunder
by a separate assignment and assumption agreement approved by Landlord, shall
succeed to all of the obligations and rights of the Tenant hereunder except
Named Assignee shall not be liable for the obligations of Tenant for any period
prior to the assignment to Named Assignee and the Tenant originally named herein
shall be and remain solely liable for the obligations of such prior periods,
provided, however, the Tenant originally named herein shall remain liable with
respect to additional rent under Article 4 of this Lease accruing with respect
to periods prior to the date of such assignment and not paid prior to the date
of such assignment. Correspondingly, the Tenant originally named herein shall
have no obligation with respect to liability for periods from and after the
assignment to the Named Assignee. In the event of such assignment, Landlord
acknowledges that the rights of recapture otherwise applicable to the Premises
have been waived with respect to such assignment (but are effective with respect
to any further assignment, sublet or transfer by the Named Assignee, or a
successor to the Named Assignee under Section 21.7, attempting further to
assign, sublet or transfer).
ARTICLE 22
RIGHTS RESERVED BY LANDLORD
Except to the extent expressly limited herein, Landlord reserves full
rights to control the Property (which rights may be exercised without subjecting
Landlord to claims for constructive eviction, abatement of Rent, damages or
other claims of any kind), including more particularly, but without limitation,
the following rights:
(a) To change the name or street address of the Property; install
and maintain signs on the exterior and interior of the Property; retain at all
times, and use in appropriate instances, keys to all doors within and into the
Premises; grant to any Person the right to conduct any business or render any
service at the Property, whether or not it is the same or similar to the use
permitted Tenant by this Lease so long as no such business or service derogates
from the first class office use and reputation of the Building; and have access
for Landlord and other tenants of the Property to any mail chutes located on the
Premises according to the rules of the United States Postal Service.
(b) To enter the Premises at reasonable hours for reasonable
purposes, including inspection and supplying cleaning service or other services
to be provided Tenant hereunder, to show the Premises to current and prospective
mortgage lenders, ground lessors, insurers, and prospective purchasers, tenants
and brokers, at reasonable hours, and if Tenant shall abandon the Premises at
any time, or shall vacate the same during the last three (3) months of the Term,
to decorate, remodel, repair, or alter the Premises.
(c) To limit or prevent access to the Property, shut down elevator
service, activate elevator emergency controls, or otherwise take such action or
preventative measures deemed reasonably necessary by Landlord for the safety of
tenants
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or other occupants of the Property or the protection of the Property and other
property located thereon or therein, in case of fire, invasion, insurrection,
riot, civil disorder, public excitement or other dangerous condition, or threat
thereof.
(d) To decorate and to make alterations, additions and improvements,
structural or otherwise, in or to the Property or any part thereof, and any
adjacent building, structure, parking facility, land, street or alley (including
without limitation changes and reductions in corridors, lobbies, parking
facilities and other public areas and the installation of kiosks, planters,
sculptures, displays, escalators, mezzanines, and other structures, facilities,
amenities and features therein, and changes for the purpose of connection with
or entrance into or use of the Property in conjunction with any adjoining or
adjacent building or buildings, now existing or hereafter constructed) provided
no such action shall materially interfere with Tenant's access to, or use of,
the Premises. In connection with such matters, or with any other repairs,
maintenance, improvements or alterations, in or about the Property, Landlord may
erect scaffolding and other structures reasonably required, and during such
operations may enter upon the Premises and take into and upon or through the
Premises, all materials required to make such repairs, maintenance, alterations
or improvements, and may close public entry ways, other public areas, restrooms,
stairways or corridors, provided no such action shall materially interfere with
Tenant's access to, or use of, the Premises.
(e) To install, use and maintain in and through the Premises pipes,
conduits, wires, ducts or mechanical installations serving the Building,
provided such installation, use or maintenance does not materially interfere
with the conduct of Tenant's business. Tenant agrees that there shall be no
construction of partitions or other obstructions which might interfere with the
moving or the servicing of equipment of Landlord to or from the enclosures
containing such installations and Tenant further agrees that neither Tenant, nor
its servants, employees, agents, visitors, licensees, or contractors shall at
any time tamper with, adjust, or otherwise in any manner affect Landlord's
mechanical installations.
(f) To take any other action which Landlord deems reasonable in
connection with the preservation of the Building or the Property.
(g) To approve the weight, size, and location of safes or other
heavy equipment or articles, which articles may be moved in, about, or out of
the Building or Premises only at such times and in such manner as Landlord shall
direct, at Tenant's sole risk and responsibility.
(h) To re-determine the rentable square footage of the Premises, the
Building or the Property (or any part thereof) at any time during the Lease Term
by remeasuring the area thereof in accordance with the then current ANSI/BOMA
standards so long as any such remeasurement shall not result in an increase or
decrease in Base Rent or additional Rent as set forth in this Lease or Tenant's
Prorata Share for the balance of the Term as such Term may be extended pursuant
to the provisions of this Lease.
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In connection with entering the Premises to exercise any of the
foregoing rights, including without limitation under clause 5(a) or (b) of this
Article 22, Landlord shall: (i) provide reasonable advance written or oral
notice to Tenant's on-site manager or other appropriate person (except in
emergencies, or for routine cleaning or other routine matters), and (ii) take
reasonable steps to minimize any interference with Tenant's business.
Furthermore, Landlord shall not, except in emergency, enter any portions of the
Premises which Tenant has secured and which Tenant has notified Landlord are
confidential areas.
ARTICLE 23
LANDLORD'S REMEDIES
Section 23.1. DEFAULT. The occurrence of any one or more of the
following events shall constitute a "Default" by Tenant, which if not cured
within any applicable time permitted for cure below, shall give rise to
Landlord's remedies set forth in Section 23.2, below:
(i) failure by Tenant to make when due any payment of Rent, unless
such failure is cured within five (5) days after notice (provided that as to
Base Rent only the first two (2) defaults in any twelve (12) month period shall
be entitled to such cure period);
(ii) failure by Tenant to observe or perform any of the terms or
conditions of this Lease to be observed or performed by Tenant other than the
payment of Rent, or as provided below, unless such failure is cured within
thirty (30) days after notice, or such shorter period expressly provided
elsewhere in this Lease (provided, if the nature of Tenant's failure is curable
and is such that more time is reasonably required in order to cure, Tenant shall
not be in Default if Tenant commences to cure within such period and thereafter
diligently pursues the cure of such failure and in fact completes said cure
within a reasonable time after such notice;
(iii) failure by Tenant to comply with the Rules, unless such
failure is cured within thirty (30) days after notice (provided, if the nature
of Tenant's failure is such that more time is reasonably required in order to
cure, Tenant shall not be in Default if Tenant commences to cure within such
period and thereafter diligently pursues the cure of such failure and in fact
completes said cure within a reasonably time after such notice thereof);
(iv) the failure to take possession of the Premises within sixty
(60) days after the Commencement Date;
(v)(a) making by Tenant or any guarantor of this Lease
("Guarantor") of any general assignment for the benefit of
creditors,
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(b) filing by or against Tenant or any Guarantor of a petition
to have Tenant or such Guarantor adjudged a bankrupt or a
petition for reorganization or arrangement under any Law
relating to bankruptcy (unless, in the case of a petition
filed against Tenant or such Guarantor, the same is
dismissed within sixty (60) days),
(c) appointment of a trustee or receiver to take possession of
substantially all of Tenant's assets located on the
Premises or of Tenant's interest in this Lease, where
possession is not restored to Tenant within thirty (30)
days,
(d) attachment, execution or other judicial seizure of
substantially all of Tenant's assets located on the
Premises or of Tenant's interest in this Lease if not
released or discharged within thirty (30) days, or
(e) Tenant's or any Guarantor's insolvency or admission of an
inability to pay its debts as they mature;
(vi) any material misrepresentation herein, or material
misrepresentation or omission in any financial statements or other materials
provided by Tenant or any Guarantor in connection with negotiating or entering
this Lease or in connection with any Transfer under Article 21;
(vii) cancellation of any guaranty of this Lease by any Guarantor;
or
(viii) the occurrence of a Transfer of this Lease, or the Premises
or any part thereof, in violation of Article 21.
The notice and cure periods provided herein are in lieu of, and not in
addition to, any notice and cure periods provided by Law.
Section 23.2. REMEDIES. Upon the happening of any Default
(notwithstanding any license of a former breach of covenant or waiver of the
benefit hereof or consent in a former instance), Landlord or Landlord's agents
or servants may give to Tenant a notice (hereinafter called "notice of
termination") terminating this Lease on a date specified in such notice of
termination (which shall be not less than five (5) days after the date of the
mailing of such notice of termination), and this Lease and the Term, as well as
any and all of the right, title and interest of the Tenant hereunder, shall
wholly cease and expire on the date set forth in such notice of termination
(Tenant hereby waiving any rights of redemption) in the same manner and with the
same force and effect as if such date were the date originally specified herein
for the expiration of the Lease Term, and Tenant shall then quit and surrender
the Premises to Landlord.
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In addition or as an alternative to the giving of such notice of
termination, Landlord or Landlord's agents or servants may, by any suitable
action or proceeding at law, immediately or at any time thereafter re-enter the
Premises and remove therefrom Tenant, its agents, employees, servants,
licensees, and any subtenants and other persons, and all or any of its or their
property therefrom, and repossess and enjoy the Premises, together with all
additions, alterations and improvements thereto; but, in any event under this
Section 23.2, Tenant shall remain liable as hereinafter provided.
The words "re-enter" and "re-entry" as used throughout this Article 23
are not restricted to their technical legal meanings.
If this Lease is terminated or if Landlord shall re-enter the Premises
as aforesaid, or in the event of the termination of this Lease, or of re- entry,
by or under any proceeding or action or any provision of law by reason of a
Default hereunder on the part of Tenant:
(a) Tenant covenants and agrees forthwith to pay and be liable for, on
the days originally fixed herein for the payment thereof, amounts equal to the
several installments of Base Rent and all other Rent and other charges reserved
as they would, under the terms of this Lease, become due if this Lease had not
been terminated or if Landlord had not entered or re-entered, as aforesaid, and
whether the Premises be re-let or remain vacant, in whole or in part, or for a
period less than the remainder of the Term, or for the whole thereof, but, in
the event the Premises be re-let by Landlord, Tenant shall be entitled to a
credit in the net amount of rent and other charges received by Landlord in
re-letting, after deduction of all reasonable expenses incurred in re-letting
the Premises (including, without limitation, remodeling costs, brokerage fees
and the like), and in collecting the rent in connection therewith, in the
following manner:
Amounts received by Landlord after re-letting shall first be applied
against such Landlord's expenses, until the same are recovered, and until such
recovery, Tenant shall pay, as of each day when a payment would fall due under
this Lease, the amount which Tenant is obligated to pay under the terms of this
Lease (Tenant's liability prior to any such re-letting and such recovery not in
any way to be diminished as a result of the fact that such re-letting might be
for a rent higher than the rent provided for in this Lease); when and if such
expenses have been completely recovered, the amounts received from re-letting by
Landlord as have not previously been applied shall be credited against Tenant's
obligations as of each day when a payment would fall due under this Lease, and
only the net amount thereof shall be payable by Tenant. Further, Tenant shall
not be entitled to any credit of any kind for any period after the date when the
term of this Lease is scheduled to expire according to its terms, nor shall
Tenant be entitled to any amount which the Landlord receives with respect to
re-letting in excess of the aggregate of Tenant's obligations.
(b) As an alternative to clause (a), upon Landlord's election, which
election may be made by notice given to Tenant at any time after the termination
of this Lease under Section 23.1, above, and whether or not Landlord shall have
collected any damages
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as hereinbefore provided in this Article 23, and in lieu of all other such
damages beyond the date of such notice, Tenant shall promptly pay to Landlord
upon such notice, as liquidated damages, an amount of money equal to the sum of:
(i) any unpaid Rent as of the termination date including interest at the Default
Rate, (ii) any unpaid Rent which would have accrued after the termination date
through the time of payment including interest at the Default Rate to the date
of payment, (iii) the present value of any unpaid Rent which would have accrued
after the time of payment during the balance of the Term, less the present value
of the fair market rental value of the Premises for such period, after deduction
from such fair market rental value of the Premises of Costs of Re-letting for
such balance of the Term (such net amount not to be less than zero in any event,
it being the intention of the parties that Landlord shall have no obligation to
pay to Tenant or to offset against other sums Tenant owes to Landlord the
excess, if any, of the present value of fair market rental value over the
present value of said unpaid Rent), and (iv) any other amounts necessary to
compensate Landlord for all damages caused by Tenant's failure to perform its
obligations under this Lease. For purposes of computing the amount of Rent
herein that would have accrued after the termination date, Tenant's Prorata
Share of Taxes and Operating Expenses shall be projected based upon the average
rate of increase, if any, in such items from the Commencement Date through the
termination date. Fair market rental value, Costs of Re-letting and the
aforesaid projection of Tenant's Prorata Share of Taxes and Operating Expenses
shall be determined as reasonably estimated by Landlord. Present value shall be
computed on the basis of a discount rate equal to the then-current yield on
United States Treasury obligations having a maturity approximately equal to the
residue of the Lease Term as determined by Landlord.
Nothing contained in this Lease shall 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
proceeds in which, the damages are to be proved, whether or not the amount be
greater, equal to, or less than the amount of the loss or damages referred to
above.
In lieu of any other damages or indemnity and in lieu of the recovery by
Landlord of all sums payable under all the foregoing provisions of this Section
23.2, Landlord may elect to collect from Tenant, by notice to Tenant, at any
time after this Lease is terminated under any of the provisions contained in
this ARTICLE 23 or otherwise terminated by breach of any obligation of Tenant
and before such full recovery, and Tenant shall thereupon pay, as liquidated
damages, an amount equal to the sum of the Rent payable for the twelve (12)
months ended next prior to the such termination plus the amount of Rent of any
kind accrued and unpaid at the time of such election plus any and all expenses
which the Landlord may have incurred for and with respect to the collection of
any of such rent.
Tenant, for itself and any and all persons claiming through or under
Tenant, including its creditors, upon the termination of this Lease and of the
Term in accordance with the terms hereof, or in the event of entry of judgment
for the recovery of the
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possession of the Premises in any action or proceeding, or if Landlord shall
enter the Premises by process of law or otherwise, hereby waives any right of
redemption provided or permitted by any statute, law or decision now or
hereafter in force, and does hereby waive, surrender and give up all rights or
privileges which it or they may or might have under and by reason of any present
or future law or decision, to redeem the Premises or for a continuation of this
Lease for the term of this Lease hereby demised after having been dispossessed
or ejected therefrom by process of law, or otherwise.
Section 23.3. REMEDIES CUMULATIVE. Landlord shall at all times have the
rights and remedies (which shall be cumulative with each other and cumulative
and in addition to those rights and remedies available under Section 23.2
above), of any Law and other provisions of this Lease, without prior demand or
notice except as required by applicable Law, including without limitation the
right to seek any declaratory, injunctive or other equitable relief, and
specifically enforce this Lease, or restrain or enjoin a violation or breach of
any provision hereof.
Section 23.4. LATE CHARGES AND INTEREST. Tenant shall pay, as additional
Rent, a service charge of Two Hundred Dollars ($200.00) for bookkeeping and
administrative expenses, if Rent is not received within five (5) days after its
due date. In addition, any Rent paid after it is due shall accrue interest from
the due date at the Default Rate, until payment is received by Landlord. Such
service charge and interest payments shall not be deemed consent by Landlord to
late payments, nor a waiver of Landlord's right to insist upon timely payments
at any time, nor a waiver of any remedies to which Landlord is entitled as a
result of the late payment of Rent.
Section 23.5. CERTAIN DEFINITIONS. "Net Re-Letting Proceeds" shall mean
the total amount of rent and other consideration paid by any Replacement
Tenants, less all Costs of Re-Letting, during a given period of time. "Costs of
Re-Letting" shall include without limitation, all reasonable costs and expenses
incurred by Landlord for any repairs, maintenance, changes, alterations and
improvements to the Premises, brokerage commissions, advertising costs,
attorneys' fees, any customary free rent periods or credits, tenant improvement
allowances, take-over lease obligations and other customary, necessary or
appropriate economic incentives required to enter leases with Replacement
Tenants, and costs of collecting rent from Replacement Tenants. "Replacement
Tenants" shall mean any Persons to whom Landlord re-lets the Premises or any
portion thereof pursuant to this Article.
Section 23.6. REMOVAL. Any and all property that may be removed from the
Premises by Landlord pursuant to the authority of the Lease or of Law, to which
Tenant is or may be entitled, may be handled, removed, or stored in a commercial
warehouse or otherwise by Landlord at Tenant's risk, costs, and expense, and
Landlord shall in no event be responsible for the value, preservation, or
safekeeping of that property. Tenant shall pay to Landlord, upon demand, any and
all expenses incurred in any removal and all storage charges against that
property as long as the same shall be in Landlord's possession or under the
Landlord's control. Any property of Tenant not removed from
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the Premises or retaken from storage by Tenant within thirty (30) days after the
end of the Term shall be conclusively presumed to have been abandoned by Tenant.
Section 23.7. LANDLORD ACTION. If Tenant at any time fails to make any
payment or perform any other act on its part to be made or performed under this
Lease, Landlord may, but shall not be obligated to, after reasonable notice or
demand and without waiving or releasing Tenant from any obligation under this
Lease, make such payment or perform such other act to the extent Landlord may
deem desirable and in that connection pay expenses and employ counsel. All sums
paid by Landlord and all costs, charges, and expenses incurred by Landlord in
enforcing Tenant's obligations under this Lease or incurred by Landlord in any
litigation, negotiation, or transaction in which Tenant causes Landlord, without
Landlord's fault, to be involved or concerned (including, but not limited to
attorneys' fees and costs) shall be payable upon demand, together with interest
at the Default Rate from the date of such failure by Tenant.
Section 23.8. OTHER DEFAULT MATTERS. No re-entry or repossession,
repairs, changes, alterations and additions, re-letting, acceptance of keys from
Tenant, or any other action or omission by Landlord shall be construed as an
election by Landlord to terminate this Lease or Tenant's right to possession, or
accept a surrender of the Premises, nor shall the same operate to release the
Tenant in whole or in part from any of Tenant's obligations hereunder, unless
express written notice of such intention is sent by Landlord or its agent to
Tenant. To the fullest extent permitted by Law, all rent and other consideration
paid by any Replacement Tenants shall be applied: first, to the Costs of
Re-Letting, second, to the payment of any Rent theretofore accrued, and the
residue, if any, shall be held by Landlord and applied to the payment of other
obligations of Tenant to Landlord as the same become due (with any remaining
residue to be retained by Landlord). Landlord shall be under no obligation to
observe or perform any provision of this Lease on its part to be observed or
performed which accrues after the date of any Default by Tenant hereunder not
cured within the times permitted hereunder. The times set forth herein for the
curing of Defaults by Tenant are of the essence of this Lease. Tenant hereby
irrevocably waives any right otherwise available under any Law to redeem or
reinstate this Lease.
ARTICLE 24
LANDLORD'S RIGHT TO CURE
If Landlord shall fail to perform any term or provision under this Lease
required to be performed by Landlord, Landlord shall not be deemed to be in
default hereunder nor subject to any claims for damages of any kind, unless such
failure shall have continued for a period of thirty (30) days after written
notice thereof by Tenant; provided, if the nature of Landlord's failure is such
that more than thirty (30) days are reasonably required in order to cure,
Landlord shall not be in default if Landlord commences to cure such failure
within such thirty (30) day period, and thereafter within a reasonable time
cures. The aforementioned periods of time permitted for Landlord to cure shall
be extended for any period of time during which Landlord is delayed in, or
prevented from,
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curing due to fire or other casualty, strikes, lock-outs or other labor
troubles, shortages of equipment or materials, governmental requirements, power
shortages or outages, acts or omissions by Tenant or other Persons, and other
causes beyond Landlord's reasonable control. If Landlord shall fail to cure
within the times permitted for cure herein, Landlord shall be subject to such
remedies as may be available to Tenant (subject to the other provisions of this
Lease); provided, in recognition that Landlord must receive timely payments of
Rent and operate the Property, Tenant shall have no right of self-help to
perform repairs or any other obligation of Landlord, and shall have no right to
withhold, set-off, or ▇▇▇▇▇ Rent, except as otherwise stated herein.
ARTICLE 25
CAPTIONS, DEFINITIONS AND SEVERABILITY
The captions of the Articles and Sections of this Lease are for
convenience of reference only and shall not be considered or referred to in
resolving questions of interpretation. If any term or provision of this Lease
shall be found invalid, void, illegal, or unenforceable with respect to any
particular Person by a court of competent jurisdiction, it shall not affect,
impair or invalidate any other terms or provisions hereof, or its enforceability
with respect to any other Person, the parties hereto agreeing that they would
have entered into the remaining portion of this Lease notwithstanding the
omission of the portion or portions adjudged invalid, void, illegal, or
unenforceable with respect to such Person.
(a) "ANSI/BOMA" shall mean the measurement standards applicable to
areas of the Building
(b) "Alteration Work" shall have the meaning specified therefore in
Article 9.
(c) "Building" shall mean the structure identified in Article 1 of
this Lease.
(d) "Costs of Re-Letting" shall have the meaning specified therefore
in Section 23.5.
(e) "Daily Holdover Rent" shall mean an amount equal to 200% of the
greater of (x) the Rent payable during the last year of the Term or (y) the Fair
Market Rental Rate as reasonably determined by the Landlord divided by 365.
(f) "Default" shall have the meaning specified therefore in Section
23.1.
(g) "Default Rate" shall mean three percent (3%) per annum over the
Prime Rate from time to time of Chase Bank, N.A., or the highest rate permitted
by applicable Law, whichever shall be less.
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(h) "Extension Period" shall have the meaning specified therefore in
Article 37.
(i) "Fair Market Rental Rate" shall have the meaning specified
therefore in Article 37.
(j) "Force Majeure Delay" shall mean any cause beyond the reasonable
control of Landlord, including, without limitation, strikes, lockouts, labor
trouble, disorder, inability to procure materials, failure of power, restrictive
governmental laws and regulations, riots, insurrections, war, fuel shortages,
accidents, casualties and acts of God.
(k) "Hazardous Material" shall have the meaning specified therefore
in Article 30.
(l) "Holder" shall mean the holder of any Mortgage at the time in
question, and where such Mortgage is a ground lease, such term shall refer to
the ground lessor.
(m) "Holidays" shall mean all federally observed holidays, including
New Year's Day, President's Day, Memorial Day, Independence Day, Labor Day,
Veterans' Day, Thanksgiving Day, Christmas Day, and to the extent of utilities
or services provided by union members engaged at the Property, such other
holidays observed by such unions.
(n) "Landlord" and "Tenant" shall be applicable to one or more
Persons as the case may be, and the singular shall include the plural, and the
neuter shall include the masculine and feminine; and if there be more than one,
the obligations thereof shall be joint and several. For purposes of any
provisions indemnifying or limiting the liability of Landlord, the term
"Landlord" shall include Landlord's present and future partners, beneficiaries,
trustees, officers, directors, employees, shareholders, principals, agents,
members, managers, affiliates, successors and assigns.
(o) "Laws" or "Law" shall mean all federal, state, county and local
governmental and municipal laws, statutes, ordinances, rules, regulations,
codes, decrees, orders and other such requirements, applicable equitable
remedies and decisions by courts in cases where such decisions are considered
binding precedents in the state in which the Property is located, and decisions
of federal courts applying the Laws of such State.
(p) "Lease Year" shall mean each consecutive twelve (12) month
period commencing on the day immediately following the TCPE Date, provided,
however, if the TCPE Date is not the last day of a calendar month, the first
Lease Year shall end on the last day of the twelfth full calendar month after
the TCPE Date and
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successive Lease Years shall be the twelve (12) calendar month periods
succeeding the first Lease Year.
(q) "Lines" shall have the meaning specified therefore in Section
29.1.
(r) "Line Problems" shall have the meaning specified therefore in
Section 29.4.
(s) "Mortgage" shall mean all mortgages, deeds of trust, ground
leases and other such encumbrances now or hereafter placed upon the Property or
Building, or any part thereof, and all renewals, modifications, consolidations,
replacements or extensions thereof, and all indebtedness now or hereafter
secured thereby and all interest thereon.
(t) "Named Assignee" shall have the meaning specified therefore in
Section 21.8.
(u) "Net Re-Letting Proceeds" shall have the meaning specified
therefore in Section 23.5.
(v) "Operating Expenses" shall mean all expenses, costs and amounts
(other than Taxes) of every kind and nature which Landlord shall pay, or accrue
for, during any calendar year any portion of which occurs during the Term,
because of or in connection with the ownership, management, repair, maintenance,
restoration and operation of the Property, including without limitation, any
amounts paid for: (i) utilities for the Property, including but not limited to
electricity (limited as provided in Section 4.6 above), power, gas, steam,
chilled water, oil or other fuel, water, sewer, lighting, heating, air
conditioning and ventilating, (ii) permits, licenses and certificates necessary
to operate, manage and lease the Property, (iii) insurance applicable to the
Property, but not limited to the amount of coverage Landlord is required to
provide under this Lease, (iv) supplies, tools, equipment and materials used in
the operation, repair and maintenance of the Property, (v) reasonable and
customary accounting, legal and other services relating to the Property, (vi)
any equipment rental of any kind, provided same is not considered a capital
expense under generally accepted accounting principles, or management agreements
(including the cost of any management fee actually paid thereunder and the fair
rental value of any office space provided thereunder, up to customary and
reasonable amounts), (vii) wages, salaries and other compensation and benefits
(including the fair value of any parking privileges provided) for all persons
engaged in the operation, maintenance or security of the Property, and
employer's Social Security taxes, unemployment taxes or insurance, and any other
taxes which may be levied on such wages, salaries, compensation and benefits,
and (viii) operation, repair, and maintenance of all Systems and Equipment and
components thereof (including replacement of components), janitorial service,
alarm and security service, window cleaning, trash removal, elevator
maintenance, cleaning of walks, parking facilities and building walls, removal
of ice and snow, replacement of wall and floor coverings, ceiling tiles and
fixtures in lobbies, corridors, restrooms and other common or public areas or
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facilities, maintenance and replacement of shrubs, trees, grass, sod and other
landscaped items, irrigation systems, drainage facilities, fences, curbs, and
walkways, re-paving and re-striping parking facilities, and roof repairs. If the
Property is not fully occupied during all or a portion of any calendar year,
Landlord may, in accordance with sound accounting and management practices,
determine the amount of variable Operating Expenses (i.e. those items which vary
according to occupancy levels) that would have been paid had the Property been
fully occupied, and the amount so determined shall be deemed to have been the
amount of variable Operating Expenses for such year. Notwithstanding the
foregoing, Operating Expenses shall not, however, include:
A. depreciation, interest and amortization on Mortgages, and
other debt costs or ground lease payments, if any; legal fees in
connection with leasing, tenant disputes or enforcement of leases; real
estate brokers' leasing commissions; improvements or alterations to
tenant spaces; the cost of providing any service directly to and paid
directly by, any tenant; any costs expressly excluded from Operating
Expenses elsewhere in this Lease; costs of any items to the extent
Landlord receives reimbursement from insurance proceeds or from a third
party (such proceeds to be deducted from Operating Expenses in the year
in which received); and
B. capital expenditures, except those: (a) made primarily to
reduce Operating Expenses, or to comply with any Laws or other
governmental requirements, or (b) for replacements (as opposed to
additions or new improvements) of non-structural items (other than
Systems and Equipment) located in the Common Areas required to keep such
areas in good condition; provided, all such permitted capital
expenditures (together with reasonable financing charges) shall be
amortized for purposes of this Lease over the shorter of: (i) their
useful lives, or (ii) the period during which the reasonably estimated
savings in Operating Expenses equals the expenditures; and
C. Costs incurred in renovating the lobby area of the Building.
(w) "Person" shall mean an individual, trust, partnership, joint
venture, association, corporation, and any other entity.
(x) "Property" shall mean the Building, and any common or public
areas or facilities, easements, corridors, lobbies, sidewalks, loading areas,
driveways, landscaped areas, skywalks, parking garages and lots, and any and all
other structures or facilities operated or maintained in connection with or for
the benefit of the Building, and
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all parcels or tracts of land on which all or any portion of the Building or any
of the other foregoing items are located, and any fixtures, machinery,
equipment, apparatus, Systems and Equipment, furniture and other personal
property located thereon or therein and used in connection therewith, whether
title is held by Landlord or its affiliates. Possession of areas necessary for
utilities, services, safety and operation of the Property, including the Systems
and Equipment, fire stairways, perimeter walls, space between the finished
ceiling of the Premises and the slab of the floor or roof of the Property
thereabove, and the use thereof together with the right to install, maintain,
operate, repair and replace the Systems and Equipment, including any of the same
in, through, under or above the Premises in locations that will not materially
interfere with Tenant's use of the Premises, are hereby excepted and reserved by
Landlord, and not demised to Tenant. If the Building shall be part of a complex,
development or group of buildings or structures collectively owned or managed by
Landlord or its affiliates or collectively managed by Landlord's managing agent,
the Property shall, at Landlord's option also be deemed to include such other of
those buildings or structures as Landlord shall from time to time designate.
(y) "Qualified Costs" shall mean actual, out-of-pocket, hard and
soft costs for (a) preparation of drawings and other expenses reasonably
incurred in connection with initial construction, (c) construction of the
Premises in accordance with the Working Drawings (as defined in Exhibit C
hereto) as modified by the cost of Changes to the Work (as described in Exhibit
C hereto), (d) wiring and cabling in the Premises, (e) the costs of a satellite
dish and generator, as well as (f) architectural, engineering and other
professional fees associated with the foregoing.
(z) "Rent" shall have the meaning specified therefore in Section
4.6.
(aa) "Replacement Tenants" shall have the meaning specified
therefore in Section 23.5.
(bb) "Rules" shall have the meaning specified therefore in Rider
One.
(cc) "Statement" shall have the meaning specified therefore in
Article 4.
(dd) "Subject Space" shall have the meaning specified therefore in
Article 21.
(ee) "Systems and Equipment" shall mean any plant, machinery,
transformers, duct work, cable, wires, and other equipment, facilities, and
systems designed to supply heat, ventilation, air conditioning and humidity or
any other services or utilities, or comprising or serving as any component or
portion of the electrical, gas, steam, plumbing, sprinkler, communications,
alarm, security, or fire/life/safety systems or equipment, or any other
mechanical, electrical, electronic, computer or other systems or equipment for
the Property.
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(ff) "Taxes" shall mean all federal, state, county, or local
governmental or municipal taxes, fees, charges or other impositions of every
kind and nature, whether general, special, ordinary or extraordinary (including
without limitation, real estate taxes, general and special assessments, transit
taxes, water and sewer rents, taxes based upon the receipt of rent including
gross receipts or sales taxes applicable to the receipt of rent or service or
value added taxes (unless required to be paid by Tenant under Article 18),
personal property taxes imposed upon the fixtures, machinery, equipment,
apparatus, Systems and Equipment, appurtenances, furniture and other personal
property used in connection with the Property which Landlord shall pay during
any calendar year, any portion of which occurs during the Term (without regard
to any different fiscal year used by such government or municipal authority)
because of or in connection with the ownership, leasing and operation of the
Property. Notwithstanding the foregoing, there shall be excluded from Taxes all
excess profits taxes, franchise taxes, gift taxes, capital stock taxes,
inheritance and succession taxes, estate taxes, federal and state income taxes,
and other taxes to the extent applicable to Landlord's general or net income (as
opposed to rents, receipts or income attributable to operations at the
Property). If the method of taxation of real estate prevailing at the time of
execution hereof shall be, or has been altered, so as to cause the whole or any
part of the taxes now, hereafter or heretofore levied, assessed or imposed on
real estate to be levied, assessed or imposed on Landlord, wholly or partially,
as a capital levy or otherwise, or on or measured by the rents received
therefrom, then such new or altered taxes attributable to the Property shall be
included within the term "Taxes," except that the same shall not include any
enhancement of said tax attributable to other income of Landlord. Any expenses
incurred by Landlord in attempting to protest, reduce or minimize Taxes shall be
included in Taxes in the calendar year such expenses are paid. Tax refunds shall
be deducted from Taxes in the year they are received by Landlord, but if such
refund shall relate to taxes paid in a prior year of the Term, and the Lease
shall have expired, Landlord shall mail Tenant's Prorata Share of such net
refund (after deducting expenses and attorneys' fees), up to the amount Tenant
paid towards Taxes during such year, to Tenant's last known address. If Taxes
for any period during the Term or any extension thereof, shall be increased
after payment thereof by Landlord, for any reason including without limitation
error or reassessment by applicable governmental or municipal authorities,
Tenant shall pay Landlord upon demand Tenant's Prorata Share of such increased
Taxes. Tenant shall pay increased Taxes whether Taxes are increased as a result
of increases in the assessments or valuation of the Property (whether based on a
sale, change in ownership or refinancing of the Property or otherwise),
increases in the tax rates, reduction or elimination of any rollbacks or other
deductions available under current law, scheduled reductions of any tax
abatement, as a result of the elimination, invalidity or withdrawal of any tax
abatement, or for any other cause whatsoever. Notwithstanding the foregoing, if
any Taxes shall be paid based on assessments or bills by a governmental or
municipal authority using a fiscal year other than a calendar year, Landlord may
elect to average the assessments or bills for the subject calendar year, based
on the number of months of such calendar year included in each such assessment
or ▇▇▇▇.
(gg) "Tenant Affiliate" shall mean (i) any corporation, partnership,
trust, association or other business organization directly or indirectly
(through other
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entities or otherwise) owning, controlling or holding, whether with or without
the power to vote, 30% or more of the entire beneficial interest in Tenant or
any successor of Tenant whether by merger, consolidation or acquisition of all
or substantially all of the assets of either of them respectively, (ii) any
corporation or trust with transferable shares, 30% or more of whose outstanding
capital stock or shares of beneficial interest of any class is directly or
indirectly (through other entities or otherwise) owned, controlled or held,
whether with or without the power to vote, by Tenant or by any successor of
Tenant whether by merger, consolidation or acquisition of all or substantially
all the assets of Tenant or by any entity described in subclause (i) of this
clause (ff), and (iii) any partnership, association or other business
organization, 30% or more of the beneficial interest in which, whether with or
without the power to vote, is directly or indirectly (through other entities or
otherwise) owned, controlled or held by Tenant or by such successor respectively
or by any entity described in subclause (i) of this clause (gg).
(hh) "Tenant's Prorata Share" of Taxes and Operating Expenses shall
be the percentage set forth in Article 1; provided, however, if the Property
shall contain non-office uses, Landlord shall have the right, but not the
obligation, to determine in accordance with sound accounting and management
principles, Tenant's Prorata Share of Taxes and Operating Expenses for only the
office portion of the Property, in which event Landlord shall exclude the amount
of Taxes and Operating Expenses attributable to the non-office use portion of
the Property and Tenant's Prorata Share shall be correspondingly revised and
based on the ratio of the rentable area of the Premises to the rentable area of
such office portion. Similarly, if the Property shall contain tenants who do not
participate in all or certain categories of Taxes or Operating Expenses on a
prorata basis, Landlord may exclude the amount of Taxes or Operating Expenses,
or such categories of the same, as the case may be, attributable to such
tenants, and exclude the rentable area of their respective premises, in
computing Tenant's Prorata Share.
(ii) "Transfer" shall have the meaning specified therefore in
Article 21.
(jj) "Transferee" shall have the meaning specified therefore in
Article 21.
(kk) "Transfer Premium" shall have the meaning specified therefore
in Section 21.3.
ARTICLE 26
CONVEYANCE BY LANDLORD AND LIABILITY
In case Landlord or any successor owner of the Property or the Building
shall convey or otherwise dispose of any portion thereof in which the Premises
are located, to another Person (and nothing herein shall be construed to
restrict or prevent such conveyance or disposition), such other Person shall
thereupon be and become landlord hereunder and shall be deemed to have fully
assumed and be liable for all obligations of this Lease to be performed by
Landlord which first arise after the date of conveyance,
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including the return of any Security Deposit, and Tenant shall attorn to such
other Person, and Landlord or such successor owner shall, from and after the
date of conveyance, be free of all liabilities and obligations hereunder not
then incurred. The liability of Landlord to Tenant for any default by Landlord
under this Lease or arising in connection herewith or with Landlord's operation,
management, leasing, repair, renovation, alteration, or any other matter
relating to the Property or the Premises, shall be limited to the interest of
Landlord in the Property (and the rental proceeds thereof). Tenant agrees to
look solely to Landlord's interest in the Property (and the rental proceeds
thereof) for the recovery of any judgment against Landlord, and Landlord shall
not be personally liable for any such judgment or deficiency after execution
thereon. The limitations of liability contained in this Article shall apply
equally and inure to the benefit of Landlord's present and future partners,
beneficiaries, officers, directors, trustees, shareholders, agents and
employees, and their respective partners, heirs, successors and assigns. Under
no circumstances shall any present or future general or limited partner of
Landlord (if Landlord is a partnership), or trustee or beneficiary (if Landlord
or any partner of Landlord is a trust) have any liability for the performance of
Landlord's obligations under this Lease. Notwithstanding the foregoing to the
contrary, Landlord shall have personal liability for insured claims, beyond
Landlord's interest in the Property (and rental proceeds thereof), to the extent
of Landlord's liability insurance coverage available for such claims.
ARTICLE 27
INDEMNIFICATION
Except to the extent arising from the intentional or negligent acts of
Landlord or Landlord's agents or employees, Tenant shall defend, indemnify and
hold harmless Landlord from and against any and all claims, demands,
liabilities, damages, judgments, orders, decrees, actions, proceedings, fines,
penalties, costs and expenses, including without limitation, court costs and
attorneys' fees arising from or relating to any loss of life, damage or injury
to person, property or business occurring in or from the Premises, or caused by
or in connection with any violation of this Lease or use of the Premises or
Property by, or any other act or omission of, Tenant, any other occupant of the
Premises, or any of their respective agents, employees, contractors or guests.
Without limiting the generality of the foregoing, Tenant specifically
acknowledges that the indemnity undertaking herein shall apply to claims in
connection with or arising out of any Alteration Work, the installation,
maintenance, use or removal of any Lines located in or serving the Premises, and
the transportation, use, storage, maintenance, generation, manufacturing,
handling, disposal, release or discharge of any Hazardous Material (whether or
not any of such matters shall have been theretofore approved by Landlord),
except to the extent that any of the same arises from the intentional or
negligent acts of Landlord or Landlord's agents or employees.
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ARTICLE 28
SAFETY AND SECURITY DEVICES, SERVICES AND PROGRAMS
The parties acknowledge that safety and security devices, services and
programs provided by Landlord, if any, while intended to deter crime and ensure
safety, may not in given instances prevent theft or other criminal acts, or
ensure safety of persons or property. The risk that any safety or security
device, service or program may not be effective, or may malfunction, or be
circumvented by a criminal, is assumed by Tenant with respect to Tenant's
property and interests, and Tenant shall obtain insurance coverage to the extent
Tenant desires protection against such criminal acts and other losses, as
further described in Article 12. Tenant agrees to cooperate in any reasonable
safety or security program developed by Landlord or required by Law.
ARTICLE 29
COMMUNICATIONS AND COMPUTER LINES
Section 29.1. TENANT LINES. Tenant may install, maintain, replace,
remove or use any communications or computer wires, cables and related
electronic signal transmission devices (collectively the "Lines") at the
Property in or serving the Premises, provided: (a) Tenant shall obtain
Landlord's prior written consent, use an experienced and qualified contractor
approved in writing by Landlord, and comply with all of the other provisions of
Article 9, (b) any such installation, maintenance, replacement, removal or use
shall comply with all Laws applicable thereto and good work practices, and shall
not materially interfere with the use of any then existing Lines at the
Property, (c) an acceptable number of spare Lines and space for additional Lines
shall be maintained for existing and future occupants of the Property, as
determined in Landlord's reasonable opinion, (d) if Tenant at any time uses any
equipment that may create an electromagnetic field exceeding the normal
insulation ratings of ordinary twisted pair riser cable or cause radiation
higher than normal background radiation, the Lines therefore (including riser
cables) shall be appropriately insulated to prevent such excessive
electromagnetic fields or radiation, (e) as a condition to permitting the
installation of new Lines, Landlord may require that Tenant remove existing
Lines located in or serving the Premises, (f) Tenant's rights shall be subject
to the rights of any regulated telephone company, and (g) Tenant shall pay all
costs in connection therewith. Landlord reserves the right to require that
Tenant remove any Lines located in or serving the Premises which are installed
in violation of these provisions, or which are at any time in violation of any
Laws or represent a dangerous or potentially dangerous condition (whether such
Lines were installed by Tenant or any other party), within three (3) days after
written notice. Tenant shall not, without the prior written consent of Landlord
in each instance, grant to any third party a security interest or lien in or on
the Lines, and any such security interest or lien granted without Landlord's
written consent shall be null and void.
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Section 29.2. LANDLORD LINES. Landlord may (but shall not have the
obligation to): (a) install new Lines at the Property, (b) create additional
space for Lines at the Property, and (c) reasonably direct, monitor and/or
supervise the installation, maintenance, replacement and removal of, the
allocation and periodic re-allocation of available space (if any) for, and the
allocation of excess capacity (if any) on, any Lines now or hereafter installed
at the Property by Landlord, Tenant or any other party (but Landlord shall have
no right to monitor or control the information transmitted through such Lines).
Such rights shall not be in limitation of other rights that may be available to
Landlord by Law or otherwise. If Landlord exercises any such rights, Landlord
may charge Tenant for the costs attributable to Tenant, or may include those
costs and all other costs in Operating Expenses (including without limitation,
costs for acquiring and installing Lines and risers to accommodate new Lines and
spare Lines, any associated computerized system and software for maintaining
records of Line connections, and the fees of any consulting engineers and other
experts); provided, any capital expenditures included in Operating Expenses
hereunder shall be amortized (together with reasonable finance charges) over the
period of time prescribed by Article 25.
Section 29.3. REMOVAL OF LINES AT TERMINATION. Notwithstanding anything
to the contrary contained in Article 14, Landlord reserves the right to require
that Tenant remove any or all Lines installed by or for Tenant within or serving
the Premises upon termination of this Lease, provided Landlord so notifies
Tenant prior to or within thirty (30) days following such termination. Any Lines
not required to be removed pursuant to this Article shall, at Landlord's option,
become the property of Landlord (without payment by Landlord). If Tenant fails
to remove such Lines as required by Landlord, or violates any other provision of
this Article, Landlord may, after twenty (20) days written notice to Tenant,
remove such Lines or remedy such other violation, at Tenant's expense (without
limiting Landlord's other remedies available under this Lease or applicable
Law).
Section 29.4. LINE PROBLEMS. Except to the extent arising from the
intentional or negligent acts of Landlord or Landlord's agents or employees,
Landlord shall have no liability for damages arising from, and Landlord does not
warrant that the Tenant's use of any Lines will be free from the following
(collectively called "Line Problems"): (a) any eavesdropping or wire-tapping by
unauthorized parties, (b) any failure of any Lines to satisfy Tenant's
requirements, or (c) any shortages, failures, variations, interruptions,
disconnections, loss or damage caused by the installation, maintenance,
replacement, use or removal of Lines by or for other tenants or occupants at the
Property, by any failure of the environmental conditions or the power supply for
the Property to conform to any requirements for the Lines or any associated
equipment, or any other problems associated with any Lines by any other cause.
Under no circumstances shall any Line Problems be deemed an actual or
constructive eviction of Tenant, render Landlord liable to Tenant for abatement
of Rent, or relieve Tenant from performance of Tenant's obligations under this
Lease. Landlord in no event shall be liable for damages by reason of loss of
profits, business interruption or other consequential damage arising from any
Line Problems.
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ARTICLE 30
HAZARDOUS MATERIALS
Tenant shall not transport, use, store, maintain, generate, manufacture,
handle, dispose, release or discharge any "Hazardous Material" (as defined
below) upon or about the Property, or permit Tenant's employees, agents,
contractors, and other occupants of the Premises to engage in such activities
upon or about the Property. However, the foregoing provisions shall not prohibit
the transportation to and from, and use, storage, maintenance and handling
within, the Premises of substances customarily used in offices (or such other
business or activity expressly permitted to be undertaken in the Premises under
Article 6), provided: (a) such substances shall be used and maintained only in
such quantities as are reasonably necessary for such permitted use of the
Premises, strictly in accordance with applicable Law and the manufacturers'
instructions therefore, (b) such substances shall not be disposed of, released
or discharged on the Property, and shall be transported to and from the Premises
in compliance with all applicable Laws, and as Landlord shall reasonably
require, (c) if any applicable Law or Landlord's trash removal contractor
requires that any such substances be disposed of separately from ordinary trash,
Tenant shall make arrangements at Tenant's expense for such disposal directly
with a qualified and licensed disposal company at a lawful disposal site
(subject to scheduling and approval by Landlord), and shall ensure that disposal
occurs frequently enough to prevent unnecessary storage of such substances in
the Premises, and (d) any remaining such substances shall be completely,
properly and lawfully removed from the Property upon expiration or earlier
termination of this Lease.
At such times as Landlord may reasonably request, Tenant shall provide
Landlord with a written list identifying any Hazardous Material then used,
stored, or maintained upon the Premises, the use and approximate quantity of
each such material, a copy of any material safety data sheet ("MSDS") issued by
the manufacturer therefore, written information concerning the removal,
transportation and disposal of the same, and such other information as Landlord
may reasonably require or as may be required by Law.
The term "Hazardous Material" for purposes of this Lease shall mean
petroleum products and any chemical, substance, material or waste or component
thereof which is now or hereafter listed, defined or regulated as a hazardous or
toxic chemical, substance, material or waste or component thereof by any
federal, state or local governing or regulatory body having jurisdiction,
including, without limitation, any hazardous substances as defined under
Massachusetts General Laws chapter 21E, the Federal Comprehensive Environmental
Response Compensation and Liability Act (CERCLA), 42 USC Section 9601 et seq.,
as amended, under Section 3001 of the Federal Resource Conservation and Recovery
Act of 1976, as amended, or under any regulation of any governmental authority
regulating environmental or health matters, or which would trigger any employee
or community "right-to-know" requirements adopted by any such body, or for which
any such body has adopted any requirements for the preparation or distribution
of an MSDS.
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If any Hazardous Material is released, discharged or disposed of by
Tenant or any other occupant of the Premises, or their employees, agents or
contractors, on or about the Property in violation of the foregoing provisions,
Tenant shall, at Landlord's request, immediately, properly and in compliance
with applicable Laws clean up and remove the Hazardous Material from the
Property and any other affected property and clean or replace any affected
personal property (whether or not owned by Landlord), at Tenant's expense. Such
clean up and removal work shall be subject to Landlord's prior written approval
(except in emergencies), and shall include, without limitation, any testing,
investigation, and the preparation and implementation of any remedial action
plan required by any governmental body having jurisdiction or reasonably
required by Landlord. At Landlord's option and in any case if Tenant shall fail
to comply with the provisions of this Article within five (5) days after written
notice by Landlord, or such shorter time as may be required by Law or in order
to minimize any hazard to Persons or property, Landlord may (but shall not be
obligated to) arrange for such compliance directly or as Tenant's agent through
contractors or other parties selected by Landlord, at Tenant's expense (without
limiting Landlord's other remedies under this Lease or applicable Law).
ARTICLE 31
MISCELLANEOUS
(a) Each of the terms and provisions of this Lease shall be binding upon
and inure to the benefit of the parties hereto, their respective heirs,
executors, administrators, guardians, custodians, successors and assigns,
subject to the provisions of Article 21 respecting Transfers.
(b) This Lease shall not be recorded. A memorandum of lease or short
form lease complying with applicable Laws so as to provide notice of this Lease
and acceptable to Landlord may be recorded by Tenant.
(c) This Lease shall be construed in accordance with the Laws of the
Commonwealth of Massachusetts.
(d) All obligations or rights of either party arising during or
attributable to the period ending upon expiration or earlier termination of this
Lease shall survive such expiration or earlier termination.
(e) Landlord agrees that, if Tenant timely pays the Rent and performs
the terms and provisions hereunder, and subject to all other terms and
provisions of this Lease, Tenant shall hold and enjoy the Premises during the
Term, free of lawful claims by any Person acting by or through Landlord.
(f) This Lease does not grant any legal rights to "light and air"
outside the Premises nor any particular view or cityscape visible from the
Premises.
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ARTICLE 32
OFFER
The submission and negotiation of this Lease shall not be deemed an
offer to enter the same by Landlord, but the solicitation of such an offer by
Tenant. Tenant agrees that its execution of this Lease constitutes a firm offer
to enter the same which may not be withdrawn for a period of fifteen (15) days
after delivery to Landlord (or such other period as may be expressly provided in
any other agreement signed by the parties). During such period and in reliance
on the foregoing, Landlord may, at Landlord's option (and shall, if required by
applicable Law), deposit any security deposit and Rent, and proceed with any
plans, specifications, alterations or improvements, and permit Tenant to enter
the Premises, but such acts shall not be deemed an acceptance of Tenant's offer
to enter this Lease, and such acceptance shall be evidenced only by Landlord
signing and delivering this Lease to Tenant.
ARTICLE 33
NOTICES
Except as expressly provided to the contrary in this Lease, every notice
or other communication to be given by either party to the other with respect
hereto or to the Premises or Property, shall be in writing and shall not be
effective for any purpose unless the same shall be served personally or by
national air courier service, or United States certified mail, return receipt
requested, postage prepaid, addressed, if to Tenant, at the address first set
forth in the Lease and to ▇▇▇▇▇▇▇▇ & Worcester LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq., and if to
Landlord, at the Office of the Building, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ Attention: General Manager, and to BRE/One Boston, L.L.C. c/o The
Blackstone Group, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Asset
Manager -- One Boston Place, or such other address or addresses as Tenant or
Landlord may from time to time designate by notice given as above provided.
Every notice or other communication hereunder shall be deemed to have been given
as of the third business day following the date of such mailing (or as of any
earlier date evidenced by a receipt from such national air courier service or
the United States Postal Service) or immediately if personally delivered.
Notices not sent in accordance with the foregoing shall be of no force or effect
until received by the foregoing parties at such addresses required herein.
Notices refused shall be deemed to have been received on the date of refusal.
ARTICLE 34
REAL ESTATE BROKERS
Tenant represents that Tenant has dealt only with CB ▇▇▇▇▇▇▇ ▇▇▇▇▇-N.E.
Partners, L.P. (whose commissions, if any, with respect to the trifurcation of
the Original Lease as described in the preamble to this Lease and the
transactions associated therewith, shall be
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paid by Tenant) as brokers, agents or finder in connection with this Lease and
agrees to indemnify and hold Landlord harmless from all damages, judgments,
liabilities and expenses (including reasonable attorneys' fees) arising from any
claims or demands of any other broker, agent or finder with whom Tenant has
dealt for any commission or fee alleged to be due in connection with its
participation in the procurement of Tenant or the negotiation with Tenant of
this Lease. Landlord represents that Landlord has dealt only with CB ▇▇▇▇▇▇▇
▇▇▇▇▇-N.E. Partners, L.P. as brokers, agents or finder in connection with this
Lease and agrees to indemnify and hold Tenant harmless from all damages,
judgments, liabilities and expenses (including reasonable attorneys' fees)
arising from any claims or demands of any other broker, agent or finder with
whom Landlord has dealt for any commission or fee alleged to be due in
connection with its participation in the procurement of Tenant or the
negotiation with Tenant of this Lease. Tenant shall indemnify and hold Landlord
harmless from all damages, judgments, liabilities and expenses (including
reasonable attorneys' fees) arising from any claims or demands of any broker,
agent or finder with whom Tenant has dealt for any commission or fee alleged to
be due in connection with this Amended and Restated Lease and the Assignable
Leases.
ARTICLE 35
CONSTRUCTION ALLOWANCE
Landlord shall pay to Tenant of $1,702,800.00 ("Landlord's Construction
Allowance") (computed on the basis of $40.00 per rentable square foot and
including $100,000 in lieu of Landlord relocation of convection units) in
accordance with Exhibit C hereto, or if less, the amount of Qualified Costs plus
$100,000. Landlord and Tenant acknowledge that all amounts due hereunder have
been paid.
ARTICLE 36
EXCULPATORY PROVISIONS
It is expressly understood and agreed by and between the parties hereto,
anything herein to the contrary notwithstanding, that each and all of the
representations, warranties, covenants, undertakings, and agreements in the
Lease made on the part of Landlord, while in form purporting to be the
representations, warranties, covenants, undertakings, and agreements of
Landlord, are nevertheless each and every one of them made and intended, not as
personal representations, warranties, covenants, undertakings, and agreements by
Landlord or for the purposes or with the intention of binding Landlord
personally, but are made and intended for the purpose only of subjecting
Landlord's interest in the Building to the terms of this Lease and for no other
purpose whatsoever. In case of default under this Lease by Landlord, Tenant
shall look solely to the interests of Landlord in the Building and neither
Landlord nor its members, officers, directors, agents or employees shall have
any personal liability to pay any indebtedness accruing hereunder or to perform
any covenant, either express or implied, contained in this Lease. In no event
shall either party be liable for special or consequential damages by reason of
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any breach by such party of its obligations hereunder except as provided in
Article 15 of this Lease.
ARTICLE 37
OPTION TO EXTEND
Tenant is hereby granted an option to extend the Term for two (2)
additional periods of five (5) consecutive Lease Years (each, an "Extension
Period"), the first Extension Period commencing immediately after the
Termination Date originally set forth herein, and the second Extension Period
commencing at the end of the first Extension Period (but only if the option for
the first Extension Period was exercised), on the same terms and conditions in
effect under the Lease immediately prior to the start of such Extension Period
other than Base Rent, except that after the exercise of the first option to
extend, Tenant shall have one further option to extend and thereafter Tenant
shall have no further right to extend. Base Rent during an Extension Period
shall be the Fair Market Rental Rate, as defined below, for each Lease Year
during the Extension Period.
The option to extend may be exercised only by giving Landlord
irrevocable and unconditional written notice thereof no earlier than eighteen
(18) months and no later than twelve (12) months prior to the then Termination
Date. Said exercise shall, at Landlord's election, be null and void if Tenant is
in Default beyond applicable periods of notice and grace under the Lease at the
date of said notice or at any time thereafter and prior to commencement of the
Extension Period with respect to which the option to extend was exercised.
Furthermore, if Tenant is in Default at any such time, but not beyond applicable
periods of notice and grace, and subsequently the applicable period of notice
and grace expires without cure, said exercise shall, at Landlord's election, be
null and void as if Tenant had not exercised.
If Tenant shall fail timely to exercise an option herein provided, said
option shall terminate, and if Tenant fails timely to exercise the first option
to extend, the second option to extend shall also terminate and a terminated
option shall be null and void and of no further force and effect. Tenant's
exercise of an option shall not operate to cure any default by Tenant of any of
the terms or provisions in the Lease, nor to extinguish or impair any rights or
remedies of Landlord arising by virtue of such default. If the Lease or Tenant's
right to possession of the Premises shall terminate in any manner whatsoever
before Tenant shall exercise the option herein provided, then immediately upon
such termination, sublease or assignment, the option herein granted to extend
the Term, shall simultaneously terminate and become null and void; provided,
however, without limiting the foregoing, an assignment to an assignee which has
been consented to by Landlord shall not constitute a termination of Tenant's
right to possession of the Premises. Time is of the essence of this provision.
"Fair Market Rental Rate" for an Extension Period shall mean the annual
base rent that Landlord should reasonably be able to obtain for the Premises
during the
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applicable Extension Period as determined by Landlord in its reasonable
judgment, at the time Tenant exercises the option to extend the Term. Fair
Market Rental Rate shall be based upon the prevailing rental rate for space
comparable to the Premises in terms of size, location, condition and other
relevant factors, and taking into account the length of the Extension Period,
the permitted use and the other provisions of the Lease. In no event shall the
Fair Market Rental Rate be less than the Base Rent for the Lease Year ending
immediately prior to the beginning of the subject Extension Period. If Tenant
disputes Landlord's determination of the Fair Market Rental Rate, Tenant may
notify Landlord in writing within thirty (30) days after Landlord notifies
Tenant of such determination that Tenant either (1) rescinds its exercise of an
Extension Period (in which case Tenant shall have no further right to extend the
Term) or (2) require that each of Landlord and Tenant retain, at its own
expense, a qualified real estate appraiser familiar with office rental rates in
the City of Boston, having at least five (5) years experience. If such
appraisers agree as to the Fair Market Rental Rate, their determination shall be
binding upon Landlord and Tenant for purposes of establishing the rental payable
under this Lease for an Extension Period. If such appraisers cannot agree as to
the Fair Market Rental Rate, they shall jointly select a third qualified real
estate appraiser familiar with office rental rates in the City of Boston, having
at least five (5) years experience, whose fees and expenses shall be shared
equally by Landlord and Tenant. This third appraiser's determination of the Fair
Market Rental Rate shall be binding upon Landlord and Tenant for purposes of
establishing the rental payable under this Lease for an Extension Period.
ARTICLE 38
PARKING
Landlord shall arrange with the operator of the Washington Square Garage
adjacent to the Building for Tenant to have the right to five (5) parking spaces
in such garage under an agreement directly with the operator of such garage at
prevailing rates of the operator from time to time.
ARTICLE 39
SECURITY DEPOSIT
Tenant shall deposit with Landlord a letter of credit issued by a
banking institution of sufficient financial standing (as Landlord shall
reasonably determine) having an office in Boston, Massachusetts against which
such letter of credit may be drawn, in the amount of One Million Eight Hundred
Fifty-Six Thousand Five Hundred Seventy-Six and 00/100 Dollars ($1,856,576)
(such amount, as the same may be reduced in accordance with the provisions
hereof, together with any cash deposited with the Landlord in accordance
herewith, the "Security Deposit"). Such letter of credit shall be replaced (and
the existing letter of credit returned to the Tenant originally named herein
together with a letter to the issuer, Sovereign Bank, from Landlord requesting
that the letter of credit be cancelled) by a letter of credit provided by the
Named Assignee in the amount of One Million Twelve Thousand Seven Hundred
Sixty-Two and 00/100 Dollars
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($1,012,762) issued by such a banking institution in the event of an assignment
to the Named Assignee. The letter of credit shall be unconditional, irrevocable
and in favor of Landlord, its successors or assigns, and shall provide that it
may be drawn upon "at sight" upon presentation by Landlord to the issuer of only
a statement certified by Landlord to the effect that a Default by Tenant has
occurred under its Lease with Landlord and that Tenant has failed to cure such
Default within the applicable period, if any, of notice and grace, or that
Landlord is otherwise entitled to draw thereunder pursuant to the terms and
conditions of this Lease. The letter of credit shall provide that it shall
remain in force for a period beginning on the Commencement Date and ending
January 31, 2011, or for a lesser period provided any letter of credit expiring
prior to January 31, 2011, shall be replaced not later than thirty (30) days
prior to its expiration by a letter of credit on all of the terms otherwise
required hereunder and the failure timely to replace such letter of credit shall
be a default with respect to which Landlord shall have the right to draw the
full amount of the letter of credit and retain the same as a cash security
deposit. The Security Deposit shall serve as security for the prompt, full and
faithful performance by Tenant of the terms and provisions of this Lease. In the
event that Tenant is in Default hereunder and fails to cure within any
applicable time permitted under this Lease, or in the event that Tenant owes any
amounts to Landlord upon the expiration of this Lease, Landlord may use or apply
the whole or any part of the Security Deposit for the payment of Tenant's
obligations hereunder. The use or application of the Security Deposit or any
portion thereof shall not prevent Landlord from exercising any other right or
remedy provided hereunder or under any Law and shall not be construed as
liquidated damages. In the event the Security Deposit is reduced by such use or
application, Tenant shall deposit with Landlord within ten (10) days after
written notice, an amount in cash sufficient to restore the Security Deposit to
the amount required pursuant to this Lease as of such time or a new letter of
credit (supplementing the existing partially drawn letter of credit which
Landlord shall retain if Landlord drew less than the full amount drawable
thereunder) in the amount drawn by Landlord under the existing letter of credit
and otherwise complying with all terms and conditions of the letter of credit
hereunder. Landlord shall not be required to keep any cash portion of the
Security Deposit separate from Landlord's general funds or pay interest on the
Security Deposit. Any remaining cash portion of the Security Deposit and the
letter of credit (as reduced by any amount drawn thereon pursuant hereto) shall
be returned to Tenant within thirty (30) days after Tenant has vacated the
Premises and complied with all the terms of this Lease. In the event this Lease
is assigned to the Named Assignee as provided in Section 21.8, but not
otherwise, the face amount of the letter of credit may be reduced upon the
stated reduction dates (the "Scheduled Reduction Dates") and in the respective
amounts set forth in the following schedule, provided that (i) Tenant gives
Landlord written notice of its election to effect such a reduction (a "Reduction
Notice") at least thirty (30) days prior to the applicable Scheduled Reduction
Date, (ii) the Reduction Conditions (as defined below) with respect to the
applicable Scheduled Reduction Date have been satisfied, and (iii) the Reduction
Conditions with respect to all prior Scheduled Reduction Dates (as the same may
have been extended as set forth below) have been satisfied.
REDUCTION DATE REDUCED FACE AMOUNT
-------------- -------------------
May 15,2002 $886,167.00
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May 15, 2003 $632,976.00
May 15, 2004 $379,786.00
May 15, 2005 $272,750.00
For purposes of this Article 39, the Reduction Conditions are as
follows: (a) Tenant shall not have been in Default under this Lease at any time
between the date this Lease was assigned to the Named Assignee and that date
which is three (3) business days prior to the applicable Scheduled Reduction
Date; and (b) Tenant is not in default of any obligation under this Lease as of
that date which is four (4) business days prior to the applicable Scheduled
Reduction Date, provided, however, if the applicable period of notice, grace and
cure (the "Cure Period") relating to such default has not expired as of that
date which is four (4) business days prior to the applicable Scheduled Reduction
Date, Tenant shall have the right to cure such default on or prior to the
expiration date of such Cure Period, and, upon timely effectuating such cure, to
give Landlord a notice of cure and confirmation of its election to reduce the
letter of credit (a "Cure/Reduction Confirmation Notice") and the applicable
Scheduled Reduction Date shall be extended to the date which is three (3)
business days after the date on which the Landlord receives the Cure/Reduction
Confirmation Notice. If the Reduction Conditions are not satisfied in respect of
any Scheduled Reduction Date (as such date may be extended as provided above),
Tenant shall have no further right to reduce the face amount of the letter of
credit which shall thereafter throughout the term remain at the amount then in
effect.
Landlord agrees that (a) in the event Landlord receives a Reduction
Notice in a timely manner and the Reduction Conditions are satisfied, it shall
not less than three (3) business days prior to the Scheduled Reduction Date give
to the issuer of the letter credit (the "Issuer") a written certification as to
the reduction in the face amount of the letter of credit in the appropriate
amount on the Scheduled Reduction Date (a "Landlord Certification"); and (b) in
the event Landlord receives a Cure/Reduction Confirmation Notice in a timely
manner and the Reduction Conditions with respect to the applicable Scheduled
Reduction Date (as the same may have been extended as provided herein) have
theretofore been satisfied, it shall not more than three (3) business days after
receiving such Cure/Reduction Confirmation Notice give to the Issuer the
Landlord Certification.
In the event Landlord is required under the foregoing provisions to
provide the Issuer with a Landlord Certification and it does not do so in a
timely fashion, Tenant, shall, within ten (10) days of the date on which such
Landlord Certification should have been provided to Issuer, send Landlord
written notice of such failure together with an invoice as to Tenant's direct
costs as of a date that is five (5) business days following the date of such
notice (the "Settlement Amount"). In such circumstances, Landlord shall be
liable to Tenant for the direct costs incurred by Tenant as a result thereof,
including, without limitation, reasonable attorney's fees, any special charges
imposed by the Issuer to issue the reduced letter of credit that would not have
been imposed but for Landlord's delay in issuing the Landlord Certification, per
diem charges incurred by Tenant applicable to the amount by which the letter of
credit should have been reduced (the "Reduction Amount"), and interest on the
Reduction Amount calculated on a per diem basis based on a 365 day year at the
Default Rate. The foregoing damages shall continue
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to accrue until three (3) business days after the Landlord gives the Landlord
Certification. In the event Landlord does not pay the Settlement Amount as of
the date set forth in Tenant's notice and invoice, Tenant may avail itself of
all the rights and remedies available to it at law or in equity to recover
amounts so owed. Without limiting Tenant's rights and remedies, and in addition
to all other amounts Landlord is obligated to pay arising from its failure to
pay the Settlement Amount invoiced as aforesaid, Tenant shall be entitled to all
costs an expenses, including reasonable attorney's fees, incurred by Tenant in
enforcing its rights under this Article 39.
ARTICLE 40
INTENTIONALLY OMITTED
ARTICLE 41
ENTIRE AGREEMENT
This Lease, together with Rider One, Exhibit A, Exhibit B and Exhibit C
(WHICH COLLECTIVELY ARE HEREBY INCORPORATED WHERE REFERRED TO HEREIN AND MADE A
PART HEREOF AS THOUGH FULLY SET FORTH), contains all the terms and provisions
between Landlord and Tenant relative to the matters set forth herein and no
prior or contemporaneous agreement or understanding pertaining to the same shall
be of any force or effect, except any such contemporaneous agreement
specifically referring to and modifying this Lease, signed by both parties.
Without limitation as to the generality of the foregoing, Tenant hereby
acknowledges and agrees that Landlord's leasing agents and field personnel are
only authorized to show the Premises and negotiate terms and conditions for
leases subject to Landlord's final approval, and are not authorized to make any
agreements, representations, understandings or obligations, binding upon
Landlord, respecting the condition of the Premises or Property, suitability of
the same for Tenant's business, or any other matter, and no such agreements,
representations, understandings or obligations not expressly contained herein or
in such contemporaneous agreement shall be of any force or effect. Neither this
Lease, nor any Riders or Exhibits referred to above may be modified, except in
writing signed by both parties.
[SIGNATURES TO FOLLOW]
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IN WITNESS WHEREOF, the Landlord and Tenant have duly executed this
Lease as of the day and year first above written.
LANDLORD:
BRE/ONE BOSTON, L.L.C.,
a Delaware limited liability company
By:
--------------------------------
Its:
-------------------------------
TENANT:
CAMBRIDGE STRATEGIC
MANAGEMENT GROUP, INC.
By:
--------------------------------
Its:
-------------------------------
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RIDER ONE
RULES
1. On Saturdays, Sundays and Holidays, and on other days between the
hours of 6:30 P.M. and 8:00 A.M. the following day, or such other hours as
Landlord shall determine from time to time, access to the Property and/or to the
passageways, entrances, exits, shipping areas, halls, corridors, elevators or
stairways and other areas in the Property may be restricted and access gained by
use of a key to the outside doors of the Property, or pursuant to such security
procedures Landlord may from time to time impose. All such areas, and all roofs,
are not for use of the general public and Landlord shall in all cases retain the
right to control and prevent access thereto by all persons whose presence in the
judgment of Landlord shall be prejudicial to the safety, character, reputation
and interests of the Property and its tenants provided, however, that nothing
herein contained shall be construed to prevent such access to persons with whom
Tenant deals in the normal course of Tenant's business unless such persons are
engaged in activities which are illegal or violate these Rules. No Tenant and no
employee or invitee of Tenant shall enter into areas reserved for the exclusive
use of Landlord, its employees or invitees. Tenant shall keep doors to corridors
and lobbies closed except when persons are entering or leaving.
2. Tenant shall not paint, display, inscribe, maintain or affix any
sign, placard, picture, advertisement, name, notice, lettering or direction on
any part of the outside or inside of the Property, or on any part of the inside
of the Premises which can be seen from the outside of the Premises, without the
prior consent of Landlord, and then only such name or names or matter and in
such color, size, style, character and material as may be first approved by
Landlord in writing. Landlord shall prescribe the suite number and
identification sign for the Premises (which shall be prepared and installed by
Landlord at Tenant's expense). Landlord reserves the right to remove at Tenant's
expense all matter not so installed or approved without notice to Tenant.
3. Tenant shall not in any manner use the name of the Property for any
purpose other than that of the business address of the Tenant, or use any
picture or likeness of the Property, in any letterheads, envelopes, circulars,
notices, advertisements, containers or wrapping material without Landlord's
express consent in writing.
4. Tenant shall not place anything or allow anything to be placed in the
Premises near the glass of any door, partition, wall or window which may be
unsightly from outside the Premises, and Tenant shall not place or permit to be
placed any article of any kind on any window ledge or on exterior walls. Blinds,
shades, awnings or other forms of inside or outside window ventilators or
similar devices, shall not be placed in or about the outside windows in the
Premises except to the extent, if any, that the character, shape, color,
material and make thereof is first approved by the Landlord.
Rider One -1-
5. Furniture, freight and other large or heavy articles, and all other
deliveries may be brought into the Property only at times and in the manner
designated by Landlord, and always at the Tenant's sole responsibility and risk.
All deliveries shall be received at the loading dock facilities on the Court
Square side of the Building. Landlord may impose reasonable charges for use of
freight elevators after or before normal business hours. All damage done to the
Property by moving or maintaining such furniture, freight or articles shall be
repaired by Landlord at Tenant's expense. Landlord may inspect items brought
into the Property or Premises with respect to weight or dangerous nature.
Landlord may require that all furniture, equipment, cartons and similar articles
removed from the Premises or the Property be listed and a removal permit
therefore first be obtained from Landlord. Tenant shall not take or permit to be
taken in or out of other entrances or elevators of the Property, any item
normally taken, or which Landlord otherwise reasonably requires to be taken, in
or out through service doors or on freight elevators. Tenant shall not allow
anything to remain in or obstruct in any way, any lobby, corridor, sidewalk,
passageway, entrance, exit, hall, stairway, shipping area, or other such area.
Tenant shall move all supplies, furniture and equipment as soon as received
directly to the Premises, and shall move all such items and waste (other than
waste customarily removed by Property employees) that are at any time being
taken from the Premises directly to the areas designated for disposal. Any
hand-carts used at the Property shall have rubber wheels.
6. Tenant shall not overload any floor or part thereof in the Premises,
or Property, including any public corridors or elevators therein bringing in or
removing any large or heavy articles, and Landlord may direct and control the
location of sofas and all other heavy articles and require supplementary
supports at Tenant's expense of such material and dimensions as Landlord may
deem necessary to properly distribute the weight.
7. Tenant shall not attach or permit to be attached additional locks or
similar devices to any door or window, change existing locks or the mechanism
thereof, or make or permit to be made any keys for any door other than those
provided by Landlord. If more than two keys for one lock are desired, Landlord
will provide them upon payment therefore by Tenant. Tenant, upon termination of
its tenancy, shall deliver to the Landlord all keys of offices, rooms and toilet
rooms which have been furnished Tenant or which the Tenant shall have had made,
and in the event of loss of any keys so furnished shall pay Landlord therefore.
8. If Tenant desires signal, communication, alarm or other utility or
similar service connections installed or changed, Tenant shall not install or
change the same without the prior approval of Landlord, and then only under
Landlord's direction at Tenant's expense. Tenant shall not install in the
Premises any equipment which requires more electric current than Landlord is
required to provide under this Lease, without Landlord's prior approval, and
Tenant shall ascertain from Landlord the maximum amount of load or demand for or
use of electrical current which can safely be permitted in the Premises, taking
into account the capacity of electric wiring in the Property and the
Rider One -2-
Premises and the needs of tenants of the Property, and shall not in any event
connect a greater load than such safe capacity.
9. Tenant shall not obtain for use upon the Premises ice, drinking
water, towel, janitor and other similar services, except from Persons approved
by the Landlord. Any Person engaged by Tenant to provide janitor or other
services shall be subject to direction by the manager or security personnel of
the Property.
10. The toilet rooms, urinals, wash bowls and other such apparatus shall
not be used for any purpose other than that for which they were constructed and
no foreign substance of any kind whatsoever shall be thrown therein and the
expense of any breakage, stoppage or damage resulting from the violation of this
Rule shall be borne by the Tenant who, or whose employees or invitees shall have
caused it.
11. The janitorial closets, utility closets, telephone closets, broom
closets, electrical closets, storage closets, and other such closets, rooms and
areas shall be used only for the purposes and in the manner designated by
Landlord, and may not be used by tenants, or their contractors, agents,
employees, or other parties without Landlord's prior written consent.
12. Landlord reserves the right to exclude or expel from the Property
any person who, in the judgment of Landlord, is intoxicated or under the
influence of liquor or drugs, or who shall in any manner do any act in violation
of any of these Rules. Tenant shall not at any time manufacture, sell, use or
give away, any spirituous, fermented, intoxicating or alcoholic liquors on the
Premises, nor permit any of the same to occur (except in connection with
occasional social or business events conducted in the Premises which do not
violate any Laws nor bother or annoy any other tenants). Tenant shall not at any
time sell, purchase or give away, food in any form by or to any of Tenant's
agents or employees or any other parties on the Premises, nor permit any of the
same to occur (other than in lunch rooms or kitchens for employees as may be
permitted or installed by Landlord, which does not violate any Laws or bother or
annoy any other tenant).
13. Tenant shall not make any room-to-room canvass to solicit business
or information or to distribute any article or material to or from other tenants
or occupants of the Property and shall not exhibit, sell or offer to sell, use,
rent or exchange any products or services in or from the Premises unless
ordinarily embraced within the Tenant's use of the Premises specified in the
Lease.
14. Tenant shall not waste electricity, water, heat or air conditioning
or other utilities or services, and agrees to cooperate fully with Landlord to
assure the most effective and energy efficient operation of the Property and
shall not allow the adjustment (except by Landlord's authorized Property
personnel) of any controls. Tenant shall keep corridor doors closed and shall
not open any windows, except that if the air circulation shall not be in
operation, windows which are openable may be opened with Landlord's consent. As
a condition to claiming any deficiency in the air-conditioning or ventilation
Rider One -3-
services provided by Landlord, Tenant shall close any blinds or drapes in the
Premises to prevent or minimize direct sunlight.
15. Tenant shall conduct no auction, fire or "going out of business
sale" or bankruptcy sale in or from the Premises, and such prohibition shall
apply to Tenant's creditors.
16. Tenant shall cooperate and comply with any reasonable safety or
security programs, including fire drills and air raid drills, and the
appointment of "fire wardens" developed by Landlord for the Property, or
required by Law. Before leaving the Premises unattended, Tenant shall close and
securely lock all doors or other means of entry to the Premises and shut off all
lights and water faucets in the Premises (except heat to the extent necessary to
prevent the freezing or bursting of pipes).
17. Tenant will comply with all municipal, county, state, federal or
other government laws, statutes, codes, regulations and other requirements,
including without limitation, environmental, health, safety and police
requirements and regulations respecting the Premises, now or hereinafter in
force, at its sole cost, and will not use the Premises for any immoral purposes.
18. Tenant shall not (i) carry on any business, activity or service
except those ordinarily embraced within the permitted use of the Premises
specified in the Lease and more particularly, but without limiting the
generality of the foregoing, shall not (ii) install or operate any internal
combustion engine, boiler, machinery, refrigerating, heating or air conditioning
equipment in or about the Premises, (iii) use the Premises for housing, lodging
or sleeping purposes or for the washing of clothes, (iv) place any radio or
television antennae other than inside of the Premises, (v) operate or permit to
be operated any musical or sound producing instrument or device which may be
heard outside the Premises, (vi) use any source of power other than electricity,
(vii) operate any electrical or other device from which may emanate electrical
or other waves which may interfere with or impair radio, television, microwave,
or other broadcasting or reception from or in the Property or elsewhere, (viii)
bring or permit any bicycle or other vehicle, or dog (except in the company of a
blind person or except where specifically permitted) or other animal or bird in
the Property, (ix) make or permit objectionable noise or odor to emanate from
the Premises, (x) do anything in or about the Premises tending to create or
maintain a nuisance or do any act tending to injure the reputation of the
Property, (xi) throw or permit to be thrown or dropped any article from any
window or other opening in the Property, (xii) use or permit upon the Premises
anything that will invalidate or increase the rate of insurance on any policies
of insurance now or hereafter carried on the Property or violate the
certificates of occupancy issued for the premises or the Property, (xiii) use
the Premises for any purpose, or permit upon the Premises anything, that may be
dangerous to persons or property (including but not limited to flammable oils,
fluids, paints, chemicals, firearms or any explosive articles or materials) nor
(xiv) do or permit anything to be done upon the Premises in any way tending
disturb any other tenant at the Property or the occupants of neighboring
property.
Rider One -4-
EXHIBIT A
(Floor plan showing the 31st floor of the Premises cross-hatched on Sheet A-1
and the 32nd floor of the Premises crosshatched on Sheet A-2)
[See Attached]
Exhibit A-1
EXHIBIT B
LANDLORD WORKLETTER
Prior to the Commencement Date, Landlord shall demolish the existing
tenant improvements. All exposed structural steel shall have been fireproofed.
The main sprinkler loop shall have been installed. Convectors on the 31st floor
shall be reconditioned inside and new convector covers shall be provided.
Convector covers on the 32nd floor will be installed and in paintable condition.
Bathrooms within the Premises shall have been refurbished so as to comply with
the requirements of the Americans with Disabilities Act. The Premises shall be
in broom clean condition.
Exhibit B-1
EXHIBIT C
WORKLETTER AGREEMENT
This is the Work Letter referred to and specifically made a part of the
Lease to which this Exhibit C is attached, covering Premises, as more
particularly described in said Lease, in the Building known as ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇.
A. Space Design Package
Landlord shall not later than the date of execution of this Lease
furnish to Tenant one (1) reproducible sepia and one (1) blue-line print of the
demise layout of the Premises, and the Landlord's design guidelines, and
Landlord's standard improvement details which gives the technical and design
information relative to the Premises, (collectively, "Landlord's Space Design
Package").
B. Space Layout
1. Within fifteen (15) days after receipt of the Landlord's Space
Design Package, (the "Space Layout Delivery Date"), Tenant agrees
to deliver to Landlord one (1) set of sepia reproducibles and two
(2) sets of blue-line prints of Tenant's approved Space Layout
(the "Space Layout") of the Premises sufficiently complete to
permit preparation of architectural, structural, plumbing, fire
protection, mechanical and electrical engineering drawings for
the Premises. The Space Layout shall designate and include all
Tenant finish work ("Tenant Improvement Work") and shall
specifically include, without limitation:
a. Partition layout and door location;
b. Electrical outlet locations, data cable, sound system,
paging system, etc. and anticipated usage thereof.
c. Tenant's telephone system indicating location of outlets.
d. Reflected ceiling plan, including ceiling grid, lighting,
switching, sprinkler, diffusers, registers, speakers and
all other items necessary for the engineering design to be
incorporated in the Working Drawings (hereinafter
defined).
e. Tenant's anticipated occupancy loads for any area in which
such occupancy load is expected to be in excess of
building standard heating, ventilation, air conditioning,
electrical and structural
Exhibit C-1
designs (e.g., computer rooms, print/copy machines,
equipment to be used in any luncheon areas, concentrated
file and library loadings and any other equipment or
systems (with brand names wherever possible) which require
structural, mechanical, fire protection, electrical, or
life safety modifications [above that set forth in
Landlord's standard improvements details]).
2. Within ten (10) days of Landlord's receipt of Tenant's Space
Layout, Landlord shall review the same for compliance with the
intended space usage requirements of the Premises consistent with
the Lease, and return to Tenant one (1) sepia of the same with
Landlord's comments.
3. Landlord's review of the Space Layout shall not imply (i)
approval by Landlord as to compliance of the Space Layout with
the requirements of applicable codes, rules or regulations of any
governmental agencies having jurisdiction over the Premises or
(ii) the Space Layout's compatibility with the Building's shell
and core construction. Tenant understands that the obtaining of
all permits to comply with all applicable codes, rules and
regulations and the compatibility of the Space Layout with the
Building's shell and core construction is Tenant's
responsibility.
C. Working Drawings
1. Within twenty (20) business days (the "Working Drawing Delivery
Date") after Tenant's receipt of Landlord's comments under
Section B(2) above, Tenant agrees to deliver to Landlord one (1)
set of sepia reproducibles and three (3) sets of blue-line prints
of working drawings and specifications for the Premises
(hereinafter referred to collectively as "Working Drawings")
prepared, at Tenant's sole cost and expense by an architect
("Tenant's Architect") licensed in the Commonwealth of
Massachusetts and reasonably acceptable to Landlord. Tenant's
Architect shall retain reasonably acceptable engineers to prepare
all structural, plumbing, fire protection, mechanical and
electrical engineering aspects of the Working Drawings.
2. Within ten (10) business days after receipt of Tenant's Working
Drawings, Landlord shall return to Tenant one (1) sepia set of
same marked "Approved", "Approved as Noted", or "Disapproved as
Noted, Revise and Resubmit". If said Working Drawings are
returned to Tenant marked "Disapproved as Noted, Revise and
Resubmit", such drawings shall be revised by Tenant and
resubmitted to Landlord within ten (10) days and the same
procedure shall be repeated until Landlord fully approves the
Working Drawings.
Exhibit C-2
3. It is understood that the Working Drawings are to be consistent
with and a logical extension of the approved Space Layout. Any
inconsistencies between the Working Drawings and the shell and
core construction of the Building shall be Tenant's sole
responsibility. Tenant shall also be solely responsible for the
completeness of the Working Drawings.
4. In the event Landlord approves the Working Drawings, such
approval shall not limit Landlord's right to require changes in
portions of the Working Drawings which are incompatible with
Landlord's Design Guidelines or which adversely affect Building
structure, systems or the availability to Landlord of third party
warranties. When the Working Drawings are approved by Landlord
and Tenant, they shall be acknowledged as such by Landlord and
Tenant signing each sheet of the Working Drawings.
Landlord and Tenant acknowledge and agree that as of the date of this
Lease, both parties have complied with all of their obligations under Paragraphs
A, B and subparagraph C(1) of this Exhibit C.
D. Construction of Premises
Promptly after Landlord's approval of the Working Drawings, Tenant
shall obtain permits, complete selection of contractors and subcontractors
reasonably acceptable to Landlord and thereafter cause construction work in the
Premises to commence in accordance with the Working Drawings and to be
diligently prosecuted to completion.
E. Payment for Tenant Improvement Work
Tenant shall submit to Landlord monthly requests for payment (each,
a "Request for Payment") as Qualified Costs (as defined in the Lease to which
this Exhibit C is attached) are incurred. Each such Request for Payment shall be
for the Qualified Costs incurred in or prior to the date of the Request for
Payment less amounts covered by any prior Request for Payment and less the
customary retainage with respect to all such Qualified Costs incurred. Landlord
shall make payments under each Request for Payment as follows: With respect to
the first such Request for Payment an amount equal to $100,000 (and if the first
Request for Payment is for less than $100,000, the balance of such $100,000
shall be paid with respect to the next succeeding Request(s) for Payment until
paid) plus 85% of the balance, if any, of the amount set forth in the first
Request for Payment and thereafter 85% of the amount properly set forth in
Requests for Payment. Each such Request for Payment, in standard form, need not
reflect amounts that have been previously paid by Tenant, but shall be otherwise
complete and shall be accompanied by lien waivers as to all of the work
completed and with respect to which payment is sought (other than the first
$100,000). Notwithstanding the foregoing, Landlord will have no obligation with
respect to any Request for Payment if Tenant has
Exhibit C-3
not theretofore made all payments due from Tenant with respect to Qualified
Costs (other than the first $100,000) or if Tenant's construction has resulted
in any liens then encumbering the Building or if Landlord's documentation with
respect to the Request for Payment is not reasonably satisfactory to Landlord.
In the event that after completion of construction, any portion of the
Landlord's Construction Allowance remains unpaid, the balance will be paid to
Tenant upon Tenant providing Landlord with lien waivers from Tenant's
contractors and subcontractors with respect to all of the improvements.
F. Changes to the Work
Changes to the Working Drawings may be made only after written
approval by the Landlord of an appropriate change request including all
necessary construction documentation. Upon approval of a change, Tenant shall
cause changes to the Working Drawings to be made to reflect the changes and
Tenant will supply revised Working Drawings to the Landlord.
G. Performance of Work
Tenant agrees that all services and work performed on the Premises,
including installation of telephone and carpeting, and delivery of materials and
personal property to the Premises on behalf of or for the account of Tenant
shall be performed or delivered, as the case may be only by persons whose
employment for such tasks shall not result in any work stoppage or slow-down by
union members working in the Building.
H. Tenant's Representative
Tenant hereby designates ______________________ as its sole
representative with respect to the matters set forth in this Work Letter and
such person shall have full authority and responsibility to act on behalf of
Tenant as required herein. Tenant's Architect shall not be an authorized
representative of Tenant unless Tenant specifically advised Landlord in writing
of such designation.
Exhibit C-4
EXHIBIT D
SUBORDINATION, NONDISTURBANCE AND ATTORNMENT AGREEMENT
THIS SUBORDINATION, NONDISTURBANCE AND ATTORNMENT AGREEMENT (this
"Agreement") is made as of September __, 2000, by and among BAYERISCHE HYPO- UND
VEREINSBANK AG, NEW YORK BRANCH, a banking corporation organized under the laws
of the Federal Republic of Germany, having an address at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, as agent for itself and other lenders ("Lender"),
BRE/ONE BOSTON L.L.C., a Delaware limited liability company, c/o Blackstone Real
Estate Acquisitions III L.L.C., having an address at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Landlord") and CAMBRIDGE STRATEGIC MANAGEMENT
GROUP, INC., a Massachusetts corporation, having an address at ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Tenant").
RECITALS
A. Tenant has entered into that certain Lease Agreement, dated
_____________ between Landlord, as landlord, and Tenant, as tenant, with respect
to certain space comprising the 31st and 32nd floors (the "Demised Premises") in
the building located at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ (said lease, as
hereafter amended and supplemented, subject to Paragraph 7 hereof, is
hereinafter called the "Lease"; capitalized terms used herein and not otherwise
defined herein shall have the same meanings set forth in the Lease); and
B. Lender has agreed to make a loan ("Loan") to Landlord pursuant to the
terms and conditions of a Credit Agreement, dated September 8, 2000, among
Landlord, Lender and certain other parties (the "Credit Agreement"), a Mortgage,
dated September 8, 2000, by Landlord for the benefit of Lender (the "Mortgage")
and certain other Loan Documents (as defined in the Credit Agreement). Said
Mortgage encumbers the land and improvements more particularly described in
Exhibit A hereto (the "Premises"), of which the Demised Premises are a part, and
Landlord's interest in the Lease; and
C. Lender, Landlord and Tenant desire to enter into this Agreement upon
the terms, covenants and conditions contained herein;
NOW, THEREFORE, in consideration of the premises and the agreements of
the parties contained herein, the parties agree as follows:
1. The Lease and all of Tenant's rights thereunder are and shall be at
all times and in all respects subject and subordinate to the lien of the
Mortgage and the other Loan Documents, and to all advances now or hereafter made
under or secured by the Mortgage or the other Loan Documents, and all renewals,
modifications, consolidations, replacements, substitutions, additions and
extensions of the Mortgage and each other Loan Document and to any subsequent
deed of trust, mortgages or assignments with which the Mortgage may be spread
and/or consolidated.
2. Provided Tenant complies with this Agreement and if Tenant shall not
as of the date Lender commences a foreclosure action be in default under the
Lease beyond the applicable period of grace, if any, provided therein, (i)
Tenant shall not be named as a party in any action or proceeding to enforce the
Mortgage, unless such joinder as a nominal party shall be required under
applicable law, and in which Lender shall not seek affirmative relief from
Tenant in such action or proceeding, (ii) the Lease shall not be cut off or
terminated nor Tenant's possession thereunder be disturbed or interfered with by
Lender in the exercise of its rights under
the Mortgage, and (iii) subject to the provisions of Paragraphs 3 and 4 of this
Agreement, Lender will recognize the Lease and Tenant's rights thereunder.
3. Upon receipt by Tenant of written notice of any foreclosure of the
Mortgage or other acquisition of the Landlord's estate in the Premises, Tenant
shall attorn to Lender or any other party acquiring the Landlord's estate in the
Premises or so succeeding to Landlord's rights (collectively, the "Successor
Landlord") and shall recognize the Successor Landlord as its landlord under the
Lease and Tenant shall promptly execute and deliver any instrument that the
Successor Landlord may reasonably request in writing to evidence further said
attornment.
4. Upon such attornment after acquisition of the Landlord's estate in
the Premises, the Lease shall continue in full force and effect as if it had
been a direct lease between the Successor Landlord and Tenant upon all terms,
covenants and conditions thereof as are then applicable and Successor Landlord
shall accept such attornment and recognize Tenant as tenant under the Lease
except that the Successor Landlord shall not be (i) liable for any previous act
or omission of Landlord under the Lease but shall be liable for any default
continuing after the acquisition by the Successor Landlord of the Premises, (ii)
subject to any offsets, defenses, claims or counterclaims that Tenant may have
against Landlord, (iii) bound by any covenant to perform or complete any
construction in connection with the Demised Premises or the Premises or to pay
any sums to Tenant in connection therewith, (iv) bound by any prepayment of more
than one (1) month's rent or other charges under the Lease unless such payment
shall have been paid to and received by Successor Landlord, (v) bound by any
amendment, modification, extension, expansion, termination, cancellation or
surrender of the Lease made after the date hereof unless approved in writing by
Lender, or (vi) liable for any security deposit given by Tenant under the Lease,
unless and to the extent in Lender's possession on or after the date that
Successor Landlord succeeds to the interest of Landlord under the Lease.
5. The Agreement shall inure to the benefit of Lender or any Successor
Landlord and shall be self-operative, and no further instrument shall be
required to give effect thereto. Tenant, however, upon demand of Lender or any
Successor Landlord, as the case may be, agrees to execute, from time to time,
instruments in confirmation thereof, reasonably satisfactory to Lender or any
such Successor Landlord, acknowledging such attornment and setting forth the
terms and conditions of its tenancy. Nothing contained in this Paragraph shall
be construed to impair any right otherwise exercisable by Lender or any such
Successor Landlord.
6. Tenant from and after the date hereof shall send a copy of any notice
of default or notice in connection with the commencement of any action to
terminate the Lease or similar statement under the Lease to Lender at the same
time such notice or statement is sent to Landlord under the Lease and agrees
that, notwithstanding any provisions of the Lease to the contrary, such notice
shall not be effective unless Lender shall have been given such notice and shall
have failed to cure such default as hereinafter provided. Such notices shall be
sent by certified or registered mail, postage prepaid, return receipt requested,
or shall be delivered to Lender at the following address (or at such other
address as Lender shall specify in a written notice to Tenant at the address
specified above for Tenant):
Bayerische Hypo- und Vereinsbank AG
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
------------------------
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy simultaneously sent to:
▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ L.L.P.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇, Esq.
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Any such notice of default shall be deemed. to be given to Lender on the earlier
to occur of (a) the day of receipt (as evidenced by a receipt signed by Lender
or the refusal to accept delivery by Lender) or (b) five (5) business days after
deposit in the mail of a copy of the notice sent certified mail, return receipt
requested. With respect to the commencement by Tenant of any action to terminate
the Lease, Lender shall have the right, but not the obligation, to cure any
default on the part of Landlord which is the basis for such action within a
reasonable time (including the time required for Lender to foreclose the
Mortgage and obtain possession of the Premises if such possession is necessary
to effect such cure) after receipt of the notice by Tenant with respect to such
action, so long as Lender is diligently prosecuting such cure and/or the
foreclosure of the Mortgage if possession of the Premises is necessary to effect
such cure.
7. Tenant shall not change, or consent to a change in, the terms,
covenants, conditions and agreements of the Lease in any manner which would be
binding on Lender without the express consent in writing of Lender. No exercise
by Landlord of any right to terminate the Lease, and no acceptance of any
termination, surrender or cancellation of the Lease (except as expressly set
forth in the last sentence of ▇▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇), ▇▇▇▇▇ ▇▇ effective unless
Lender shall have expressly consented thereto in writing.
8. Anything herein or in the Lease to the contrary notwithstanding, in
the event that Successor Landlord shall acquire title to the Premises, except as
expressly set forth herein, Successor Landlord shall have no obligation, nor
incur any liability, beyond Successor Landlord's then interest, if any, in the
Premises and Tenant shall look exclusively to such interest of Successor
Landlord, if any, in the Premises for the payment and discharge of any
obligations imposed upon Successor Landlord hereunder or under the Lease and
Successor Landlord is hereby released and relieved of any other liability
hereunder and under the Lease. Tenant agrees that with respect to any money
judgment which may be obtained or secured by Tenant against Successor Landlord,
Tenant shall look solely to the estate or interest owned by Successor Landlord
in the Premises and Tenant will not collect or attempt to collect any such
judgment (i) from any officer, director, shareholder, partner, employee, agent
or representative of Successor Landlord or (ii) out of any assets of Successor
Landlord other than Successor Landlord's estate or interest in Premises.
9. (a) Tenant acknowledges that it has notice that Landlord's interest
under the Lease and the rent and all other sums due thereunder have been
assigned to Lender pursuant to the Mortgage and the other Loan Documents as part
of security for the obligations secured by the Mortgage and the other Loan
Documents. In the event that Lender notifies Tenant of a default under the
Mortgage and demands that Tenant pay its rent and all other sums due under the
Lease to Lender, Tenant agrees that it shall pay its rent and other sums due
under the Lease to Lender or as Lender shall direct in writing to Tenant at
address for notices set forth in the Lease.
(b) Landlord hereby indemnifies Tenant and holds Tenant harmless
from and against all claims, losses or damages of whatever nature arising from
Tenant's compliance with Paragraph 9.
10. Landlord hereby consents to the terms and provisions of this
Agreement, including, without limitation, Paragraph 9 hereof.
11. This Agreement may not be modified, amended or terminated unless in
writing and duly executed by the party against whom the same is sought to be
asserted and constitutes the entire agreement between the parties with respect
to the subject matter hereof.
12. This Agreement shall bind and inure to the benefit of the parties
hereto and their respective successors and assigns.
13. This Agreement may be executed in any number of counterparts. All
such counterparts will be deemed to be originals and will together constitute
but one and the same instrument.
14. This Agreement shall be governed by and construed in accordance with
the laws of the Commonwealth of Massachusetts.
(SPACE LEFT INTENTIONALLY BLANK)
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the day and year first above written.
LENDER
BAYERISCHE HYPO- UND VEREINSBANK,
a New York banking corporation, as Agent and Lender
By:
--------------------------------------------
Name:
Title:
By:
--------------------------------------------
Name:
Title:
LANDLORD
BRE/ONE BOSTON L.L.C., a Delaware limited liability company
By:
--------------------------------------------
Name:
Title:
TENANT
CAMBRIDGE STRATEGIC MANAGEMENT GROUP, INC., a ______
By:
--------------------------------------------
Name:
Title:
(ACKNOWLEDGEMENTS ATTACHED)