EXHIBIT (10)(c)(2)
75-101 FEDERAL STREET
Boston, Massachusetts 02110
RETAIL LEASE
Tenant: The Hibernia Savings Bank
12.17.
14384-113
HEWI/GZ2
11/3/88
11/15/88
12/8/88
12/15/88
12/22/88
75-101 FEDERAL STREET
BOSTON, MASSACHUSETTS 02110
RETAIL LEASE
TABLE OF CONTENTS
PAGE
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1. BASIC DATA 1
2. LEASE OF PREMISES; TERM 2
3. POSSESSION 3
4. BASE RENT 3
5. ADDITIONAL RENT 3
A. Definitions 4
Base Operating Expenses 4
Calendar Year 4
Tenant's Proportionate Share 4
Taxes 4
Operating Expenses 5
B. Expense Adjustment 6
6. USE OF PREMISES 9
7. CONDITION OF PREMISES 10
8. SERVICES 10
A. List of Services 10
B. Utilities 11
C. Interruption for Services 11
D. Charges for Services 11
E. Energy Conservation 12
9. REPAIRS AND MAINTENANCE 12
10. ADDITIONS AND ALTERATIONS 12
11. COVENANT AGAINST LIENS 13
12. INSURANCE 14
A. Waiver of Subrogation 14
B. Coverage 14
C. Loss of Coverage; Rate Increases 15
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13. FIRE OR CASUALTY 15
14. WAIVER OF CLAIMS - INDEMNIFICATION 17
15. NONWAIVER 17
16. CONDEMNATION 17
17. ASSIGNMENT AND SUBLETTING 18
18. SURRENDER OF POSSESSION 19
19. HOLDING OVER 20
20. ESTOPPEL CERTIFICATE 20
21. SUBORDINATION 21
22. CERTAIN RIGHTS RESERVED BY LANDLORD 21
23. RULES AND REGULATIONS 23
24. REMEDIES UPON DEFAULT 23
25. REIMBURSEMENT OF LANDLORD'S EXPENSES 25
26. COVENANT OF QUIET ENJOYMENT 25
27. ENERGY CONSERVATION 25
28. REAL ESTATE BROKER 25
29. NONDISCRIMINATION 26
30. NOTICE TO MORTGAGEE AND GROUND LESSOR 26
31. ASSIGNMENT OF RENTS 26
32. PERSONAL PROPERTY TAXES 27
33. MISCELLANEOUS 27
A. Rights Cumulative 27
B. Interest 27
C. Terms 27
D. Binding Effect 27
E. Lease Contains All Terms 27
F. Delivery for Examination 27
C. No Air Rights 27
H. Modification of Lease 28
I. Substitution of Other Premises 28
J. Transfer of Landlord's Interest 28
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K. Landlord's Title 28
L. Prohibition Against Recording 28
M. Captions 28
N. Covenants and Conditions 28
0. Only Landlord/Tenant Relationship 28
P. Decoration and Signs 29
Q. Definition of Landlord 29
R. Time of Essence 29
S. Governing Law 29
T. Partial Invalidity 29
U. Size of Premises 29
34. NOTICES 30
35. LIMITATION ON LANDLORD'S LIABILITY 30
36. LANDLORD'S DESIGNATED AGENT 31
37. COMMENCEMENT AND TERMINATION DATES 31
38. CONSTRUCTION ON ADJACENT PREMISES 31
39. TENANT AS BUSINESS ENTITY 32
Exhibit A. Plan of Premises
Exhibit B. Work Letter B-1
Exhibit C. Rules and Regulations C-1
Exhibit D. Base Building Core and Shell - Retail D-l
Exhibit E. Measurement Standards E-l
Exhibit F. F-l
Exhibit G. Sign Criteria G-1
Exhibit H. Security Program H-1
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RETAIL LEASE
THIS INSTRUMENT is an Agreement of Lease in which the Landlord and the
Tenant are the parties hereinafter named, and which relates to space
(hereinafter referred to as the "Premises") located in the buildings at 75-101
Federal Street, Boston, Massachusetts 02110 subject to the covenants, terms,
provisions and conditions of this Lease.
For value received, Landlord and Tenant covenant and agree as follows:
1. BASIC DATA.
The following sets forth basic data and, where appropriate, constitutes
definitions of the terms hereinafter listed.
Date: As of December 22, 1988
Landlord: Franklin Federal Partners, a Massachusetts general
partnership
Present Mailing Address 75 Federal Street
of Landlord: Boston, MA 02110
Tenant: The Hibernia Savings Bank
Present Mailing Address 731 Hancock Street
of Tenant: Quincy, MA 02170
Tenant's Trade Name: The Hibernia Savings Bank
Tenant's Approvals: Tenant will, on or before December 15, 1988, apply
to the appropriate regulatory authorities for
consent to operate retail banking facilities at
the Premises (the Approvals"). If Tenant has not
received the Approvals on or before February 15,
1989 Tenant may, by notice given to Landlord on or
before such date, terminate this Lease and all
obligations of the parties hereunder shall
terminate except that Tenant, as a continuing
obligation hereunder, shall pay all amounts paid
by Landlord in connection with the performance of
Finish Work or otherwise authorized hereunder
accruing on or before the date of Landlord's
receipt of Tenant's notice of termination, plus
Landlord's cost of demolition of Finish Work
installed by Tenant in the Premises. While
Tenant's right to terminate under this provision
continues, Landlord shall have the right to show
the space at reasonable times to prospective
alternative tenants.
Commencement Date: Subject to Paragraph 37 hereof, December 15, 1988
or the earlier date on which Tenant takes
occupancy (for purposes other than early access as
described in the Work Letter (the "Work Letter")
attached hereto as Exhibit B) of the Premises or
any portion thereof.
Opening Date: June 15, 1989
Termination Date: Subject to Paragraph 37 hereof, April 30, 1999
unless sooner terminated as provided in this
Lease.
Extension Terms: See Paragraph 2.1
Base Rent: Commencement Date - April 30, 1990: $50.00 per
square foot of Total Rentable Area on an annual
basis
May 1, 1990 -- April 30, 1991: $51.00
May 1, 1991 -- April 30, 1992: $52.00
May 1, 1992 -- April 30, 1993: $53.00
May 1, 1993 -- April 30, 1994: $54.00
May 1, 1994 -- April 30, 1995: $66.00
May 1, 1995 -- April 30, 1996: $67.00
May 1, 1996 -- April 30, 1997: $68.00
May 1, 1997 -- April 30, 1998: $69.00
May 1, 1998 -- April 30, 1999: $70.00
No Base Rent or Additional Rent shall be due or
payable until the earlier of April 15, 1989 or the
date 90 days after Tenant shall receive the
Approvals to operate banking facilities in the
Premises.
Base Rent during any Extension Term shall be in
the amount determined under Paragraphs 4.1 and
4.2.
Landlord's Contribution to
Finish Work Costs: Landlord shall contribute up to $50.00 per square
foot of Total Rentable Area of the Premises for
the cost of Finish Work actually installed in the
Premises in accordance with Working Drawings
approved pursuant to Exhibit B upon presentation
to Landlord of invoices therefor. If the costs of
Finish Work actually installed pursuant to Working
Drawings approved in accordance with Exhibit B
shall exceed $110.00 per square foot of Total
Rentable Area and provided Landlord shall, in its
reasonable judgment, have approved the budget for
all Finish Work installed and to be installed in
the Premises, Landlord shall contribute up to
$10.00 per square foot of Total Rentable Area of
the Premises of such excess cost for Finish Work
actually installed in the Premises upon
presentation to Landlord of invoices therefor.
Percentage Rent Rate: N/A
Percentage Rent Breakpoint: N/A
Percentage Rent Periods:
Use: Retail banking use, including customary uses
ancillary to such use, including automatic teller
machines installed in accordance with plans
therefore approved by Landlord pursuant to the
provisions of this Lease.
Hours of Operation: Subject to contrary requirements of applicable
laws, Tenant's Hours of Operation shall be from
9:00 a.m. to 4:00 p.m. on Mondays through Fridays,
except holidays. Tenant may, at its option and
provided that such hours are customary for retail
banking facilities similar to Tenant's facilities
at the Premises, open the Premises for business at
any time between 8:00 a.m. and 8:00 p.m. on
weekdays and 8:00 a.m. and 3:00 p.m. on Saturdays.
Premises: That portion of the Building (as defined in
Paragraph 2) designated on the plan attached
hereto as Exhibit A and containing 2060 square
feet of Total Rentable Area, as such number may be
adjusted pursuant to Paragraph 33U.
Lease Year: A year beginning on the Commencement Date or an
anniversary thereof.
Security Program: Landlord acknowledges that Tenant's Use of the
Premises requires a special Security Program for
the Premises (the "Security Program"). The initial
Security Program is attached to the Lease as
Exhibit H. Landlord and Tenant shall reasonably
agree from time to time on the terms of any
appropriate amendments to the Security Program.
The Security Program in effect from time to time
shall govern matters affecting the security of the
Premises including, without limitation, access to
the Premises for maintenance and repairs.
Guarantor of Tenant's
Obligations: N/A
Security Deposit: N/A
Broker: The Gifford Group
2. LEASE OF PREMISES; TERM.
To have and to hold the Premises for the term commencing on the
Commencement Date and ending on the Termination Date, and the right to use the
Common Areas (as hereinafter defined) during such term in common with others
entitled thereto. The Common Areas are those portions of the Property (as
hereinafter defined) not leased to any tenant, but available from time to time
for the benefit of the Property and its tenants, such as landscaped areas, the
ground floor lobby and any elevator lobbies on floors on which the Premises are
located together with space occupied by others, pedestrian walkways, common
restrooms, service areas and the like. Excepted and excluded from the Premises
are the roof or ceiling, the floor and all perimeter walls of the Premises,
except the inner surfaces thereof, but the entry doors to the Premises are not
excluded from the Premises and are a part thereof for all purposes; and Tenant
agrees that Landlord shall have the right (upon notice except in emergency) and
at the Landlord's expense to place in the Premises (but in such manner as to
reduce to a minimum interference with Tenant's use of the Premises) utility
lines, pipes and the like, to serve premises other than the Premises, and to
replace and maintain and repair such utility lines, pipes and the like, in, over
and upon the Premises. The Property includes the land (the "Land") and
improvements known as 75 and 101 Federal Street, Boston, Massachusetts 02110,
including without limitation the buildings thereon including pedestrian
walkways, including space leased and available for lease from time to time to
office tenants ("Office Space") and retail and/or service tenants ("Retail
Space"), parking garage (the "Garage"), the lobbies, services areas and all
other common areas, together with all present and future easements additions,
improvements and other rights appurtenant thereto (the "Building"). The Property
is comprised of the land and building known as and numbered 75 Federal Street,
Boston ("75 Federal") and the land and building known as and numbered 101
Federal Street ("101 Federal"). The Term of
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this Lease (hereinafter referred to as the "Term") shall commence on the
Commencement Date specified in Paragraph 1 hereof and end on the Termination
Date specified in Paragraph 1 hereof unless sooner terminated as provided herein
2.1 EXTENSION TERMS
Tenant shall have the option to extend the term for two (2) five-year
extension terms (the "Extension Terms") as set forth herein. Tenant shall have
the option so to extend the Term only if (i) Tenant is not in default hereunder
(including the expiration of any applicable grace periods) at the time Tenant
elects to extend the Term, and (ii) Tenant is not in default hereunder at the
time the Term would expire but for such extension (including the expiration of
any applicable grace periods). Any extension of the Term shall be applicable to
the entire Premises. If Tenant fails to exercise its option for an Extension
Term, Tenant shall have no further rights under this Paragraph 2.1. Tenant's
election shall be exercised, and Base Rent for each Extension Term determined,
in accordance with Paragraph 4.1. During the Extension Terms, if any, all
provisions of this Lease shall apply except that Tenant shall have no more than
two five-year Extension Terms.
3. POSSESSION.
A. If Landlord's Work (as defined in Paragraph 37) in the Premises shall
not be substantially completed on the Commencement Date or if Landlord is unable
to deliver possession on such date by reason of the holding over or retention of
possession by any tenant or occupant, or for any other reason, this Lease shall
nevertheless continue in force and effect. The obligation of Tenant to begin
paying Rent shall commence in accordance with Insert Page 1A. Landlord's Work
shall be substantially complete if only insubstantial details of construction or
mechanical adjustments remain to be done. Landlord's architect shall determine
whether Landlord's Work is substantially completed and such determination shall
be final and conclusive on Tenant.
B. If Tenant shall enter the Premises or any part thereof prior to the
Commencement Date (which Tenant may not do without Landlord's prior written
consent which shall not be unreasonably withheld or delayed), such entry shall
be at Tenant's sole risk and without interference to the work then being
performed in the Building by Landlord or other tenants or occupants, and all of
the covenants and conditions of this Lease shall be binding upon the parties
hereto with respect to such whole or part of the Premises.
C. Except as set forth in Paragraph 37 hereof, the occurrence of any of the
events described in this Paragraph 3 shall not be deemed to accelerate or defer
the Termination Date.
4. BASE RENT.
Tenant shall pay to Landlord or Landlord's agent without notice or demand
at the present mailing address of Landlord, or at such other place as Landlord
may from time to time designate in writing, in coin or currency which, at the
time of payment, is legal tender for private or public debts in the United
States of America, the Base Rent specified in Paragraph 1 (subject to Paragraph
33U) hereof in the equal monthly installments (subject to Paragraph 33U) hereof
in advance on or before the first day of each and every month during the Term,
without any abatement, counterclaim, set-off or deduction whatsoever. If the
Term commences other than on the first day of a month or ends other than on the
last day of the month, the Base Rent for such month shall be prorated. The
prorated Base Rent for the portion of the month in which the Term commences
shall be paid on the first day of the first full month during the Term.
4.1 BASE RENT - EXTENSION TERMS
During the first Extension Term under Paragraph 2.1 (if validly exercised),
Tenant shall pay Base Rent equal to 95 percent of the then applicable Fair
Market Rent for the Premises. During the second Extension Term under Paragraph
2.1 (if validly exercised), Tenant shall pay Base Rent equal to 95 percent of
the then applicable Fair Market Rent for the Premises. In computing the Fair
Market Rent for the Extension Terms, the annual fair market rent per square foot
shall be ascertained for a five-year term commencing on the date the Extension
Term in question commences ("the Extension Date") under the terms of this Lease
for comparable ground floor retail premises appropriate for retail banking use
in high-rise office complexes in the financial district of Boston,
Massachusetts, as though such space were in the condition then obtaining in the
Premises or in such better condition as the same are required to be maintained
hereunder by Tenant (it is being understood that it is not possible to maintain
the Premises in new condition). Fair Market Rent shall not include charges
that are paid by Tenant as additional rent under this Lease and shall take into
account the services required to be rendered by Landlord and Tenant's
obligations to pay Expense Adjustment Amounts.
The Fair Market Rent for any Extension Term shall be determined, and
notice of extension given, as follows:
(a) If Tenant wishes to consider exercising any extension option under
Paragraph 2.1, Tenant shall so notify Landlord no less than 19 months prior to
the date the Term is then scheduled to expire. Failure timely to send a notice
under this paragraph (a) shall constitute a waiver of Tenant's right to receive
Landlord's estimate of Fair Market Rent under paragraph (b) but shall not affect
Tenant's right to extend the Term pursuant to paragraph (c) below.
(b) Landlord in response shall furnish Tenant Landlord's estimate of
Fair Market Rent within three months after Landlord's receipt of such notice.
(c) On or before the first day of the twelfth remaining calendar month
in the Term (calculated without regard to any future extension), Tenant may
exercise Tenant's extension option hereunder by giving Landlord notice to such
effect. Such notice shall specify, in addition to Tenant's exercise of the
option, whether Tenant accepts Landlord's estimate of the Fair Market Rent (in
which case the parties shall execute an agreement specifying the agreed Base
Rent hereunder for the Extension Term and acknowledging the extension of the
Term), or whether Tenant disputes such estimate. If Landlord has not supplied
such an estimate, then the parties shall proceed as though such a dispute
existed. (Failure timely to send a notice under this paragraph (c) shall
constitute an election not to exercise Tenant's extension option under Paragraph
2.1). In case of disputes, the matter of the Fair Market Rent promptly shall be
submitted to arbitration in accordance with Paragraph 4.2.
4.2 FAIR MARKET RENT - ARBITRATION PROCEDURE
For any period during which the Fair Market Rent is in dispute hereunder,
Tenant shall make payments on account of Base Rent at the rate in effect during
the last year prior to the period in question and the parties shall adjust over-
or for under-payments within ten days after the decision of the arbitrators is
announced.
In the event of a dispute concerning Fair Market Rent, such dispute shall
be arbitrated in accordance with the following procedure. Each of Landlord and
Tenant, within twenty days after notice by Tenant disputing Landlord's estimate
of the Fair Market Rent, shall appoint as an arbitrator an MAI appraiser or a
commercial real estate broker, such arbitrator to have at least ten years'
experience as an appraiser or broker of downtown Boston office buildings,
including high-rise office buildings, and shall give notice of such appointment
to the other party. If either Landlord or Tenant shall fail timely to appoint an
arbitrator, the other may apply to the Boston Office of the American Arbitration
Association ("AAA") for appointment of such arbitrator fifteen (15) days after
notice of such failure to Landlord or Tenant, as the case may be, if such
arbitrator has not been appointed. The two arbitrators shall, within ten (10)
days after appointment of the second arbitrator, appoint a third arbitrator who
shall be similarly qualified. If the two arbitrators are unable to agree timely
on the selection of the third arbitrator, then either arbitrator on behalf of
both may request such appointment from the Boston office of the AAA. The
arbitration shall be conducted in accordance with the rules of the AAA insofar
as such rules are not inconsistent with the provisions of this Paragraph and
paragraph 4.1 (in which case the provisions of this Paragraph and Paragraph 4.1
shall govern), and the arbitrators shall be charged to reach a majority decision
in accordance with the standards provided in this Paragraph and paragraph 4.1.
The Fair Market Rent shall be in accordance with the arbitrators' decision which
may be entered and enforced by either party in any court of competent
jurisdiction. The cost of the arbitration (exclusive of each party's witness and
attorney fees, which shall be paid by such party) shall be borne equally by the
parties. If the AAA shall cease to provide arbitration for commercial disputes
in Boston, the second or third arbitrator, as the case may be, shall be
appointed by any successor organization providing substantially the same
services, and in the absence of such an organization, by a court of competent
jurisdiction under the arbitration act of The Commonwealth of Massachusetts.
5. ADDITIONAL RENT
In addition to paying the Base Rent specified in Paragraph 4 hereof, Tenant
shall pay as "Additional Rent" the amounts determined pursuant to Sub-Paragraphs
B and C of this Paragraph 5. The Base Rent and the Additional Rent are sometimes
herein collectively referred to as the "Rent". All amounts due under this
Paragraph as Additional Rent shall be payable for the same periods and in the
same manner, time and place as the Base Rent, without any abatement,
counterclaim, set-off or deduction whatsoever. Without limitation on other
obligations of Tenant which shall survive the expiration of the Term, the
obligations of Tenant to pay the Additional
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Rent provided for in this Paragraph 5 shall survive the expiration of the Term-
For any partial Calendar Year, Tenant shall be obligated to pay only a pro rata
share of the Additional Rent, based on the number of days of the Term falling
within such Calendar Year.
A. Definitions. As used in this Paragraph 5, the terms:
(ii) "Calendar Year" shall mean each calendar year in which any part
of the Term falls, through and including the year in which the Term
expires.
(iii) "Tenant's Proportionate Share" with respect to "Taxes" (as
hereinafter defined) for each Calendar Year shall mean the percentage
calculated by dividing the Total Rentable Area contained in the Premises by
the Total Rentable Area of 101 Federal leased (but not less than 85% of the
Total Rentable Area of 101 Federal) as of the first day of the Calendar
Year in question. Tenant's Proportionate Share with respect to "Operating
Expenses" (as hereinafter defined) for each Calendar Year shall mean the
percentage calculated by dividing the Total Rentable Area contained in the
Premises by the Total Rentable Area contained in the Building leased (but
not less than 85% of the Total Rentable Area of the Building) as of the
first day of the Calendar Year in question.
(iv) "Taxes' shall mean all taxes, assessments, betterments, excises,
user fees and similar charges assessed or imposed on 101 Federal for the
then current calendar year by any governmental authority (including
personal property associated therewith) or impositions or agreed payments
in lieu of any of the foregoing, or voluntary payments made in connection
with the provision of governmental services or improvements of benefit to
101 Federal. The amount of any special taxes, special assessments and
agreed or governmentally imposed "in lieu of tax" or similar charges
(including so-called "linkage payments" and other agreed or voluntary
payments paid by Landlord) shall be included in Taxes for any year but
shall be limited to the amount of the installment (plus any interest, other
than penalty interest, payable thereon) of such special tax, special
assessment or such charge required to be paid during or with respect to the
year in question. Taxes include expenses, including fees of attorneys,
appraisers and other consultants, incurred in connection with any efforts
to obtain abatements or reduction or to assure maintenance of Taxes for any
year wholly or partially included in the Term, whether or not successful
and whether or not such efforts involved filing of actual abatement
applications or initiation of formal proceedings. Taxes exclude income
taxes of general application and all estate, succession, inheritance and
transfer taxes. If at any time during the Term there shall be assessed on
Landlord, in addition to or lieu of the whole or any part of the ad valorem
tax on real or personal property, a capital levy or other tax on the gross
rents or other measures of building operations, or a governmental income,
franchise, excise or similar tax assessment, levy, charge or fee measured
by or based, in whole or in part, upon building valuation, gross rents or
other measures of building operations, or benefits of governmental services
furnished to the building, then any and all of such taxes, assessments,
levies, charges and fees, to the extent so measured or based, shall be
included within the term Taxes, but only to the extent that the same would
be payable if 101 Federal were the only property of Landlord.
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(v) "Operating Expenses" shall mean all costs of Landlord in owning,
servicing, operating, managing, maintaining, and repairing the Property,
and providing services to tenants including, without limitation, the costs
of the following: (i) supplies, materials and equipment purchased or
rented, total wage and salary costs paid to, and all contract payments
made on account of, all persons engaged in the operation, maintenance,
security, cleaning and repair of the Property, including Social Security,
old age and unemployment taxes and so-called "fringe benefits"): (ii)
building services furnished to tenants of the Property at Landlord's cost
(including the types of services provided to Tenant pursuant to Paragraph
8.A hereof) and maintenance and repair of and services provided to or on
behalf of the Property performed by Landlord's employees or by other
persons under contract with Landlord (other than maintenance and repair in
other tenant spaces caused by the actions of another tenant): (iii)
utilities consumed and expenses incurred in the operation, maintenance and
repair of the Building including, without limitation, oil, gas,
electricity (other than electricity to tenants in their Premises if Tenant
is directly responsible for payment under this Lease on account of
electricity consumed by Tenant), water, sewer and snow removal; (iv)
casualty, liability and other insurance (all insurance to be in such
amounts and insuring against such risks as Landlord may, in its sole
discretion from time to time, decide, together with such amounts and
coverages as may be required by any mortgagee) and unreimbursed costs
incurred by Landlord which are subject to an insurance deductible: (v)
costs in the nature of common area and facilities costs of the Property
including without limitation, operation, maintenance and servicing of the
lobby and pedestrian walkways, snow plowing and removal, grounds
maintenance and the like; and (vi) management fees plus the actual or an
imputed cost of any space in the Building occupied by Landlord's
management offices for the Building. If Landlord, in its sole discretion,
installs a new or replacement capital item for the purpose of reducing or
conserving the use of energy in the Building, complying with any building
code or other law, regulation, or legal requirement, complying with
requirements of any insurer of Landlord or of the Property, or otherwise
relating to the operation of the Property, the cost of such item amortized
over a reasonable period with interest at two points above the so-called
base rate or prime rate from time to time announced by The First National
Bank of Boston, N.A. (or any comparable financial institution) at its head
office in Boston, Massachusetts shall be included in Operating Expenses.
Operating Expenses shall not include any costs or expenses incurred by
Landlord in the construction and development of the Building; costs of
special services to particular tenants which are reimbursable to landlord,
payments of principal, interest or other charges on mortgages; ground
rents; salaries of executives or principals of Landlord (except as the
same may be reflected in the management fee for the Building or
attributable to actual Building operations): leasing commissions; costs of
alteration of any tenant's premises for a particular tenant and not for
the benefit of the Building or any group of tenants therein; and all
expenses, costs, disbursements paid or incurred by Landlord: to clean the
Office Space; to furnish heat, ventilation, and air-conditioning to the
Office Space; to operate, manage and maintain the Garage; to maintain and
repair the elevators servicing the Office Space; and to maintain all
interior common areas of the Building above the first floor.
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B. Expense Adjustment. Tenant shall pay to Landlord or Landlord's agent as
Additional Rent, a sum ("Expense Adjustment Amount") equal to the sum of
Tenant's Proportionate Share of Taxes and Tenant's Proportionate Share of
Operating Expenses incurred with respect to each Calendar Year. The Expense
Adjustment Amount with respect to each Calendar Year shall be paid in monthly
installments, in an amount estimated from time to time by Landlord and
communicated by written notice to Tenant, which estimate may be revised to
reflect, without limitation, increases and anticipated increase in Operating
Expense during any period. Landlord shall cause to be kept books and records
showing Operating Expenses in accordance with an appropriate system of accounts
and accounting practices consistently maintained. Following the close of each
Calendar Year, Landlord shall cause the amount of the Expense Adjustment Amount
for such Calendar Year to be computed based on Operating Expenses for such
Calendar Year and Landlord shall deliver to Tenant a statement of such amount
and Tenant shall pay any deficiency to Landlord as shown by such statement
within fifteen (15) days after receipt of such statement. If the total of the
estimated monthly installments paid by Tenant during any Calendar Year exceeds
the actual Expense Adjustment Amount due from Tenant for such Calendar Year,
such excess shall be refunded by Landlord, provided Tenant is not then in
default hereunder. Delay in computation of the Expense Adjustment Amount or
failure to deliver a statement of such amount shall not be deemed a default
hereunder or a waiver of Landlord's right to collect the Expense Adjustment
Amount. In computing the Expense Adjustment Amount, the following provisions
relating to Taxes shall be applicable: The amount of any refund of Taxes
received by Landlord shall be credited against Taxes for the calendar year in
which such refund is received, provided, however, in the event Landlord receives
a refund of taxes after the termination date (as the same may be accelerated or
extended as provided elsewhere in this Lease) which refund relates to a year
during the Term hereof, the amount of such refund fairly allocable to Tenant
shall be refunded to Tenant by Landlord (net of Tenant's allocated share of the
cost of obtaining such refund and the cost, if any, of making such refund) ; and
further provided that if Tenant expands into space formerly occupied by other
tenants, which expansion space becomes subject to this Lease, Tenant shall not
be entitled to any refund or credit in connection with a refund or abatement of
Taxes for periods prior to Tenant's occupancy of such expansion space. All
references to Taxes "for" a particular Calendar Year shall be deemed to refer to
Taxes due and payable during such Calendar Year without regard to when such
Taxes are assessed or levied.
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6. USE OF PREMISES.
Beginning on the Opening Date set forth in Paragraph 1 and continuing
throughout the term, as it may be extended, Tenant shall continuously occupy the
Premises in their entirety during all of the Hours of Operation set forth in
Paragraph 1, as such hours may hereafter be reasonably adjusted by Landlord, and
at other times with Landlord's prior approval, and use the Premises for the Use
specified in Paragraph 1 only (including the use of an insubstantial portion of
the Premises for storage and administrative uses ancillary to the Use) and shall
not use the Premises for any other purpose. Tenant shall operate its business in
the Premises under Tenant's Trade Name only. Tenant shall not injure, overload,
deface or commit waste in the Premises or any part of the Property, nor use or
permit any use of the Premises which is improper, offensive, contrary to law or
ordinance or which is liable to invalidate or increase the premium for any
insurance on the Property or its contents or which is liable to render necessary
any alterations or additions in the Property, nor obstruct in any manner any
portion of the Property. Tenant shall keep all mechanical apparatus free of
vibration and noise which may be transmitted beyond the Premises and conduct its
business in all respects in a dignified manner in accordance with high standards
of retail operation consistent with the quality of operation of the Property as
determined by Landlord. If Tenant's use of the Premises results in an increase
in the premium for any insurance on the Property or the contents thereof,
Landlord shall notify Tenant of such increase and Tenant shall pay the same upon
billing as additional rent. Tenant may not without Landlord's consent (which may
be indicated on Tenant's Plans for Finish Work) install in the Premises any pay
telephones or vending machines, water fountains, refrigerators, sinks or cooking
equipment provided that Landlord's consent will not be unreasonably withheld
with respect to items designed for the convenience of Tenant's employees which
are customary for retail employees if Landlord determines that special venting
or other matters are not required in connection therewith. Subject to the
requirements of the Security Program, Landlord may require that Tenant obtain
maintenance, other services, and supplies for such items at competitive rates
from Landlord or from an independent vendor approved by Landlord, the cost
thereof for any such item obtained from Landlord to be paid as Additional Rent.
Tenant shall not permit the use of any objectionable advertising medium
such as, without limitation, loudspeakers, phonographs, public address systems,
sound amplifiers, reception of radio or television broadcasts within the
Property, which
-7-
is in any manner audible or visible outside of the Premises. Tenant shall
operate the Premises in compliance with all applicable governmental regulations,
and in accordance with all licenses and permits applicable to the Use, including
without limitation, compliance with the regulations of the Board of Health and
with the terms of any victualer's license and liquor license. Tenant shall not
solicit business outside of the Premises, distribute handbills or other
advertising matter outside the Premises in any common area; permit the parking
of vehicles so as to interfere with the use of any driveway, corridor, footwalk,
parking area, or other common area; receive or ship articles of any kind outside
the designated loading areas for the Premises; use the Building common area
adjacent to the Premises for the sale or display of any merchandise or for any
other business, occupation or undertaking; conduct or permit to be conducted any
auction, fire sale, going out of business sale, bankruptcy sale (unless directed
by a court order), or other similar type sale in or connected with the Premises
(but this provision shall not restrict the absolute freedom of Tenant in
determining its own selling prices, nor shall it preclude the conduct of
periodic seasonal, promotional or clearance sales); use or permit the use of any
portion of the Premises for any unlawful purpose or for any activity of a type
which is not generally considered appropriate for a first-class urban retail
center conducted in accordance with the highest standards of operation. Tenant
shall not operate its heating or air-conditioning in such a manner as to drain
heat or air-conditioning from other portions of the Building. The foregoing
prohibition of solicitation shall not be interpreted to prohibit customary
commercial contacts between Tenant and other tenants of the Building.
Tenant acknowledges that it is Landlord's intent that the Retail Area be
operated in a manner which is consistent with the highest standards of decency
prevailing in the community which it serves. Toward that end, Tenant agrees that
it will not sell, distribute, display or offer for sale any item which, in
Landlord's good faith judgment, is inconsistent with the quality of operation of
the Retail Area or may tend to injure or detract from the character or image of
the Property within such community. Without limiting the generality of the
foregoing, Tenant will not sell, distribute, display or offer for sale any
paraphernalia commonly used in the use or ingestion of illicit drugs, or any
pornographic or lewd newspaper, book, magazine, film, picture, representation or
merchandise of any kind. Provided that Tenant shall not have defaulted in its
performance of its obligations under this Lease, Landlord agrees that it shall
not, during the first year following the date of execution of this Lease, enter
into a lease for premises located in the portion of Building gallery running
between Federal Street and Winthrop Square with any financial institution for a
use which competes directly with Tenant's Use.
7. CONDITION OF PREMISES.
Tenant's taking possession of any portion of the Premises shall be
conclusive evidence that such portion of the Premises was delivered in
compliance with Landlord's obligations under the terms of this Lease. No promise
of Landlord to alter, remodel or improve the Premises, the Building or the
Property and no representation by Landlord or its agents respecting the
condition of the Premises, the Building or the Property have been made to Tenant
or relied upon by Tenant other than as may be contained in this Lease or in any
written amendment hereto signed by Landlord and Tenant. It is understood that
visits by the tenant prior to the Commencement Date shall not constitute "taking
possession" of the Premises.
8. SERVICES.
A. List of Services
Landlord shall provide the following services, the costs of which are
included within Operating Expenses, on all days during the Term, except Sundays
and holidays established by Federal, State and/or local law, unless otherwise
stated, and subject to all governmental rules, regulations and guidelines
applicable thereto:
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(i) Heating and air conditioning in the Building common areas during
the normal heating and air conditioning seasons, from Monday through Friday
during the period from 8 a.m. to 6 p.m. ("business days").
(ii) Electrical lighting in the Building common areas.
(iii) City water from the regular Building outlets for drinking,
lavatory and toilet purposes for Tenant and its employees.
(iv) Window washing of the outside of windows in the Building's
perimeter walls as may be situated in the Premises.
(v) Non-exclusive automatic passenger elevator service at all times.
(vi) Non-exclusive freight elevator services subject to scheduling by
Landlord.
(vii) Snow and ice removal from Building walkways.
(viii) Except as otherwise provided in this Lease and except for
repairs necessitated by Tenant's act or neglect (which shall be deemed a
repair obligation of Tenant), Landlord shall make such repairs to the roof,
exterior walls, floor slabs, and common areas and facilities as may be
necessary to keep them in good condition consistent with a first class
office building.
B. Utilities.
Tenant shall pay Landlord, as Additional Rent, for the use of all
electrical services and other utilities to the Premises. Such payments shall be
made in monthly installments at the time prescribed for monthly installments,
and shall be in the amount of Tenant's allocable share of the cost of such
utilities metered to the Premises or to premises which include the Premises, as
the case may be, as estimated by Landlord from time to time in Landlord's sole
discretion. Tenant shall, as part of its approved improvements and at its
expense install electric wiring from the vault in the basement of the Building
to the Premises, together with an electric meter to measure Tenant's consumption
of electricity in the Premises. Such wiring and meter shall be maintained
throughout the term by Tenant at its expense. If Tenant, at its option and
expense, contracts directly with the utility company for electric service to the
Premises, Tenant's payments shall be made directly to the utility company and
shall not be included as additional rent.
C. Interruption of Services.
Tenant agrees that Landlord shall not be liable in damages, by abatement of
Rent or otherwise, for failure to furnish or delay in furnishing any service, or
for any diminution in the quality or quantity thereof, when such failure or
delay or diminution is occasioned, in whole or in part, by repairs, renewals, or
improvements, by any strike, lockout or other labor trouble, by inability to
secure electricity, gas, water, or other fuel at the Building after reasonable
effort so to do, by any accident or casualty whatsoever, by act or default of
Tenant or other parties, or by any other cause beyond Landlord's reasonable
control; and such failures or delays or diminution shall never be deemed to
constitute an eviction or disturbance of Tenant's use and possession of the
Premises or relieve Tenant from paying Rent or performing any of its obligations
under this Lease. Notwithstanding the foregoing, if the Premises shall be
untenantable for more than five (5) business days as a result of Landlord's
negligent act or omission, Base Rent shall thereafter abate until the Premises
are again tenantable. If the Premises shall continue to be untenantable for any
reason beyond Tenant's control for nine (9) months, Tenant shall have the right
to terminate this Lease upon notice to Landlord given within thirty (30) days
following the expiration of such nine (9) month period.
D. Charges for Services.
Charges for any service for which Tenant is required to pay from time to
time hereunder including, but not limited to, utilities and hoisting services
shall be due and payable at the same time as the installment of Rent with which
they are billed, or if billed separately, shall be due and payable as further
Additional Rent within ten (10) days after such billing.
-9-
9. REPAIRS AND MAINTENANCE.
Tenant will, at Tenant's own expense, keep the Premises, including all
improvements, fixtures and furnishings therein, in good order, repair and
condition at all times during the Term, and Tenant shall promptly and adequately
repair all damage to the Premises and replace or repair all damaged or broken
glass (excepting exterior glass, which shall be repaired by Landlord at Tenant's
cost), fixture and appurtenances. If Tenant does not do so, Landlord may, but
shall not be obligated to, make such repairs and replacements, and Tenant shall
pay Landlord the cost thereof, including a percentage of the cost thereof
sufficient to reimburse Landlord for all overhead, general conditions, fees and
other costs or expenses arising from Landlord's involvement with such repairs
and replacements, forthwith upon being billed for same. Landlord may, but shall
not be required to, enter the Premises at all reasonable times (and at any time
in emergency situations) to make such repairs, alterations, improvements and
additions to the Premises and the Property or to any equipment located therein
or thereon as Landlord shall desire or deem necessary or as Landlord may be
required to do by governmental authority or court order or decree.
Tenant shall maintain the Premises in a clean, orderly and sanitary
condition, free of insects, rodents, vermin and other pests; and keep any
garbage, trash, rubbish and other refuse in vermin-proof containers within the
Premises and out of sight of the public and other tenants until removed. Tenant
shall not place or maintain any merchandise, trash, refuse, or other articles in
any vestibule or entry of the Premises, on the footwalks or corridors adjacent
thereto or elsewhere on or around the exterior of the Premises. Tenant shall not
permit undue accumulations of nor burn garbage, trash, rubbish or other refuse
within or without the Premises. Tenant shall not cause or permit odors, lights
or noises which are, in Landlord's sole opinion, objectionable to emanate or to
be dispelled from the Premises. Tenant shall keep all trash in the Premises in
appropriate containers and shall be responsible for its removal daily (or more
frequently if necessary) by its own employees or by a company approved by
Landlord. Tenant shall cause all cleaning in the Premises to be done at Tenant's
expense by its own employees or a company approved by Landlord, shall cause all
extermination of vermin in the Premises to be performed at Tenant's expense only
by a company approved by Landlord and shall cause all laundry from the Premises
to be collected and serviced at Tenant's expense only by a company approved by
Landlord.
10. ADDITIONS AND ALTERATIONS.
A. The installation of initial Tenant Finish Work in the Premises shall be
as provided in Exhibit B. Tenant shall not, without the prior written consent of
Landlord, make any alterations, improvements or additions to the Premises after
-10-
initial construction except as approved by Landlord. Landlord agrees that its
consent shall not be required with respect to improvements to the Premises which
(i) cost in the aggregate no more than $10,000; (ii) are consistent with the
design and materials contained in the initial Finish Work approved and installed
pursuant to Exhibit B; and (iii) do not affect the structure, systems or common
facilities of the Building. Landlord's refusal to give said consent shall be
conclusive. If Landlord consents to said alterations, improvements or additions,
it may impose such conditions with respect thereto as Landlord deems
appropriate, including, without limitation, requiring Tenant to furnish Landlord
with security for the payment of all costs to be incurred in connection with
such work, insurance against liabilities which may arise out of such work, and
plans and specifications plus permits necessary for such work, requiring Tenant
to perform such work at times designated by Landlord. The work necessary to make
any alterations, improvements or additions to the Premises, whether prior to or
subsequent to the Commencement Date, shall be done at Tenant's expense by
employees of or contractors hired by Landlord except to the extent Landlord
gives its prior written consent to Tenant's hiring its own contractors, which
consent shall not be unreasonably withheld or delayed. It is understood that
Landlord's consent to the hiring by Tenant of Tenant's own contractors may be
withheld if Landlord's permitting such hiring might reasonably be expected
adversely to affect other construction in the Building or might reasonably be
expected to result in an interruption of services provided to tenants of the
Building. Tenant shall promptly pay to Landlord or Tenant's contractors, as the
case may be, when due, the cost of all such work and of all decorating required
by reason thereof. Tenant shall also pay to Landlord a percentage of the cost of
such work sufficient to reimburse Landlord for all overhead, general conditions,
fees and other costs and expenses arising from Landlord's involvement with such
work, which costs shall be appropriate to Landlord's degree of involvement in
the work in question. In connection with seeking Landlord's approval, Tenant
shall provide to Landlord Plans and Specifications regarding proposed
alterations, additions or improvements, as Landlord shall reasonably require,
and Tenant shall, in addition to all other expenses which Tenant is obligated to
pay to Landlord hereunder, pay to Landlord the expense incurred by Landlord in
connection with the review of such information. Upon completion of such work
Tenant shall deliver to Landlord, if payment is made directly to contractors,
evidence of payment, contractors' affidavits and full and final waivers of all
liens for labor, services or materials, all in form satisfactory to Landlord.
Tenant shall defend and hold Landlord, Landlord's ground lessor, if any, any
mortgagees of any of the Property, the Property and the Building harmless from
all costs, damages, liens and expenses related to such work. All work done by
Tenant or its contractors pursuant to Paragraphs 9 or 10 shall be done in a
first-class workmanlike manner using only good grades of materials and shall
comply with all insurance requirements and all applicable laws and ordinances
and rules and regulations of governmental departments or agencies.
B. All alterations, improvements and additions to the Premises, whether
temporary or permanent in character, made or paid for by Landlord or Tenant,
shall without compensation to Tenant become Landlord's property at the
termination of this lease by lapse of time or otherwise and shall, unless
Landlord requests their removal (in which case Tenant shall remove the same as
provided in Paragraph 18) be relinquished to Landlord in good condition,
ordinary wear excepted. Landlord and Tenant shall, in connection with the
approval of Working Drawings pursuant to Exhibit B, agree on those Tenant
improvements which are to be removed by Tenant at the Termination Date.
11. COVENANT AGAINST LIENS.
Tenant has no authority or power to cause or permit any lien or encumbrance
of any kind whatsoever, whether created by act of Tenant, operation of law or
otherwise, to attach to or be placed upon the Property, the Building or the
Premises, or to affect any estate or interest of Landlord, Landlord's ground
lessor, if any, or any mortgagees. Tenant covenants and agrees not to suffer or
permit any lien of mechanics, materialmen or others to be placed against the
Property, the Building or the Premises, or to affect any estate or interest of
Landlord,
-11-
Landlord's ground lessor, if any, or any mortgagees with respect to work or
services claimed to have been performed for or materials claimed to have been
furnished to Tenant or the Premises, and, in case of any such lien attaching, or
claim therefor being asserted, Tenant covenants and agrees to cause same to be
immediately released and removed of record In the event that such lien is not
released and removed as soon as possible under applicable law. Landlord, at its
sole option, may take all action necessary to release and remove such lien
(without any duty to investigate the validity thereof) and Tenant shall promptly
upon notice reimburse, Landlord for all sums, costs and expenses (including
reasonable attorneys' fees) incurred by Landlord in connection therewith
12. INSURANCE.
A. Waiver of Subrogation.
Landlord and Tenant each hereby waive any and every claim for recovery from
the other for any and all loss of or damage to the Building or the Premises or
to the contents thereof, which loss or damage is covered by valid and
collectible physical damage insurance policies, to the extent that such loss or
damage is recoverable under said insurance policies. Inasmuch as this mutual
waiver will preclude the assignment of any such claim by subrogation (or
otherwise) to an insurance company (or any other person), Landlord and Tenant
each agree to give to each insurance company which has issued, or in the future
may issue, to it policies of physical damage insurance, written notice of the
terms of this mutual waiver, and to have said insurance policies properly
endorsed, if necessary, to prevent the invalidation of said insurance coverage
by reason of said waiver. Tenant's waiver of subrogation as hereinabove set
forth shall also run to the benefit of and extend to Landlord's ground lessor,
if any, and any mortgagees.
B. Coverage.
Tenant shall purchase and maintain insurance during the entire Term (and
during such further time as Tenant or any person claiming through Tenant
occupies any part of the premises or has any liability for matters arising
during the Term and such further time) for the benefit of Tenant, Landlord,
Landlord's ground lessor, if any, and any mortgagees (as their respective
interests may appear) with terms, coverages and in companies satisfactory to
Landlord, and with such increases in limits as Landlord may from time to time
request, but initially Tenant shall maintain the following coverages in the
following amounts:
(i) Comprehensive General Liability Insurance covering Tenant,
Landlord, Landlord's ground lessor, if any, any mortgagees, and Landlord's
management agent for claims of bodily injury, personal injury and property
damage arising out of Tenant's operations, assumed liabilities or use of
the Premises, for limits of liability not less than:
Bodily Injury Liability $6,000,000 each occurrence
$6,000,000 annual aggregate
Personal Injury Liability $6,000,000 annual aggregate
O% Insured's participation
Property Damage Liability $6,000,000 each occurrence
$6,000,000 annual aggregate
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(ii) Comprehensive Automobile Insurance covering all owned, non-owned
and hired automobiles of Tenant including the loading and unloading of any
automobile with limits of liability not less than:
Bodily Injury Liability $3,000,000 each person
$3,000,000 each accident
Property Damage Liability $1,000,000 each accident
(iii) Physical Damage Insurance covering all additions, improvements
and alterations to the Premises including the building standard Tenant
improvements provided by Landlord and all furniture, trade fixtures,
equipment, merchandise and all other items of Tenant's property on the
Premises. Such insurance shall be written on "all risks" of physical loss
or damage basis, for the full replacement cost value of the covered items
and in amounts that meet any coinsurance clauses of the policies of
insurance.
Tenant shall, prior to the commencement of the Term, furnish to Landlord
certificates evidencing such coverage, which certificates shall state that such
insurance coverage may not be changed or cancelled without at least thirty days
written notice to Landlord and Tenant shall name Landlord and Landlord's
management agent as additional insureds.
C. Loss of Coverage; Rate Increases
Tenant shall comply with all applicable laws and ordinances, all orders and
decrees of court and all requirements of other governmental authorities having
jurisdiction over the Building and of the applicable rating bureau, and shall
not, directly or indirectly, make any use of the Premises which may thereby be
prohibited or be dangerous to person or property or which may cause the
termination of or may result in a loss of any insurance coverage. If by reason
of the failure of Tenant to comply with the provisions of this paragraph 12C,
(i) any insurance coverage is jeopardized Landlord may, in addition to all other
remedies which may be available to Landlord, terminate this Lease or (ii)
insurance premiums are increased, Landlord shall have the option either to
terminate this Lease or to require Tenant to make immediate payment of the
increased insurance premiums.
13. FIRE OR CASUALTY.
A. Paragraph 9 hereof notwithstanding, if the Premises or the access
thereto shall be damaged by fire or other casualty and if such damages does not
render all or a material portion of the Premises untenable and if the Premises
or the Building are not substantially damaged (as hereinafter defined), then
Landlord shall, subject to building and zoning laws then applicable, and subject
to Landlord's mortgagees making available insurance proceeds therefor, repair
and restore the same (or so much thereof as was originally constructed by
Landlord as Landlord's Work pursuant to Paragraph 37) with reasonable
promptness, subject to reasonable delays for insurance adjustments and delays
caused by matters beyond Landlord's reasonable control, but shall not be
obligated to expend therefor an amount in excess of the proceeds of insurance
recovered with respect thereto. If all or a material portion of the Premises are
rendered untenable by fire or other casualty, or if the Premises or the Building
are substantially damaged by fire or other casualty (the term "substantially
damaged" meaning damage of such a character that the same cannot, in ordinary
course,
-13-
reasonably be expected to be repaired within ninety (90) days from the time that
repair work would commence), then, in either such case, Landlord shall have the
right to terminate this Lease by giving notice of Landlord's election so to do
not later than thirty (30) days after Landlord has ascertained all information
required by Landlord to determine whether or not to terminate this Lease,
including without limitation the amount of insurance proceeds which are
available to Landlord for restoration. In the event Landlord gives such
termination notice, this Lease shall terminate (with appropriate proration(s) of
Rent being made for Tenant's possession of the tenantable portion of the
Premises after the date of such damage) as of the date specified in such notice
(but in no event sooner than thirty (30) days after the date of such notice)
with the same force and effect as if the date specified were the date originally
established as the expiration date hereof. Landlord shall have no liability to
Tenant, and Tenant shall not be entitled to terminate this Lease by virtue of
any delays in completion of such repairs and restoration. If Landlord elects to
restore Landlord's Work following a casualty but fails to complete Landlord's
Work within nine (9) months from the date of the casualty, Tenant shall have the
right to terminate this Lease upon notice to Landlord given within thirty (30)
days following the expiration of such nine (9) month period. Further, in the
event this Lease is not terminated, Landlord shall not be obligated to restore
any portion of the Building outside of the Premises which is not necessary for
reasonable access to and egress from the Premises. Except as otherwise provided
below, Rent shall abate on those portions of the Premises as are, from time to
time, untenable as a result of such damage.
B. In the event the Premises or the Building is damaged by fire or other
casualty resulting from the act or neglect of Tenant, its agents, contractors,
employees or invitees and if this Lease shall not be terminated by Landlord as a
result of such damage, Tenant shall not be released from any of its obligations
hereunder including, without limitation, its duty to pay Rent, and Rent shall
not be abated.
C. Notwithstanding anything to the contrary herein set forth, Landlord
shall have no duty pursuant to this Paragraph 13 to repair or restore any
portion of the alterations, additions or improvements in the Premises or the
decorations thereto, except (i) to the extent that damage to such alterations,
additions, improvements and decorations was to Landlord's Work or if (ii) at
Landlord's sole option, Landlord elects to make repairs to such other damage to
alterations, additions, improvements and additions as was insured against by
Tenant as required under Paragraph 12B(iii) of this Lease and the proceeds from
such insurance are made available to Landlord. If Tenant desires any other or
additional repairs or restoration and if Landlord consents thereto, the same
shall be done at Tenant's sole cost and expense subject to all of the provisions
of Paragraph 9 hereon. Tenant acknowledges that Landlord shall be entitled to
the full proceeds of any insurance coverage carried by Tenant, for damage to
alterations, additions, improvements or decorations whether such alterations,
additions, improvements or decorations were paid for by Landlord or Tenant;
provided, however, in the event Landlord does not repair or restore such damage,
Landlord shall repay to Tenant the amount of the insurance proceeds received by
Landlord from policies of insurance carried by Tenant pursuant to Paragraph
12B(iii) of this Lease. If Tenant is entitled to abatement of Rent under
Paragraph 13A and if Landlord has not elected to repair any damage to the
Premises other than Landlord's Work, Tenant shall be entitled to an additional
period of abatement of Rent commencing on the date that Landlord's Work is
substantially complete and ending on the earlier of (i) the date ninety (90)
days thereafter and (ii) the date on which Tenant occupies the Premises for the
Use permitted under Paragraph 1. Furthermore, with respect to damage by fire or
casualty solely to alterations, additions or improvements or decorations within
the Premises, Tenant may elect, by notice to Landlord, to be responsible for
repair and restoration of such alterations, additions, improvements or
decoration's and Tenant shall, in such event, be obligated to repair and restore
the Premises to the condition the same were in immediately prior to the fire or
casualty, such repair or restoration to be accomplished by Tenant consistent
with the provisions of Paragraph 10 of this Lease; and if Tenant so elects, the
proceeds of insurance under Paragraph 12B(iii) of this Lease shall be paid to
Tenant on requisition as repair and restoration of the Premises progresses.
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14. WAIVER OF CLAIMS - INDEMNIFICATION.
To the extent not prohibited by law, Landlord, Landlord's ground lessor, if
any, any mortgagees, and their respective officers, agents, servants and
employees shall not be liable for any damage either to person or property or
resulting from the loss of use thereof sustained by Tenant or by other persons
due to the Property or any part thereof or any appurtenances thereof becoming
Out of repair, or due to the happening of any accident or event in or about the
Premises, the Building or the Property, or due to any act or neglect of any
tenant or occupant of the Building or of any other person or entity. This
provision shall apply particularly, but not exclusively, to damage caused by
gas, electricity, snow, frost, steam, sewage, sewer gas or odors, fire, water,
noise, vibration, fumes or by the bursting or leaking of pipes, faucets,
sprinklers, plumbing fixtures and windows, and shall apply without distinction
as to the person whose act or neglect was responsible for the damage and whether
the damage was due to any of the causes specifically enumerated above or to some
other cause of an entirely different kind. Tenant further agrees that all
personal property upon the Premises, or upon loading docks, receiving and
holding areas, or freight elevators of the Building shall be at the risk of
Tenant only, and that Landlord shall not be liable for any loss or damage
thereto or theft thereof. Without limitation of any other provisions hereof,
Tenant agrees to defend, protect, indemnify and save harmless Landlord,
Landlord's ground lessor, if any, and any mortgagees from and against all
liability to third parties which arise (or which were claimed to have arisen)
within or without the Premises or out of acts or omissions of Tenant and its
servants, agents, employees, contractors, suppliers, workers and invitees.
15. NONWAIVER.
No waiver of any provision of this Lease shall be implied by any failure of
Landlord to enforce any remedy on account of the violation of such provision,
even if such violation be continued or repeated subsequently, and no express
waiver shall affect any provision other than the one specified in such waiver
and that one only for the time and in the manner specifically stated. No receipt
of monies by Landlord from Tenant after the termination of this Lease shall in
any way alter the length of the Term or of Tenant's right of possession
hereunder or after the giving of any notice shall reinstate, continue or extend
the Term or affect any notice given Tenant prior to the receipt of such monies,
it being agreed that after the service of notice or the commencement of a suit
or after final judgment for possession of the Premises, Landlord may receive and
collect any Rent due, and the payment of said Rent shall not waive or affect
said notice, suit or judgment.
16. CONDEMNATION.
If the Property, the Building or any portion thereof shall be taken or
condemned by any competent authority for any public or quasi-public use or
purpose (a "taking"), or if the configuration of any roadway, street, alley, or
railroad line adjacent to or beneath the Building is changed by any competent
authority and such taking or change in configuration makes it necessary or
desirable to remodel or reconstruct the Building or any part thereof, Landlord
shall have the right, exercisable at its sole discretion, to cancel this Lease
upon not less than ninety (90) days notice prior to the date of cancellation
designated in the notice. No
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money or other consideration shall be payable by Landlord to Tenant for the
right of cancellation and Tenant shall have no right to share in the
condemnation award or in any judgment for damages caused by such taking or
change in configuration. If Landlord elects to restore Landlord's Work following
a taking but fails to complete Landlord's Work within nine (9) months from the
date of the taking Tenant shall have the right to terminate this Lease upon
notice to Landlord given within thirty (30) days following the expiration of
such nine (9) month period. If the Premises are rendered untenantable by the
taking and the Lease is not terminated, Tenant shall be entitled to an abatement
of rent until the earliest of (i) the date the Premises are again rendered
tenantable; (ii) the date 90 days after Landlord's Work is substantially
complete; or (iii) the date on which Tenant occupies the Premises for the Use
permitted under Paragraph 1.
17. ASSIGNMENT AND SUBLETTING.
A. Tenant shall not, without the prior written consent of Landlord (which
consent, except as provided in the next sentence, shall not be unreasonably
withheld) (i) assign, convey or mortgage this Lease or any interest hereunder;
(ii) permit to occur or exist any assignment of this Lease, or any lien upon
Tenant's interest, voluntarily or by operation of law; (iii) sublet the Premises
or any part thereof; or (iv) permit the use of the Premises by any parties other
than Tenant and its employees (all or any of the foregoing actions are sometimes
collectively referred to as a "sublease"). An sublease shall include, without
limitation, any transfer of Tenant's interest in this Lease by operation of law,
merger or consolidation of Tenant into any other firm or corporation, and the
transfer or sale of a controlling interest in Tenant, whether by sale of its
capital stock or otherwise. Tenant shall not offer to make, or enter into
negotiations with respect to, and in no case shall it be unreasonable for
Landlord to refuse consent to, a sublease to (i) a tenant in the Building or 75
Federal or entity owned by, whether directly or indirectly, a tenant in the
Building or 75 Federal; or (ii) any party with whom Landlord is then negotiating
with respect to other space in the or in 75 Federal; or (iii) any party which
would be of such type, character or condition as to be inappropriate, in
Landlord's judgment, as a tenant for a first class office and retail building;
or (iv) any party for a rental which is less than the rent for which Landlord is
then marketing comparable premises in the Building; or (v) any party which is
not at least equal in creditworthiness and business reputation to Tenant as of
the date hereof. Any such action on the part of Tenant shall be void and of no
effect. Landlord's consent to any sublease or Landlord's election to accept any
assignee, subtenant or transferee (collectively, "subtenant") as the tenant
hereunder and to collect rent from such subtenant shall not release Tenant or
any subsequent tenant from any covenant or obligation under this Lease.
Landlord's consent to any sublease shall not constitute a waiver of Landlord's
right to withhold its consent to any future sublease. If Tenant is a corporation
and if at any time during the Term the person or persons who own a majority of
its voting shares at the time of the execution of this Lease cease to own a
majority of such shares, Tenant shall so notify Landlord, and Landlord may
terminate this Lease by notice to Tenant given not later than ninety (90) days
thereafter. This provision shall not apply whenever Tenant is a corporation the
outstanding voting stock of which is listed on a recognized security exchange
(including NASDAQ). For the purposes of this provision, stock ownership shall be
determined in accordance with the principles set forth in Section 544 of the
Internal Revenue Code of 1954, as the same existed on August 16, 1954, and the
term "voting stock" shall refer to shares of stock regularly entitled to vote
for the election of directors of the corporation. Notwithstanding anything else
contained in this paragraph, Tenant shall, subject to the provisions of this
Page 18A, be entitled to sell its business at the Premises in a transaction
which has been approved by appropriate regulatory authorities to an entity which
will continue the use of Premises for the Use permitted in Paragraph 1. The
Trade Name of the Tenant pursuant to a Permitted Assignment shall be the name
approved by the appropriate regulatory authorities. If Tenant wishes at any time
to make a permitted Assignment, Tenant shall provide Landlord with a list of the
entities which Tenant is considering as potential assignees of a permitted
Assignment and Landlord shall, within 15 days, notify Tenant if any such entity
is unacceptable to Landlord. If Landlord does not respond to such list within
such time, all the entities so listed will be deemed to be acceptable to
Landlord. Tenant may, within 12 months following its notice to Landlord, make a
permitted Assignment to any entity so listed other than an entity which is
unacceptable to Landlord. Following a permitted Assignment, Tenant shall be
jointly and severally liable with the assignee pursuant to any permitted
Assignment for the performance of Tenant's obligations under this Lease.
B. If Tenant requests Landlord's consent to sublease all or any portion of
the Premises (other than a Permitted Assignment as described on Insert page
18A), in addition to withholding its consent, Landlord shall have the option,
exercisable by written notice to Tenant given within thirty (30) days after
receipt of such request, either to relieve Tenant of its rights and
responsibilities under
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this Lease with respect to the space Tenant proposes to sublease for the
proposed period of such sublease, or to terminate this Lease with respect to
such space. If Landlord exercises such right to relieve Tenant of its rights and
responsibilities or to terminate, Landlord shall be entitled to recover
possession of and Tenant shall surrender the whole or such portion of the
Premises on the later of (i) the proposed date for possession by such subtenant,
or (ii) ninety (90) days after the date of Landlord's notice of termination to
Tenant. In the event of such occurrence with respect to a portion of the
Premises, the portion surrendered shall be delivered to Landlord in good order
and condition and thereafter, to the extent necessary in Landlord's judgment,
Landlord, at its own cost and expense, may have access to and may make
modification to the Premises so as to make such portion a self-contained rental
unit with access to common areas, elevators and like. Base Rent and Tenant's
Proportionate Share shall be adjusted according to the extent of the Premises
for which the Lease is terminated or Tenant is relieved of its rights and
responsibilities. Without limitation of the rights of Landlord hereunder in
respect thereto, if there is any sublease of all or a portion of the Premises by
Tenant at a rent in excess of the subleased portion's pro rata share of the rent
payable hereunder by Tenant, then Tenant shall pay to Landlord, as additional
rent, forthwith upon Tenant's receipt of each installment of any such excess
rent, the full amount of any such excess rent. The provisions of this paragraph
shall apply to each and every sublease of all or a portion of the Premises,
whether to a subsidiary or controlling corporation or any other person, firm or
entity, in each case on the terms and conditions set forth herein. Each request
by Tenant for permission to sublease the whole or any part of the Premises shall
be accompanied by a warranty by Tenant as to the amount of rent to be paid to
Tenant by the proposed subtenant. For the purposes of this Paragraph 17B, the
term "rent" shall mean all Base Rent, Additional Rent or other payments and/or
consideration payable by one party to another related to the use and occupancy
of all or a portion of the Premises.
18. SURRENDER OF POSSESSION.
Upon the expiration of the Term or upon the termination of Tenant's right
of possession to all or a portion of the Premises, whether by lapse of time or
at the option of Landlord as herein provided, Tenant shall forthwith quietly and
peaceably surrender the Premises or portion thereof to Landlord in good order,
repair and condition, ordinary wear excepted, and shall, if Landlord so
requires, restore the Premises or portion thereof to the condition existing at
the beginning of the Term. Subject to the agreement between Landlord and Tenant
with respect to removal of Tenant's improvements described in Paragraph 10B, any
interest of Tenant in the alterations, improvement and additions to the Premises
made or paid for by Landlord or Tenant shall, without compensation to Tenant,
become, at Landlord's option, Landlord's property at the termination of this
Lease by lapse of time or otherwise and if such option is exercised such
alterations, improvements and additions shall be relinquished to Landlord in
good condition, ordinary wear excepted. If Landlord does not exercise such
option with respect to any such alteration, improvement or addition, Tenant's
restoration obligation referred to above shall be applicable. Within seven (7)
days prior to the termination of the Term or of Tenant's right of possession
Tenant shall remove furniture, trade fixtures, equipment and all other items of
Tenant's property on the premises. Tenant shall pay to Landlord upon demand the
cost of repairing any damage to the Premises and to the Building caused by any
removal required hereunder. If Tenant shall fail or refuse to remove any such
property from the Premises, Tenant shall be conclusively presumed to have
abandoned the same, and title thereto shall thereupon pass to Landlord without
any cost either by set-off, credit, allowance or
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otherwise, and Landlord may at its option accept the title to such property or,
at Tenant's expense, may (i) remove the same or any part in any manner that
Landlord shall choose, repairing any damage to the Premises caused by such
removal, and (ii) store, destroy or otherwise dispose of the same without
incurring liability to Tenant or any other person.
19. HOLDING OVER.
Tenant shall pay to Landlord an amount as Rent equal to 200% of one-twelfth
of the Base Rent and 150% of one-twelfth of the Additional Rent paid by Tenant
during the previous Calendar Year herein provided during each month or portion
thereof for which Tenant shall retain possession of the Premises or any part
thereof after the expiration of the Term or termination of Tenant's right of
possession, whether by lapse or time or otherwise, and also shall pay all
damages sustained by Landlord, whether direct or consequential, on account
thereof. At the option of Landlord, expressed in a written notice to Tenant and
not otherwise, such holding over shall constitute a renewal of this Lease for a
period of one year at Base Rent equal to twice the Base Rent paid by Tenant
during the previous Calendar Year and at the Additional Rent as would be
applicable for such year determined with the original Base year as the Base
Year. The provisions of this Paragraph 19 shall not be deemed to limit or
constitute a waiver of any other rights or remedies or Landlord provided herein
or at law.
20. ESTOPPEL CERTIFICATE.
Tenant agrees that, from time to time upon not less than ten days prior
request by Landlord, Landlord's ground lessor, if any, or any mortgagee, Tenant
or Tenant's duly authorized representative having knowledge of the following
facts will deliver to Landlord a statement in writing certifying (i) that this
Lease is unmodified and in full force and effect (or if there have been
modifications, a description of such modifications and that the Lease as
modified is in full force and effect); (ii) the dates to which Rent and other
charges have been paid; (iii) that Landlord is not, to the best of Tenant's
knowledge, in default under any provisions of this Lease, or, if in default, the
nature thereof in detail; (iv) that the Premises have been delivered to Tenant
by Landlord and accepted by Tenant; (v) that there are no proceedings pending
against Tenant which have been adversely decided and which affect Tenant's
performance of its obligations under this Lease or which, if adversely decided,
would affect Tenant's performance of its obligations under this Lease; (vi) that
Tenant has not made a claim against Landlord which has not been resolved or
satisfied; and (vii) such further matters, to the best of Tenant's knowledge, as
may be requested by Landlord or such ground lessor or mortgagee, it being
intended that any such statement may be relied upon by any prospective assignee
of Landlord, any mortgagee or prospective mortgagee of the Building, any
prospective assignee of any such mortgagee, or any prospective and/or subsequent
purchaser or transferee of all or a part of Landlord's interest in the Property
or the Building, or any other person having an interest therein. Tenant shall
execute and deliver whatever instruments may be required for such purposes, and
in the event Tenant fails so to do within ten (10) days after notice of such
request is deemed to have been given, Tenant shall be considered in default
under this Lease. Tenant acknowledges that the execution and delivery of such
certificates in connection with a financing or sale in a prompt manner
constitute requirements of Landlord's financing and/or property dispositions,
and Tenant shall indemnify Landlord against all damages
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(including consequential damages in the nature of increased costs or loss of any
such transactions, and including attorneys' fees) directly or indirectly
resulting from Tenant's failure to comply herewith.
21. SUBORDINATION.
This Lease and all rights of Tenant hereunder are subject and subordinate
to any mortgage or mortgages, blanket or otherwise, made by Landlord and which
do now or may hereafter affect the Property or the Building and to any and all
renewals, modifications, consolidations, replacements and extensions thereof,
and to any ground or other lease, or similar instrument now or hereafter placed
against the Property or the Building. It is the intention of the parties that
this provision be self-operative and that no further instrument shall be
required to affect such subordination of this Lease. Tenant shall, however, upon
demand at any time or times execute, acknowledge and deliver to Landlord without
expense to Landlord, any and all instruments that may be necessary or proper to
subordinate this Lease and all rights of Tenant hereunder to any such mortgage
or mortgages or to conform or evidence such subordination. Tenant covenants and
agrees, in the event any proceedings are brought for the foreclosure of any such
mortgage, to attorn, without any deductions or set-offs whatsoever, to the
purchaser upon any such foreclosure sale if so requested to do by such
purchaser, and to recognize such purchaser as the Landlord under this Lease.
Tenant agrees to execute and deliver at any time and from time to time, upon the
request of Landlord or of any holder of such mortgage or of such purchaser, any
instrument which, in the sole judgment of such requesting party, may be
necessary or appropriate in any such foreclosure proceeding or otherwise to
evidence such attornment. Tenant hereby irrevocably appoints Landlord and the
holder of such mortgage, or either of them, the attorney-in-fact of Tenant to
execute and deliver any such instrument for and on behalf of Tenant. Tenant
further waives the provisions of any statute or rule of law, now or hereafter in
effect, which may give or purport to give Tenant any right or election to
terminate or otherwise to adversely affect this Lease, or the obligations of
Tenant hereunder in the event any such foreclosure proceeding is brought,
prosecuted or completed. Tenant and Landlord further agree that if so requested
by any mortgagee of Landlord, this Lease shall be made superior to any such
mortgage or to such rights of any such mortgagee as such mortgagee shall in its
sole discretion elect, and that they will execute such documents as may be
required by such mortgagee to effect the superiority of this Lease to such
mortgage or to such rights. Landlord shall obtain on Tenant's behalf a non-
disturbance agreement from Landlord's current mortgagee of the Building and
shall request on Tenant's behalf non-disturbance agreements from Landlord's
current and future mortgagees of the Building
22. CERTAIN RIGHTS RESERVED BY LANDLORD.
Subject to the terms of Exhibit H, the Security Program, Landlord shall
have the following rights (but not obligations), each of which Landlord may
exercise without notice to Tenant and without liability to Tenant for damage or
injury to property, person or business on account of the exercise thereof, and
the exercise of any such rights shall not be deemed to constitute an eviction or
disturbance of Tenant's use or possession of the Premises and shall not give
rise to any claim for set-off or abatement or Rent or any other claim.
(i) To change the Building's name or street address.
(ii) To install, affix and maintain any and all signs on the exterior
and on the interior of the Building.
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(iii) To decorate or to make repairs, alterations, additions,
improvements, whether structural or otherwise, thereof, and for such
purposes to enter upon the Premises, and during the continuance of any of
said work, to temporarily close doors, entryways, public space and
corridors in the Building and to interrupt or temporarily suspend service
or use of facilities, all without affecting any of Tenant's obligations
hereunder, so long as the Premises are reasonably accessible and usable. It
is understood that any non-emergency maintenance to be performed by
Landlord shall occur in a fashion reasonably calculated to minimize
disruption to Tenant's use of the Premises during business hours, and if
any such non-emergency maintenance can reasonably be anticipated to cause
more than minimal disruption, such maintenance shall be performed during
non-business hours
(iv) To furnish door keys for the entry door(s) in the Premises at the
commencement of this Lease and to retain at all times, and to use in
appropriate instances, keys to all doors within and into the Premises.
Tenant agrees to purchase only from Landlord additional duplicate keys as
required, to change no locks, and not to affix locks on doors without the
prior written consent of Landlord. Notwithstanding the provisions for
Landlord's access to Premises, Tenant relieves and releases Landlord of all
responsibility arising out of theft, robbery, pilferage and personal
assault. Upon the expiration of the Term or of Tenant's right of
possession, Tenant shall return all keys to Landlord and shall disclose to
Landlord the combination of any safes, cabinets or vaults left in the
Premises.
(v) To designate and approve all window coverings used in the
Building.
(vi) To approve the weight, size and location of safes, vaults and
other heavy equipment and articles in and about the Premises and the
Building so as not to exceed the legal live load per square foot designated
by the structural engineers for the Building, and to require all such items
and furniture and similar items to be moved into or out of the Building and
Premises only at such times and in such manner as Landlord shall direct in
writing. Tenant shall not install or operate machinery or any mechanical
devices of a nature not directly related to Tenant's ordinary use of the
Premises without the prior written consent of Landlord. Movements of
Tenant's property into or out of the Building or the Premises and within
the Building are entirely at the risk and responsibility of Tenant, and
Landlord reserves the right to require permits before allowing any property
to be moved into or out of the Building or the Premises.
(vii) To establish security policies and other controls for the
purpose of regulating all property and packages, both Building and Premises
and all persons using the Building both during and after the Hours of
Operation.
(viii) To regulate delivery and service of supplies and the usage of
the loading (locks, receiving areas and freight elevators.
(ix) Upon reasonable notice and without unreasonable interference with
Bank operations, to show the Premises to prospective tenants at reasonable
times and, if vacated or abandoned, to show the Premises at any time, and
to prepare the Premises for re-occupancy,
(x) At Landlord's expense, to erect, use and maintain pipes, ducts,
wiring and conduits, and appurtenances thereto, in and through the Premise
at reasonable locations.
(xi) Upon reasonable notice and without unreasonable interference with
Bank operations, to enter the Premises at any reasonable time to inspect
the Premises.
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(xii) To grant to any person or to reserve unto itself the exclusive
right to conduct any business or render any service in the Building. If
Landlord elects to make available to tenants in the Building any services
or supplies, or arranges a master contract therefor, Tenant agrees to
obtain its requirements, if any, therefor from Landlord or under any such
contract provided that the charges therefor are reasonable.
23. RULES AND REGULATIONS.
Tenant agrees to observe the rules and regulations for the Building
attached hereto as Exhibit C and made a part hereof. Landlord shall have the
right from time to time to prescribe additional rules and regulations which, in
its judgment, may be desirable for the use, entry, operation and management of
the Premises, the Building and the Property, each of which rules and regulations
and any amendments thereto shall become a part of this Lease. Tenant shall
comply with all such rules and regulations; provided, however, that such rules
and regulations shall not contradict or abrogate any right or privilege herein
expressly granted to Tenant.
24. REMEDIES UPON DEFAULT.
If default shall be made in the payment of the Rent or any installment
thereof or in the payment of any other sum required to be paid by Tenant under
this Lease or under the terms of an other agreement between Landlord and Tenant
and such default shall continue for five (5) days after notice or if default
shall be made in the observance or performance of any of the other covenants or
conditions in this Lease which Tenant is required to observe and perform and
such default shall continue for twenty (20) days after written notice to Tenant,
or if more than three notices of default are given in any 12 month period, or if
a default involves a hazardous condition and is not cured by Tenant immediately
upon written notice to Tenant, or if the interest of Tenant in this Lease shall
be levied on under execution or other legal process, or if any voluntary
petition in bankruptcy or for corporate reorganization or any similar relief
shall be filed by Tenant or if any involuntary petition in bankruptcy shall be
filed against Tenant under any federal or state bankruptcy or insolvency act and
shall not have been dismissed within thirty days from the filing thereof, or if
a receiver shall be appointed for Tenant or any of the property of Tenant by any
court and such receiver shall not have been dismissed within thirty days from
the date of his appointment, or if Tenant shall make an assignment for the
benefit of creditors, or if Tenant shall admit in writing Tenant's inability to
meet Tenant's debts as they mature, or if Tenant shall abandon or vacate all or
any part of the Premises during the Term, then Landlord may treat the occurrence
of any one or more of the foregoing events as a breach of this Lease, and
thereupon at its option may, with or without notice or demand of any kind to
Tenant or any other person, have either of the following described remedies in
addition to all other rights and remedies provided at law or in equity or
elsewhere herein:
(i) Landlord may terminate this Lease and the Term created hereby by
mailing or delivering a notice of termination to Tenant in accordance with
Paragraph 34, in which event Landlord may forthwith repossess the Premises
and be entitled to recover forthwith, in addition to any other sums or
damages for which Tenant may be liable to Landlord, as damages a sum of
money equal to (a) the excess of the value of the Rent provided to be paid
by Tenant for the
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balance of the Term over the fair market rental value of the Premises, plus
(b) all amounts of reimbursement due under Paragraph 25. Should the fair
market rental value of the Premises for the balance of the Term exceed the
value of the Rent provided to be paid by Tenant for the balance of the
Term. Landlord shall have no obligation to pay to Tenant the excess or any
part thereof or to credit such excess or any part thereof against any other
sums or damages for which Tenant may be liable to Landlord.
(ii) Landlord may terminate this Lease and the Term created hereby by
mailing or delivering a notice of termination to Tenant in accordance with
Paragraph 34 in which event Tenant agrees to surrender possession and
vacate the Premises immediately and deliver possession thereof to Landlord,
and Tenant hereby grants to Landlord full and free license to enter into
and upon the Premises, in whole or in part, with or without process of law,
to repossess Landlord of the Premises or any part thereof and to expel or
remove Tenant and any other person, firm or corporation who may be
occupying or within the Premises or any part thereof and remove any and all
property therefrom without releasing Tenant in whole or in part from
Tenant's obligation to pay rent and perform the covenants, conditions and
agreements to be performed by Tenant as provided in this Lease without
being deemed in any manner guilty of trespass eviction or forceful entry or
detainer, and without relinquishing Landlord's right to rental or any other
right of Landlord under this Lease or by operation of law; Landlord may,
but shall be under no obligation to, relet the same for such rent and upon
such terms as shall be satisfactory to Landlord. For the purpose of such
reletting, Landlord is authorized to decorate, repair, remodel or alter the
Premises. If Landlord shall fail to relet the Premises, Tenant shall pay to
Landlord as damages a sum equal to the amount of the Rent reserved in this
Lease for the balance of the Term, plus all amounts of reimbursement due
under Paragraph 25. If the Premises are relet and a sufficient sum shall
not be realized from such reletting to satisfy the Rent provided for in
this Lease, plus all amounts of reimbursement due under Paragraph 25,
Tenant shall satisfy and pay the same upon demand therefor from time to
time. Tenant shall not be entitled to any rents received by Landlord in
excess of the Rent provided for in this Lease. Tenant agrees that Landlord
may file suit to recover any sums falling due under the terms of this
Paragraph 24 from time to time and that no suit or recovery of any portion
due Landlord hereunder shall be any defense to any subsequent action
brought for any amount not theretofore reduced to judgment in favor of
Landlord.
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
Paragraph, Landlord may by notice to Tenant within two months after termination
under any of the provisions contained in this paragraph or otherwise 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 lesser
of (i) the Rent provided for in this Lease for the balance of the term had it
not been terminated, or (ii) the Rent for the 12 months ended next prior to such
termination, plus, either case, the amount of Rent accrued and unpaid at the
time of termination and less the amount of any recovery by Landlord under the
foregoing provisions of this Paragraph up to the time of payment of such
liquidated damages (but not less any amounts of reimbursement under Paragraph
25).
Notwithstanding any other provisions contained in this Lease, in the event
the Tenant is closed or taken over by the banking authority of The Commonwealth
of Massachusetts, or other bank supervisory authority, the Landlord may
terminate the Lease only with the concurrence of such banking authority or other
bank supervisory authority, and any such authority shall in any event have the
election either to continue or to terminate the Lease: Provided, that in the
event this Lease is terminated, the maximum claim of Landlord for damages or
indemnity for injury resulting from the rejection or abandonment of the
unexpired term of the Lease shall in no event be in an amount exceeding the rent
reserved by the Lease, without acceleration, for the year next succeeding the
date of the surrender of the Premises to the Landlord, or the date of reentry of
the Landlord, whichever first occurs, whether before or after the closing of the
bank, plus an amount equal to the unpaid rent accrued, without acceleration up
to such date.
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25. REIMBURSEMENT OF LANDLORD'S EXPENSES.
Tenant shall upon demand reimburse Landlord for all Landlord's costs,
charges and expenses including the fees and out-of-pocket expenses of counsel,
agents and others retained by Landlord incurred in enforcing Tenant's
obligations hereunder or incurred by Landlord in any litigation, negotiation or
transaction in which Tenant causes Landlord without Landlord's fault to become
involved or concerned. Upon the occurrence of any event of default and the lapse
of any applicable grace or notice period, Tenant shall reimburse Landlord for
all free rent amounts, rent waivers and the like, all Landlord's costs of
improvements to the Premises, moving allowances, and allowances for other Tenant
expenses including costs such as design and engineering costs if any have been
agreed to by Landlord. If Landlord terminates this Lease for default, Tenant
shall also reimburse Landlord for all expenses arising out of such termination
including, without limitation, all costs incurred in collecting amounts due from
Tenant under this Lease; all expenses incurred by Landlord in attempting to
relet the Premises or parts thereof (including advertisements, brokerage
commissions, Tenant's allowances, costs of preparing space, and the like); and
all Landlord's other reasonable expenditures necessitated by the termination.
The reimbursements from Tenant herein shall be due and payable immediately from
time to time upon notice from Landlord that an expense has been incurred,
without regard to whether the expense was incurred before or after termination.
26. COVENANT OF QUIET ENJOYMENT.
Landlord covenants that Tenant, on paying the Rent, charges for services
and other payments herein reserved and on keeping, observing and performing all
the other terms, covenants, conditions, provisions and agreements herein
contained on the part of Tenant to be kept, observed and performed shall, during
the Term, peaceably and quietly have, hold and enjoy the Premises subject to the
terms, covenants, conditions, provisions and agreements hereof, without
hindrance or ejection by any persons lawfully claiming by, through or under
Landlord, the foregoing covenant of quiet enjoyment being in lieu of any other
covenant, expressed or implied.
27. ENERGY CONSERVATION.
Tenant agrees to cooperate with Landlord and to abide by all reasonable
Building regulations which Landlord may, from time to time, prescribe for the
proper functioning and protection of the heating and air-conditioning systems
and in order to maximize the effect thereof and to conserve heat and air-
conditioning. Notwithstanding anything to the contrary in this Lease, Landlord
may institute such policies, programs and measures as may be in Landlord's
judgment necessary to comply with applicable codes, rules, regulations or
standards.
28. REAL ESTATE BROKER.
The Tenant represents that Tenant has dealt with (and only with) the Broker
specified in Paragraph 1 hereof as broker in connection with this Lease, and
that insofar as Tenant knows, no other broker negotiated this Lease or is
entitled to any commission in connection therewith. Tenant agrees to indemnify.
defend and hold
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Landlord its employees and agents harmless from and against any claims made by
any broker or finder other than the Broker named above for a commission or fee
in connection with this Lease or any sublease hereunder, provided that Landlord
has not in fact retained such broker or finder, but nothing herein shall be
construed as permitting any such sublease. Landlord shall indemnify Tenant from
any claims made against Tenant by any broker or finder for a commission or fee
in connection with this Lease other than a broker with whom Tenant has dealt who
is not specified in Paragraph 1 hereof as Broker.
29. NONDISCRIMINATION.
In connection with hiring to fill permanent jobs at the Premises, Tenant
acknowledges its obligations under applicable law to avoid discrimination
against any employee or applicant for employment because of race, color,
religious creed, national origin, age or sex, including to the extent
applicable, with Title VII of the U.S. Civil Rights Act, M.G.L. c.151B and all
other applicable law, including, without limitation City of Boston requirements,
with respect to employment at the Premises.
30. NOTICE TO MORTGAGEE AND GROUND LESSOR.
After receiving notice from any person, firm or other entity that it holds
a mortgage which includes the Premises or the Building as part of the mortgaged
premises, or that it is the ground lessor under a ground lease with Landlord, as
ground lessee, which includes the Premises or the Building as part of the
demised premises, no notice from Tenant to Landlord shall be effective unless
and until a copy of the same is given to such holder or ground lessor, and the
curing of any of Landlord's defaults by such holder or ground lessor shall be
treated as performance by Landlord. Such holder or ground lessor shall be given
such reasonable time as may be necessary to effect such cure or to foreclose the
mortgage or terminate the ground lease, as the case may be. For the purposes of
Paragraph 2l, this Paragraph 30 or Paragraph 31, the term "mortgage" includes a
mortgage on a leasehold interest of Landlord (but not a mortgage on Tenant's
leasehold interest).
31. ASSIGNMENT OF RENTS.
With reference to any assignment by Landlord of Landlord's interest in this
Lease, or the rents payable hereunder, conditional in nature or otherwise, which
assignment is made to the holder of a mortgage or ground lease on property which
includes the Premises or the Building, Tenant agrees:
(i) that the execution thereof by Landlord, and the acceptance thereof
by the holder of such mortgage, or the ground lessor, shall never be
treated as an assumption by such holder or ground lessor of any of the
obligations of Landlord hereunder, unless such holder, or ground lessor,
shall, by notice sent to Tenant, specifically otherwise elect; and
(ii) that, except as aforesaid, such holder or ground lessor shall be
treated as having assumed Landlord's obligations hereunder only upon a
foreclosure of such holder's mortgage and the taking of possession of the
Premises, or in the case of a ground lessor, the assumption of Landlord's
position hereunder by such ground lessor. In no event shall the acquisition
of title to the Building and the land on which the same is located by a
purchaser which, simultaneously therewith, leases the entire Building or
such land back to the seller thereof be treated as an assumption, by
operation of law or otherwise, of Landlord's obligations hereunder, but
Tenant shall look solely to such seller-lessee, and its successors from
time to time in title, for
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performance of Landlord's obligations hereunder. In any such event, this
Lease shall be subject and subordinate to the lease to such seller. For all
purposes, such seller-lessee, and its successors in title, shall be the
landlord hereunder unless and until Landlord's position shall have been
assumed by such purchaser-lessor.
32. PERSONAL PROPERTY TAXES.
Tenant shall pay all taxes which may be lawfully charged, assessed, or
imposed upon all fixtures and equipment of every type and also upon all personal
property in the Premises, and Tenant shall pay all license fees which may
lawfully be imposed upon the business of Tenant conducted upon the Premises.
33. MISCELLANEOUS.
A. Rights Cumulative. All rights and remedies of Landlord and Tenant under
this Lease shall be cumulative and none shall exclude any other rights and
remedies allowed by law.
B. Interest. All payments becoming due under this Lease and remaining
unpaid when due shall bear interest until paid at the rate of the greater of
three percent (3%) per annum above the prime rate of interest charged from time
to time by The First National Bank of Boston (but in no event at a rate which is
more than the highest rate which is at the time lawful in The Commonwealth of
Massachusetts).
C. Terms. The necessary grammatical changes required to make the provisions
hereof apply either to corporations or partnerships or other entities, or
individuals, men or women, as the case may require, shall in all cases be
assumed as though in each case fully expressed.
D. Binding Effect. Each of the provisions of this Lease shall extend to and
shall, as the case may required, bind or inure to the benefit not only of
Landlord and of Tenant, but also of their respective successors or assigns,
provided this clause shall not permit any assignment by Tenant contrary to the
provisions of Paragraph 17 hereof.
E. Lease Contains All Terms. All of the representations and obligations of
Landlord are contained herein and in the Exhibits attached hereto, and no
modification, waiver or amendment of this Lease or of any of its conditions or
provisions shall be binding upon Landlord unless in writing signed by Landlord
or by a duly authorized agent of Landlord empowered by a written authority
signed by Landlord.
F. Delivery for Examination. Submission of this Lease for examination shall
not bind Landlord in any manner, and no lease or obligations of Landlord shall
arise until this instrument is signed by both Landlord and Tenant and delivery
is made to each.
G. No Air Rights. No rights to any view or to light or air over any
property, whether belonging to Landlord or any other person, are granted to
Tenant by this Lease.
-25-
H. Modification of Lease. If any lender requires, as a condition to its
lending funds the repayment of which is to be secured by a mortgage or trust
deed on the Premises and Building or either, that certain modifications be made
to this Lease, which modifications will not require Tenant to pay any additional
amounts or otherwise change materially the rights or obligations of Tenant
hereunder. Tenant shall, upon Landlord's request, execute appropriate
instruments effecting such modifications.
J. Transfer of Landlord's Interest. Tenant acknowledges that Landlord has
the right to transfer its interest in the Premises, the Building and the
Property and in this Lease, and Tenant agrees that in the event of any such
transfer Landlord shall automatically be released from all liability under this
Lease and Tenant agrees to look solely to such transferee for the performance of
Landlord's obligations hereunder. Tenant further acknowledges that Landlord may
assign its interest in this Lease to a mortgage lender as additional security
and agrees that such an assignment shall not release Landlord from its
obligations hereunder and that Tenant shall continue to look to Landlord for the
performance of its obligations hereunder.
K. Landlord's Title. Landlord's title is and always shall be paramount to
the title of Tenant. Nothing herein contained shall empower Tenant to commit or
engage in any act which can, shall or may encumber the title of Landlord.
L. Prohibition Against Recording. Neither this Lease, nor any memorandum,
affidavit or other writing with respect thereto, shall be recorded by Tenant or
by anyone acting through, under or on behalf of Tenant, and the recording
thereof in violation of this provision shall make this Lease null and void at
Landlord's election.
M. Captions. The captions of paragraphs and subparagraphs are for
convenience only and shall not be deemed to limit, construe, affect or alter the
meaning of such paragraphs or subparagraphs.
N. Covenants and Conditions. All of the covenants of Tenant hereunder shall
be deemed and construed to be "conditions", if Landlord so elects, as well as
"covenants" as though the words specifically expressing or importing covenants
and conditions were used in each separate instance.
0. Only Landlord/Tenant Relationship. Nothing contained in this Lease shall
be deemed or construed by the parties hereto or by any third party to create the
relationship of principal and agent, partnership, joint venturer or any
association between Landlord and Tenant, it being expressly understood and
agreed that neither the method of computation of Rent nor any act of the parties
hereto shall be deemed to create any relationship between Landlord and Tenant
other than the relationship of landlord and tenant.
-26-
P. Decoration and Signs. Tenant will not paint or decorate any part of the
exterior of the Premises. Tenant will not paint or decorate any part of the
interior of the Premises visible from the exterior thereof, without first
obtaining Landlord's approval of Tenant's plans therefor. Tenant will install
and maintain at all times, subject to the other provisions of this Lease.
displays of merchandise in the show windows (if any) of the Premises. All
articles, and arrangement, style, color and general appearance thereof in the
interior of the Premises including, without limitation, window displays,
advertising matter, signs, merchandise and store fixtures, shall be in keeping
with the character and standards of the improvements within the Retail Space as
determined by Landlord. Landlord reserves the right to require Tenant to correct
any non-conformity. Tenant will not place or suffer to be placed or maintained
on the exterior of the Premises any sign, advertising matter or any other thing
of any kind, and will not place or maintain any decoration, letter or
advertising matter on the glass of any window or door of the Premises unless the
same is placed and maintained pursuant to Landlord's prior consent. Tenant will,
at its sole cost and expense, maintain such sign, decoration, lettering,
advertising matter or other thing as may be permitted hereunder in good
condition and repair at all times. All sign, logo and window illuminations shall
he controlled by a time clock. Tenant shall comply with time settings
established from time to time by Landlord.
Q. Definition of Landlord. All indemnities, covenants and agreements of
Tenant contained herein which inure to the benefit of Landlord shall be
construed to also inure to the benefit of Landlord's agents and employees.
R. Time of Essence. Time is of the essence of this Lease and each of its
provisions.
S. Governing Law. Interpretation of, this Lease shall be governed by the
law of the Commonwealth of Massachusetts.
T. Partial Invalidity. If any term, provision or condition contained in
this Lease shall, to any extent, be invalid or unenforceable, the remainder of
this Lease (or the application of such term, provision or condition to persons
or circumstances other than those in respect of which it is invalid or
unenforceable) shall not be affected thereby, and each and every other term,
provision and condition of this Lease shall be valid and enforceable to the
fullest extent possible permitted by law.
U. Size of Premises. The size of Premises will be determined on the basis
of the standards set forth in Exhibit E attached hereto. With regard to Base
Rent, Operating Expenses, and with regard to all other payments which are
computed based upon the "Total Rentable Area" of the Premises (as defined in
Exhibit E), it is understood that the amounts payable as set forth in this Lease
are predicated upon assumed rentable area set forth in this Lease. Not later
than ninety days after the Commencement Date, an exact measurement of the Total
Rentable Area of the Premises shall be made in accordance with Exhibit E, and if
said measurement shall indicate a Total Rentable Area different from that
recited in this Lease, Landlord and Tenant shall promptly execute a supplemental
instrument adjusting the amounts payable hereunder to conform to the exact
measurements. Such adjustments shall be made by multiplying the amount subject
to adjustment by a fraction the numerator of which is the actual Total Rentable
Area of the Premises and the denominator of which is the
-27-
rentable area of the Premises originally set forth herein. Any payment due from
either party to the other as a result of any adjustments made hereunder shall be
paid promptly upon rendition of a statement by the party entitled to additional
Rent, or Rent refund, as the case may be.
34. NOTICES.
All notices to be given under this Lease shall be in writing and delivered
by hand during business hours or deposited in the United States mail, certified
return receipt requested, postage prepaid, addressed as follows
A. If to Landlord:
Franklin Federal Partners
75 Federal Street
Boston, MA 02110
with copies to:
75 Federal Street Associates
c/o H.N. Gorin Associates, Inc.
75 Federal Street
Boston, MA 02110
Boston HS Associates
c/o Himmel/MKDG
75 Federal Street
Boston, MA 02110
or to such other person or such other address designated by notice sent by
Landlord or Tenant.
B. If to Tenant:
Addressed to Tenant at Tenant's present address, and after occupancy of the
Premises by Tenant, at the Premises, or to such other address as is designated
by Tenant in a notice to Landlord.
Notice shall be deemed to have been given when so delivered or when so
deposited in the United States mail.
35. LIMITATION ON LANDLORD'S LIABILITY.
It is expressly understood and agreed by Tenant that none of Landlord's
covenants, undertakings or agreements are made or intended as personal
covenants, undertakings or agreements by Landlord or its partners or any
partners of its partners, and any liability for damage or breach of
nonperformance by Landlord shall be collectible only out of Landlord's interest
in the Building and no personal liability is assumed by, nor at any time may be
asserted against, landlord or its partners of any of its or their partners,
officers, agents, employees, legal
-28-
representatives, successors or assigns, all such liability, if any, being
expressly waived and released by Tenant. The provisions of this Paragraph 35
shall expressly be applicable to and inure to the benefit of Landlord's
successors and assigns.
36. LANDLORD'S DESIGNATED AGENT.
It is expressly understood and agreed by Tenant that the provisions of this
Lease may be enforced on behalf of Landlord by an agent designated by Landlord
for such purpose, and such enforcement shall be equally effective whether in the
name of Landlord or such agent.
37. COMMENCEMENT AND TERMINATION DATES.
If Landlord shall not have substantially completed Landlord's Work (which
shall be the Work shown on Exhibit D) by five (5) days prior to the Commencement
Date ("Landlord's Completion Date") then, as Tenant's sole remedy and,
notwithstanding Paragraph 3 of this Lease, the Commencement Date shall be
deferred for the number of days after Landlord's Completion Date required for
Landlord to substantially complete Landlord's Work; and the Termination Date
shall be extended by the number of days by which the Commencement Date was so
deferred; provided, however, the Commencement Date shall not be deferred.
38. CONSTRUCTION ON ADJACENT PREMISES.
Landlord shall have the right, in connection with any development of
premises adjacent to the Property, to grant easements through the Building for
access and egress to and from such development and for the installation,
maintenance, repair, replacement or relocation of utilities serving such
development and/or the Premises and for the installation, removal, maintenance,
repair and replacement of windows, walkways and other facilities related to such
development. Such right shall include the right to grant such easements through
the Premises, provided that installations, replacements or relocations of
utilities in the Premises shall, as far as practicable, be placed above ceiling
surfaces, below floor surfaces or within perimeter walls. This Lease shall be
subject and subordinate to any easements so granted. (Such subordination shall
be self-operative but in confirmation thereof Tenant shall execute and deliver
whatever instruments may be required to acknowledge such subordination in
recordable form, and if Tenant fails to do so within 10 days after demand,
Tenant hereby irrevocably appoints Landlord as its attorney-in-fact and to do so
in Tenant's name.)
Landlord and its agents, employees, licensees and contractors shall also
have the right during any construction period for any such development to enter
the Premises to undertake work pursuant to any easement granted pursuant to the
above paragraph; to shore up the foundations and/or walls of the Premises and
Building; to erect scaffolding and protective barricades around the Premises or
in other locations within or adjacent to the Building; and to do any other act
necessary for the safety of the Premises or Building or the expeditious
completion of such construction. Landlord shall also have the right to enter the
Premises for the purpose of sealing and covering any and all windows adjacent or
contiguous to such development. The covering of such sealed windows shall be
finished, at Landlord's expense, in substantially the same style and quality as
the remainder of the Premises. 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 resulting
-29-
from any act by Landlord pursuant to this Paragraph Landlord shall use
reasonable efforts to minimize the extent and duration of any inconvenience,
annoyance or disturbance to Tenant resulting from any work pursuant to this
Paragraph in or about the Premises or Building, consistent with accepted
construction practice. If any act by Landlord pursuant to this Paragraph results
in a reduction in the rentable floor area of the Premises, Tenant shall be
entitled to a proportional abatement of Base Rent and Additional Rent while such
reduction continues.
39. TENANT AS BUSINESS ENTITY.
If Tenant is a business entity, then the person or persons executing this
Lease on behalf of Tenant jointly and severally warrant and represent in their
individual capacities that (a) Tenant is duly organized, validly existing and in
good standing under the laws of the jurisdiction in which such entity was
organized; (b) Tenant has the authority to own its property and to carry on its
business as contemplated under this Lease; (c) Tenant is in compliance with all
laws and orders of public authorities applicable to Tenant; (d) Tenant has duly
executed and delivered this Lease; (e) the execution, delivery and performance
by Tenant of this Lease (i) are within the powers of Tenant, (ii) have been duly
authorized by all requisite action, (iii) will not violate any provision of law
or any order of any court or agency of government, or any agreement or other
instrument to which Tenant is a party or by which it or any of its property is
bound, or (iv) will not result in the imposition of any lien or charge on any of
Tenant's property, except by the provisions of this Lease; and (f) the Lease is
a valid and binding obligation of Tenant in accordance with its terms. Tenant,
if a business entity, agrees that breach of the foregoing warranty and
representation shall at Landlord's election be a default under this Lease for
which there shall be no cure. This warranty and representation shall survive the
termination of the Term.
LANDLORD:
FRANKLIN FEDERAL PARTNERS
By: 75 FEDERAL STREET ASSOCIATES
By: /s/[ILLEGIBLE SIGNATURE]
-------------------------
General Partner
By: BOSTON HS ASSOCIATES,
Partner
By: /s/[ILLEGIBLE SIGNATURE]
-------------------------
Authorized Representative
TENANT:
The Hibernia Savings Bank
By: /s/[ILLEGIBLE SIGNATURE]
-------------------------
its _____________________
hereunto duly authorized
-30-
EXHIBIT A
PLAN OF PREMISES
[Floor Plan]
A-1
EXHIBIT B
TO
RETAIL LEASE
FOR
75-101 FEDERAL STREET
BOSTON, MASSACHUSETTS
WORK LETTER
This is the Work Letter referred to and specifically made a part of the
Lease to which this Exhibit B is attached, covering Premises, as more
particularly described in said Lease, in the Building at 75-101 Federal Street,
Boston, Massachusetts.
A. Finish Work
"Finish Work" means all work required to be performed in the Premises in
order that the same be suitable for Tenant's use and occupancy throughout
and shall comprise all alterations, additions, equipment and fixtures to be
performed, constructed and installed in the Premises. Finish Work shall
include (without limitation) partitions; hung ceilings; floor coverings;
heating, ventilating and air conditioning systems; and electrical systems
and other utilities, wiring and trade fixtures. Tenant's Plans shall
require use of materials of good quality, and all construction shall be in
compliance with applicable laws, ordinances, orders and regulations of
governmental authorities.
B. Space Layout
1. On or before January 5, 1989 (the "Space Layout Delivery Date"),
Tenant agrees to deliver to Landlord one (1) set of sepia
reproducibles and two (2) sets of blue-lined prints of Tenant-approved
Space Layout (hereinafter referred to as the "Space Layout") of the
Premises sufficiently complete to permit preparation of structural.
plumbing, fire protection, mechanical and electrical engineering
drawings for the Premises. The Space Layout shall specifically
include, without limitation:
a) Partition layout and door locations,
b) Electrical outlet locations and anticipated usage thereof.
c) Tenant's telephone system indicating location of outlets,
d) Reflected ceiling plan, including lighting. switching and all
other items necessary for engineering design.
e) Tenant's anticipated occupancy loads for any area in which such
occupancy load is expected to be in excess of building standard,
special heating. ventilation and air conditioning equipment
(including duct locations) and any other equipment or systems
(with brand names wherever possible) which require structural,
mechanical, fire protection. electrical, or life safety
modifications to the Building,
B-1
f) Interior section elevations, and
g) Schedule of materials and finishes.
2. Within five (5) business days of Landlord's receipt of Tenant's Space
Layout , Landlord shall review the same for compliance with the
intended space usage requirements of the Premises consistent with the
Lease, and return to Tenant one (1) sepia set of the same marked
"Approved," Approved as Noted," or "Disapproved as Noted. Revise and
Resubmit." If the Space Layout is returned to Tenant marked
"Disapproved as Noted, Revise and Resubmit," is shall be revised by
Tenant taking into account the reasons for Landlord's disapproval and
resubmitted within five (5) business days to Landlord for review. The
same procedure shall be repeated until Landlord fully approves the
Space Layout.
3. Landlord's approval of the Space Layout shall not imply (i) approval
by Landlord as to compliance of the Space Layout with the requirements
of applicable codes, rules or regulations of any governmental agencies
having jurisdiction over the Premises or (ii) the Space Layout's
compatibility with the Building's shell and core construction. Tenant
understands that the obtaining of all permits to comply with all
applicable codes, rules and regulations and the compatibility of the
Space Layout with the Building's shell and core construction is
Tenant's responsibility.
C. Working Drawings
1. On or before February 1 , 1939 (the "Working Drawing Delivery Date")
Tenant agrees to deliver to Landlord one (1) set of sepia
reproducibles and three (3) sets of blue-lined prints of Working
Drawings and Specifications (hereinafter referred to collectively as
"Working Drawings") for the Premises prepared, at Tenant's sole cost
and expense, by an architect ("Tenant's Architect") licensed in The
Commonwealth of Massachusetts and approved by Landlord. Tenant's
Architect shall retain Landlord's engineers (or engineers approved by
Landlord) to prepare all structural. plumbing, fire protection,
mechanical and electrical engineering aspects of the Working Drawings.
2. Within five (5) business days after receipt of Tenant's Working
Drawings, Landlord shall return to Tenant one (1) sepia set of same
marked "Approved," "Approved as Noted," or "Disapproved as Noted.
Revise and Resubmit." If said Working Drawings are returned to Tenant
marked "Disapproved as Noted, Revise and Resubmit" such drawings shall
be revised by Tenant and resubmitted to Landlord for approval within
five (5) business days and the same procedure shall be repeated until
Landlord fully approves the Working Drawings.
3. It is understood that the Working Drawings are to be consistent with
and a logical extension of the approved Space Layout. Any
inconsistencies between the Working Drawings and the shell and core
construction of the Building shall be Tenant's sole responsibility.
Tenant shall also be solely responsible for the completeness of the
Working Drawings.
B-2
4. In the event Landlord approves the Working Drawings, such approval
shall not limit Landlord's right to require changes in portions of the
Working Drawings which are incompatible with or which adversely affect
Building structure or systems or the availability to Landlord of third
party warranties. When the Working Drawings are approved by Landlord
and Tenant, they shall be acknowledged as such by Landlord's and
Tenant's signing each sheet of the Working Drawings.
D. Construction of Premises
1. Tenant shall arrange with its own general contractor to perform the
work shown on the approved Working Drawings. The identity of Tenant's
contractor (who shall be licensed to build in the City of Boston)
shall be subject to Landlord's prior approval (approval not to be
unreasonably withheld or delayed) and if in Landlord's reasonable
judgment the scope or nature of Tenant's Finish Work requires
particular care, Landlord may designate the contractor (or Landlord's
employees) to perform such work. Tenant shall procure all necessary
governmental approvals before undertaking any work, shall perform all
work at its risk in a good and workmanlike manner in accordance with
Tenant's approved Plans employing new materials of good quality and
producing a result at least equal in quality to the other parts of the
Building. Finish Work shall be substantially completed prior to the
Opening Date, and shall be completed in all respects within a
reasonable time thereafter. Finish Work shall be performed by union
labor which is in harmony with other labor in the Building and which
does not interfere with such labor. The performance of Finish Work
shall be coordinated with all reasonable regulations of Landlord with
respect to the performance of other work in the Building and the
requirements of other occupants thereof.
2. When any Tenant's Finish Work is in progress, Tenant shall maintain
worker's compensation insurance required by law covering all persons
employed in such Finish Work and such other insurance as may be
required by Landlord covering the additional hazards due to such
Finish Work, in each case for the benefit of Landlord and such
additional parties as Landlord shall require. It shall be a condition
of Landlord's approval of any plans for Tenant's Finish Work that
certificates of such insurance shall have been deposited with
Landlord. Prior to performing any work in the Building. Tenant shall
obtain and file a statutory lien bond protecting the Building and all
ownership interests therein against the imposition of liens by
contractors. subcontractors, material suppliers and laborers.
3. Tenant shall cause its employees, agents, contractors, subcontractors,
material suppliers and laborers to observe and perform all of Tenant's
obligations under this Lease excepting only the obligations to pay
Base Rent and additional rent and other charges and excepting further
other obligations the performance of which would be clearly
incompatible with construction and the installation of furnishings,
fixtures pursuant hereto.
B-3
E. Changes to the Work
Changes to approved Finish Work may be made only after Landlord's approval
of a written request therefor by Tenant. Landlord may, in its discretion,
disapprove any proposed change which may delay the completion of Finish
Work or would be inconsistent with the approved Working Drawings or with
the standards for Finish Work contained in this Exhibit B.
F. Performance of Other Work
Tenant agrees that all services and work performed on the Premises,
including installation of telephone and carpeting, and delivery of
materials and personal property to the Premises on behalf of or for the
account of Tenant shall be performed or delivered, as the case may be, only
by persons whose employment for such tasks shall not result in any work
stoppage or slow-down by union members working the Building.
G. Tenant's Representative
Tenant hereby designates Mark A. Osborne as its sole representative with
respect to the matters set forth in this Work Letter and such person shall
have full authority and responsibility to act on behalf of Tenant as
required herein. Tenant's Architect shall not be an authorized
representative of Tenant unless Tenant specifically advises Landlord in
writing of such designation.
Landlord:
FRANKLIN FEDERAL PARTNERS
By: 75 FEDERAL STREET ASSOCIATES,
Partner
By: [ILLEGIBLE]
-------------------------
General Partner
Agreed and Accepted
Tenant: By: BOSTON HS ASSOCIATES,
THE HIBERNIA SAVINGS BANK Partner
By: [ILLEGIBLE] By: [ILLEGIBLE]
---------------------- -----------------------
Its President Authorized Representative
hereunto duly authorized
B-4
EXHIBIT C TO RETAIL LEASE
RULES AND REGULATIONS
RULES AND REGULATIONS. Tenant agrees to observe the rights reserved to
Landlord in the Lease and agrees, for itself, its employees, agents, clients.
customers, invitees and guests, to comply with the following rules and
regulations and with such reasonable modifications thereof and additions thereto
as Landlord may make, from time to time, for the Building.
(a) Tenant shall always conduct its operations in the Premises under its
present trade name, unless Landlord shall otherwise consent in
writing, which consent shall not be unreasonably withheld.
(b) No auction, fire or bankruptcy sales may be conducted within the
Premises without the previous written consent of Landlord.
(c) Tenant shall not use the sidewalks adjacent to the Premises or the
recessed vestibules, if any, of the Premises or the entrance lobby or
hallways of the Building for business purposes (including, without
limitation, the distribution of handbills or advertising of any type)
without the previous written consent of Landlord.
(d) Tenant shall keep the windows of the Premises clean and shall keep the
same electrically lighted during such reasonable periods of time as a
majority of the retail or service tenants of the Building shall be
open and, in addition, during such other reasonable periods of time as
shall be determined by Landlord, provided windows of a majority of the
Retail Space are kept lighted during such additional periods.
(e) Tenant shall receive and deliver goods and merchandise only in the
manner, at such times, and in such areas, as may be reasonably
designated by Landlord; and all trash, refuse, and the like, shall be
either (1) kept in covered cans, which cans shall be kept within the
Premises at all times, and in no event stored outside of the same or
(2) deposited in a trash compactor from time to time designated by
Landlord for such purposes. Any wet refuse shall be kept in cold
storage within the Premises. If provision is made by Landlord for
trash removal by a contractor, Tenant agrees to use said contractor
for its trash removal and to pay when due all charges at the rate
established therefor from time to time, provided such rate is
competitive within the area for similar services. If Tenant fails so
to pay for trash removal, Landlord shall have the same remedies (even
if such payment is due to such contractor and not to Landlord) as
Landlord has for non-payment of rent hereunder.
(f) Except to the extent otherwise expressly permitted herein, Tenant
shall not place on the exterior of the Premises (including, but
without limitation, windows, doors, and entrance lobbies) any signs
whatsoever; and shall not place in the interior of the Premises any
signs other than those signs (including the design, number and
location of such signs and any replacements thereof) which shall first
have been approved by Landlord. The signs desired by Tenant shall be
indicated in Tenant's plans and
C-l
specifications to be submitted to Landlord for approval: all signs
must be professionally prepared.
(g) Tenant shall not perform any act or carry on any practice which may
injure the Premises or any other part of the Building, or cause any
offensive odors or loud noise (including, but without limitation, the
use of loudspeakers), or constitute a nuisance or menace to any other
occupant or other persons in the Building, and in no event shall any
noises or offensive odors be emitted from the Premises.
(h) The Premises (as well as all doors and entryways thereto) shall be
kept open for business during the Hours of Operation.
(i) Tenant shall at all times fully and adequately heat and/or
air-condition (as the circumstances require) the Premises. In no event
shall Tenant in any manner "bleed" (that is to say tap into or draw
from) the heating or air-conditioning provided for the Building.
(j) Tenant agrees that it and its employees and others connected with
Tenant's operations at the Premises will abide by all reasonable rules
and regulations from time to time established by Landlord by written
notice to Tenant with respect to the Building. Landlord agrees that
all such rules and regulations will be enforced in a
non-discriminatory manner, except where differing circumstances
reasonably justify differing treatment.
(k) Tenant shall at all times provide handicapped access to and through
the Premises in accordance with all applicable laws of The
Commonwealth of Massachusetts and ordinances of the City of Boston,
and in accordance with all directions, rules and regulations of the
Building Inspector and other proper officers of the governmental
agencies having jurisdiction thereover. Landlord represents that there
is handicapped access to the Building through the Devonshire, Franklin
and Federal street entrances.
(l) The Tenant shall conduct Tenant's business in the Premises in such a
manner that Tenant's customers and invitees shall not collect, line-up
or linger outside of the Premises.
(m) Tenant shall not use, handle or store hazardous materials or hazardous
wastes in the Premises.
(n) Tenant shall be solely responsible for all costs and expenses of
security systems and/or personnel used in connection with the conduct
of Tenant's business in the Premises.
C-2
EXHIBIT D
BASE BUILDING CORE AND SHELL - RETAIL
75-101 FEDERAL STREET
ARCHITECTURAL
A. Demising Walls: Demising walls between adjacent retail tenants are to be
constructed of drywall and metal studs taped, sanded, ready to receive
finish by Tenant. Cost of constructing the demising wall is to be shared
equally by the Tenant and Landlord.
B. Flooring: Reinforced concrete. exposed construction.
C. Storefront: Storefront is No. 4 Stainless Steel with one pane of glass and
aluminum doors. Details of construction are as delineated on the core and
shell lobby documents produced by Kohn Pedersen Fox.
MECHANICAL
A. Sprinklers: Base building sprinkler system with provisions for
approximately one sprinkler head per 225 gross square feet.
B. HVAC: Condenser water provided to tenant demising wall.
C. Electricity: 480 Volt power is available to the Tenant in the basement
electrical vault.
D. Telephone: Tenant is to provide its own system for telephone.
All items herein shall be provided at Landlord's sole cost and expense
except to the extent provided otherwise. All items not treated herein to be
provided at Tenant's sole cost and expense in accordance with the Work Letter,
Exhibit B.
D-l
EXHIBIT E
MEASUREMENT STANDARDS
I. RETAIL
Total Rentable Area with respect to any premises included in Rental Space shall
be the number of square feet of floor area calculated from the center line of
exterior wall column lines and from the inside surface of interior walls.
II. OFFICE
Office Measurement Standards - Single Tenancy Floors. Three steps, in sequence,
are to be followed to determine the Total Rentable Area: (i) compute gross area,
(ii) deduct certain areas, (iii) add applicable share of areas to be apportioned
(see paragraph C. below):
A. Cross Area: The gross area of a floor shall be the entire area within
the exterior walls. If the exterior wall consists in whole or part of
windows, fixed clear glass or other transparent material, the
measurement along the entire such wall shall be taken to a line
established by the vertical plane of the inside of the glass or other
transparent material. If it consists solely of a nontransparent
material, the measurement shall be taken to the inside surface of the
outer building wall. If a floor has no exterior wall within the
property line, measurements shall be taken to the property line. If a
floor has no full-height enclosing wall, measurements shall be taken
to the edge of the floor slab.
B. Deductions from Gross Area: The following non-rentable building areas
with one-half of their enclosing walls are to be deducted:
1. Public elevator shafts and associated elevator machine rooms.
2. Required egress stairways.
3. Areas within the gross area which are to be apportioned pursuant
to paragraph C below.
C. Areas to be apportioned ("Attributable Area"):
1. Common facilities including without limitation, all heating,
ventilating, air conditioning, mechanical, electrical, cooling
tower, telephone and other service floors, rooms or areas,
containing equipment or supplies (exclusive or any tenant special
air conditioning or mechanical area or facilities) and all public
lobbies (including monumental stair and/or escalator), loading
and other common service areas, throughout and within the
Building including one-half of their enclosing walls, are to be
apportioned.
2. Whenever the height of any room or space used for a heating,
ventilating, air conditioning, mechanical, or electrical facility
above the ground floor shall exceed the average story height in
the
E-1
EXHIBIT G
SIGN CRITERIA - RETAIL
101 FEDERAL STREET
All signs erected on or in the Building by Tenant (except as provided
herein) shall meet the following criteria:
A. General Regulation:
1. Codes, Ordinances and Approvals: The Tenant shall comply with the
requirements of all applicable codes and/or governmental ordinances and, prior
to erection of any sign, shall obtain all required governmental approvals. Sign
construction is to be performed in compliance with the instructions; limitations
and criteria established by the City of Boston and the Landlord's architect.
2. No neon or backup signs will be permitted.
3. Signs shall be of a quality, material, and design which is consistent
with the building and building standard signage.
4. Notwithstanding any of the above, all signage shall be professionally
designed and presented for Landlord's approval. All premises signs shall be
presented together as one package.
G-1
EXHIBIT H
Security Program
At times when the Premises are open for access by the public during
Tenant's Hours of Operation from time to time, Landlord's access to the Premises
shall be governed by the general provisions of the Lease. At other times,
Landlord's access to the Premises shall be governed by the provisions of this
Exhibit H.
Repairs, Service and Maintenance: Repairs, service and maintenance by
Landlord requiring access to the Premises shall be scheduled by Landlord with at
least one business days' notice to Tenant (which may be oral or written) and
Tenant shall make the premises available for such purpose and shall be entitled,
at its expense, to have a representative present during the performance of any
such repairs, service and maintenance.
Tenant's Security Representative: Tenant's Authorized Representative shall,
by notice to Landlord, designate a "Security Representative" and provide
Landlord with the telephone number for such Security Representative. The
Tenant's Security Representative ;shall be reachable by telephone in Boston and
available to come to the premises at all times when the premises is not occupied
by Tenant.
Emergency: In case of emergency, Landlord may enter the Premises at any
time when the premises is occupied by Tenant, but shall only enter the Premises
when the Premises is not occupied by Tenant after telephoning Tenant's Security
Representative and only when accompanied by Tenant's Security Representative
unless Tenant's Security Representative shall fail to answer Landlord's call or
to respond within a reasonable time under the circumstances, in which case,
Landlord may enter the Premises without accompaniment by a representative of
Tenant's security service. Nothing in this provision shall prohibit or make
Landlord liable for any action of any government personnel including, without
limitation, personnel from the police Department or Fire Department or for
actions taken by Landlord at the direction of any such personnel.
Security and Alarm Systems: Tenant shall be entitled to install its own
electronic security and alarm systems in and for the Premises, provided that
such systems shall be installed in accordance with approved Plans for Finish
Work and shall be compatible with the Building electronic security and alarm
systems. At no time shall Landlord de-activate Tenant's alarm system on the
Premises. The parties note that entry by Landlord or any other person while
Tenant's alarm system is activated will alert the Boston Police Department.
H-1
PARKING AGREEMENT
Agreement dated as of December 22, 1988 between Franklin Federal Partners
("Landlord") and The Hibernia Savings Bank ("Tenant").
Reference is made to a Lease of even date (the "Leases") between Landlord
and Tenant for Premises at 101 Federal Street, Boston. Terms used herein and
defined in the Lease shall have the same meaning given them therein.
In consideration of the mutual covenants herein contained, Landlord and
Tenant hereby agree as follows.
Throughout the Term, Tenant shall have the right, during the Hours of
Operation (subject to provisions of the Lease including, without limitation,
provisions for interruptions due to repairs and emergencies) to use one valet
parking space in the Garage. Such space may be used only by the employees and
invitees of Tenant's business on the Premises and by no other persons. Such use
of parking space shall be on a non-reserved basis. Tenant shall pay for such
space at the then current prevailing monthly rate for parking spaces in the
Garage. Such payments shall constitute additional rent for purposes of the
Lease. A posting of the monthly rate in the Garage shall be notice to the Tenant
of the current prevailing rate. If Tenant discontinues use of such space,
Tenant's rights with respect to such space shall cease. Payments hereunder shall
be made at the places and times and subject to the conditions specified for
payments of Base Rent in Paragraph 4 of the Lease, or at such other places and
times as Landlord shall specify in writing. To the extent applicable to Tenant's
use of and conduct in the Garage, the provisions of the Lease shall apply,
including rules and regulations from time to time promulgated by Landlord and
including the provisions of Paragraph 35 of the Lease.
This Agreement shall terminate upon the expiration or earlier termination
of the Lease or upon the earlier breach by Tenant of any of its covenants under
the Agreement.
Executed to take effect as a sealed instrument.
FRANKLIN FEDERAL PARTNERS
Landlord
By: 75 FEDERAL STREET ASSOCIATES,
PARTNER
[ILLEGIBLE]
-----------------------------
General Partner
By: BOSTON HS ASSOCIATES, PARTNER
By: [ILLEGIBLE]
-----------------------------
Authorized Representative
THE HIBERNIA SAVINGS BANK
Tenant
By: [ILLEGIBLE]
-----------------------------
Its:____________________________
hereunto duly authorized
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By: BOSTON HS ASSOCIATES, PARTNER
By: [ILLEGIBLE]
---------------------------------
Authorized Representative
Tenant
THE HIBERNIA SAVINGS BANK
By: [ILLEGIBLE]
---------------------------------
its ______________________
hereunto duly authorized
THE COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss. __________________________ , 1988
Before me personally appeared ___________________________ and acknowledged
the foregoing instrument to be his/her free act and deed.
___________________________________
Notary Public
My commission expires:
THE COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss. December 23, 1988
Before me personally appeared Mark A. Osborne, President of The Hibernia
Savings Bank and acknowledged that he executed the foregoing instrument as
his/her free act and deed in such capacities and as the free act and deed of
such corporation.
___________________________________
Notary Public
My commission expires: 2/19/93
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