EXHIBIT 10.1
LEASE
BETWEEN
TRUSTEES OF 60 STATE STREET TRUST
AND
HPSC, INC.
Dated: March 8, 1994
BROWN, RUDNICK, FREED & GESMER
ONE FINANCIAL CENTER
BOSTON, MASSACHUSETTS 02111
Portion of
Thirty-Fifth (35th) Floor
60 State Street
Boston, Massachusetts
LEASE
dated as of March 8, 1994
ARTICLE I
Reference Data
1.1 Subjects Referred To. Each reference in this Lease to any of the
following subjects shall be construed to incorporate the data stated for that
subject in this Article:
LANDLORD: Trustees of 60 State Street
Trust under Declaration of Trust
dated September 10, 1970, and
recorded with Suffolk Deeds in
Book 8389, Page 286, as amended.
LANDLORD'S ORIGINAL ADDRESS: c/o Koll Management Services
60 State Street
Boston, Massachusetts 02109
TENANT: HPSC, Inc.
TENANT'S ORIGINAL ADDRESS: 470 Atlantic Avenue
2nd Floor
Boston, Massachusetts 02210
TENANT'S NOTICE ADDRESS
AFTER THE COMMENCEMENT DATE: 60 State Street
Boston, Massachusetts 02109
PREMISES: That portion of the floor, shown on Exhibit A, of the building (the
"Building") erected by Landlord on the land described in Exhibit B,
plus or minus any additions or deletions thereto or therefrom
resulting from the change of any abutting lot or street line (the
"Lot"). The Building and the Lot are herein collectively referred to
as the "Property." The Premises exclude exterior faces of exterior
walls, the common stairways and
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stairwells, elevators and elevator wells, fan rooms, electric and
telephone closets, janitor closets, freight elevator vestibules, and
pipes, ducts, conduits, wires and appurtenant fixtures serving
exclusively or in common other parts of the Building, and if the
Premises include less than the entire rentable area of any floor, the
Premises also exclude the common corridors, elevator lobby and toilets
located on such floor.
TERM: A period beginning on the Commencement Date (as defined in Section
2.4) and ending one hundred twenty-two (122) full calender months
thereafter, unless sooner terminated or extended as provided in this
Lease.
SCHEDULED COMMENCEMENT DATE: May 1, 1994
RENT COMMENCEMENT DATE: 60 days after Commencement Date
BASE RENT: $191,305.95 per year ($15,942.16 per month; $23.43 per square of
Rentable Floor Area).
RENTABLE FLOOR AREA OF
THE PREMISES: 8,165 square feet
RENTABLE FLOOR AREA OF
THE BUILDING: 823,014 square feet
ELECTRICITY CHARGE: $8,165.00 per year ($680.42 per month; $1.00 per square
foot of Rentable Floor Area)
LANDLORD'S CONSTRUCTION
REPRESENTATIVE: Mr. Robert Tagliamonte
TENANT'S CONSTRUCTION
REPRESENTATIVE: Mr. John Everets
PERMITTED USES: Office purposes, and no other purpose.
BROKERS: Lynch, Murphy, Walsh & Partners and Whittier Partners
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TENANT'S PROPORTIONATE SHARE: .99% (proportion of Rentable Floor Area of
the Premises to one hundred percent (100%) of
the Rentable Floor Area of the Building)
OPERATING EXPENSE BASE: Tenant's Proportionate Share of Operating Expenses for
the 1993 Calendar Year.
TAX EXPENSE BASE: Tenant's Proportionate Share of Tax Expenses for the 1994
Fiscal Year (7/1/93 - 6/30/94).
1.2 Exhibits. There are incorporated as part of this Lease:
EXHIBIT A - Tenant's Floor Plan
EXHIBIT B - Lot Description
EXHIBIT C - Landlord's Services
EXHIBIT D - Work Letter Agreement
EXHIBIT E - Leasing Rights of Other Tenants with respect to 34th and
35th floors
EXHIBIT F - Forms of Subordination of Mortgage Agreements
1.3 Table of Articles and Sections.
ARTICLE I - Reference Data .................................. 1
1.1 Subjects Referred To ............................. 1
1.2 Exhibits ......................................... 3
1.3 Table of Articles and Sections ................... 3
ARTICLE II - Premises, Term and Rent ........................ 5
2.1 The Premises ..................................... 5
2.2 Rights to Use Common Facilities .................. 6
2.3 Landlord's Reservations .......................... 7
2.4 Term ............................................. 7
2.5 Rent; Base Rent; Electricity Charge .............. 11
2.6 Additional Rent - Operating Expenses ............. 11
2.7 Additional Rent - Real Estate Taxes .............. 14
ARTICLE III - Initial Construction and Alterations .......... 17
3.1 Leasehold Improvements by Landlord ............... 17
3.2 Alterations by Tenant ............................ 17
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ARTICLE IV - Landlord's Covenants; Interruptions
and Delays .............................................. 19
4.1 Landlord's Covenants ............................. 19
4.2 Interruption and Delays in Services and Repairs .. 20
4.3 Right to Stop Service or Utility System .......... 20
ARTICLE V - Tenant's Covenants .............................. 21
5.1 Repair and Yield Up .............................. 21
5.2 Use .............................................. 21
5.3 Obstructions; Items Visible From Exterior;
Rules and Regulations ........................... 21
5.4 Safety Appliances; Licenses ...................... 22
5.5 Indemnity; Insurance ............................. 22
5.6 Personal Property at Tenant's Risk ............... 25
5.7 Right of Entry ................................... 25
5.8 Floor Load; Prevention of Vibration and Noise .... 25
5.9 Personal Property Taxes .......................... 25
5.10 Payment of Litigation Expenses ................... 26
5.11 Environmental Compliance ......................... 26
5.12 Compliance with Energy Conservation Controls ..... 27
ARTICLE VI - Casualty And Taking ............................ 27
6.1 Casualty ......................................... 27
6.2 Eminent Domain ................................... 30
ARTICLE VII - Rights of Parties Holding Prior Interests ..... 31
7.1 Lease Subordinate ................................ 31
7.2 Rights of Holder of Mortgage to Notice of
Defaults by Landlord and to Cure Same ........... 31
7.3 Modification for Lender .......................... 32
ARTICLE VIII - Default ...................................... 32
8.1 Events of Default ................................ 32
8.2 Damages .......................................... 33
ARTICLE IX - Assignment and Subletting ...................... 35
9.1 Definitions ...................................... 35
9.2 Tenant's Request for Consent ..................... 35
9.3 Landlord's Option to Cancel ...................... 36
9.4 Terms of Assignment or Sublease .................. 36
9.5 Provisions in Sublease or Assignment ............. 37
9.6 Related Expenses ................................. 37
9.7 No Default by Tenant; Prohibited Assignments ..... 37
ARTICLE X - Miscellaneous ................................... 37
10.1 Headings; Recordation; Consent or Approval;
Notices; Bind and Inure; "Including"; "Laws" ... 37
10.2 Landlord's Failure to Enforce .................... 39
10.3 Acceptance of Partial Payments of Rent;
Delivery of Keys ................................ 39
10.4 Partial Invalidity ............................... 39
10.5 Landlord's Option to Cure ........................ 40
10.6 Tenant's Estoppel Certificate and Financial
Statements ...................................... 40
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10.7 Waiver of Subrogation ............................ 41
10.8 All Agreements Contained ......................... 41
10.9 Brokerage ........................................ 41
10.10 Submission Not An Option ......................... 41
10.11 Applicable Law ................................... 41
10.12 Massachusetts Jurisdiction ....................... 42
10.13 Waiver of Jury Trial ............................. 42
10.14 Holdover ......................................... 42
10.15 Surrender of Premises ............................ 42
10.16 Late Payment ..................................... 42
10.17 Time ............................................. 43
10.18 Harmony .......................................... 43
10.19 Limitation On Liability .......................... 43
10.20 Authority ........................................ 44
ARTICLE II
Premises, Term and Rent
2.1 The Premises.
2.1.1 Landlord hereby leases to Tenant, and Tenant hereby hires from
Landlord, the Premises.
2.1.2 Upon six months prior notice to Tenant, one time during the Term,
Landlord may at any time relocate the Premises to comparable space within the
Building. For the purpose of the previous sentence, "comparable" shall mean of
equal or greater area with similar directional views and on floor 18 of the
Building or above. Landlord shall pay all costs of any relocation of the
Premises, including the installation of leasehold improvements of design and
quality comparable to those in the Premises. In the event of any relocation of
the Premises, this Lease shall be amended as necessary to substitute the new
Premises.
2.1.3. Subject to existing leasing rights of other tenants in the
Building as more particularly described in Exhibit E, and provided such space is
available, Landlord shall offer to Tenant any space becoming available during
the initial 122 month Term of the Lease on the 34th and the 35th Floor of the
Building (the "Expansion Space") by written notice, setting forth the
description of the Expansion Space, the estimated date on which the Expansion
Space will become available, and the Base Rent for the Expansion Space, and
Tenant shall have the right to add the Expansion Space to the Premises on the
terms and conditions hereinafter described, provided that (i) Tenant shall not
be in default under any of the terms of this Lease continuing beyond any
applicable notice and cure period, (ii) Tenant shall not have assigned this
Lease or sublet any portion of the Rentable Floor Area of the Premises, (iii)
Tenant continues to occupy all portions of the Premises, (iv) Tenant has not
exercised its Termination Option as set forth in Article 2.4.2, and (v) if
between 12
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and 24 months remain in the initial Term and Tenant exercises its Extension
Option as set forth in Section 2.4.1, or if less than 12 months remain in the
initial Term and Tenant previously exercised its Extension Option. The lease of
the Expansion Space shall be co-terminus with this Lease and shall be on all of
the terms and conditions of this Lease except as set forth in Section 2.1.6
below and provided the Base Rent for the Expansion Space shall be at the Market
Rent (as hereinafter defined in Section 2.4.1), taking into account the fact
that Additional Rent shall be paid at the same rate as shall then be paid for
the Premises and the length of the term of such Expansion Space. If any
Expansion Space is offered by Landlord, Tenant shall notify Landlord in writing
within 10 days after receipt of Landlord's notice as to whether Tenant desires
to lease the Expansion Space. If Tenant determines that the Base Rent proposed
by Landlord is not the Market Rent, then Tenant shall set forth such
determination in its notice exercising its right to lease the Expansion Space
and Market Rent shall be determined in accordance with the procedure set forth
in Section 2.4.1. Tenant's failure to so object shall be deemed an acceptance
of Landlord's proposed Base Rent. If Tenant elects to lease the Expansion
Space, the parties promptly shall execute an amendment to this Lease reflecting
the addition of the Expansion Space.
2.1.4. Except as provided in Section 2.1.3 above, Tenant acknowledges
that Landlord shall not be obligated to provide any Expansion Space to Tenant
and that Landlord shall have the unfettered right to lease any and all space in
the Building and that the Expansion Space shall be offered to Tenant only if
such space will be available during the initial Term.
2.1.5. Tenant acknowledges that if Tenant does not accept (or fails to
timely accept) an offer made by Landlord pursuant to the provisions of this
Article 2.1, Landlord shall be under no further obligation with respect to such
Expansion Space by reason of this Article 2.1. Time is of the essence.
2.1.6. Tenant agrees to accept the Expansion Space in its condition and
state of repair existing as of the date it is offered to Tenant, reasonable wear
and tear accepted, and agrees that Landlord shall not be required to perform any
work, supply any materials or incur any expense to prepare such space for
Tenant's occupancy.
2.2 Rights to Use Common Facilities. Tenant shall have the non-exclusive
right to use in common with others the following portions of the Building: (a)
the Building lobbies, corridors, stairways and elevators that provide access to
the Premises, the loading platform, and the pipes, ducts, conduits, wires and
appurtenant meters and equipment serving the Premises, (b) walkways and
driveways that provide access to the Building,
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and (c) if the Premises include less than the entire rentable floor area of any
floor, the common toilets, corridors and elevator lobbies of such floor. Tenant
shall have no parking rights except as may be provided by separate agreement.
2.3 Landlord's Reservations. Landlord reserves the right, from time to
time, provided Landlord uses reasonable efforts to limit unreasonable
interference with Tenant's use: (a) to install, use, maintain, repair, replace
and relocate for service to the Premises and other parts of the Building, or
either, pipes, ducts, conduits, wires and appurtenant fixtures, wherever located
in the Premises or Building, and (b) to alter or relocate any other common
facility, provided that substitutions are substantially equivalent to or better
than the original. Installations, replacements and relocations referred to in
clause (a) above shall be located so far as reasonable in the central core area
of the Building, above ceiling surfaces, below floor surfaces or within
perimeter walls of the Premises. Landlord also reserves the right, from time to
time, to: (x) change the name or street address of the Building, (y) install and
maintain signs on the exterior and the interior of the Building (other than in
the Premises), and (z) possess pass keys to the Premises.
2.4 Term. Tenant shall have and hold the Premises for the Term. The
Commencement Date for the Term shall be the earlier of the date the Premises are
Ready for Occupancy, provided that Landlord has given Tenant at least fifteen
days' prior notice of such date, or the date Tenant occupies any portion of the
Premises for the conduct of its business. The Premises shall be Ready for
Occupancy when construction of the Leasehold Improvements has been substantially
completed in accordance with the Final Plans, as reasonably determined by
Landlord, and any certificate or approval required by local governmental
authority for occupancy of the Premises has been obtained. Landlord shall use
reasonable efforts to have the Premises Ready for Occupancy on the Scheduled
Commencement Date. If the Premises are not Ready for Occupancy on the Scheduled
Commencement Date, Landlord shall not be liable for such failure, and such
failure shall not affect the validity of this Lease. If, however, the Premises
are not Ready for Occupancy because Tenant has failed to comply with Tenant's
obligations under Section 3.1 or under the Work Letter Agreement attached as
Exhibit D, if any, or has otherwise delayed Landlord in preparing the Premises
or in obtaining any such certificate or approval for the Premises, then the
Commencement Date shall be the date that the Premises would have been Ready for
Occupancy except for such Tenant-caused delay, as reasonably determined by
Landlord. Notwithstanding the foregoing to the contrary, because Landlord shall
not have the Premises Ready for Occupancy by March 31, 1994 (which is the date
on which Tenant's lease for its existing space expires) Tenant promptly shall
request in writing that Tenant's existing landlord permit Tenant to remain in
Tenant's existing space, on the same terms and conditions as Tenant currently is
occupying such space, until
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April 30, 1994 and shall exercise reasonable efforts to obtain its current
landlord's consent to such extended occupancy. In the event Tenant is unable to
secure the right to extend its occupancy of its existing space on the same terms
and conditions by March 1, 1994, Tenant promptly shall so notify Landlord. If
Tenant so notifies Landlord, then on or before March 15, 1994, Landlord shall
identify, and offer to lease to Tenant interim space in the Building with an
area of at least 8,000 square feet ("Interim Space") at the same rentable square
foot rate of Base Rent, on the same terms for Additional Rent as provided herein
for the Premises, and on the other terms and conditions set forth in this Lease
except that (i) Landlord shall deliver the Interim Space to Tenant in "as is"
condition, (ii) Tenant shall not make any structural or non-structural changes
to the Interim Space, (iii) Tenant shall surrender the Interim Space within
three (3) days of the date the Premises are Ready for Occupancy and, (iv) if the
Interim Space has a Rentable Floor Area in excess of 8,165 square feet, the Base
Rent and Additional Rent shall be calculated as if the Rentable Floor Area of
the Interim Space was 8,165 square feet. Tenant shall respond to the Landlord's
offer of Interim Space within five (5) days from the date the offer is made, and
Tenant's failure to respond shall be deemed a rejection of the offer. If Tenant
has not elected to accept Landlord's offer of the Interim Space for April 1,
1994 occupancy and Landlord determines that the Premises will not be Ready for
Occupancy by May 1, 1994, then Landlord promptly shall so notify Tenant ("Delay
Notice"). Thereafter, Landlord shall provide Tenant with forty-five (45) days
prior written notice of the date on which Landlord expects to have the Premises
Ready for Occupancy ("Estimated Delivery Date"). At any time after the Delay
Notice and up to ten (10) days after Tenant's receipt of the notice of the
Estimated Delivery Date, Tenant shall have the right to lease the Interim Space
which right Tenant shall exercise by written notice to Landlord. The lease of
the Interim Space shall commence on the earlier of the date set forth in such
notice from Tenant or on the date which is thirty (30) days prior to the
Estimated Delivery Date. Landlord shall pay up to one hundred percent (100%) of
the reasonable, documented costs of Tenant's relocation from the Interim Space
to the Premises up to a maximum Landlord payment equal to the lesser of (x) Two
Dollars and 00/100 ($2.00) per square foot of the Premises or (y) seventy-five
percent (75%) of the actual documented costs of Tenant's relocation to the
Interim Space. At the request of either party at any time after the
Commencement Date, Landlord and Tenant shall promptly enter into an agreement
fixing the Commencement Date.
2.4.1. Tenant shall have the option to extend the Term (the "Extension
Option") for one sixty (60) month period (the "Extension Period"), by giving
written notice to Landlord of Tenant's exercise of its Extension Option 12
months prior to the expiration of the Term, provided that, at the time such
Extension Option is exercised and at the commencement of the Extension
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Period, (i) Tenant shall not be in default under any of the terms of this Lease
(continuing beyond any applicable notice and cure period), (ii) Tenant shall not
have assigned this Lease or sublet any portion of the Rentable Floor Area of the
Premises, and (iii) Tenant continues to occupy all portions of the Premises.
Any failure by Tenant to give timely notice of the exercise of its Extension
Option shall be deemed to be an irrevocable waiver of all right to exercise its
Extension Option. Time is of the essence.
All of the terms, conditions, covenants and agreements contained herein
shall apply during the Extension Period, except that (i) Base Rent for the
Premises during the Extension Period shall be the fair market rental established
by Landlord based on new leases for comparable space in the Building and
comparable downtown Boston office towers ("Market Rent") but in no event less
than Base Rent during the initial Term), (ii) Landlord shall not be obligated to
undertake any additional leasehold improvements or to provide any so called
"free rent" or other tenant inducements, and (iii) Tenant shall have no further
option to extend this Lease. Landlord shall notify Tenant in writing
("Landlord's Notice") of the Market Rent within thirty (30) days of receipt by
Landlord of Tenant's notice exercising its option. If Tenant disagrees with
Landlord's designation of Market Rent, Tenant shall notify Landlord in writing
of Tenant's disagreement not later than ten (10) days after the receipt of
Landlord's Notice. Each party, at its cost and by giving notice to the other
party, shall appoint a qualified M.A.I. real estate appraiser with at least 5
years' full-time commercial appraisal experience in the Boston metropolitan area
to appraise and set the Market Rent for the Premises. If a party does not
appoint such an appraiser within said ten (10) day period, the single appraiser
appointed shall be the sole appraiser and shall set the Market Rent for the
Premises. If two (2) appraisers are appointed by the parties as stated in this
paragraph, the appraisers shall meet promptly and attempt to establish the
Market Rent for the Premises. If they are unable to agree within thirty (30)
days after the second appraiser has been appointed, they shall attempt to elect
a third appraiser meeting the qualifications stated in this paragraph within ten
(10) days after the last day the two appraisers are given to set the Market
Rent. If they are unable to agree on the third appraiser, either of the parties
to this Lease, by giving ten (10) days' notice to the other party, can appeal to
the then president of the Greater Boston Real Estate Board for the selection of
a third appraiser who meets the qualifications stated in this paragraph. Each
of the parties shall bear one-half (1/2) of the cost of appointing and paying
the fee of the third appraiser. The third appraiser, however selected, shall be
a person who has not previously acted in any capacity for either party.
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Within thirty (30) days after the selection of the third appraiser, a
majority of the appraisers shall set the Market Rent for the Premises. If a
majority of the appraisers are unable to set the Market Rent within the
stipulated period of time, the three (3) appraisals shall be added together and
their total divided by three (3); the resulting quotient shall be the Market
Rent.
If, however, the low appraisal and/or the high appraisal are more than ten
percent (10%) lower and/or higher than the middle appraisal, the low appraisal
and/or the high appraisal shall be disregarded. If only one (1) appraisal is
disregarded, the remaining two (2) appraisals shall be added together and their
total divided by two (2); the resulting quotient shall be the Market Rent. If
both the low appraisal and the high appraisal are disregarded as stated in this
paragraph, the middle appraisal shall be the Market Rent. In making the
determination, each appraiser shall base Market Rent on new leases for space in
the Building.
If the dispute between the parties as to Market Rent has not been resolved
before the commencement of Tenant's obligation to pay Base Rent based upon such
Market Rent, then Tenant shall pay Base Rent in respect of the Premises based
upon the Market Rent first designated by Landlord until a decision of the
appraisers has been finalized, at which time Tenant shall pay any under payment
of rent and other charges to Landlord or Landlord shall refund any overpayment
of Rent and other charges to Tenant. The decision of the appraisers shall be
final and once Tenant has notified Landlord of its election to rely on the
appraisers, Tenant shall not have the right to revoke the exercise of the
Extension Option, even if Tenant disagrees with the decision of the appraisers.
2.4.2 Notwithstanding the foregoing, Tenant shall have the one time option
to terminate this Lease ("Termination Option") effective as of the last day of
the sixty-second (62nd) full calender month of the Term provided (i) Tenant
shall not be in default under any of the terms of the Lease (continuing beyond
any applicable notice and cure period); (ii) Tenant pays to Landlord with
Tenant's notice exercising the Termination Option a termination fee equal to the
sum of (a) three (3) months Base Rent plus Additional Rent, calculated based on
Landlord's reasonable estimate of Additional Rent for the twelve month period
following the date of termination, and (b) Landlord's reasonable, out-of-pocket
transaction costs associated with the lease of the Expansion Space to Tenant,
and (iii) Tenant exercises the Termination Option by written notice to Landlord
received on or before the last day of the fiftieth (50th) full calender month of
the Term. Furthermore, Tenant's exercise of the Termination Option shall be
irrevocable and shall be deemed an irrevocable waiver of all right to exercise
any Expansion Option provided for in Section 2.4.
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2.5 Rent; Base Rent; Electricity Charge.
2.5.1 Tenant shall pay to Landlord at the Original Address of Landlord (or
such other place as Landlord may by notice to Tenant from time to time direct)
the Rent. The Rent shall mean Base Rent and Additional Rent. Additional Rent
shall mean (i) payments required to be made by Tenant pursuant to Sections 2.6
and 2.7 and (ii) all other charges, costs and expenses due and owing Landlord
from Tenant under the terms of this Lease, including the Electricity Charge.
The Rent shall be paid by Tenant to Landlord without abatement, offset or
deduction at the times specified in this Lease, or if no time is specified,
within fifteen (15) days after demand by Landlord.
2.5.2 On the Rent Commencement Date and on the first day of each calendar
month thereafter, Tenant shall pay to Landlord the monthly Base Rent. On the
Commencement Date and on the first day of each calendar month thereafter, Tenant
shall pay the Landlord the monthly Electricity Charge. All payments shall be in
advance for each full calendar month of the Term, and the corresponding fraction
for any fraction of a calendar month at the beginning or end of the Term, and
payments shall be without notice or demand.
2.6 Additional Rent - Operating Expenses. Tenant shall pay Additional
Rent to Landlord for Operating Expenses in accordance with the following
provisions:
2.6.1 Terms used herein are defined as follows:
(a) Operating Expenses means the cost of operation, maintenance
and repair of the Property which shall exclude costs of
special services rendered to tenants (including Tenant) for
which a separate charge is made, but shall include the
following: (i) premiums for insurance carried with respect
to the Property (including insurance against loss of monthly
installments of Base Rent and any Additional Rent which may
be due under this Lease and other leases of space in the
Building in case of fire or casualty and, if there be any
first mortgage of the Property, including such insurance as
may be required by the holder of any such mortgage); (ii)
compensation and all fringe benefits, workers' compensation
insurance premiums and payroll taxes paid by Landlord to,
for or with respect to all persons engaged in the operating,
maintaining, or cleaning of the Building
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or Lot, provided that if a person divides his or her time
between the Building and other properties of Landlord then
only a portion of such person's compensation and fringe
benefits shall be included, which portion shall be based on
the portion of the person's time devoted to the Building;
(iii) steam, water, sewer, electric (including electricity
covered by the Electricity Charge), gas, oil and telephone
charges (excluding utility charges separately chargeable to
tenants for additional or special services); (iv) cost of
building and cleaning supplies and equipment; (v) cost of
maintenance, cleaning (including window cleaning) and
repairs (other than repairs not properly chargeable against
income or for which Landlord has received reimbursement from
contractors under guaranties); (vi) cost of snow removal and
care of landscaping; (vii) payments under service contracts
with independent contractors, including security services,
legal (other than legal fees associated with lease
negotiations and legal actions against tenants and other
than legal fees related to Landlord's organization and
non-real estate tax matters), accounting (other than
accounting fees related to Landlord's income and similar
non-real estate taxes and other than accounting expenses
related to Landlord's ownership entity, as opposed to the
Building) and other reasonable and competitive professional
fees, and reasonable and competitive management fees; (viii)
costs (including financing charges) of improvements to the
Property that were included in Base Operating Expenses until
fully amortized and of improvements that are designed to
increase safety or reduce or limit increases in Operating
Expenses (to the extent of reasonably projected savings
therefrom) or are required to comply with any law imposed
after the date of this Lease, all such improvements to be
amortized over the useful life of the improvement as defined
in the Internal Revenue Code; and (ix) all other reasonable
or necessary expenses paid in connection with the operation,
maintenance and repair of the Property and properly
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chargeable against income. Any of the above services may be
performed by Landlord or its affiliates, provided that fees
for the performance of such services shall be reasonable and
competitive with fees charged by unaffiliated entities for
the performance of such services in comparable buildings in
the City of Boston. Operating Expenses shall not include
leasing commissions, repair costs paid by insurance
proceeds, costs paid by any tenant or third party,
depreciation of the Building or any part thereof except as
specifically set forth above, any debt service or cost of
capital improvements except as specifically set forth above,
or any tenant improvements provided for any tenant.
Operating Expenses shall not include costs reimbursed from
condemnation proceeds; salaries and other employment related
expenses for executives or principals of Landlord above the
grade of building manager (except that an equitable portion
of the Director of Engineering's compensation shall be
included); expenses incurred in connection with removal or
remediation of oil or hazardous materials (as defined in
Massachusetts G.L. c. 21E or the regulations pursuant
thereto), or modifications to the Building required to
comply with laws or regulations existing as of the date
hereof, including those relating to access by handicapped
persons and sprinkler installation except to the extent
included in the Base Operating Expenses; Landlord's off-site
general and administrative expenses. Regardless of the
actual percentage of occupancy of the Building, for the
purpose of this Section 2.6, (i) the components of Operating
Expenses that vary with occupancy will be extrapolated or
proportionately reduced (consistent with the extent of
variability) as though the Building were one hundred percent
(100%) occupied; and (ii) in the case of any services that
are not rendered to all Building areas on a comparable
basis, the proportion of the expense of such service
allocable to the Premises shall be in the same proportion
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which the Rentable Floor Area of the Premises to which the
service is rendered bears to the total Rentable Floor Area
to which such service is rendered.
(b) Fiscal Year means any twelve-month period selected by
Landlord for operating purposes. Landlord may change its
Fiscal Year and interim accounting periods, so long as the
periods so revised are reconciled with prior periods in
accordance with generally accepted accounting principles.
2.6.2 For each Fiscal Year during the Term, Tenant shall pay Tenant's
Proportionate Share of Operating Expenses in excess of the Operating Expense
Base. The Operating Expense Base includes the Electricity Charge. For any
partial Fiscal Year at the beginning or end of the Term, Tenant's Proportionate
Share of Operating Expenses shall be adjusted proportionately for the part of
the Fiscal Year falling within the Term. Tenant's Proportionate Share may
change if the Property is changed or reconfigured, but shall in all cases be
equal to the percentage that the Rentable Floor Area of the Premises bears to
one hundred percent (100%) of the total Rentable Floor Area of the Building,
calculated on a consistent basis.
2.6.3 Before each Fiscal Year, Landlord shall give Tenant an estimate of
the reasonably expected Operating Expenses for the coming Fiscal Year, and an
estimate of Tenant's Additional Rent for such Operating Expenses. Tenant shall
pay such estimated Additional Rent (calculated on a monthly basis) each month
with its payment of Base Rent. After each Fiscal Year, Landlord shall give
Tenant a statement showing the actual Operating Expenses for that Fiscal Year,
and a calculation of the actual amount of Additional Rent related thereto. Any
underpayment by Tenant shall be made up by cash payment to Landlord within
thirty (30) days; any overpayment shall be credited against the next due Base
Rent and Additional Rent, provided that, unless Tenant is in default under the
Lease, any overpayment shall be paid in cash to Tenant within thirty (30) days
if the Term has ended.
2.7 Additional Rent - Real Estate Taxes. Tenant shall pay Additional Rent
to Landlord for Real Estate Taxes in accordance with the following provisions:
2.7.1 Terms used herein are defined as follows:
(a) Tax Year means the 12-month period beginning July 1 of each
year during the Term, or if the appropriate governmental tax
fiscal period shall begin on any date other than July 1,
then such other date.
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(b) Tax Expenses with respect to any Tax Year means the
aggregate Real Estate Taxes on the Property with respect to
that Tax Year, reduced by any abatement receipts with
respect to that Tax Year.
(c) Real Estate Taxes means all taxes and special assessments of
every kind and nature assessed by any governmental authority
on the Property or any part thereof which Landlord shall
become obligated to pay because of or in connection with the
ownership, leasing and operation of the Property (including
the excise prescribed by M.G.L. c.121A, {10 (1988 ed.) and
amounts in excess thereof paid to the City of Boston
pursuant to agreement between Landlord and the City), and
reasonable expenses of any proceedings for the contesting or
the abatement of taxes. The amount of special taxes or
special assessments to be included shall be limited to the
amount of the installment (plus any interest, other than
penalty interest, payable thereon) of such special tax or
special assessment required to be paid during the year in
respect of which such taxes are being determined. There
shall be excluded from such taxes all income, estate,
succession, inheritance and transfer taxes; provided,
however, that if at any time during the Term the present
system of ad valorem taxation of real property shall be
changed so that as a substitute for, or in addition to, the
whole or any part of the ad valorem tax on real property,
there shall be assessed on Landlord any tax including a
capital levy or other tax on the gross rents received with
respect to the Property, or a federal, state, county,
municipal, or other local income, franchise, excise or
similar tax, assessment, levy or charge (distinct from any
now in effect in the jurisdiction in which the Property is
located), and whether or not now customary or in the
contemplation of the parties, measured by or based, in whole
or in part, upon any
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such gross rents, then any and all of such taxes,
assessments, levies or charges, to the extent so measured or
based, shall be deemed to be included within the term Real
Estate Taxes.
2.7.2 For each Tax Year during the Term, Tenant shall pay Tenant's
Proportionate Share of Tax Expenses in excess of the Tax Expense Base. For any
partial Tax Year at the beginning or end of the Term, Tenant's Proportionate
Share of Tax Expenses shall be adjusted proportionately for the part of the Tax
Year falling within the Term.
2.7.3 Before each Tax Year, Landlord shall give Tenant an estimate of the
reasonably expected Tax Expenses for the coming Tax Year, and an estimate of
Tenant's Additional Rent for such Tax Expenses. Tenant shall pay such estimated
Additional Rent (calculated on a monthly basis) each month with its payment of
Base Rent. After each Tax Year, Landlord shall give Tenant a statement showing
the actual Tax Expenses for that Tax Year, and a calculation of the actual
amount of Additional Rent related thereto. Any underpayment by Tenant shall be
made up by cash payment to Landlord within thirty (30) days; any overpayment
shall be credited against the next due Base Rent and Additional Rent, provided
that, unless Tenant is in default under the Lease, any overpayment shall be paid
in cash to Tenant within thirty (30) days if the Term has ended.
2.7.4 Whenever tenants of more than thirty percent (30%) of the total
Rentable Floor Area of the Building (whether or not including Tenant) shall
timely request Landlord to do so, Landlord shall use reasonable efforts to
obtain an abatement of any tax or assessment for public betterment or
improvement, and Landlord shall have the right in its discretion to do so
without such request. The amount of any abatement proceeds with respect to any
year on account of which Tenant shall have made a payment of Additional Rent for
Tax Expenses under Section 2.7 shall, after deduction therefrom of any expenses
reasonably incurred in their collection and not included in Real Estate Taxes
for said year, be allocated to Tenant in the same proportion as was used to
determine Tenant's payment of such Additional Rent for Tax Expenses, and
Landlord shall at its option either pay such amount to Tenant or credit such
amount against monthly installments of Base Rent and Additional Rent next
thereafter ensuing, except with respect to such abatement proceeds as are
received after the end of the Term, with respect to which Landlord shall make
payment to Tenant forthwith upon receipt.
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ARTICLE III
Initial Construction and Alterations
3.1 Leasehold Improvements by Landlord. Landlord and Tenant have approved
the preliminary plans and outline specifications ("Preliminary Plans")
identified in Exhibit D for improvements of the Premises to be installed by
Landlord ("Leasehold Improvements"). Landlord at its initial expense shall
prepare final plans and specifications ("Final Plans"), which need not include
working or shop drawings, in substantial conformance with the Preliminary Plans
and deliver them to Tenant as soon as reasonably possible. Within ten (10)
days after delivery of the Final Plans, Tenant shall give notice of any changes
necessary to bring the Final Plans into substantial conformance with the
Preliminary Plans; Tenant shall not object to any logical development or
refinement of the Preliminary Plans or any change required by applicable law.
Tenant's failure to give Landlord timely notice of such changes shall
constitute its approval of the Final Plans. Landlord shall install the
Leasehold Improvements at its expense in accordance with the Final Plans and the
Work Letter Agreement. The Leasehold Improvements shall be a part of the
Premises and shall remain the property of Landlord. Within fifteen (15) days
after the Commencement Date, Tenant shall give Landlord a "punch list" of any
items needing correction; any matters not shown on the punch list, other than
latent defects, shall be deemed approved by Tenant. Landlord shall, with
reasonable diligence, correct any items on such list that, in Landlord's
reasonable judgment, require correction. Except as set forth herein, Landlord
shall have no obligation to improve the Premises.
3.2 Alterations by Tenant.
3.2.1 Tenant shall not make any alterations, decorations, additions,
installations, substitutes or improvements (hereinafter collectively called
"Alterations") in and to the Premises, without first obtaining Landlord's
consent. Landlord shall not unreasonably withhold or delay its consent;
however, it shall have no obligation to consent to Alterations that would
violate the Certificate of Occupancy or any applicable law, or the terms of any
superior lease or mortgage affecting the Property, adversely affect the
appearance, value, or structure of the Building, require excessive removal
expenses, affect any other part of the Building, adversely affect the
mechanical, electrical, sanitary or other service systems of the Building, or
involve the installation of any materials subject to any liens or conditional
sales contracts. Tenant shall pay Landlord's reasonable costs of reviewing
or inspecting any proposed Alterations and plans therefor.
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3.2.2 All work on any Alterations shall be done at reasonable times
in a first-class workmanlike manner, by contractors approved by Landlord,
according to plans and specifications approved by Landlord. All work shall be
done in compliance with all applicable laws and with all regulations of the
Board of Fire Underwriters or any similar insurance body or bodies. Tenant
shall be solely responsible for the effect of any Alterations on the Building's
structure and systems, whether or not Landlord has consented to the Alterations
and Tenant's plans therefor, and shall reimburse Landlord on demand for any
costs incurred by Landlord by reason of any faulty work done, or damage caused,
by Tenant or its contractors. Upon completion of any Alterations, Tenant shall
provide Landlord with a complete set of "as-built" plans.
3.2.3 Tenant shall keep the Property and Tenant's leasehold interest
therein free of any liens or claims of liens, and shall discharge any such liens
within ten (10) days of their filing. Before commencement of any work,
Tenant's contractor shall provide any lien indemnity bond required by Landlord,
and Tenant shall provide evidence of such insurance as Landlord may require,
naming Landlord as an additional insured. Tenant shall indemnify Landlord and
hold it harmless from and against any cost, claim, or liability arising from
any work done or caused to be done by Tenant. All work shall be done so as to
minimize, to the extent reasonably practicable, interference with other tenants
and with Landlord's operation of the Building or other construction work being
done by Landlord. Landlord may post any notices it considers necessary to
protect it from responsibility or liability for any Alterations, and Tenant
shall give sufficient notice to Landlord to permit such posting.
3.2.4 All Alterations affixed to the Premises shall become part thereof
and remain therein at the end of the Term. However, if Landlord gives Tenant a
notice, at least thirty (30) days before the end of the Term, to remove any
Alterations, Tenant shall do so, and shall pay the cost of removal and any
repair required by such removal. Upon Tenant's written request, Landlord shall
notify Tenant at the time of approval of any Alterations as to whether Tenant
will be required to remove such Alterations. All of Tenant's personal
property, furnishings, trade fixtures, equipment, furniture, movable partitions,
and any Alterations not affixed to the Premises shall remain Tenant's property
("Tenant's Property"), removable at any time, and shall be removed by Tenant at
the end of the Term. If Tenant fails to remove any such Tenant's Property at
the end of the Term, Landlord may do so and store it at Tenant's expense,
without Landlord being liable to Tenant, and may, in accordance with any
applicable law, sell and/or dispose of Tenant's Property at public or private
sale and apply the proceeds to any amounts due hereunder, including costs of
removal, storage and sale.
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ARTICLE IV
Landlord's Covenants; Interruptions and Delays
4.1 Landlord's Covenants.
4.1.1 Landlord shall furnish services, utilities, facilities and
supplies set forth in Exhibit C.
4.1.2 Landlord shall furnish, at Tenant's expense, reasonable
additional Building services which are usual and customary in similar office
buildings in Boston upon reasonable advance request of Tenant at reasonable
rates from time to time established by Landlord.
4.1.3 Except as otherwise provided in Article V or VI, Landlord shall
make such repairs to the roof, exterior walls (including exterior windows),
floor slabs, Building heating, ventilating and air conditioning system, plumbing
and electrical and other mechanical systems, elevators and all other common
areas and facilities as may be necessary to keep them in serviceable condition.
4.1.4 Landlord shall provide and install, at Tenant's expense,
letters or numerals on doors to the Premises to identify Tenant's official name
and Building address; all such letters and numerals shall be in the building
standard graphics and no others shall be used or permitted on the Premises.
4.1.5 Landlord covenants that, with respect to claims made by,
through or under Landlord, Tenant, on paying Rent and performing the tenant
obligations in this Lease, shall peacefully and quietly have, hold and enjoy the
Premises, subject to all of the terms and provisions of this Lease and any
mortgage to which this Lease is subordinate.
4.1.6 Landlord agrees to maintain throughout the Term of this Lease
casualty, property and liability coverage in amounts customarily maintained for
first class office towers in the downtown Boston area or in such higher amounts
as may be required by Landlord's mortgagees or as Landlord may determine to be
appropriate, and the cost thereof shall be included in Operating Expenses.
4.1.7 Landlord shall defend, save harmless, and indemnify Tenant from
any liability for injury, loss, accident or damage (but in no event any
consequential damages) to any person or property, and from any claims, actions,
proceedings and expenses and costs in connection therewith (including actual
counsel fees) arising from negligence or other misconduct of Landlord, its
employees, agents and contractors. Furthermore, Landlord agrees that
Landlord's insurance shall be primary with respect to the Building's common
areas except with respect to
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liability arising from the omission, fault, willful act, negligence or other
misconduct of Tenant, its employees, agents and contractors. Notwithstanding
the foregoing, Landlord shall be fully exculpated from any loss or damage
described in Sections 4.2, 5.6 and 6.1.7.
4.1.8 Throughout the Term, Landlord shall maintain property insurance
on the Building and on Leasehold Improvements and Alterations affixed to the
Premises (in accordance with Section 6.1.6) for the full replacement cost
thereof with an agreed amount endorsement provided such insurance may provide
for a commercially reasonably deductible. The cost of such insurance and any
deductible (except to the extent such deductible is charged to a specific
tenant) shall be included in Operating Expenses.
4.2 Interruption and Delays in Services and Repairs.
4.2.1 Landlord shall not be liable to Tenant for any compensation or
reduction of rent by reason of inconvenience or annoyance or for loss of
business arising from the necessity of Landlord or its agents entering the
Premises for any of the purposes authorized in this Lease, or for repairing the
Premises or any portion of the Building, however the necessity may occur, unless
such necessity for entering or repairing is due to Landlord's negligence or
willful misconduct. Landlord shall use reasonable efforts to minimize
inconvenience, annoyance and loss of business to Tenant.
4.2.2 In case Landlord is prevented or delayed from making any
repairs, alterations or improvements, or furnishing any services or performing
any other covenant or duty to be performed on Landlord's part, by reason of any
cause beyond Landlord's control, including governmental regulation, scarcity of
or inability to obtain labor or materials, labor difficulties, or casualty,
Landlord shall not be liable to Tenant therefor, nor, except as expressly
otherwise provided in Article VI, shall Tenant be entitled to any abatement or
reduction of Rent by reason thereof, nor shall the same give rise to a claim in
Tenant's favor that such failure constitutes actual or constructive, total or
partial, eviction from the Premises.
4.3 Right to Stop Service or Utility System. Landlord reserves the right
to stop any service or utility system when necessary by reason of casualty or
emergency; provided, however, that in each instance of stoppage, Landlord shall
exercise reasonable diligence to make necessary repairs or otherwise to
eliminate the cause thereof. Except in the case of emergency repairs, Landlord
shall give Tenant reasonable advance notice of any contemplated stoppage and
will use reasonable efforts to avoid unnecessary inconvenience to Tenant by
reason thereof.
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ARTICLE V
Tenant's Covenants
5.1 Repair and Yield Up. Except as otherwise provided in Article VI and
Section 4.1.3, Tenant shall (a) keep the Premises in good order, repair and
condition, reasonable wear and tear only excepted, and all glass in windows
(except glass in exterior walls, unless the damage thereto is attributable to
Tenant's negligence or misuse) and doors of the Premises whole and in good
condition with glass the same quality as that injured or broken, damage by fire
or other casualty only excepted; and (b) reimburse Landlord for its costs to
repair damage caused elsewhere in the Building which is attributable to
Tenant's acts and omissions including negligence. Tenant shall promptly give
Landlord notice of any damage to, or defect in, the Premises. At the end of
the Term, Tenant shall peaceably yield up the Premises, including Leasehold
Improvements and all Alterations affixed to the Premises (except to the extent
Landlord has given notice pursuant to Section 3.2.4 requiring Tenant to remove
any Alterations), in good order, repair and condition, reasonable wear and tear
and damage by fire excepted, first removing all Tenant's Property, and repairing
any damage caused by such removal and restoring the Premises and leaving them
clean and neat. The exception for reasonable wear and tear shall not permit
Tenant to maintain the Premises in less than good condition.
5.2 Use. From the Commencement Date, Tenant shall not use the Premises
other than for the Permitted Uses, and shall not injure or deface the Premises,
Building or Lot, nor permit in the Premises any auction sale, vending machines
(other than for Tenant's use), or inflammable fluids or chemicals, or nuisance,
or the emission from the Premises of any objectionable noise, odor, vibration
nor any use thereof which is inconsistent with the maintenance of the Building
as an office building of first class quality in maintenance, use and occupancy,
or which is improper, offensive, contrary to law or liable to invalidate, or
increase the premiums, for any insurance on the Building or its contents or
liable to render necessary any alteration or addition to the Building. Tenant
agrees that the ratio of the number of people regularly occupying the Premises
between the hours of 8:00 a.m. and 6:00 p.m., Monday through Friday, inclusive,
will not exceed one (1) person per two hundred (200) rentable square feet.
5.3 Obstructions; Items Visible From Exterior; Rules and Regulations.
Tenant shall not obstruct in any manner any portion of the Property not included
within the Premises; and shall not, without the prior consent of Landlord,
permit the painting or placing of any curtains, blinds, shades, awnings, aerials
or flagpoles or the like, visible from outside the Premises; and shall comply
with reasonable rules and regulations ("Rules and Regulations") of substantially
general applicability now or hereafter made by Landlord, of which Tenant has
been given prior
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notice, for the care and use of the Property and its facilities and approaches.
Landlord shall not be liable to Tenant for the failure of other occupants of
the Building to conform to such Rules and Regulations. Landlord agrees to use
reasonable efforts to enforce the rules and regulations in a substantially non-
discriminatory manner, taking into account the particulars of each situation and
the terms of the other tenants' leases.
5.4 Safety Appliances; Licenses. Tenant shall keep the Premises equipped
with all safety appliances required by law because of any use made by Tenant
other than generic office use, and shall procure all licenses and permits so
required because of such use and, if requested by Landlord, shall do any work so
required because of such use, it being understood that the foregoing provisions
shall not be construed to broaden in any way Tenant's Permitted Uses.
5.5 Indemnity; Insurance.
5.5.1 Tenant shall defend with counsel first approved by Landlord,
save harmless, and indemnify Landlord from any liability for injury, loss,
accident or damage to any person or property, and from any claims, actions,
proceedings and expenses and costs in connection therewith (including actual
counsel fees) (i) arising from (A) the omission, fault, willful act, negligence
or other misconduct of Tenant, its employees, agents and contractors, or (B)
any use made or thing done or occurring on the Premises not due to the
omission, fault, willful act, negligence or other misconduct of Landlord, its
employees, agents and contractors, or (ii) resulting from the failure of Tenant
to perform and discharge its covenants and obligations under this Lease.
5.5.2 Tenant shall obtain, at Tenant's sole cost and expense, during
the entire Term, and maintain and keep in full force and effect, the following
insurance:
(a) (i) Property insurance including fire, extended coverage,
vandalism, malicious mischief, sprinkler leakage, and all risks
coverage upon property of every description and kind owned by
Tenant and located in the Building or for which Tenant is legally
liable or installed by or on behalf of Tenant including Tenant's
Property (but excluding Leasehold Improvements and Alterations
affixed to the Premises insured by Landlord pursuant to Section
6.1.6), in an amount not less than one hundred
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percent (100%) of the full replacement cost thereof in new
condition without deduction for depreciation and in amounts that
meet any co-insurance clauses of the policies of insurance.
(ii) Extra expense insurance in an amount sufficient to reimburse
Tenant for loss of use of the Premises attributable to the
prevention of access to the Building or Premises as a result of
the perils insured in clause (i) above.
(b) A policy of comprehensive liability insurance coverage to include
personal injury, bodily injury, broad form property damage,
premises/operations, owner's protective coverage, blanket contractual
liability including assumed liability for use of the Premises
including performance by Tenant of the indemnity agreements set forth
in this Lease, products and completed operations liability, fire
legal liability, premises medical expenses in limits not less than
Five Million and 00/100 Dollars ($5,000,000.00), inclusive. Such
policy shall name Landlord and Landlord's mortgagees and ground lessor
as additional insureds and shall contain the following provision:
"Such insurance as afforded by this policy for the benefit of Landlord
shall be primary as respects any claims, losses or liabilities arising
out of the use of the Property or Premises by the Tenant or by
Tenant's operation and any insurance carried by Landlord shall be
excess and non-contributing."
(c) Worker's Compensation insurance or similar statutory coverage
containing statutorily prescribed limits and Employer's Liability with
limits of at least $1,000,000 bodily injury by accident for each
accident, $1,000,000 bodily injury by disease for each person and
$1,000,000 bodily injury by disease policy limit.
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(d) Any other form or forms of insurance in amounts and against such
risks as Landlord or the mortgagees or ground lessor of Landlord may
reasonably require from time to time.
5.5.3 All policies shall be taken out with insurers having a rating
of not less than A:XII in Best's Key Rating Guide, or which is otherwise
acceptable to Landlord and in form satisfactory to Landlord from time to time
and contain a cross-liability endorsement or severability of interest clause
acceptable to Landlord and be primary as to all claims thereunder and provide
that any insurance carried by Landlord is not excess and in non-contributing
with any insurance requirement of Tenant. Tenant shall deliver certificates of
insurance in a form and substance satisfactory to Landlord or, if at any time
required by the mortgagees or ground lessor of Landlord, certified copies of
each such insurance policy, to Landlord as soon as practicable after the placing
of the required insurance, but in no event later than ten (10) days prior to the
Commencement Date. All policies shall contain an undertaking by the insurers to
notify Landlord and the mortgagees or ground lessor of Landlord in writing not
less than thirty (30) days prior to any change, reduction in coverage,
cancellation or other termination thereof.
5.5.4 Intentionally Deleted.
5.5.5 Tenant shall not keep or use in or upon the Premises any
article which may be prohibited by any insurance policy in force from time to
time covering the Premises or the Property. If Tenant's occupancy or conduct of
business in or on the Premises, whether or not Landlord has consented to the
same, results in any increase in premiums for the insurance carried from time to
time by Landlord with respect to the Building, Tenant shall pay any such
increase in premiums as Additional Rent within ten (10) days after being billed
therefor by Landlord. In determining whether increased premiums are a result of
Tenant's use or occupancy of the Premises, a schedule issued by the or-
ganization computing the insurance rate on the Property showing the various
components of such rate shall be conclusive evidence of the several items and
charges which make up such rate. Tenant shall promptly comply with all
reasonable requirements of the insurance authority or of any insurer now or
hereafter in effect relating to the Premises.
5.5.6 If (i) any insurance policy carried by Landlord with respect to
the Property shall be cancelled or cancellation shall be threatened or the
coverage thereunder reduced or threatened to be reduced in any way by reason of
the use or occupation of the Premises or any part thereof by Tenant and (ii)
Tenant fails to remedy the condition giving rise to cancellation, threatened
cancellation or reduction of coverage within 48 hours after notice thereof,
such failure shall be deemed a
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default under this Lease, and Landlord may exercise its option to either
terminate this Lease or to enter upon the Premises and attempt to remedy such
condition, in which event Tenant shall pay immediately to Landlord the costs
associated with such termination or entry and attempt to remedy as Additional
Rent. Landlord shall not be liable for any damage or injury caused to any pro-
perty of Tenant or of others located in the Premises as a result of such an
entry.
5.6 Personal Property at Tenant's Risk. Notwithstanding any provisions
hereof to the contrary, Landlord shall not be liable for any damage to property
entrusted to employees of the Building, nor for loss of or damage to any
property by theft or otherwise, nor for any injury or damage to persons or
property resulting from fire, explosion, falling plaster, steam, gas,
electricity, water or rain which may leak from any part of the Building or from
the pipes, appliances or plumbing works therein or from the roof, street or
subsurface or from any other place or resulting from dampness or any other
patent or latent cause whatsoever. Landlord shall not be liable for interference
with the light or other incorporeal hereditaments.
5.7 Right of Entry. Tenant shall permit Landlord and its agents to
examine the Premises at reasonable times and, if Landlord shall so elect, to
make any repairs or replacements Landlord may deem necessary; to remove, at
Tenant's expense, any Alterations, additions, signs, curtains, blinds, shades,
awnings, aerials, flagpoles, or the like not consented to by Landlord; and to
show the Premises to prospective tenants during the twelve (12) months preceding
expiration of the Term and to prospective purchasers and mortgagees at all
reasonable times.
5.8 Floor Load; Prevention of Vibration and Noise. Tenant shall not place
a load upon the Premises exceeding an average rate of 75 pounds of live load per
square foot of floor area (partitions shall be considered as part of the live
load) without Landlord's prior consent. Landlord reserves the right to prescribe
the weight and position of all safes, files and heavy equipment which Tenant
desires to place in the Premises so as properly to distribute the weight
thereof. Tenant's business machines and mechanical equipment which cause
vibration or noise that may be transmitted to the Building structure or to any
other space in the Building shall be so installed, maintained and used by
Tenant, at Tenant's expense, so as to eliminate such vibration or noise. Tenant
shall pay the cost of all structural engineering required to determine
structural load of unusual installations and all acoustical engineering required
to address any noise or vibration caused by Tenant.
5.9 Personal Property Taxes. Tenant shall pay promptly when due all
taxes which may be imposed upon personal property (including fixtures taxed as
personal property) in the Premises to whomever assessed.
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5.10 Payment of Litigation Expenses. Tenant shall pay promptly on demand
all attorneys' fees and reasonable costs and other fees incurred by Landlord in
connection with the successful enforcement by Landlord of any obligations of
Tenant under this Lease.
5.11 Environmental Compliance. Tenant shall not cause or permit any
biologically or chemically active or other hazardous or toxic wastes, substances
or materials (collectively, "Hazardous Materials") to be used, generated, stored
or disposed of on, under or about, or transported to or from, the Premises or
anywhere on the Property (collectively, "Hazardous Materials Activities")
without first receiving Landlord's written consent, which may be withheld for
any reason and revoked at any time, provided that Tenant may use ordinary
office products in quantities appropriate for the size of the Premises and the
Permitted Use provided the same are stored, used and disposed of in accordance
with the applicable manufacturer's instructions and all applicable laws
("Permitted Hazardous Materials"). If Landlord consents to any such Hazardous
Materials Activities, Tenant shall conduct them in strict compliance (at
Tenant's expense) with all applicable Regulations, as hereinafter defined, and
using all necessary and appropriate precautions. Landlord shall not be liable
to Tenant for any Hazardous Materials Activities by Tenant, Tenant's employees,
agents, contractors, licensees or invitees, whether or not consented to by
Landlord. Tenant shall indemnify, defend with counsel acceptable to Landlord and
hold Landlord harmless from and against any claims, damages, costs and
liabilities arising out of Tenant's Hazardous Materials Activities. For
purposes hereof, Hazardous Materials shall include substances defined as
"hazardous substances," "toxic substances," or "hazardous wastes" in the federal
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended; the federal Hazardous Materials Transportation Act, as amended; and
the federal Resource Conservation and Recovery Act, as amended ("RCRA"); those
substances defined as "hazardous wastes" in the Massachusetts Hazardous Waste
Facility Siting Act, as amended (Massachusetts General Laws Chapter 21D); those
substances defined as "hazardous materials" or "oil" in Massachusetts General
Laws Chapter 21E, as amended; and as such substances are defined in any
regulations adopted and publications promulgated pursuant to said laws
(collectively, "Regulations"). Prior to using, storing or maintaining any
Hazardous Materials on or about the Premises, Tenant shall provide Landlord with
a list of the types and quantities thereof, and shall update such list as
necessary for continued accuracy. Tenant shall also provide Landlord with a copy
of any Hazardous Materials inventory statement required by any applicable
Regulations, and any update filed in accordance with any applicable Regulations.
If Tenant's activities violate or create a risk of violation of any
Regulations, Tenant shall cease such activities immediately upon notice from
Landlord. Tenant shall
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immediately notify Landlord both by telephone and in writing of any spill or
unauthorized discharge of Hazardous Materials or of any condition constituting
an "imminent hazard" under RCRA, except that such notice shall not be required
with respect to Permitted Hazardous Materials. If any mortgagee or governmental
agency shall ever require testing to ascertain whether or not there has been any
release of Hazardous Materials by Tenant or with respect to the Premises as a
result of any Hazardous Materials Activities on the Premises or otherwise, then
the reasonable costs thereof shall be reimbursed by Tenant to Landlord upon
demand, as Additional Rent, if and to the extent such testing reveals any such
release by Tenant. In addition, Tenant shall execute affidavits, representations
and the like from time to time at Landlord's request concerning Tenant's best
knowledge and belief regarding the presence of Hazardous Materials and any
Hazardous Materials Activities relating to the Premises. Without limiting the
generality of any other provision of this Section or this Lease, Tenant shall
defend with counsel acceptable to Landlord, hold harmless and indemnify Landlord
from any release of Hazardous Materials on the Premises or the Property to the
extent relating to the activities of Tenant. All references in this Section to
Tenant shall include Tenant's agents, employees, contractors, invitees and all
other parties claiming by, through or under Tenant. The covenants of this
Section shall survive the expiration or earlier termination of the Term of this
Lease.
5.12 Compliance with Energy Conservation Controls. Tenant shall comply
with all applicable mandatory and, if requested by Landlord and, if they do not
unreasonably interfere with Tenant's use of the Premises, voluntary, energy
conservation controls and requirements imposed or instituted by federal, state
or local governments or by the applicable utility provider including controls on
the permitted range of temperature settings and requirements necessitating
curtailment of the volume of energy consumption or the hours of operation.
ARTICLE VI
Casualty And Taking
6.1 Casualty.
6.1.1 If, during the Term of this Lease, the Premises or the Building
are wholly or partially damaged or destroyed by fire or other casualty, and the
casualty renders the Premises totally or partially inaccessible or unusable by
Tenant in the ordinary conduct of Tenant's business, then Landlord shall, within
thirty (30) days of the date of the damage, give Tenant a notice ("Damage
Notice") stating whether, according to Landlord's good faith estimate, the
damage can be repaired within
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three hundred sixty-five (365) days from the date of damage ("Repair Period"),
without the payment of overtime or other premiums. The parties' rights and
obligations then shall be governed according to whether the casualty is an
Insured Casualty or an Uninsured Casualty as set forth in the following
sections.
6.1.2 If the casualty results from a risk, the loss to Landlord from
which is covered by insurance maintained, or would have been covered by
insurance required to be maintained, by Landlord or for Landlord's benefit
(except for any deductible amount), it shall be an "Insured Casualty" and
governed by this Section 6.1.2. In such event, if the Damage Notice states that
the repairs can be completed within the Repair Period without the payment of
overtime or other premiums, then Landlord shall proceed with reasonable
promptness to make the repairs, this Lease shall remain in full force and
effect, and Base Rent shall be reduced, during the period between the casualty
and substantial completion of the repairs, in proportion to the portion of the
Premises that is inaccessible or unusable during that period and which is, in
fact, not utilized by Tenant. Base Rent shall not be reduced by reason of any
portion of the Premises being unusable or inaccessible for a period of five (5)
business days or less. If Landlord does not substantially complete such repair
within the Repair Period, Tenant may terminate this Lease upon sixty (60) days
written notice to Landlord which termination shall be effective only if Landlord
does not substantially complete the repair within said sixty (60) day period. If
the Damage Notice states that the repairs cannot, in Landlord's estimate, be
completed within the Repair Period without the payment of overtime or other
premiums, then either party may, by written notice to the other, terminate this
Lease as of the date of the occurrence of such damage or destruction, by notice
given to the other within thirty (30) days after the giving of the Damage
Notice. If neither party so terminates, then this Lease shall remain in effect,
Landlord shall make repairs, and Base Rent shall be proportionately reduced as
set forth above during the period when the Premises is inaccessible or unusable
and is not used by Tenant.
6.1.3 If the casualty is not an Insured Casualty as set forth in the
previous section, it shall be an "Uninsured Casualty" governed by this Section
6.1.3. In such event, if the Damage Notice states that the repairs can be
completed within the Repair Period without the payment of overtime or other
premiums, Landlord may elect, by notice given to Tenant within thirty (30) days
after the Damage Notice, to make the repairs, in which event this Lease shall
remain in effect and Base Rent shall be proportionately reduced as set forth
above. If Landlord does not so elect to make the repairs, or if the Damage
Notice states that the repairs cannot be made within the Repair Period, this
Lease shall terminate as of the date of the casualty.
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6.1.4 Notwithstanding the foregoing, if the Premises or the Building
are wholly or partially damaged or destroyed as a result of the willful
misconduct of Tenant or its agents, employees, licensees, invitees or
contractors, and Landlord elects to undertake to repair or restore all such
damage or destruction, such repair and restoration shall be at Tenant's sole
cost and expense, and this Lease shall continue in full force and effect without
any abatement or reduction in Base Rent or other payments owed by Tenant;
provided, however, that Tenant shall be relieved of its obligation pursuant to
this Section 6.1.4 to the extent that insurance proceeds are collected by
Landlord pursuant to insurance policies carried by Landlord, in which case
Tenant shall be responsible for the payment of the deductible and that portion
not covered by insurance.
6.1.5 Notwithstanding anything to the contrary contained in this
Section 6.1, if the Premises or the Building are wholly or partially damaged or
destroyed within the final six months of the Term of this Lease, Landlord shall
not be required to repair such casualty and either Landlord or Tenant may elect
to terminate this Lease as of the date of the occurrence of such damage or
destruction if Landlord does not notify Tenant within thirty (30) days of the
occurrence of such casualty that Landlord has elected to repair such casualty.
6.1.6 Under no circumstances shall Landlord be required to repair any
damage to, or make any repairs to or replacements of, Tenant's Property.
However, as part of Operating Expenses, Landlord shall insure the Leasehold
Improvements and any Alterations that are not Tenant's Property and of which
Landlord has received notice and approved, and shall cause such Leasehold
Improvements and Alterations to be repaired and restored to the extent of the
proceeds of insurance (less the costs of obtaining same including reasonable fee
for attorneys and insurance adjusters), except that Tenant shall pay for such
portion which is covered by the deductible. Landlord shall have no
responsibility for any contents placed or kept in or on the Premises or the
Building by Tenant or Tenant's agents, employees, invitees or contractors.
6.1.7 This Section 6.1 shall be Tenant's sole and exclusive remedy in
the event of damage or destruction to the Premises or the Building. No
damages, compensation or claim shall be payable by Landlord for any
inconvenience, any interruption or cessation of Tenant's business, or any
annoyance, arising from any damage to or destruction of all or any portion of
the Premises or the Building, regardless of the cause.
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6.2 Eminent Domain.
6.2.1 If the whole of the Premises, or so much of the Premises as to
render the balance unusable by Tenant, shall be taken or appropriated under
the power of eminent domain or condemnation (a "Taking"), this Lease shall
automatically terminate as of the earlier of the date of final judgment in such
Taking proceedings, or the date possession is taken by the Taking authority.
If any part of the Property is the subject of a Taking and such Taking
materially affects the normal operation of the Building or common areas,
Landlord may elect to terminate this Lease. A sale by Landlord to the taking
authority under threat of a Taking shall constitute a Taking for the purpose of
this Section 6.2. No award for any partial or entire Taking shall be
apportioned. Landlord shall receive (subject to the rights of Landlord's
mortgagees) and Tenant hereby assigns to Landlord any award which may be made
and any other proceeds in connection with such Taking, together with all rights
of Tenant to such award or proceeds, including any award or compensation for the
value of all or any part of the leasehold estate; provided that nothing
contained in this Section 6.2.1 shall be deemed to give Landlord any interest
in or to require Tenant to assign to Landlord any separate award made to Tenant
for (a) the taking of Tenant's Property, or (b) interruption of or damage to
Tenant's business, or (c) Tenant's moving and relocation costs.
6.2.2 In the event of a Taking which does not result in a termination
of the Lease, Base Rent shall be proportionately reduced based on the portion of
the Premises rendered unusable, and Landlord shall restore the Premises or the
Building to the extent of the available proceeds or awards from such Taking
which are applicable to the Premises. Landlord shall not be required to repair
or restore any damage to Tenant's Property or any Alterations that are not
affixed to the Premises.
6.2.3 No temporary Taking of the Premises or any part of the Premises
or of Tenant's rights to the Premises or under this Lease shall terminate this
Lease or give Tenant any right to any abatement of any payments owed to Landlord
pursuant to this Lease; any award made to Tenant by reason of such temporary
Taking shall belong entirely to Tenant. For purposes hereof, a temporary Taking
shall mean a taking of two hundred seventy (270) days or less.
6.2.4 This Section 6.2 sets forth Tenant's and Landlord's sole
remedies for any Taking. Upon termination of this Lease pursuant to this
Section 6.2, Tenant and Landlord hereby agree to release such other from any
and all obligations and liabilities with respect to this Lease except such
obligations and liabilities which arise or accrue prior to such termination.
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ARTICLE VII
Rights of Parties Holding Prior Interests
7.1 Lease Subordinate.
7.1.1 Upon request of Landlord or its mortgagees or any ground
lessor, Tenant shall, within ten (10) days, deliver a recordable instrument
subordinating its rights under this Lease (each, a "Subordination") to: (a) all
ground leases or underlying leases which may now exist or hereafter be executed
affecting the Building or the Lot, or both, and (b) the lien of any mortgage
which may now exist or hereafter be executed in any amount for which the
Building, the Lot, ground leases or underlying leases, or Landlord's interest or
estate in any of said items is specified as security. Notwithstanding the
foregoing, Landlord shall have the right to subordinate or cause to be
subordinated any such ground leases or underlying leases or any such liens to
this Lease. Landlord shall request from all mortgagees of Landlord's leasehold
interest a so-called non-disturbance agreement for Tenant. Landlord shall
obtain from the current mortgagees of Landlord's leasehold interest
Subordination of Mortgage Agreements in the forms attached hereto as Exhibit F.
Tenant shall be required to deliver a Subordination to a mortgagee or ground
lessor which holds an interest which is not otherwise superior to this Lease
only if such future mortgagee or ground lessor provides Tenant with a written
instrument acknowledging that Tenant's quiet enjoyment shall not be disturbed
unless Tenant fails to perform its obligations or this Lease is otherwise
terminated in accordance with its terms.
7.1.2 If any ground lease or underlying lease terminates for any
reason or any mortgage is foreclosed or a conveyance in lieu of foreclosure with
respect to any such mortgage is made for any reason, and the successor in
interest to Landlord shall elect or be required under the terms of any
non-disturbance agreement to recognize this Lease, then Tenant shall attorn to
and become the tenant of such successor.
7.1.3 Tenant shall within ten (10) days of receipt thereof execute
and deliver, upon demand by Landlord and in the form requested by Landlord, any
additional documents evidencing the priority or subordination of this Lease with
respect to any such ground leases or underlying leases or the lien of any such
mortgage.
7.2 Rights of Holder of Mortgage to Notice of Defaults by Landlord and to
Cure Same. No act or failure to act on the part of Landlord which would
entitle Tenant under the terms of this Lease, or by law, to be relieved of
Tenant's obligations hereunder or to terminate this Lease, shall result in a
release or termination of such obligation or a termination of this Lease unless
(i) Tenant shall have first given notice of Landlord's act
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or failure to act to Landlord's mortgagees of record, if any, specifying the act
or failure to act on the part of Landlord which could or would give basis to
Tenant's rights, and (ii) such mortgagees, after receipt of such notice, have
failed or refused to correct or cure the condition complained of within a
reasonable time thereafter; but nothing contained in this Section 7.2 shall be
deemed to impose any obligation on any such mortgagees to correct or cure any
condition. "Reasonable time" as used above means and includes a reasonable time
to obtain possession of the mortgaged premises if the mortgagee elects to do so
and a reasonable time to correct or cure the condition if such condition is
determined to exist.
7.3 Modification for Lender. If, in connection with obtaining
construction, interim, permanent financing or refinancing for the Building, the
lender shall request reasonable modifications in this Lease as a condition to
such financing or refinancing, Tenant shall not unreasonably withhold, delay or
defer its consent thereto, provided that such modifications do not increase the
obligations of Tenant hereunder or adversely affect the leasehold interest
created hereby or Tenant's rights hereunder.
ARTICLE VIII
Default
8.1 Events of Default.
8.1.1 The occurrence of any one or more of the following events shall
constitute a default hereunder by Tenant:
(a) The failure by Tenant to make any payment of Rent or any other
payment required hereunder, as and when due, where such failure shall
continue for a period of five (5) days after notice thereof from
Landlord to Tenant.
(b) The vacating or abandonment of the Premises by Tenant.
(c) The failure by Tenant to observe or perform any of the express or
implied covenants or provisions of this Lease to be observed or
performed by Tenant, other than as specified in clauses (a) and (b)
above, where such failure shall continue for a period of more than
thirty (30) days after notice thereof from Landlord to Tenant;
provided, further, that if the nature of Tenant's default is such that
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more than thirty (30) days are reasonably required for its cure,
thenTenant shall not be deemed to be in default if Tenant shall
commence such cure within said ten day period and thereafter
diligently prosecute such cure to completion, which completion shall
occur not later than ninety (90) days from the date of such notice
from Landlord.
(d) The failure by Tenant or any guarantor of any of Tenant's
obligations under this Lease to pay its debts as they become due, or
Tenant or any such guarantor becoming insolvent, filing or having
filed against it a petition under any chapter of the United States
Bankruptcy Code, 11 U.S.C. Section 101 et seq. (or any similar
petition under any applicable insolvency law), proposing any
dissolution, liquidation, composition, financial reorganization or
recapitalization with creditors, making an assignment or trust
mortgage for the benefit of creditors, or if a receiver, trustee,
custodian or similar agent is appointed or takes possession with
respect to any property or business of Tenant or such guarantor.
(e) Attachment, execution, or other judicial seizure of all or
substantially all of Tenant's assets, or this leasehold, or any other
voluntary or involuntary encumbrance of Tenant's leasehold interest
hereunder.
8.1.2 In the event of any such default by Tenant, whether or not the
Term shall have begun, in addition to any other remedies available to Landlord
at law or in equity, Landlord shall have the immediate option, or the option at
any time while such default exists and without further notice, to terminate
this Lease and all rights of Tenant hereunder; and Tenant shall then quit and
surrender the Premises to Landlord, but Tenant shall remain liable as
hereinafter provided.
8.2 Damages.
8.2.1 If this Lease is terminated under any of the provisions
contained in Section 8.1 or shall be otherwise terminated for breach of any
obligation of Tenant, Tenant shall pay forthwith to Landlord, as compensation,
the excess of the total Rent reserved for the residue of the stated Term over
the rental value of the Premises for said residue of the stated Term. As an
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additional and cumulative obligation after any such ending, Tenant shall pay
punctually to Landlord all the sums which Tenant covenants in this Lease to pay
at the same time as if this Lease had not been terminated. In calculating the
amounts to be paid by Tenant under the immediately preceding covenant Tenant
shall be credited with any amount paid to Landlord as compensation as in this
Section 8.2 provided and also with the net proceeds of any rent obtained by
Landlord by reletting the Premises, after deducting all Landlord's reasonable
expenses in connection with such reletting, amortized over the term of the
reletting, including all repossession costs, brokerage commissions, fees for
legal services and expenses of preparing the Premises for such reletting, it
being agreed by Tenant that Landlord may (i) relet the Premises or any part or
parts thereof, for a term or terms which may at Landlord's option be equal to or
less than or exceed the period which would otherwise have constituted the
balance of the stated Term and may grant such concessions and free rent as
Landlord in its sole judgment considers advisable or necessary to relet the
same and (ii) make such alterations, repairs and decorations in the Premises as
Landlord in its sole judgment considers advisable or necessary to relet the
same, and no action of Landlord in accordance with the foregoing or failure to
relet or to collect rent under reletting shall operate or be construed to
release or reduce Tenant's liability as aforesaid.
8.2.2 In lieu of any other damages or indemnity and in lieu of full
recovery by Landlord of all sums payable under all the foregoing provisions of
this Section 8.2. Landlord may by notice to Tenant, at any time after this
Lease is terminated under any of the provisions contained in Section 8.1 or is
otherwise terminated for breach of any obligation of Tenant and before such full
recovery, elect to recover, and Tenant shall thereupon pay, as liquidated
damages, an amount equal to the aggregate of the Base Rent and Additional Rent
accrued under Sections 2.5, 2.6 and 2.7 in the 12 months next prior to such
termination plus the amount of Base Rent and Additional Rent of any kind accrued
and unpaid at the time of termination and less the amount of recovery by
Landlord under the foregoing provision of this Section 8.2 up to the time of
payment of such liquidated damages.
8.2.3 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 proceedings in which, the damages are to be provided, whether or
not the amount be greater, equal to, or less than the amount of the loss or
damages referred to above.
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8.2.4 The specific remedies to which Landlord may resort under the
provisions of this Lease are cumulative and are not intended to be exclusive of
any other remedies or means of redress to which it may be entitled lawfully in
case of any breach or threatened breach by Tenant of any provisions of this
Lease. In addition to other remedies provided in this Lease, Landlord shall be
entitled to the restraint by injunction of the violation or attempted or
threatened violation of any of the covenants, conditions or provisions of the
Lease or to a decree compelling specific performance of any such covenants,
conditions or provisions.
ARTICLE IX
Assignment and Subletting
9.1 Definitions. For the purposes of this Article IX, "assignment" shall
include the following events: if Tenant is a partnership, a withdrawal or
change (voluntary, involuntary, by operation of law or otherwise) of any of the
general partners thereof, or of general and limited partners owning in the
aggregate fifty percent (50%) or more of the capital and profits of the
partnership, or the dissolution of the partnership; or if Tenant consists of
more than one person, a purported assignment, transfer, mortgage or encumbrance
(voluntary, involuntary, by operation of law or otherwise) from one thereof unto
the other or others thereof; or, if Tenant is a corporation, any dissolution,
merger, consolidation or other reorganization of Tenant or any change in the
ownership (voluntary, involuntary, by operation of law or otherwise) of fifty
percent (50%) or more of its capital stock or fifty percent (50%) or more of its
voting stock from the ownership existing on the date of execution hereof; or,
the sale of fifty percent (50%) or more of the value of the assets of Tenant.
During such time as the stock of Tenant is listed on a nationally recognized
stock exchange, the sale or transfer of Tenant's stock shall not be deemed an
assignment under this Lease.
9.2 Tenant's Request for Consent. Tenant shall not, without prior consent
of Landlord and any mortgagee of Landlord requiring such consent, assign,
mortgage, pledge or otherwise transfer this Lease, make any sublease, or permit
occupancy of the Premises or any part thereof by anyone other than Tenant. In
connection with any request by Tenant for such consent to assignment or
subletting, Tenant shall submit to Landlord (i) the name of the proposed
assignee or subtenant, (ii) such information as to its financial responsibility
and standing as Landlord may reasonably require, and (iii) all of the terms and
provisions upon which the proposed assignment or subletting is to be made.
Notwithstanding the foregoing, Landlord shall not unreasonably withhold its
consent provided that the net worth of the assignee is not less than Five
Million Dollars and 00/100 ($5,000,000.00).
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9.3 Landlord's Option to Cancel. Upon receipt from Tenant of such request
and information, Landlord shall have an option to be exercised within thirty
(30) days after its receipt from Tenant of such request and information if the
request is to assign the Lease or to sublet all of the Premises for the
remainder of the Term, to cancel or terminate this Lease, or, if the request is
to sublet more than forty percent (40%) or the sublease would result in more
than forty percent (40%) of the Premises in the aggregate being sublet, to
cancel and terminate this Lease with respect to such portion for, at Landlord's
election, the term of the proposed sublease or for the balance of the stated
Term, or, if the request is to sublet less than forty percent (40%) or the
sublease would not result in more than forty percent (40%) of the Premises in
the aggregate being sublet, to cancel and terminate this Lease with respect to
such portion for the term of the proposed sublease, in each case as of the date
set forth in Landlord's notice of exercise of such option, which shall be not
less than sixty (60) days nor more than one hundred twenty (120) days following
the giving of such notice. In the event Landlord shall exercise such option,
Tenant shall surrender possession of the entire Premises, or the portion which
is the subject of the option, as the case may be, on the date set forth in such
notice in accordance with the provisions of this Lease relating to surrender of
the Premises at the expiration of the Term. If this Lease shall be cancelled
as to a portion of the Premises only, Rent shall thereafter be abated
proportionately according to the ratio that the number of rentable square feet
in the portion of the space surrendered bears to the Rentable Floor Area of the
Premises.
9.4 Terms of Assignment or Sublease. If Landlord shall not exercise its
option to cancel this Lease pursuant to the foregoing provisions, and Landlord
shall consent to the requested assignment or subletting, the terms and
provisions of such assignment or subletting shall specifically make applicable
to the assignee or sublessee all of the provisions of this Article IX so that
Landlord shall have against the assignee or sublessee all rights with respect to
any further assignment and subletting which are set forth herein; no assignment
or subletting shall affect the continuing primary liability of Tenant (which,
following assignment, shall be joint and several with assignee); no consent to
any of the foregoing in a specific instance shall operate as a waiver in a
subsequent instance; and no assignment shall be binding upon Landlord or any of
Landlord's mortgagees, unless Tenant shall deliver to Landlord an instrument in
recordable form which contains a covenant of assumption by the assignee running
to Landlord and all persons claiming by, through or under Landlord, but the
failure or refusal of the assignee to execute such instrument of assumption
shall not release or discharge assignee from its liability as Tenant hereunder.
If Landlord
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shall not exercise its option to cancel this Lease pursuant to the foregoing
provisions, Landlord shall be entitled to receive one hundred percent (100%) of
all amounts received by Tenant in excess of the Base Rent and Additional Rent
reserved in this Lease applicable to the space being so assigned or sublet.
9.5 Provisions in Sublease or Assignment. Tenant shall include in each
permitted assignment, sublease, license, concession or other agreement for use
or occupancy of the Premises provisions that neither Tenant nor any other person
having an interest in the possession, use or occupancy of the Premises shall
enter into any lease, sublease, license, concession or other agreement for use
of the Premises which provides for rental or other payment for such use or
occupancy based, in whole or in part, on the net income or profits derived any
person or entity from the space leased, occupied or used (other than an amount
based on a fixed percentage or percentages of gross receipts or gross sales).
Any such purported lease, sublease, license, concession or other transfer shall
be absolutely void and ineffective as a conveyance of any right or interest in
the possession, use or occupancy of any part of the Premises.
9.6 Related Expenses. As Additional Rent, Tenant shall reimburse Landlord
promptly for reasonable legal and other expense incurred by Landlord in
connection with any request by Tenant for consent to assignment or subletting,
including fees and expenses payable to any mortgagee.
9.7 No Default by Tenant; Prohibited Assignments. Notwithstanding any
contrary provision of this Lease, Tenant shall have no right to assign this
Lease or sublet all or any portion of the Premises, unless on both (i) the date
on which Tenant notifies Landlord of its intention to enter into any assignment
or sublease and (ii) the date on which such assignment or sublease is to take
effect, Tenant is not in default of any of its obligations under this Lease.
Tenant shall have no right to assign this Lease or sublet all or any portion of
the Premises to government agencies, current tenants in the Building, or any
tenants with whom Landlord shall have negotiated in the six months immediately
preceding such attempted assignment or subletting.
ARTICLE X
Miscellaneous
10.1 Headings; Recordation; Consent or Approval; Notices; Bind and Inure;
"Including"; "Laws".
10.1.1 The titles of the Articles and Sections are for convenience
only and are not to be considered in construing this Lease.
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10.1.2 Tenant agrees not to record this Lease, but upon request of
either party both parties shall execute and deliver a notice of this Lease in
form appropriate for recording or registration, and if this Lease is terminated
before the Term expires, an instrument in such form acknowledging the date of
termination.
10.1.3 Any notice, approval, consent, request or election given or
made pursuant to this Lease shall be in writing. Communications and payments
shall be addressed if to Landlord at Landlord's Original Address or at such
other address or addresses as may have been specified by prior notice to Tenant,
with a copy to Koll Management Services, 60 State Street, Boston, Massachusetts
02109; and if to Tenant, at Tenant's Original Address or at such other place as
may have been specified by prior notice to Landlord. Any communication so
addressed shall be deemed duly given when delivered by hand, one day after being
sent by a guaranteed one-day delivery service, or three (3) days after being
mailed by registered or certified mail, return receipt requested. If Landlord
by notice to Tenant at any time designates some other person to receive payments
or notices, all payments or notices thereafter by Tenant shall be paid or given
to the person designated until notice to the contrary is received by Tenant from
Landlord.
10.1.4 The obligations of this Lease shall run with the land, and
this Lease shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, except that only the original
Landlord named herein shall be liable for obligations accruing before the
beginning of the Term, and thereafter the original Landlord named herein and
each successive owner of the Premises shall be liable only for obligations
accruing during the period of their respective ownership.
10.1.5 As used in this Lease, any list of one or more items preceded
by the words "including" or "include" shall not be deemed limited to the stated
items, but shall be deemed without limitation.
10.1.6 In the event of the imposition by law of restrictions on the
use or consumption of energy or other utilities during the Term, both Landlord
and Tenant shall be bound thereby. In the event of a difference in
interpretation of any law between Landlord and Tenant, the interpretation of
Landlord shall prevail, and Landlord shall have the right to enforce compliance,
including the right of entry into the Premises to effect compliance.
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10.1.7 As used in this Lease, the word "law" shall be deemed to mean
all applicable provisions of law, including federal, state, county and city
laws, ordinances and regulations, building codes, police, fire and sanitary
regulations, and any other governmental, quasi-governmental or municipal
regulations that affect the subject matter of the Lease provision in which the
word "law" is used.
10.2 Landlord's Failure to Enforce. The failure of Landlord to seek
redress for violation of, or to insist upon strict performance of, any covenant
or condition of this Lease, or with respect to such failure of Landlord to
enforce any of the Rules and Regulations, whether heretofore or hereafter
adopted by Landlord, shall not be deemed a waiver of such violation nor prevent
a subsequent act which would have originally constituted a violation from having
all the force and effect of an original violation, nor shall the failure of
Landlord to enforce any of said Rules and Regulations against any other tenant
of the Building be deemed a waiver of any such Rule or Regulation. The receipt
by Landlord of Base Rent or Additional Rent with knowledge of the breach of any
covenant of this Lease shall not be deemed a waiver of such breach. No
provision of this Lease shall be deemed to have been waived by Landlord, or by
Tenant, unless such waiver be in writing signed by the party to be charged. No
consent or waiver, express or implied by Landlord or Tenant, to or of any breach
of any agreement or duty shall be construed as a waiver or consent to or of any
other breach of the same or any other agreement or duty.
10.3 Acceptance of Partial Payments of Rent; Delivery of Keys. No
acceptance by Landlord of a lesser sum than the Base Rent or Additional Rent
then due shall be deemed to be other than on account of the earliest
installment of such Rent due, nor shall any endorsement or statement on any
check or any letter accompanying any check or payment as Rent be deemed an
accord and satisfaction, and Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance of such installment or
pursue any other remedy in this Lease provided. The delivery of keys to any
employee of Landlord or to Landlord's agent or any employee thereof shall not
operate as a termination of this Lease or surrender of the Premises.
10.4 Partial Invalidity. If any provision of this Lease, or the
application thereof to any person or circumstances, shall to any extent be
invalid or unenforceable, the remainder of this Lease, or the application of
such provision to persons or circumstances other than those as to which it is
invalid or unenforceable shall not be affected thereby, and each provision of
this Lease shall be valid and enforceable to the fullest extent permitted by
law.
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10.5 Landlord's Option to Cure. If Tenant shall at any time default in
the performance of any obligation under this Lease, Landlord shall have the
right, but shall not be obligated, to enter upon the Premises and to perform
such obligation, notwithstanding the fact that no specific provision for such
substituted performance by Landlord is made in this Lease with respect to such
default. In performing such obligation, Landlord may make any payment of money
or perform any other act. All sums so paid by Landlord (together with interest
at the Default Rate as hereinafter defined), and all necessary incidental costs
and expenses in connection with the performance of any such act by Landlord,
shall be deemed to be Additional Rent under this Lease and shall be payable to
Landlord immediately on demand. Landlord may exercise the foregoing rights
without waiving any other of its rights or releasing Tenant from any of its
obligations under this Lease.
10.6 Tenant's Estoppel Certificate and Financial Statements.
10.6.1 Tenant agrees from time to time, upon not less than ten (10)
days prior request by Landlord, to execute, acknowledge and deliver to Landlord
a statement, in a form satisfactory to Landlord and the mortgagees and/or ground
lessor of Landlord, certifying that this Lease is unmodified and in full force
and effect and that Tenant has no defenses, offsets or counterclaims against
its obligations to pay Base Rent and Additional Rent and to perform its other
covenants under this Lease and that there are no uncured defaults of Landlord or
Tenant under this Lease (or if there have been any modifications, that the same
is in full force and effect as modified and stating the modifications and, if
there are any defenses, offsets, counterclaims or defaults, setting them forth
in reasonable detail), and the dates to which the Base Rent, Additional Rent and
other charges have been paid. Any such statement delivered pursuant to this
Section 10.6 may be relied upon by a prospective purchaser, mortgagee or ground
lessor of the Premises or any prospective assignee of any mortgagee of the
Premises. Upon request, Landlord shall execute and deliver to Tenant a similar
statement.
10.6.2 Tenant's failure to deliver such statement within such time
shall be conclusive upon Tenant (a) that this Lease is in full force and
effect, without modification except as may be represented by Landlord, (b) that
there are no uncured defaults in Landlord's performance, and (c) that not more
than one month's rent has been paid in advance.
10.6.3 Tenant further agrees, from time to time, upon not less than
ten (10) days prior request by Landlord, to deliver to Landlord certified
financial statements and related information concerning Tenant's financial
status.
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10.7 Waiver of Subrogation. Any insurance carried by either party with
respect to the Premises or property therein or occurrences thereon shall include
a clause or endorsement denying to the insurer rights of subrogation against the
other party to the extent rights have been waived by the insured prior to occur-
rence of injury or loss. Each party, notwithstanding any provisions of this
Lease to the contrary, hereby waives any rights of recovery against the other
for injury or loss due to hazards covered by such insurance to the extent of the
indemnification received thereunder or which would have been covered had the
insurance required hereunder been maintained.
10.8 All Agreements Contained. This Lease contains all of the agreements
of the parties with respect to the subject matter thereof and supersedes all
prior dealings between them with respect to such subject matter.
10.9 Brokerage. The parties recognize that the brokers who negotiated
this Lease are the brokers whose names are stated in Section 1.1. Tenant shall
be solely responsible for the payment of the agreed upon brokerage commissions
to said brokers, and Landlord shall have no responsibility therefor. Tenant
shall pay the brokerage commissions to said brokers in the amount of $53,075.50,
which is based on $6.50 per square foot, upon the full execution and delivery of
this Lease, and shall submit to Landlord verification that such payment has
been made. As part of the consideration for the granting of this Lease, Tenant
represents and warrants to Landlord that to Tenant's knowledge no other broker,
agent or finder negotiated or was instrumental in negotiating or consummating
this Lease and that Tenant knows of no other real estate broker, agent or finder
who is, or might be, entitled to a commission in connection with this Lease.
Any broker, agent or finder of Tenant whom Tenant has failed to disclose herein
shall be paid by Tenant. Tenant shall hold Landlord harmless from all damages
and indemnify Landlord for all said damage paid or incurred by Landlord
resulting from any claims that may be asserted against Landlord by any broker,
agent or finder undisclosed by Tenant herein.
10.10 Submission Not An Option. The submission of this Lease or a summary
of some or all of its provisions for examination does not constitute a
reservation of or option for the Premises or an offer to lease, end it is not
effective as a lease or otherwise until the execution by and delivery to both
Landlord and Tenant.
10.11 Applicable Law. This Lease, and the rights and obligations of the
parties hereto, shall be construed and enforced in accordance with the
substantive law of the Commonwealth of Massachusetts, without giving effect to
the conflicts or choice of law provisions of Massachusetts or any other
jurisdiction.
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10.12 Massachusetts Jurisdiction. With respect to any matter arising out
of or connected with this Lease, Tenant submits to the jurisdiction of the
federal and state courts within the Commonwealth of Massachusetts.
10.13 Waiver of Jury Trial. LANDLORD AND TENANT HEREBY WAIVE TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES
HERETO AGAINST THE OTHER, ON OR IN RESPECT TO ANY MATTER WHATSOEVER ARISING OUT
OF OR IN ANY WAY CONNECTED WITH THIS LEASE, THE RELATIONSHIP OF LANDLORD AND
TENANT HEREUNDER, TENANT'S USE OR OCCUPANCY OF THE PREMISES, AND/OR CLAIM OF
INJURY OR DAMAGES.
10.14 Holdover. Should Tenant hold over in occupancy of the Premises
after the expiration of the Term of this Lease, Tenant shall become a tenant at
sufferance only, at a rental rate equal to one hundred fifty (150%) of the Base
Rent rate in effect at the end of the Term, and otherwise subject to all the
terms, covenants and conditions herein specified, so far as applicable.
Acceptance by Landlord of Rent after expiration of the Term or earlier
termination of the Lease shall not constitute consent to a holdover hereunder or
result in a renewal or extension. If Tenant fails to surrender the Premises
upon the expiration of the Term or earlier termination despite demand by
Landlord to do so, Tenant shall be liable for all damages sustained by Landlord
on account of such holding over and shall indemnify and hold Landlord harmless
from all loss or liability, including any claim made by any succeeding tenant
founded on or resulting from such failure to surrender.
10.15 Surrender of Premises. The voluntary or other surrender of this
Lease by Tenant or a mutual cancellation thereof, shall not work a merger, and
shall, at the option of Landlord, operate as an assignment to it of any or all
subleases or subtenancies.
10.16 Late Payment. All covenants and agreements to be performed by
Tenant under any provisions of this Lease shall be performed by Tenant, at
Tenant's sole cost and expense, and without any abatement of Rent. Tenant
acknowledges that the late payment by Tenant to Landlord of any sums due under
this Lease will cause Landlord to incur costs not contemplated by this Lease,
the exact amount of such costs being impractical to fix. Such costs include
processing and accounting charges, and late charges that may be imposed on
Landlord by the terms of the note secured by any encumbrance covering the
Premises or the Building of which the Premises are a part. Therefore, if Tenant
shall fail to pay any installment of Rent on or before the date when due, or if
Tenant shall fail to pay any other sum of money due hereunder and such failure
shall continue for ten (10) days after notice thereof by Landlord, Tenant shall
pay to Landlord the greater of: (a) five percent (5%) of the overdue amount; or
(b) interest on such overdue amount at an annual rate equal to
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the prime rate announced from time to time by Chase Manhattan Bank at its main
office in New York, New York, plus three (3) percentage points (the "Default
Rate"), calculated from the due date of the overdue amount until the date of
payment to Landlord, provided that such interest rate shall not exceed the
highest rate permitted by Massachusetts law. Landlord's acceptance or any late
charge or interest shall not constitute a waiver of Tenant's default with
respect to the overdue amount or prevent Landlord from exercising any of the
other rights and remedies available to Landlord under this Lease or any law now
or hereafter in effect.
10.17 Time. Time is of the essence with respect to the performance of
every provision of this Lease in which time or performance is a factor.
10.18 Harmony. Tenant agrees that with respect to all work of any nature
performed during the Term for Tenant, whether related to Leasehold Improvements,
Alterations or any other type or manner of work, Tenant and Tenant's agents,
contractors, workers, mechanics, suppliers and invitees shall work in harmony
with Landlord and with other tenants and occupants of the Building, and such
other contractors, workers, mechanics, suppliers and invitees as shall be
working thereon or thereat from time to time prior to or during the Term. If
at any time the presence of Tenant's agents, contractors, workers, mechanics,
suppliers and/or invitees shall cause or threaten to cause disharmony or
otherwise interfere with the orderly operation of other businesses then in the
Building, Landlord shall have the right upon written notice to Tenant, to order
Tenant to cease all work on the Premises, in which event all work then in
progress shall be halted and shall not be recommenced until and unless the
conflict(s) which led to Landlord's delivering such notice to Tenant shall have
been resolved.
10.19 Limitation On Liability. The obligations of Landlord under this
Lease do not constitute personal obligations of the Landlord or trustees,
partners, directors, officers or shareholders of Landlord, and Tenant shall not
seek recourse against the Landlord or trustees, individual partners, directors,
officers or shareholders of Landlord or any of their personal assets for
satisfaction of any liability in respect to this Lease, except for Landlord's
interest in the Property. Unless a court determines that Landlord has acted in
bad faith, Tenant shall have no claim, and hereby waives the right to any claim,
against Landlord for money damages by reason of any refusal, withholding or
delaying by Landlord of any consent, approval or statement of satisfaction, and
in such event, Tenant's only remedies therefor shall be an action for specific
performance, injunction or declaratory judgment to enforce any such requirement.
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10.20 Authority. If Tenant executes this Lease as a corporation, then
Tenant represents and warrants that the individuals executing this Lease on
Tenant's behalf are duly authorized to execute and deliver this Lease on its
behalf in accordance with a duly adopted resolution of the board of directors of
Tenant, a copy of which is to be delivered to Landlord on execution hereof, and
in accordance with the by-laws of Tenant and that this Lease is binding upon
Tenant in accordance with its terms. If Tenant executes this Lease as a
partnership, then Tenant and the persons executing this Lease on behalf of
Tenant represent and warrant that the individuals executing this Lease on
Tenant's behalf are general partners of the partnership, duly authorized to
execute and deliver this Lease on its behalf in accordance with the terms of
the partnership agreement, a copy of which is to be delivered to Landlord on
execution hereof, and that this Lease is binding upon Tenant in accordance with
its terms.
EXECUTED as a sealed instrument in two or more counterparts the day and
year first above written.
LANDLORD: TRUSTEES OF 60 STATE
STREET TRUST
By: John A. Pirovano
-----------------------------
John A. Pirovano, as Trustee
of 60 State Street Trust,
for self and Co-Trustee,
but not individually
TENANT: HPSC, INC.
By: John Everets, Jr.
--------------------------
its President
hereunto duly authorized
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EXHIBIT A
Tenant's Floor Plan
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EXHIBIT B
Description of Lot
Attached to and made part of Lease
dated March 8, 1994
Between
Trustees of 60 State Street Trust, Landlord
and
HPSC, Inc., Tenant
The land in Boston, Suffolk County, Massachusetts, shown on a plan entitled
"Plan of Land Showing Area to be Acquired, Boston, Mass., dated October 13,
1970, as revised to May 11, 1973, and drawn by Harry Feldman, Inc., Engineers
and Surveyors, 112 Shawmut Avenue, Boston, Massachusetts," which plan is
recorded with said Deeds in Book 8691, Page 596, and bounded and described as
follows:
Beginning at the southeasterly corner of the intersection of easterly
sideline of Congress Street and the southerly sideline of Faneuil Hall Square
and running S82-27-55E by Faneuil Hall Square, a distance of 112.53 feet to an
angle;
thence turning and running N82-24-O6E by Faneuil Hall Square, a distance of
106.32 to an angle;
thence turning and running S1O-43-40E by Faneuil Hall Square. a distance of 2.00
feet to the corner of the 5-story brick building known as Faneuil Hall Square,
now or formerly of Charles G. Crones;
thence running S1O-43-40E by the westerly face of the said 5-story brick
building, a distance of 67.27 feet to an angle;
thence turning and running N79-40-00E by said land of Crones, a distance of
61.81 feet to a point on the westerly sideline of Merchants Row, subject to the
existing southerly face of the building at numbers 28-36 Merchants Row as shown
on sketch "C" of said Plan;
thence turning and running S23-15-42E by the said westerly line of Merchants
Row, a distance of 30.42 fact to an angle;
thence running S23-16-57E by said line or Merchants Row, a distance of 17.50
feet to an angle:
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thence turning and running S83-31-29W by land now or formerly of Nathan R.
Miller Properties, Ltd.-5th ("Miller"), a distance of 73.22 feet to an angle;
thence turning and running NO6-57-30W by said land of Miller, a distance of 8.50
feet to an angle;
thence turning and running S88-41-40W by land of Miller, a distance of 30.30
feet to an angle;
thence turning and running S1O-24-24E by said land of Miller, a distance of
32.40 feet to an angle;
thence running S1O-51-43E by a passageway shown on said land, a distance of
21.61 feet to an angle;
thence turning and running N83-10-33E by said passageway, a distance of 4.91
feet to an angle;
thence turning and running SO8-52-18E by said passageway, a distance of 25.03
feet to an angle:
thence turning and running N83-22-26E by said passageway, a distance of 31.47
feet to an angle:
thence turning and running SO6-39-O2E by said passageway, a distance of 20.89
feet to an angle;
thence turning and running N80-55-44E by said passageway, a distance of 4.03
feet to an angle;
thence turning and running SO6-35-40E by said passageway, a distance of 12.72
feet to an angle;
thence running S11-39-14E by said passageway, a distance of 36.92 feet to a
point, said point being on the northerly sideline of State Street;
thence turning and running S78-29-12W by said northerly sideline State Street, a
distance of 4.10 feet to an angle;
thence running S78-46-35W by State Street, 33.51 feet to an angle;
thence turning and running S78-46-38W by State Street, a distance of 83.49 feet
to an angle;
thence running S78-45-36W by State Street, a distance of 76.04 feet to an angle;
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thence running S78-48-57W by State Street. a distance of 15.84 feet to the point
on the intersection of sidelines of State and Congress Streets;
thence turning and running N12-11-O9W by the easterly sideline of Congress
Street, a distance of 292.92 feet to the point of beginning.
The above-described parcel contains 56,331 square feet (1.293 acres) as
shown on the Plan.
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EXHIBIT C
Landlord's Services
Attached to and made part of Lease
dated March 8, 1994
Between
Trustees of 60 State Street Trust, Landlord
and
HPSC, Inc., Tenant
I. CLEANING
A. Office Area.
Daily: Monday through Friday, inclusive, holidays excepted.
1. Empty and clean all waste receptacles and ashtrays and remove
waste material from the Premises: wash receptacles as necessary.
2. Sweep and dust mop all uncarpeted areas using a dust-treated
mop.
3. Vacuum all rugs and carpeted areas.
4. Hand dust and wipe clean with treated cloths all horizontal
surfaces including furniture, office equipment, Window sills,
door ledges, chair rails, and convector tops, within normal reach.
5. Wash clean all water fountains.
6. Remove and dust under all desk equipment and telephones and
replace same.
7. Wipe clean all brass and other bright work.
8. Hand dust all grill work within normal reach.
9. Upon completion of cleaning, all lights will be turned off and
doors locked, leaving the Premises in an orderly condition.
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Weekly:
1. Dust coat racks and the like.
2. Remove all finger marks from private entrance doors, switches and
doorways.
Quarterly: Render high dusting not reached in daily cleaning to include:
1. Dusting all pictures, frames, charts, graphs and similar wall
hangings.
2. Dusting all vertical surfaces, such as walls, partitions, doors
and ducts.
3. Dusting of all pipes, ducts and high moldings.
4. Dusting of all venetian blinds.
B. Lavatories.
Daily: Monday through Friday, inclusive, holidays excepted.
1. Sweep and damp mop floors.
2. Clean all mirrors, powder shelves, dispensers and receptacles,
bright work, flushometers, piping, and toilet seat hinges.
3. Wash both sides of all toilet seats.
4. Wash all basins, bowls and urinals.
5. Dust and clean all powder room fixtures.
6. Empty and clean paper towel and sanitary disposal receptacles.
7. Remove waste paper and refuse.
8. Refill tissue holders, soap dispensers, towel dispensers, vending
sanitary dispensers; materials to be furnished by Landlord.
9. A sanitizing solution will be used in all lavatory cleaning.
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Monthly:
1. Machine scrub lavatory floors.
2. Wash all partitions and tile walls in lavatories.
C. Main Lobby, Elevators, Building Exterior and Corridors.
Daily: Monday through Friday, inclusive, inclusive, holidays excepted.
1. Sweep and wash all floors.
2. Wash all rubber mats.
3. Clean elevators, wash or vacuum floors, wipe down and doors.
4. Spot clean any metal work inside lobby.
5. Spot clean any metal work surrounding Building Entrance doors.
D. Window Cleaning. Windows of exterior walls will be washed at least
three times per year except when rendered impracticable by
inclement weather.
E. Additional Services. Tenant requiring services in excess of those
described above shall request same through Landlord at Tenant's
expense.
II. HEATING, VENTILATING, AIR CONDITIONING
A. Landlord shall furnish space heating and cooling as normal seasonal
changes may require to provide reasonably comfortable space temperature and
ventilation for occupants of the Premises under normal business operation,
daily from 8:00 a.m. to 6:00 p.m. (Saturdays to 1:00 p.m.), Sundays and
holidays excepted.
If Tenant shall require air conditioning or heating or ventilation outside
the hours and days above specified, Landlord shall furnish such service at
Tenant's expense. Currently, the charges for additional hours during the
winter months (October-March) is $55.00 per hour and the charge for
additional hours during the summer months (April-September) is $75.00 per
hour. Such charges are subject to change during the Term of the Lease.
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B. The air conditioning system is based upon an occupancy of not more
than one person per 150 square feet of usable floor area, and upon a
combined lighting and standard electrical load not to exceed 3.5 watts per
square foot of usable area. In the event Tenant exceeds this condition or
introduces onto the Premises equipment which overloads system, and/or in
any other way causes the system not adequately to perform their proper
functions, supplementary systems, may at Landlord's option be provided by
Landlord at Tenant's expense.
III. WATER
A. Landlord shall furnish cold water at temperatures supplied by the City
of Boston water mains for drinking, lavatory, kitchen, restaurant and
toilet purposes and hot water for lavatory purposes only from regular
building supply at prevailing temperatures; provided, however, that
Landlord may, at its expense, install a meter or meters to measure the
water supplied to any kitchen (including dishwashing) and restaurant areas
in the Premises, in which case Tenant shall, upon Landlord's request,
reimburse Landlord for the cost of the water (including heating thereof)
consumed in such areas and the sewer use charges resulting therefrom.
IV. ELEVATORS
A. The passenger elevator system shall be in automatic operation and
service to the Premises shall be available to Tenant at all times. The use
of the service elevator will have to be scheduled with the Landlord and
coordinated with the needs of the other tenants.
V. ELECTRICAL SERVICE
A. Landlord shall provide electric power for up to 2.0 watts per square
foot of usable floor area for lighting plus 1.0 watts per square foot of
usable floor area for office machines through standard receptacles for the
typical office space.
B. Landlord, at its option, may require separate metering at Tenant's
expense and direct billing to Tenant for the electric power required for
any special equipment (such as computers and reproduction equipment) that
require either 3-phase electric power or any voltage other than
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120. Landlord will furnish and install at Tenant's expense all replacement
lighting tubes, lamps, and ballasts required by Tenant. Landlord will
clean lighting fixtures on a regularly scheduled basis at Tenant's expense.
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EXHIBIT D
Work Letter Agreement
To induce Tenant to enter into the Lease and in consideration of the mutual
covenants hereinafter contained, Landlord and Tenant mutually agree as follows:
1. Plans and Specifications.
(a) Landlord has prepared, at Tenant's expense, Preliminary Plan entitled
93115-F1 dated 12/9/93 for improvements of the Premises, to be installed by
Landlord. If the Preliminary Plans are not in sufficient detail for
Landlord's contractor to undertake construction within the Premises, then
the Landlord shall prepare, at Tenant's expense, the Final Plans in
accordance with Section 3.1 of the Lease. In the event of a conflict
between the Preliminary Plans and the Final Plans, the Final Plans shall
control.
(b) All working drawings for HVAC, electrical, structural, or other
building systems required for Landlord's contractor to construct the
Leasehold Improvements in accordance with the Preliminary Plans and the
Final Plans shall be prepared by Landlord's contractor at Tenant's expense.
(c) Landlord shall not be required to furnish professional interior design
services to Tenant and shall not be required to pay for professional
interior design services engaged by Tenant. Further, Tenant's interior
furnishings, i.e., specification, supply and installation of furniture,
furnishings, and moveable equipment, shall be the sole responsibility of
Tenant. All of Tenant's installation of interior furnishings and equipment
shall be coordinated with any work being performed by Landlord in the
Premises or elsewhere in the Building in such manner as to maintain
harmonious labor relations and not damage the Building or the Premises or
interfere with Building operations; provided, however, that without
Landlord's prior consent, Tenant may not install any interior furnishings
in advance of the date on which the Premises are Ready for Occupancy.
Notwithstanding the foregoing, Tenant may install in advance of the date
the Premises are Ready for Occupancy, computer and communications equipment
so long as Tenant notifies Landlord of the intent to do so, coordinates the
schedule for same with Landlord's Construction Representative, and such
installation does not interfere with the work being performed by Landlord
in the Premises or elsewhere in the Building.
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2. Construction. Tenant shall contract directly with Landlord's
construction manager and Landlord's contractor for the construction of the
Leasehold Improvements. Thereafter, at Tenant's expense, Landlord's
contractor (and its subcontractors) shall construct, and Landlord's
construction manager shall supervise the construction of, the Leasehold
Improvements in accordance with the Preliminary Plans and the Final Plans,
unless a Change Order is made in accordance with Section 3 of this
Agreement, subject to delays as described in Section 4 of this Agreement
and delays due to governmental regulation, unusual scarcity of or inability
to obtain labor or materials, labor difficulties, casualty or other causes
reasonably beyond Landlord's control.
3. Change Orders. In the event Tenant desires to have the Leasehold
Improvements constructed other than as set forth in the Preliminary Plans
and the Final Plans, no different work shall be done unless Landlord's
contractor and Tenant shall first execute a written agreement concerning
the scope of the revised work or materials desired by Tenant, the cost of
such work or materials and the effect of any resulting delay (each, a
"Change Order"). Further, a Change Order shall be required and executed in
the event Tenant selects materials or quantities that exceed the allowances
specified in the Final Plans. All costs for labor and materials resulting
from a Change Order, including the cost of all plans prepared pursuant
thereto, plus a fee equal to fifteen percent (15%) of such costs, shall be
billed directly to Tenant by Landlord upon completion of construction of
the Leasehold Improvements, and Tenant shall pay the amount of such bill as
Additional Rent within 30 days after receipt thereof. All Work required
pursuant to a Change Order shall be undertaken by Landlord's contractor or
its subcontractor and not by Tenant.
4. Tenant's Delays. If Landlord's contractor is required to work beyond
the Scheduled Commencement Date as a result of Tenant-caused delays (which
shall include delays caused by Tenant's decision to use materials, finishes
or installations other than those set forth in the Final Plans or Tenant's
request for any change in the Preliminary Plan), then Tenant shall be
responsible for and shall pay to Landlord upon completion of the Leasehold
Improvements the additional supervisory and general conditions costs
incurred by Landlord.
6. Reimbursement. With respect to the amounts which Tenant is obligated
to pay to Landlord for Landlord's cost of the Preliminary Plans, Final
Plans, and all working drawings, the foregoing to include, without
limitation, all architectural and engineering fees relating to the
Leasehold Improvements, Tenant shall pay the amounts within thirty (30)
days of receipt of a bill therefor. With respect to the amounts which
Tenant is obligated to pay to Landlord's contractor and construction
manager (such construction management fee to be equal to two and one-half
percent (2-1/2%) of the cost incurred pursuant to the prior
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sentence plus the costs for construction of the Leasehold Improvements
including, without limitation, labor and materials), Tenant shall make such
payment in accordance with its contract with such parties or, if not
specified in such contract, then within thirty (30) days of receipt of a
bill therefor.
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EXHIBIT E
Rights of Other Tenants of
60 State Street to Lease Space
on Floors 24 and 35
1. Hale and Dorr, which has rights of First Offer and First Refusal.
2. Bay Tower, Inc., which has the right to lease 3,305 square feet on
Floor 34 through April 30, 2030.
3. Cabot Partners, which has the right to lease 10,725 square feet on
Floor 35 through December 31, 2000.
4. Shapiro, Weiss & Co., which has an expansion option for 3,000 - 5,000
square feet of space which may be on Floors 34 and/or 35.
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Teachers Insurance and Annuity
Association of America
730 Third Avenue
New York, NY 10017
EXHIBIT F
Subordination of Mortgage
TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA
("TIAA") hereby grants this Subordination of Mortgage on the following terms
and conditions.
WHEREAS, ACME-PREMIER REALTY CORP., TRUSTEE UNDER THE SECOND RESTATE
DECLARATION OF TRUST ESTABLISHING FIFTY STATE STREET TRUST dated December 29,
1992 and recorded with the Suffolk Deeds, Book 17950, Page 043/044, (which Trust
was established originally under a Declaration of Trust dated December 29, 1967
and recorded with Suffolk Deeds in Book 8188, Page 137, as amended by Amendment
No. 1, dated as of July 30, 1975, recorded with Suffolk Deeds, Book 8804, Page
632, and restated in a Restated declaration of Trust, dated September 4, 1975,
recorded with Suffolk Deeds, Book 8816, Page 606) ("Ground Lessor") are the
owners in fee simple of those certain premises situate, lying and being in the
City of Boston, County of Suffolk, Commonwealth of Massachusetts, commonly known
as 60 State Street, and as more particularly described in the Ground Lease (the
"Ground Leased Premises"); and
WHEREAS, under the terms of a certain lease dated December 29, 1967
(notice of which was recorded with said Deeds in Book 8188, Page 144), as
amended by instruments dated June 20, 1968, January 7, 1971, July 30, 1975 and
November 26, 1975 (notices of which amendments were recorded with said Deeds in
Book 8209, Page 711; Book 8414, Page 356; Book 8804, Page 606; and Book 8836,
Page 448, respectively), and as affected by Estoppel Certificate and Agreement
dated December 28, 1977 (recorded with said Deeds in Book 9024, Page 244),
ground Lessor did lease, let and demise the Ground Leased Premises to the
Trustees of Cabot, Cabot & Forbes, Co., whose interest under the Ground Lease
was assigned (by assignment dated September 1, 1971 and recorded with said Deeds
in Book 8654, Page 448) to the TRUSTEES OF 60 STATE STREET TRUST (hereinafter
called "Landlord"), for a term of 45 years commencing January 1, 1968 and
continuing to and including December 31, 2012, with four renewal options of 10,
15, 15 and 14 years respectively (all of which were exercised pursuant to two
letters dated respectively December 28, 1977 and March 30, 1990) upon the terms
and conditions herein more particularly set forth; and
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WHEREAS, TIAA is the owner and holder of four certain mortgages; two dated
December 28, 1977, being Mortgage No. 1 recorded with said Deeds in Bok 9024,
Page 282 and Mortgage No. 2 recorded with said Deeds in Book 9024, Page 321; one
dated August 27, 1979 being Mortgage No. 3 recorded with said Deeds in Book
9266, Page 89; and one dated May 24, 1985 being Mortgage No. 4 recorded with
said Deeds in Book 11621, Page 38; (said Mortgages Nos. 1, 2, 3 and 4 as
modified, supplemented and consolidated of record, together with all documents
setting forth any obligations of Landlord or any beneficiaries of Landlord to
TIAA, are hereinafter referred to as the "TIAA Mortgages"), constituting a
first, second, third and fourth mortgage upon the leasehold estate created by
the Ground Lease and affecting certain adjacent property more particularly
described in the TIAA Mortgages ("Mortgaged Premises"); and
WHEREAS, Landlord has entered into a lease with HPSC, INC. ("Tenant") dated
March 8, 1994, ("Lease") with respect to space located at 60 State Street,
Boston, Massachusetts which space constitutes a portion of the Mortgaged
Premises.
NOW, THEREFORE, in consideration of Tenant entering into the Lease and the sum
of One Dollar ($1.00) and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, TIAA does hereby covenant and
agree that the TIAA Mortgages are and shall remain SUBORDINATE to the said
Lease, it being expressly agreed that the Lease has been, or should be deemed to
have been, executed, delivered and recorded prior to the execution, delivery and
recording of the said TIAA Mortgages.
EXCEPT, HOWEVER, it is nevertheless agreed that the TIAA Mortgages shall be
prior to the Lease as to the following:
(a) The prior right, claim and lien of the said TIAA Mortgages in, to and
upon any award or other compensation heretofore or hereafter to be made
for any taking by eminent domain of any part of the Mortgaged Premises, and
to the right of disposition thereof in accordance with the provisions of
the TIAA Mortgages,
(b) The prior right, claim, lien of the said TIAA Mortgages in, to and
upon any proceeds payable under all policies of fire and rent insurance
upon the Mortgaged Premises and as to the right of disposition thereof in
accordance with the terms of the TIAA Mortgages, and
(c) Any lien, right, power or interest, if any, which may have arisen or
intervened in the period between the recording of the TIAA Mortgages and
the execution of the said Lease, or any lien or judgment which may arise at
any time under the terms of such Lease.
-59-
Copies of all notices of default from Tenant to Landlord shall be delivered to
TIAA, in the manner set forth in the Lease, at Teachers Insurance and Annuity
Association of America, 730 Third Avenue, New York, New York 10017 Attn:
Northeast Closing Servicing Unit Re: Mortgage No. 000093000, or such other
address as TIAA may specify in writing.
This Subordination may be executed by the undersigned and the Tenant in
counterparts, each of which, taken together, shall be deemed one original.
This Subordination shall inure to the benefit of and shall be binding upon the
undersigned, its successors and assigns.
IN WITNESS WHEREOF, the Subordination has been duly signed and delivered by
the undersigned as of this 8 day of March, 1994.
TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA
By: Judith L. King
----------------------------
its Director
TENANT'S AGREEMENT
The undersigned, as Tenant under the Lease herein described, does hereby
accept and agree to the terms of the foregoing Subordination which shall inure
to the benefit of and be binding upon the undersigned and the heirs, executors,
administrators, legal representatives, successors and assigns of the
undersigned.
HPSC, INC.
By: John Everets, Jr.
----------------------------
its President
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ACKNOWLEDGEMENTS
STATE OF )
) SS:
COUNTY OF )
On this ___ day of March, 1994, before me appeared___________________ to me
personally known, who, being by me duly sworn, did say that he is the
____________________ of HPSC, INC. and that the seal affixed to the foregoing
instrument is the corporate seal of said corporation, and that said instrument
was signed and sealed on behalf of said corporation by authority of its Board of
Directors, and said _________________ acknowledged said instrument to be the
free act and deed of said corporation.
________________________________
, Notary Public
My Commission Expires:
STATE OF )
) SS:
COUNTY OF )
On this ___ day of March, 1994, before me appeared ___________________ to me
personally known, who, being by me duly sworn, did say that he is the
____________________ of HPSC, INC. and that the seal affixed to the foregoing
instrument is the corporate seal of said corporation, and that said instrument
was signed and sealed on behalf of said corporation by authority of its Board of
Directors, and said _________________ acknowledged said instrument to be the
free act and deed of said corporation.
________________________________
, Notary Public
My Commission Expires:
-61-
STATE OF NEW YORK )
) SS:
COUNTY OF )
On this ___ day of _____________, 1994, before me the undersigned, a Notary
Public in and for said County and State, personally appeared
_____________________ known to me to be the ________________ of TEACHERS
INSURANCE AND ANNUITY ASSOCIATION OF AMERICA, the corporation that executed the
within instrument, and known to me to be the person who executed the within
instrument on behalf of such corporation, and acknowledged to me that such
corporation executed the within instrument pursuant to its bylaws or a
resolution of its board of Trustees.
WITNESS my hand and official seal.
________________________________
, Notary Public
My Commission Expires:
-62-
Trust Company of the West,
as Trustee of TCW Realty Fund VA
TCW Realty Fund VB
30 Rowes Wharf, Suite 310
Boston, Massachusetts 02110
and
865 South Figueroa Street, Suite 3500
Los Angeles, California 90017-2543
Subordination of Mortgage
TRUST COMPANY OF THE WEST, a California corporation, as Trustee of TCW Realty
Fund VA and TCW Realty Fund VB, a California limited partnership, as tenants in
common ("TCW") hereby grant this Subordination of Mortgage on the following
terms and conditions.
WHEREAS, ACME-PREMIER REALTY CORP., TRUSTEE UNDER THE SECOND RESTATED
DECLARATION OF TRUST ESTABLISHING FIFTY STATE STREET TRUST dated December 29,
1992 and recorded with the Suffolk Deeds, Book 17950, Page 043/044, (which Trust
was established originally under a Declaration of Trust dated December 29, 1967
and recorded with Suffolk Deeds in Book 8188, Page 137, as amended by Amendment
No. 1, dated as of July 30, 1975, recorded with Suffolk Deeds, Book 8804, Page
632, and restated in a Restated Declaration of Trust, dated September 4, 1975,
recorded with Suffolk Deeds, Book 8816, Page 606) ("Ground Lessor") are the
owners in fee simple of those certain premises situate, lying and being in the
City of Boston, County of Suffolk, Commonwealth of Massachusetts, commonly known
as 60 State Street and as more particularly described in the Ground Lease (the
"Ground Leased Premises"); and
WHEREAS, under the terms of a certain lease dated December 29, 1967 (notice of
which was recorded with said Deeds in Book 8188, Page 144), as amended by
instruments dated June 20, 1968, January 7, 1971, July 30, 1975 and November 26,
1975 (notices of which amendments were recorded with said Deeds in Book 8209,
Page 711; Book 8414, Page 356; Book 8804, Page 606; and Book 8836, Page 448,
respectively), and as affected by Estoppel Certificate and Agreement dated
December 28, 1977 (recorded with said Deeds in Book 9024, Page 244), Ground
Lessor did lease, let and demise the Ground Leased Premises to the Trustees of
Cabot, Cabot & Forbes, Co., whose interest under the Ground Lease was assigned
(by assignment dated September 1, 1971 and recorded with said Deeds in Book
8654, Page 448) to the TRUSTEES OF 60 STATE STREET TRUST (hereinafter called
"Landlord"), for a term of 45 years commencing January 1, 1968
-63-
and continuing to and including December 31, 2012, with four renewal options of
10, 15, 15 and 14 years respectively (all of which were exercised pursuant to
two letters dated respectively December 28, 1977 and March 30, 1990) upon the
terms and conditions herein more particularly set forth; and
WHEREAS, TCW is the owner and holder of that certain Mortgage and Security
Agreement, dated November 1, 1990 and recorded with said Deeds in Book 16688,
Page 1 as amended by a First Comprehensive Amendment Agreement recorded with
said Deeds, and as may be further amended of record (said Mortgage and Security
Agreement as so amended, together with all documents setting forth any
obligations of Landlord and any beneficiaries of Landlord to TCW are referred to
hereinafter as the "TCW Mortgage") upon the leasehold estate created by the
Ground Lease and affecting certain adjacent property more particularly described
in the TCW Mortgage ("Mortgage Premises"); and
WHEREAS, the TCW Mortgage as of the date of the execution of this
Subordination of Mortgage Agreement is subject and subordinate to certain
mortgages held by Teachers Insurance and Annuity Association of America
("TIAA"); two dated December 28, 1977, being Mortgage No. 1 recorded with said
Deeds in Book 9024, Page 282 and Mortgage No. 2 recorded with said Deeds in Book
9024, Page 321; one dated August 27, 1979 being Mortgage No. 3 recorded with
said Deeds in Book 9266, Page 89; and one dated May 24, 1985 being Mortgage No.
4 recorded with said Deeds in Book 11621, Page 38; (said Mortgages Nos. 1, 2, 3
and 4 as modified, supplemented and consolidated of record, together with all
documents setting forth any obligations of Landlord or any beneficiaries of
Landlord to TIAA, are hereinafter referred to as the "TIAA Mortgages"),
constituting a first, second, third and fourth mortgage upon Mortgaged Premises;
and
WHEREAS, Landlord has entered into a lease with HPSC, Inc. ("Tenant") dated
March 8, 1994, ("Lease") with respect to space located at 60 State Street,
Boston, Massachusetts ("Premises") which space constitutes a portion of the
Mortgaged Premises.
NOW, THEREFORE, in consideration of Tenant entering into the Lease and the sum
of One Dollar ($1.00) and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, TCW does hereby covenant and agree
that the TCW Mortgage is and shall remain SUBORDINATE to the said Lease, it
being expressly agreed that the Lease has been, or should be deemed to have
been, executed, delivered and recorded prior to the execution, delivery and
recording of the said TCW Mortgage subject to the rights of TCW hereinafter set
forth.
-64-
EXCEPT, HOWEVER, it is nevertheless agreed that the TCW Mortgage shall be
prior to the Lease as to the following:
(a) The prior right, claim and lien of the said TCW Mortgage in, to and
upon any award or other compensation heretofore or hereafter to be made for
any taking by eminent domain of any part of the Mortgaged Premises, and to
the right of disposition thereof in accordance with the provisions of the
TCW Mortgage,
(b) The prior right, claim, lien of the said TCW Mortgage in, to and upon
any proceeds payable under all policies of fire and rent insurance upon the
Mortgaged Premises and as to the right of disposition thereof in accordance
with the terms of the the TCW Mortgage, and
(c) Any lien, right, power or interest, if any, which may have arisen or
intervened in the period between the recording of the the TCW Mortgage and
the execution of the said Lease, or any lien or judgment which may arise at
any time under the terms of such Lease.
Notwithstanding any of the foregoing to the contrary, TCW reserves the right
to make the Lease, and all rights, options, liens, or charges created thereby
subject and subordinate to the TCW Mortgage and the liens created thereby and to
all renewals, modifications, consolidations, replacements and extensions
thereof, to the full extent of all amounts secured thereby and interest thereon
from time to time, and Tenant agrees that TCW may at any time, at its elections,
execute and record in the Suffolk County Registry of Deeds a Notice of
Subordination reciting that the Lease is subordinate to the liens of the TCW
Mortgage and from and after the recordation of such Notice of Subordination, the
Lease shall be subject and subordinate to the liens of the TCW Mortgage,
provided that TCW shall have the right at its election to execute and record in
said Deeds a notice withdrawing the Notice of Subordination and reciting that
the TCW Mortgage once again shall be subordinate to the Lease and, upon request,
Tenant shall execute such documents as are necessary to confirm the
subordination of the Lease to the TCW Mortgage or the subordination of the TCW
Mortgage to the Lease, as may be the case. In the event TCW elects to
subordinate the Lease to the TCW Mortgage, the following terms and conditions
shall be applicable:
(a) Tenant agrees that it will attorn to and recognize TCW upon entry on
the Premises for breach or default by Landlord under the TCW Mortgage, any
transferee who acquires the Premises by deed in lieu of foreclosure, and
the successors and assigns of such purchasers as its landlord for the
unexpired balance (and any extensions, if exercised) of the term of the
Lease, upon the same terms and conditions set forth in the Lease.
-65-
(b) If it should become necessary to foreclose the TCW Mortgage, TCW shall
not terminate the Lease nor join Tenant in summary proceedings so long as
Tenant is not in default under any of the terms, covenants, or conditions
of the Lease.
(c) Tenant agrees that it shall give TCW a copy of each notice of default
delivered to Landlord with respect to any default under the Lease, which
notice shall be delivered to TCW in hand or sent by registered or certified
mail to the address of TCW. Tenant further agrees that if Landlord shall
have failed to cure such default within the time provided for in the Lease
(including any applicable grace periods), then TCW shall have an additional
60 days within which to cure such default or, if such default cannot be
cured within that period, then such additional time as may be necessary to
effect such a cure if within such 60-day period TCW have commenced and are
diligently pursuing the remedies necessary to cure such default (including,
but not limited to, commencement of foreclosure proceedings, if necessary
to effect such cure); and Tenant agrees that the Lease shall not be
terminated while such remedies are being pursued. TCW shall in no event be
obliged to cure a default which is personal to Landlord, and therefore not
reasonably susceptible of cure by TCW.
(d) If TCW shall succeed to the interest of Landlord under the Lease, TCW
shall not be:
(i) liable for any act or omission of any prior landlord (including
Landlord); or
(ii) liable for the return of any security deposits; or
(iii) subject to any offsets or defenses which Tenant might have
against any prior landlord (including Landlord); or
(iv) bound by any rent or additional rent which Tenant might have paid
for more than the current month to any prior landlord (including
Landlord); or
(v) bound by any amendment or modification of the Lease made without
their prior written consent; or
-66-
(vi) bound by the consent of any prior landlord (including Landlord)
to any assignment or sublease of Tenant's interest in the Lease made
without also obtaining TCW's prior written consent; or
(vii) personally liable for any default under the Lease or any
covenant on its part to be performed thereunder as landlord, it being
acknowledged that Tenant's sole remedy in the event of such default
shall be to proceed against TCW's interest in 60 State Street.
(e) Tenant further acknowledges and agrees:
(i) that the Lease cannot be terminated (either directly or by the
exercise of any option which could lead to termination) or modified in
any of its terms, or consent be given to the release of any party
having liability thereon, by Landlord, without the prior written
consent of TCW, or their successors or assigns, and without such
consent, no rent may be collected or accepted by Landlord more than
one month in advance; and
(ii) that the interest of Landlord in the Lease has been or may be
assigned to TCW for the purposes specified in any lease assignments,
and TCW, its successors or assigns, assume no duty, liability or
obligation under the Lease or any extension or renewal thereof.
Copies of all notices of default from Tenant to Landlord shall be delivered to
TCW, in the manner set forth in the Lease, at TCW Realty Advisors, 30 Rowes
Wharf, Suite 310, Boston, Massachusetts 02110 and TCW Realty Advisors, 865 South
Figueroa Street, Suite 3500, Los Angeles, California 90017-2543, or such other
address as TCW may specify in writing.
This Subordination may be executed by the undersigned and the Tenant in
counterparts, each of which, taken together, shall be deemed one original.
This Subordination shall inure to the benefit of and shall be binding upon the
undersigned, its successors and assigns.
-67-
IN WITNESS WHEREOF, the Subordination has been duly signed and delivered by
the undersigned as of this 8th day of March, 1994.
TRUST COMPANY OF THE WEST, a
California corporation, as trustee
for TCW REALTY FUND VA, as tenant
in common
By: /s/ Authorized Signatory
---------------------------------
Authorized Signatory
By: /s/ Authorized Signatory
---------------------------------
Authorized Signatory
TCW REALTY FUND VB, a California
limited partnership, as tenant in
common
By: TCW ASSET MANAGEMENT COMPANY,
a California corporation, as
General Partner
By: /s/ Authorized Signatory
---------------------------------
Authorized Signatory
By: /s/ Authorized Signatory
---------------------------------
Authorized Signatory
By: WESTMARK REAL ESTATE INVESTMENT
SERVICES, a California general
partnership, as General Partner
By: /s/ Authorized Signatory
---------------------------------
Authorized Signatory
By: /s/ Authorized Signatory
---------------------------------
Authorized Signatory
-68-
TENANT'S AGREEMENT
The undersigned, as Tenant under the Lease herein described, does hereby
accept and agree to the terms of the foregoing Subordination which shall inure
to the benefit of and be binding upon the undersigned and the heirs, executors,
administrators, legal representatives, successors and assigns of the
undersigned.
HPSC, INC.
By: /s/ John Everets, Jr
----------------------
John Everets, Jr
its President
hereunto duly authorized
ACKNOWLEDGEMENTS
STATE OF )
)SS:
COUNTY OF )
On this ____ day of March, 1994, before me appeared _________________________
to me personally known, who, being by me duly sworn, did say that he is the
___________________ of HPSC, INC. and that the seal affixed to the foregoing
instrument is the corporate seal of said corporation, and that said instrument
was signed and sealed in behalf of said corporation by authority of its Board of
Directors, and said ___________________ acknowledged said instrument to be the
free act and deed of said corporation.
________________________________
, Notary Public
My Commission Expires:
STATE OF _______________________
______________, ss. ______________, 1994
Then personally appeared the above-named ____________________ as an authorized
signatory of TRUST COMPANY OF THE WEST, a California corporation, as trustee for
TCW REALTY FUND VA and acknowledged the foregoing to be his free act and deed
and the free act and deed of said corporation as trustee, before me,
________________________________
, Notary Public
My Commission Expires:
-69-
STATE OF _____________________
______________, ss. ______________, 1994
Then personally appeared the above-named ____________________ as an authorized
signatory of TRUST COMPANY OF THE WEST, a California corporation, as trustee for
TCW REALTY FUND VA and acknowledged the foregoing to be his free act and deed
and the free act and deed of said corporation as trustee, before me,
________________________________
, Notary Public
My Commission Expires:
STATE OF _____________________
_____________, ss. _____________, 1994
Then personally appeared the above-named ____________________ as an authorized
signatory of TCW ASSET MANAGEMENT COMPANY, a California corporation and General
Partner of TCW Realty Fund VB, a California limited partnership, and
acknowledged the foregoing to be his free act and deed and the free act and deed
of said corporation and said limited partnership, before me,
________________________________
, Notary Public
My Commission Expires:
STATE OF ____________________
______________, ss. _____________, 1994
Then personally appeared the above-named ____________________ as an authorized
signatory of TCW ASSET MANAGEMENT COMPANY, a California corporation and General
Partner of TCW Realty Fund VB, a California limited partnership, and
acknowledged the foregoing to be his free act and deed and the free act and deed
of said corporation and said limited partnership, before me,
________________________________
, Notary Public
My Commission Expires:
-70-
COMMONWEALTH OF MASSACHUSETTS
_____________, ss. _____________, 1994
Then personally appeared the above-named ___________________, as an authorized
signatory of WESTMARK REAL ESTATE INVESTMENT SERVICES, a California general
partnership which is a General Partner of TCW Realty Fund VB, a California
general partnership, and acknowledged the foregoing to be his free act and deed
and the free act and deed of each of said general partnerships, before me,
________________________________
, Notary Public
My Commission Expires:
COMMONWEALTH OF MASSACHUSETTS
_____________, ss. _____________, 1994
Then personally appeared the above-named ___________________, as an authorized
signatory of WESTMARK REAL ESTATE INVESTMENT SERVICES, a California general
partnership which is a General Partner of TCW Realty Fund VB, a California
general partnership, and acknowledged the foregoing to be his free act and deed
and the free act and deed of each of said general partnerships, before me,
________________________________
, Notary Public
My Commission Expires:
-71-
CONSENT OF LENDERS
The undersigned hereby acknowledge notice of the Lease between Trustees of 60
State Street Trust and HPSC, Inc. dated March 8, 1994, and consent to the
Lease.
TRUST COMPANY OF THE WEST, a
California corporation, as trustee
for TCW REALTY FUND VA, as tenant
in common
By: /s/ Authorized Signatory
---------------------------------
Authorized Signatory
By: /s/ Authorized Signatory
---------------------------------
Authorized Signatory
TCW REALTY FUND VB, a California
limited partnership, as tenant in
common
By: TCW ASSET MANAGEMENT COMPANY,
a California corporation, as
General Partner
By: /s/ Authorized Signatory
---------------------------------
Authorized Signatory
By: /s/ Authorized Signatory
---------------------------------
Authorized Signatory
By: WESTMARK REAL ESTATE INVESTMENT
SERVICES, a California general
partnership, as General Partner
By: /s/ Authorized Signatory
---------------------------------
Authorized Signatory
By: /s/ Authorized Signatory
---------------------------------
Authorized Signatory
-72-
CONSENT OF LENDERS
The undersigned hereby acknowledge notice of the Lease between Trustees of 60
State Street Trust and HPSC, Inc. dated March 8, 1994, and consent to the
Lease.
TEACHERS INSURANCE ANNUITY
ASSOCIATION OF AMERICA
By: /s/ Authorized Signatory
---------------------------------
Authorized Signatory
its
hereunto duly authorized
-73-