LEASE
BETWEEN
BOSTON WHARF CO.
Landlord
AND
INVESTMENT TECHNOLOGY GROUP, INC.
Tenant
44 Farnsworth Street
Boston, Massachusetts
AGREEMENT OF LEASE
AGREEMENT OF LEASE made as of the ______ day of March, 1995, by and between
BOSTON WHARF CO., a Massachusetts general partnership (hereinafter referred to
as "Landlord") and INVESTMENT TECHNOLOGY GROUP, INC., a Delaware corporation
(hereinafter referred to as "Tenant").
W I T N E S S E T H:
Landlord hereby leases to Tenant and Tenant hereby hires from Landlord the
entire ninth (9th) floor, as shown on Exhibit A attached hereto and made a part
hereof (hereinafter referred to as the "Premises" or the "Demised Premises")
contained in the building known and numbered as 44 Farnsworth Street, Boston,
Suffolk County, Massachusetts (hereinafter referred to as the "Building").
1. REFERENCE DATA
Each reference in this Lease to any of the terms and titles contained in
this Article shall be deemed and construed to incorporate the data stated
following that term or title in this Article.
1) Additional Rent: Sums or other charges payable by Tenant to
Landlord under this Lease, other than Yearly Fixed
Rent.
2) Broker: Thompson, Doyle & Company, Inc. and
The Codman Company, Inc.
3) Business Day: All days except Saturdays, Sundays, days defined
as "legal holidays" for the entire state under the
laws of the Commonwealth of Massachusetts, and
such other days as Tenant presently or in the
future recognizes as holidays for Tenant's general
staff.
4) Land: The parcel of land on which the Building is
situated.
5) Landlord's Address: 253 Summer Street
Boston, Massachusetts 02210
6) Landlord's Architect: Any licensed architect designated by Landlord.
7) Landlord's Construction
Contribution: As defined in Section 4.1.
8) Landlord's Additional
Allowance: As defined in Section 4.1.
9) Lease Year: A twelve (12) month period beginning on the Term
Commencement Date and each succeeding twelve (12)
month period during the Term of this Lease, except
that if the Term Commencement Date shall be other
than the first day of a calendar month, the first
Lease Year shall include the partial calendar
month in which the Term Commencement Date occurs
as well as the succeeding twelve (12) full
calendar months.
10) Mortgage: A mortgage, deed of trust, trust indenture, or
other security instrument of record creating an
interest in or affecting title to the Property or
any part thereof or interest therein, and any and
all renewals, modifications, consolidations or
extensions of any such instrument.
11) Mortgagee: The holder of any Mortgage.
12) Property: The Land and Building.
13) Rent: Yearly Fixed Rent and Additional Rent.
14) Rentable Area: 10,588 square feet.
15) Tenant's Address: 900 Third Avenue, New York, New York 10022
16) Term Commencement Date: As defined in Section 3.2.
17) Term of this Lease: As defined in Section 3.1.
18) Termination Date: As defined in Section 3.1.
19) Use of Demised Premises: General office purposes
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20) Yearly Fixed Rent:
With respect to the
following Lease Years: Yearly Fixed Rent shall be:
---------------------- ---------------------------
First through Third $201,172.08
Fourth and Fifth $227,642.04
Sixth through Tenth $248,818.08
2. DESCRIPTION OF DEMISED PREMISES
2.1 DEMISED PREMISES. The Demised Premises are that portion of the
Building as described above (as the same may from time to time be constituted
after changes therein, additions thereto and eliminations therefrom pursuant to
rights of Landlord hereinafter expressly reserved in Articles 8 and 18 and
Section 15.2).
2.2 APPURTENANT RIGHTS. Tenant shall have, as appurtenant to the Demised
Premises, rights to use in common with others entitled thereto, those common
roadways, walkways, elevators, hallways and stairways necessary for access to
that portion of the Building occupied by the Demised Premises.
2.3 RESERVATIONS. All the perimeter walls of the Demised Premises except
the inner surfaces thereof, any space in or adjacent to the Demised Premises
used for servicing other portions of the Building exclusively or in common with
the Demised Premises, including without limitation (where applicable) shafts,
stacks, pipes, conduits, wires and appurtenant fixtures, fan rooms, ducts,
electric or other utilities, sinks or other Building facilities, and the use
thereof, as well as the right of access through the Demised Premises for the
purpose of operation, maintenance, decoration and repair, are expressly reserved
to Landlord.
3. TERM OF LEASE
3.1 TERM. The Term of this Lease is ten (10) years (or until such Term
shall sooner cease or expire) commencing on the Term Commencement Date and
ending on the day immediately prior to the tenth (10th) anniversary thereof,
except that if the Term Commencement Date is other than the first day of a
calendar month, the Term of this Lease shall end on the last day of the calendar
month in which said tenth (10th) anniversary occurs. The date on which the Term
of this Lease is scheduled to expire is hereinafter referred to as the
"Termination Date".
3.2 TERM COMMENCEMENT DATE. The Term Commencement Date shall be the
earlier of (a) the date on which Tenant undertakes Use of the Demised Premises
or any part thereof for the purpose set forth in Article 1, or (b) April 15,
1995.
3.3 OPTION TO EXTEND. So long as this Lease remains in
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full force and effect without any default by Tenant beyond the applicable
grace period, Tenant may extend the Term of this Lease for five (5) years by
giving notice of such election to Landlord at least twelve (12) months prior
to the originally-scheduled Termination Date. Such extension shall be on the
same terms and conditions set forth herein, subject to the provisions of
Section 6.1, except that Tenant shall have no further option to extend said
Term.
4. CONDITION OF DEMISED PREMISES
4.1 TENANT'S WORK. Tenant shall accept the Demised Premises "as is" on
the date hereof and Landlord shall have no obligation whatsoever to prepare the
Demised Premises for occupancy by Tenant. Any such work performed by Tenant
shall be subject to the provisions of this Lease, including without limitation
Articles 10 and 11. Landlord shall pay to Tenant, upon written request from
time to time (but not more frequently than monthly) and pro rata as such work
progresses, an amount equal to the cost thereof not in excess of $317,640
(hereinafter referred to as "Landlord's Construction Contribution"). Any unused
balance of Landlord's Contribution plus an additional allowance in the amount of
$21,176 (hereinafter referred to as "Landlord's Additional Allowance") may be
applied to any other costs (including without limitation architectural,
engineering, space planning and moving expenses) incurred by Tenant in
relocating its business operations to the Demised Premises. The disbursement of
any portion of Landlord's Construction Contribution or Landlord's Additional
Allowance shall be made within fifteen (15) days following the receipt by
Landlord of invoices, receipts and other documentation evidencing to Landlord's
reasonable satisfaction the costs on account of which such disbursement has been
requested, as well as releases and waivers of any mechanic's and other liens for
any labor or materials furnished as part of such work. Any portion of
Landlord's Construction Contribution or Landlord's Additional Allowance not paid
within fifteen (15) days from the date when due in accordance with the foregoing
provisions shall bear interest thereafter at a rate equal to one percent in
excess of the so-called "prime rate" charged from time to time by the First
National Bank of Boston, and may be deducted from installments of Yearly Fixed
Rent next becoming due hereunder.
4.2 ENTRY BY TENANT; INTERFERENCE WITH CONSTRUCTION. Tenant may enter the
Demised Premises prior to the Term Commencement Date to undertake such work as
is to be performed by Tenant pursuant to this Lease in order to prepare the
Demised Premises for Tenant's occupancy. Such entry shall be deemed to be
pursuant to a license from Landlord to Tenant and shall be at the risk of
Tenant. In no event shall Tenant interfere with any construction work being
performed by or on behalf of Landlord in or around the Building; without
limiting the generality of the foregoing, Tenant shall comply with all
instructions issued by Landlord's contractors relative to the moving of Tenant's
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equipment and other property into the Demised Premises and shall pay any fees or
costs imposed in connection therewith.
5. USE OF PREMISES
5.1 PERMITTED USE. Tenant shall during the Term of this Lease occupy and
use the Demised Premises for the permitted Use set forth in Article 1 and for no
other purpose. Service and utility areas (whether or not a part of the Demised
Premises) shall be used only for the particular purpose for which they are
designated.
5.2 PROHIBITED USES. Tenant shall not use, or suffer or permit the use
of, or suffer or permit anything to be done in or anything to be brought into or
kept in, the Demised Premises or any part thereof (i) which would violate any of
the covenants, agreements, terms, provisions and conditions of this Lease,
(ii) for any unlawful purposes or in any unlawful manner, or (iii) which, in the
reasonable judgment of Landlord shall in any way (a) impair or tend to impair
the appearance or reputation of the Building, (b) impair or interfere with or
tend to impair or interfere with any of the Building services or the proper and
economic heating, cleaning, air conditioning or other servicing of the Building
or with the use of any of the other areas of the Building, or (c) occasion
discomfort, inconvenience or annoyance to any of the other tenants or occupants
of the Building, whether through the transmission of noise or odors or
otherwise. Without limiting the generality of the foregoing, no food shall be
prepared or served for consumption by the general public on or about the Demised
Premises; no intoxicating liquors or alcoholic beverages shall be sold or
otherwise served for consumption by the general public on or about the Demised
Premises; no lottery tickets (even where the sale of such tickets is not
illegal) shall be sold and no gambling, betting or wagering shall otherwise be
permitted on or about the Demised Premises; no machinery shall be operated in
the Demised Premises if such operation involves vibratory motion of any kind
perceptible outside the Demised Premises; no loitering shall be permitted on or
about the Demised Premises; and no loading or unloading of supplies or other
material to or from the Demised Premises shall be permitted on the Land except
at times and in locations to be designated by Landlord. The Demised Premises
shall be maintained in a sanitary condition, and kept free of rodents and
vermin. All trash and rubbish shall be suitably stored in the Demised Premises
or other locations designated by Landlord from time to time.
5.3 LICENSES AND PERMITS. If any governmental license or permit shall be
required for the proper and lawful conduct of Tenant's business, and if the
failure to secure such license or permit would in any way affect Landlord,
Tenant, at Tenant's expense, shall duly procure and thereafter maintain such
license or permit and submit the same to inspection by Landlord. Tenant, at
Tenant's expense, shall at all times comply with the terms and
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conditions of each such license or permit.
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6. RENT
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6.1 YEARLY FIXED RENT. Tenant shall pay to Landlord, without any set-off
or deduction (except as otherwise expressly provided herein), at Landlord's
office, or to such other person or at such other place as Landlord may designate
by notice to Tenant, the Yearly Fixed Rent set forth in Article 1, provided
however that, if Tenant duly exercises its option pursuant to Section 3.3 to
extend the Term hereof, the Yearly Fixed Rent shall be increased effective as of
the commencement of such extension period to reflect 95% of the fair market
rental value of the Demised Premises for the balance of the Term of this Lease,
taking into account (among other relevant criteria) rents charged for comparable
office building space and Tenant's obligations to pay Additional Rent and all
other provisions of this Lease. In no event shall said fair market rental value
take into account any improvements made by Tenant to the Demised Premises
(except to the extent funded by Landlord's Construction Contribution), nor the
fact that Landlord has no obligation to refurbish or renovate the Demised
Premises at any time prior to or during such extension period. Said fair market
rental value shall be as determined in a notice given by Landlord to Tenant at
least six (6) months prior to the commencement of such extension period,
provided however that if Tenant notifies Landlord of its objection to said
determination within ten (10) days after the giving of such notice by Landlord,
and if Landlord and Tenant cannot mutually agree upon the same within
seventy-five (75) days following receipt of Tenant's objection, then in such
event said fair market rental value shall be determined by appraisers, one to be
chosen by Landlord, one to be chosen by Tenant, and a third to be selected by
the two first chosen. All appraisers chosen or selected hereunder shall be
independent of the parties, shall have received the M.A.I. (Member, Appraisal
Institute) designation from the American Institute of Real Estate Appraisers and
shall have had at least five (5) years of experience in appraising office space
in the downtown section of the City of Boston. The unanimous written decision
of the first two chosen, without selection and participation of a third
appraiser, or otherwise the written decision of a majority of three appraisers
chosen and selected as aforesaid, shall be conclusive and binding upon Landlord
and Tenant. Landlord and Tenant shall each notify the other of its chosen
appraiser within ten (10) days following expiration of the aforesaid
seventy-five (75) day period and, unless such two appraisers shall have reached
a unanimous decision within thirty (30) days after having been chosen, they
shall within a further ten (10) days elect a third appraiser and notify Landlord
and Tenant thereof. Each party shall bear the expense of the appraiser chosen
by such party pursuant to this Section, and the parties shall equally share the
expense of the third appraiser (if any). If either party fails to notify the
other of its chosen appraiser within thirty (30) days following expiration of
the aforesaid seventy-five (75) day period, the other party's determination of
the Yearly Fixed Rent for such extension period shall be binding and conclusive
for purposes hereof, and no further appraisal proceedings shall be required. If
the Yearly Fixed Rent for such extension period shall not have
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been determined prior to the commencement thereof, Tenant shall continue to
pay Yearly Fixed Rent at the rate most recently in effect, subject to
retroactive adjustment once the Yearly Fixed Rent for such period has in fact
been determined. In no event shall the foregoing provision be construed so
as to result in any reduction in the Yearly Fixed Rent payable by Tenant
below $248,818.08. Yearly Fixed Rent shall be paid in equal monthly
installments in advance on or before the first Business Day of each calendar
month during the Term of this Lease and shall be apportioned for any fraction
of a month in which Yearly Fixed Rent first becomes payable or in which the
last day of the Term of this Lease may fall.
6.2 TAXES. Tenant shall pay to Landlord as Additional Rent a
proportionate share (as defined in Section 6.4) of all real estate taxes
(including without limitation all betterment assessments, all fire service
availability fees and similar charges for customary governmental services, all
other charges in lieu of such taxes and any tax on any fixture installed in the
Building, even if taxed as personal property) imposed against the Building and
the Land, in excess of $230,685 (or, if higher, the amount of such taxes payable
with respect to the calendar year ending December 31, 1995), pro-rated with
respect to any portion of a fiscal year in which the Term of this Lease begins
or ends. Such payments shall be due and payable in installments corresponding
to those in which such taxes are payable by Landlord, and within twenty (20)
days after Tenant shall have received a copy of the relevant tax bills. If
Landlord shall receive any refund of real estate taxes of which Tenant has paid
a portion pursuant to this Section, then, out of any balance remaining after
deducting Landlord's reasonable expenses incurred in obtaining such refund,
Landlord shall pay to Tenant the same proportionate share of said balance,
prorated as set forth above. Tenant shall, if as and when demanded by Landlord
and with each monthly installment of Yearly Fixed Rent, make tax fund payments
to Landlord. "Tax fund payments" refer to such payments as Landlord shall
determine to be sufficient to provide in the aggregate a fund adequate to pay,
when they become due and payable, all payments required from Tenant under this
Section. In the event that said tax fund payments are so demanded, and if the
aggregate of said tax fund payments is not adequate to pay Tenant's share of
such taxes, Tenant shall pay to Landlord the amount by which such aggregate is
less than the amount of said share, such payment to be due and payable at the
time set forth above. Any surplus tax fund payments shall be accounted for to
Tenant after payment by Landlord of the taxes on account of which they were
made, and may be credited by Landlord against future Rent payments or promptly
refunded to Tenant at Landlord's option.
6.3 OPERATING EXPENSES. Tenant shall pay to Landlord as Additional Rent a
proportionate share (as defined in Section 6.4) of all annual costs and expenses
incurred by Landlord in the operation and maintenance of the Building and the
Land in excess
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of $369,096 (or, if higher, the amount of such costs and expenses incurred
with respect to the calendar year ending December 31, 1995), including,
without limiting the generality of the foregoing, all such costs and expenses
in connection with (1) insurance, sprinkler service, license fees, security,
trash and rubbish removal, janitorial service, landscaping, and snow removal,
(2) wages, salaries, management fees not in excess of those generally paid by
the owners of comparable properties to unaffiliated third parties, employee
benefits, payroll taxes, administrative and auditing expenses, and equipment
and materials for the operation, management and maintenance of the Property,
(3) any capital expenditure (amortized, with interest, in accordance with
generally-accepted accounting principles on a so-called "useful life" basis)
made by Landlord for the purpose of reducing other operating expenses or
complying with any governmental requirement imposed after the date of this
Lease, (4) the furnishing of heat, air conditioning, water and other
utilities, (5) the operation and servicing of any computer system installed
to regulate Building equipment, (6) the furnishing of the repairs and
services referred to in Section 7.4, excluding expenditures incurred prior to
the first anniversary of the Term Commencement Date on account of any such
repair to the roof (including the existing skylight), structural components
or common systems of the Building, (7) a reasonable reserve account and (8)
unless operating expenses for a particular year include management fees, a
supervisory and overhead fee which shall be in an amount equal to ten percent
(10%) of all other such costs and expenses (the foregoing being hereinafter
referred to as "operating expenses"). Notwithstanding the foregoing,
operating expenses shall not include the cost of any special work or service
(including without limitation the furnishing of electricity for the operation
of air conditioning equipment) provided to a particular tenant, unless
likewise provided to Tenant hereunder. If, during any portion of a fiscal
year for which operating expenses are being computed pursuant to this
Section, less than the entire rentable area of the Building is occupied or
Landlord is not supplying all occupants with the same services being supplied
hereunder, such costs and expenses shall be reasonably extrapolated in order
to take into account the costs and expenses which would have been incurred
had the entire rentable area of the Building been occupied and had such
services been supplied to all occupants. As soon as Tenant's share of
operating expenses with respect to any fiscal year established from time to
time by Landlord can be determined, the same will be certified by Landlord to
Tenant and will become payable to Landlord within thirty (30) days following
such certification, subject to proration with respect to any portion of a
fiscal year in which the Term of this Lease begins or ends or in the event
that Landlord designates a different fiscal year. Tenant shall, if as and
when demanded by Landlord and with each monthly installment of Yearly Fixed
Rent, make operating fund payments to Landlord. "Operating fund payments"
refer to such payments as Landlord shall determine to be sufficient to
provide in the aggregate a fund adequate to pay, when they become due and
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payable, all payments required from Tenant under this Section. In the event
that operating fund payments are so demanded, and if the aggregate of said
operating fund payments is not adequate to pay Tenant's share of operating
expenses, Tenant shall pay to Landlord the amount by which such aggregate is
less than the amount of said share, such payment to be due and payable at the
time set forth above. Any surplus operating fund payments shall be accounted
for to Tenant after such surplus has been determined, and may be credited by
Landlord against future Rent payments or promptly refunded to Tenant at
Landlord's option. Tenant may, at its expense and following reasonable
advance notice to Landlord, inspect Landlord's books and records relative to
the computation of operating expenses and operating fund payments hereunder.
In the event that Current Operating Expenses exceed Prior Operating Expenses
by more than the Threshold Amount, Tenant may, by notice given to Landlord no
later than sixty (60) days following Landlord's certification of such Current
Operating Expenses pursuant to this Section, request a reduction of Tenant's
proportionate share thereof. If Landlord does not allow such reduction in an
amount satisfactory to Tenant within sixty (60) days following such notice,
either party may, within thirty (30) days following said sixty (60) day
period, refer the matter to arbitration in accordance with the Commercial
Arbitration Rules then in effect of the American Arbitration Association by a
single arbitrator in Boston, Massachusetts, who shall, within thirty (30)
days after his or her appointment, determine whether such Current Operating
Expenses are unreasonable, taking into account costs and expenditures
incurred for operating comparable office buildings. A judgment upon the
award rendered by such arbitrator may be entered in any court of competent
jurisdiction. All direct and reasonable costs of such arbitration, including
the expense of the arbitrator but excluding any compensation paid to
attorneys, agents, employees or witnesses of either party, shall be shared
equally by Landlord and Tenant. Any award to Tenant as a result of such
arbitration shall be no greater than Tenant's proportionate share of the
amount by which Current Operating Expenses exceed the sum of Prior Operating
Expenses and the Threshold Amount. Landlord shall pay interest to Tenant on
such award, at a rate equal to two percent (2%) in excess of the prime
commercial lending rate from time to time established by The First National
Bank of Boston, for the period from the date when Tenant paid the amount in
question to Landlord until the date when said amount was refunded by Landlord
in accordance with such award. As used herein, the following terms shall be
defined as hereinafter set forth:
(a) "Current Operating Expenses" shall mean operating expenses
incurred with respect to 1996 or any subsequent calendar year
(hereinafter referred to as the "Current Year");
(b) "Prior Operating Expenses" shall mean
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operating expenses incurred with respect to the calendar year
immediately preceding the Current Year, provided however that
Prior Operating Expenses shall in no event be less than $369,096;
(c) "Threshold Amount" shall mean the amount calculated by
multiplying Prior Operating Expenses times a percentage equal to
two percent (2%) plus the percentage increase in the Price Index
during the course of the Current Year; and
(d) "Price Index" shall mean the Consumer Price Index for All Urban
Consumers, Boston, Mass., All Items (1982-84 = 100), as published
by the Bureau of Labor Statistics of the United States Department
of Labor or, if the publication of said Index shall be
discontinued, any similar statistical index which is designated
by Landlord and may be used for the purpose of measuring the cost
of living in the Boston urban area.
6.4 TENANT'S PROPORTIONATE SHARE. Tenant's proportionate share of taxes
and operating expenses pursuant to Sections 6.2 and 6.3 shall be computed
according to the ratio (i.e., 11.475%) between the Rentable Area of the Demised
Premises (as defined in Article 1) and the total rentable area of all space in
the Building (agreed to be 92,274 square feet). Computations of rentable area
other than in the Demised Premises shall be made by Landlord's Architect, whose
good faith determination shall be conclusive and binding on Tenant.
6.5 PAYMENT TO MORTGAGEE. Landlord reserves the right to provide in any
Mortgage given by it of the Property that some or all rents, issues, and profits
and all other amounts of every kind payable to the Landlord under this Lease
shall be paid directly to the Mortgagee for Landlord's account and Tenant
covenants and agrees that it will, after receipt by it of notice from Landlord
designating such Mortgagee to whom payments are to be made by Tenant, pay such
amounts thereafter becoming due directly to such Mortgagee until excused
therefrom by notice from such Mortgagee.
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7. UTILITIES AND LANDLORD'S SERVICES
7.1 ELECTRICITY. Tenant shall purchase the electrical energy that
Tenant requires for operation of the lighting fixtures, appliances and
equipment (including without limitation all air conditioning equipment)
servicing the Demised Premises. The costs of initially installing any
required meter shall be paid by Landlord, but Tenant shall keep said meter
and installation equipment in good working order and repair. Landlord shall
not be liable in any way to Tenant for any failure or defect in the supply or
character of electrical energy furnished to the Demised Premises by reason of
any requirement, act or omission of the public utility serving the Building
with electricity unless due to the act or omission of Landlord. Tenant's use
of electrical energy in the Demised Premises shall not at any time exceed the
capacity (agreed to be 16.5 watts per square foot) of any of the electrical
conductors and equipment in or otherwise serving the Demised Premises. In
order to insure that such capacity is not exceeded and to avert possible
adverse effect upon the Building electrical services Tenant shall give notice
to Landlord and obtain Landlord's prior written consent whenever Tenant shall
connect to the Building electrical distribution system any fixtures,
appliances or equipment other than lamps, typewriters and similar small
machines. Any additional feeders or risers to supply Tenant's electrical
requirements in addition to those originally installed and all other
equipment proper and necessary in connection with such feeders or risers,
shall be installed by Tenant at the sole cost and expense of Tenant, provided
that such additional feeders and risers are permissible under applicable laws
and insurance regulations and the installation of such feeders or risers has
been approved in writing by Landlord in advance thereof and will not cause
permanent damage or injury to the Building or cause or create a dangerous
condition or unreasonably interfere with other tenants of the Building.
Tenant agrees that it will not make any alteration or material addition to
the electrical equipment and/or appliances in the Demised Premises without
the prior written consent of Landlord in each instance first obtained, which
consent will not be unreasonably withheld, and will promptly advise Landlord
of any alteration or addition to such electrical equipment and/or appliances.
Tenant, at Tenant's expense, shall purchase, install and replace all light
fixtures, bulbs, tubes, lamps, lenses, globes, ballasts and switches used in
the Demised Premises.
7.2 WATER CHARGES. Landlord shall furnish hot and cold water for ordinary
cleaning, toilet, kitchen, lavatory and drinking purposes to the extent required
to service facilities approved by Landlord pursuant to Article 10. If Tenant
requires, uses or consumes water for any purpose other than for such purposes,
Landlord may (i) assess a reasonable charge for the additional water so used or
consumed by Tenant or (ii) install a water meter and thereby measure Tenant's
water consumption for
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all purposes. In the latter event, Tenant shall pay the cost of the meter
and the cost of installing any equipment required in connection therewith,
and shall keep said meter and installation equipment in good working order
and repair, and shall pay for water consumed, as shown on said meter,
together with the sewer charge based on said meter charges, as and when bills
are rendered.
7.3 HEAT AND AIR CONDITIONING.
(a) Landlord shall, through the equipment of the Building, furnish to
and distribute in the Demised Premises heat as normal seasonal changes may
require on Business Days from 8:00 a.m. to 6:00 p.m. and on Saturdays (excluding
holidays) from 8:00 a.m. until Noon when reasonably required for the comfortable
occupancy of all portions of the Demised Premises by Tenant. Tenant agrees to
cooperate fully with Landlord with regard to and abide by all regulations and
requirements which Landlord may prescribe for the proper functioning and
protection of the heating system.
(b) Landlord's only obligation under this Lease with respect to the
air conditioning of the Demised Premises is to maintain, repair and (when
necessary) replace the Building equipment servicing the Demised Premises and to
furnish chilled water therefor. The distribution of air conditioning within the
Demised Premises utilizes, as part of said equipment, handlers which are
operated electrically at Tenant's expense pursuant to Section 7.1.
(c) Landlord will, upon reasonable advance written notice from Tenant
of its requirements, furnish additional heat or air conditioning service to the
Demised Premises on days and at times other than as provided in this Article.
Tenant will pay to Landlord a reasonable charge (which shall be standard for all
Building tenants and is currently calculated at an hourly rate per floor of
$25.00 in the case of heat and $30.00 in the case of air conditioning) for any
such additional heat or air conditioning service required by Tenant.
7.4 REPAIRS AND OTHER SERVICES. Except as otherwise provided in
Articles 16 and 18, and subject to Tenant's obligations in Article 12 and
elsewhere in this Lease, Landlord shall (a) keep and maintain the roof
(including the existing skylight), exterior walls, structural floor slabs and
columns of the Building in good condition and repair, reasonable use and wear
excepted, and maintain in good and workable condition the vertical buss ducts
referenced in Section 27.9 as well as the common sanitary, electrical, heating,
air conditioning and other systems of the Building, (b) provide cleaning
services according to the cleaning standards set forth in Exhibit B attached
hereto and made a part hereof, (c) keep all roadways, walkways and parking areas
on the Property clean and remove all snow and ice therefrom, (d) replace windows
whenever broken other than as a
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result of the act, omission, fault, negligence or misconduct of Tenant or
Tenant's agents, contractors, employees or invitees, (e) employ a guard to be
stationed at the main entrance of the Building from 4:30 p.m. until Midnight
on Business Days and (f) arrange for the extermination of vermin in the
common areas of the Building. In addition, Landlord shall complete the
ongoing installation of a card system to regulate access to the main entrance
and elevators of the Building no later than April 15, 1995 (in the case of
said main entrance) and February 28, 1995 (in the case of said elevators).
7.5 INTERRUPTION OR CURTAILMENT OF SERVICES. Landlord reserves the right
temporarily to interrupt, curtail, stop or suspend the furnishing of services
and the operation of any Building system, when necessary by reason of accident
or emergency, or of repairs, alterations, replacements or improvements in the
reasonable judgment of Landlord desirable or necessary to be made, or of
difficulty or inability in securing supplies or labor, or of strikes, or of any
other cause beyond the reasonable control of Landlord, whether such other cause
be similar or dissimilar to those hereinabove specifically mentioned, until said
cause has been removed. Landlord shall have no responsibility or liability for
any such interruption, curtailment, stoppage, or suspension of services or
systems, except that Landlord shall exercise reasonable diligence to eliminate
the cause of same.
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8. CHANGES OR ALTERATIONS BY LANDLORD
Landlord reserves the right, exercisable by itself or its nominee, at any
time and from time to time without the same constituting an actual or
constructive eviction and without incurring any liability to Tenant therefor or
otherwise affecting Tenant's obligations under this Lease, but subject to the
applicable provisions of Section 15.2, to make such changes, alterations,
additions, improvements, repairs or replacements in or to the Building (provided
however that Landlord may not materially alter the approved layout of the
Demised Premises) and the fixtures and equipment thereof, as well as in or to
the street entrances, halls, passages, elevators, and stairways thereof, as it
may deem necessary or desirable, and to change the arrangement and/or location
of entrances or passageways, doors and doorways, and corridors, elevators,
stairs, toilets, or other public parts of the Building, provided, however, that
there be no unreasonable obstruction of the right of access to, or unreasonable
interference with the use and enjoyment of, the Demised Premises by Tenant,
except that Landlord shall not (except in case of emergency) be obligated to
employ labor at so-called "over-time" or other premium pay rates. Nothing
contained in this Article shall be deemed to relieve Tenant of any duty,
obligation or liability which Tenant may have with respect to making or causing
to be made any repair, replacement or improvement or complying with any law,
order or requirement of any governmental or other authority. Landlord reserves
the right to from time to time change the address of the Building, in which
case Landlord shall reimburse all reasonable costs incurred by Tenant as a
result of such change in order to replace stationery, business cards and the
like and to notify clients of such change.
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9. FIXTURES, EQUIPMENT AND IMPROVEMENTS - REMOVAL BY TENANT
All fixtures, equipment, improvements and appurtenances attached to or
built into the Demised Premises prior to or during the Term, whether by Landlord
at its expense or at the expense of Tenant (either or both) or by Tenant shall
be and remain part of the Demised Premises and shall not be removed by Tenant at
the end of the Term unless otherwise expressly provided in this Lease. Where
not built into the Demised Premises, and if furnished and installed by and at
the sole expense of Tenant, all removable electric fixtures, air conditioning,
drinking or tap water facilities, furniture, filing cabinets or trade fixtures
or business equipment (hereinafter referred to as "Tenant's Removable Property")
shall not be deemed to be included in such fixtures, equipment, improvements and
appurtenances and may be, and upon the request of Landlord will be, removed by
Tenant upon the condition that such removal shall not materially damage the
Demised Premises or the Building and that the cost of repairing any damage to
the Demised Premises or the Building arising from such removal shall be paid by
Tenant, provided, however, that any of such items toward which Landlord shall
have granted any allowance or credit to Tenant shall be deemed not to have been
furnished and installed in the Demised Premises by or at the sole expense of
Tenant.
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10. ALTERATIONS AND IMPROVEMENTS BY TENANT
Tenant shall make no alterations, decorations, installations, removals,
additions or improvements in or to the Demised Premises without Landlord's prior
written consent and then only by contractors approved by Landlord (including
without limitation those contractors identified in Exhibit D attached hereto and
made a part hereof). No installations or other such work shall be undertaken or
begun by Tenant until Landlord has approved written plans and specifications
therefor; and no amendments or additions to such plans and specifications shall
be made without prior written consent of Landlord. Any such alterations,
decorations, installations, removals, additions and improvements shall be done
at the sole expense of Tenant and at such times and in such manner as Landlord
may from time to time reasonably designate. Any consent or approval required
under this Article shall not be unreasonably withheld or delayed in the case of
any proposed work of a non-structural nature which does not affect the common
areas or facilities of the Property. Pursuant to the foregoing provisions, but
subject to the receipt of reasonably acceptable engineering data, Landlord
hereby consents to the work described in the plans and specifications referenced
in Exhibit E attached hereto and made a part hereof (hereinafter referred to as
"Tenant's Initial Work"). If Tenant shall make any alterations, decorations,
installations, removals, additions or improvements, then Landlord may elect, at
the time of consenting thereto, to require Tenant at the expiration of this
Lease to restore the Demised Premises to substantially the same condition as
existed at the Term Commencement Date. Landlord acknowledges that Landlord has
not made such election with respect to any portion of Tenant's Initial Work
other than Tenant's Removable Property.
11. TENANT'S CONTRACTORS - MECHANICS' AND OTHER LIENS -
STANDARD OF TENANT'S PERFORMANCE - COMPLIANCE WITH LAWS
Whenever Tenant shall make any alterations, decorations, installations,
removals, additions or improvements or do any other work in or to the Demised
Premises, Tenant will strictly observe the following covenants and agreements:
(a) In no event shall any material or equipment be incorporated in or
added to the Demised Premises in connection with any such alteration,
decoration, installation, addition or improvement which is subject to any lien,
charge, mortgage or other encumbrance of any kind whatsoever or is subject to
any security interest or any form of title retention agreement. Any mechanic's
lien filed against the Demised Premises or the Building for work claimed to have
been done for, or materials claimed to have been furnished to Tenant shall be
discharged by Tenant within ten (10) days after notice thereof, at the expense
of Tenant, by filing the bond required by law or otherwise. If Tenant fails so
to discharge any lien, Landlord may do so at
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Tenant's expense and Tenant shall reimburse Landlord for any expense or cost
incurred by Landlord in so doing within fifteen (15) days after rendition of
a bill therefor.
(b) All installations or work done by Tenant under this or any other
Article of this Lease shall be at its own expense (unless expressly otherwise
provided) and shall at all times comply with (i) laws, rules, orders and
regulations of governmental authorities having jurisdiction thereof;
(ii) orders, rules and regulations of any Board of Fire Underwriters, or any
other body hereafter constituted exercising similar functions, and governing
insurance rating bureaus; and (iii) plans and specifications prepared by and at
the expense of Tenant theretofore submitted to Landlord for its prior written
approval in accordance with the provisions of Article 10.
(c) Tenant shall procure all necessary permits before undertaking any
work in the Demised Premises; do all such work in a good and workmanlike manner,
employing materials of good quality and complying with all governmental
requirements, and defend, save harmless, exonerate and indemnify Landlord from
all injury, loss or damage to any person or property occasioned by or growing
out of such work.
12. REPAIRS AND SECURITY BY TENANT
Subject to Landlord's repair obligations hereunder, Tenant shall keep or
cause to be kept all and singular the Demised Premises in good repair, order and
condition, damage by fire or other casualty excepted. Without limiting the
generality of the foregoing, Tenant shall replace all windows and other glass,
whenever broken as a result of the act, omission, fault, negligence or
misconduct of Tenant or Tenant's agents, contractors, employees or invitees,
with glass of the same quality.
Tenant shall make, as and when needed as a result of misuse by, or neglect
or improper conduct (including without limitation the placement of any equipment
exceeding the floor load or causing vibrations perceptible outside the Demised
Premises) of Tenant or Tenant's servants, employees, agents, invitees or
licensees or otherwise, all repairs in and about the Demised Premises necessary
to preserve them in such repair, order and condition.
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13. INSURANCE, INDEMNIFICATION, EXONERATION AND EXCULPATION
13.1 INSURANCE. Tenant shall procure, keep in force and pay for (a)
Comprehensive Public Liability Insurance indemnifying Landlord, any managing
agent designated by Landlord, Tenant and (whenever Landlord shall so request)
any Mortgagee against all claims and demands for injury to or death of
persons or damage to property which may be claimed to have occurred upon the
Demised Premises in the amounts which shall at the time Tenant and/or its
contractors enter the Demised Premises in accordance with Article 4 of this
Lease be not less than One Hundred Thousand Dollars ($100,000) for property
damage and Two Million Dollars ($2,000,000) for injury or death of one person
or more than one person in a single accident, and from time to time
thereafter shall be not less than such higher amounts, if procurable, as may
be reasonably required by Landlord and are customarily carried by responsible
office tenants in the Greater Boston area (provided however that Landlord may
not require any such increase more than once during any thirty-six (36) month
period) and (b) so-called contents and improvements insurance adequately
insuring all property belonging to or removable by Tenant and situated in the
Demised Premises.
13.2 CERTIFICATES OF INSURANCE. Such insurance shall be effected with
insurers authorized to do business in Massachusetts under valid and
enforceable policies, and such policies shall name Landlord and Tenant and
any additional parties designated by Landlord pursuant to Section 13.1 as the
insureds, as their respective interests appear. Such insurance shall provide
that it shall not be cancelled without at least ten (10) days' prior written
notice to each insured named therein. Prior to entry by Tenant and/or its
contractors into the Demised Premises in accordance with Article 4 of this
Lease, and thereafter not less than fifteen (15) days prior to the expiration
date of each expiring policy, original copies of the policies provided for in
Section 13.1 issued by the respective insurers, or certificates of such
policies setting forth in full the provisions thereof and issued by such
insurers together with evidence satisfactory to Landlord of the payment of
all premiums for such policies, shall be delivered by Tenant to Landlord and
certificates as aforesaid of such policies shall upon request of Landlord be
delivered by Tenant to any additional parties designated by Landlord pursuant
to Section 13.1 as the insureds.
13.3 GENERAL. Tenant will save Landlord harmless, and will exonerate
and indemnify Landlord, from and against any and all claims, liabilities or
penalties asserted by or on behalf of any person, firm, corporation or public
authority:
(a) On account of or based upon any injury to person, or loss of
or damage to property sustained or occurring on the Demised Premises on
account of or based upon the act, omission, fault, negligence or misconduct
of any person whomsoever (other
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than Landlord or its agents, contractors or employees);
(b) On account of or based upon any injury to person or loss of or
damage to property, sustained or occurring elsewhere (other than on the
Demised Premises) in or about the Building (and, in particular, without
limiting the generality of the foregoing on or about the elevators,
stairways, public corridors, sidewalks or other appurtenances and facilities
used in connection with the Building or Demised Premises) arising out of the
use or occupancy of the Building or Demised Premises by Tenant, or any person
claiming by, through or under Tenant;
(c) On account of or based upon (including moneys due on account
of) any work or thing whatsoever done (other than by Landlord or its
contractors, or agents or employees of either) in the Demised Premises; and
(d) On account of or resulting from the failure of Tenant to
perform and discharge any of its covenants and obligations under this Lease;
and, in respect of any of the foregoing items (a)-(d), from and against all
costs, expenses (including without limitation reasonable attorneys' fees),
and liabilities incurred in or in connection with any such claim, or any
action or proceeding brought thereon; and in case any action or proceeding be
brought against Landlord by reason of any such claim, Tenant upon notice from
Landlord shall at Tenant's expense resist or defend such action or proceeding
and employ counsel therefor reasonably satisfactory to Landlord, it being
agreed that such counsel as may act for insurance underwriters of Tenant
engaged in such defense shall be deemed satisfactory.
13.4 PROPERTY OF TENANT. In addition to and not in limitation of the
foregoing, and subject only to the provisions of applicable law, Tenant
covenants and agrees that all merchandise, furniture, fixtures and property
of every kind, nature and description which may be in or upon the Demised
Premises or the Building or the Land during the Term of this Lease shall be
at the sole risk and hazard of Tenant, and that if the whole or any part
thereof shall be damaged, destroyed, stolen or removed from any cause or
reason whatsoever other than the negligence or misconduct of Landlord or its
agents, contractors or employees, no part of said damage or loss shall be
charged to, or borne by Landlord.
13.5 BURSTING OF PIPES, ETC. Landlord shall not be liable for any
injury or damage to persons or property resulting from fire, explosion,
falling plaster, steam, gas, electricity, electrical disturbance, water, rain
or snow or leaks from any part of the Building or from the pipes, appliances
or plumbing works or from the roof, street or sub-surface or from any other
place or caused by any other cause of whatever nature, unless caused by or
due to the negligence of Landlord, its agents,
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contractors or employees, and then only after (i) notice to Landlord of the
condition claimed to constitute negligence and (ii) the expiration of a
reasonable time after such notice has been received by Landlord without such
condition having been cured or corrected; nor shall Landlord or its agents be
liable for any such damage caused by other tenants or persons in the Building
or caused by operations in construction of any private, public or
quasi-public work; nor shall Landlord be liable (subject only to its repair
obligations hereunder) for any latent defect in the Demised Premises or in
the Building.
13.6 LANDLORD'S LIABILITY INSURANCE. Landlord shall keep in force
liability insurance for its own benefit without any obligation to include
Tenant as a named or additional insured party and without in any way limiting
Tenant's obligations pursuant to Section 13.1. Any insurance maintained by
Tenant pursuant to said Section shall be primary and non-contributing with
respect to any policies carried by Landlord.
14. ASSIGNMENT, MORTGAGING, SUBLETTING, ETC.
Tenant covenants and agrees that neither this Lease nor the term and
estate hereby granted nor any interest herein or therein, will be assigned,
mortgaged, pledged, encumbered or otherwise transferred (whether voluntarily
or by operation of law), and that neither the Demised Premises, nor any part
thereof, will be encumbered in any manner by reason of any act or omission on
the part of Tenant, or used or occupied, or permitted to be used or occupied,
or utilized for any reason whatsoever, by anyone other than Tenant, or for
any use or purpose other than as stated in Article 1, or be sublet, without
the prior written consent of Landlord in every case. Such consent shall not,
in the case of a proposed subletting, be unreasonably withheld or delayed.
In connection with any request by Tenant for such consent, Tenant shall
submit to Landlord, in writing, a statement containing all of the terms and
provisions upon which the proposed transaction is to occur. If the rent
received by Tenant on account of a proposed assignment or sublease requiring
such consent exceeds the Yearly Fixed Rent and Additional Rent, allocated to
the space subject to the assignment or sublease in the proportion of the area
of such space to the area of the entire Demised Premises, plus actual
out-of-pocket expenses incurred by Tenant in connection therewith, including
brokerage commissions, marketing expenses and the cost of preparing such
space for occupancy, Tenant shall pay to Landlord one hundred (100) percent
of such excess, as received by Tenant. Notwithstanding the foregoing
provisions of this paragraph and except as otherwise hereinafter set forth,
in the event Tenant proposes to assign this Lease or enter into a sublease
such that all or substantially all of the Demised Premises will have been
sublet, Landlord, at Landlord's option, may give to Tenant, within thirty
(30) days after the submission by Tenant to
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Landlord of such proposal, a notice terminating this Lease on the date
(referred to as the "Earlier Termination Date") immediately prior to the
effective date of the proposed assignment or the proposed commencement date
of the term of the proposed subletting, as set forth in such proposal, and,
in the event such notice is given, this Lease and the Term shall come to an
end and expire on the Earlier Termination Date with the same effect as if it
were the date originally fixed in this Lease for the end of the Term of this
Lease, and the Rent shall be apportioned as of said Earlier Termination Date
and any prepaid portion of Rent for any period after such date shall be
refunded by Landlord to Tenant.
The failure by Landlord to exercise its option under this Article with
respect to any assignment or subletting shall not be deemed a waiver of such
option with respect to any extension of such sublease or any subsequent
assignment or subletting. Tenant shall reimburse Landlord promptly, as
Additional Rent, for reasonable legal and other expense incurred by Landlord
in connection with any request by Tenant for any consent required under the
provisions of this Article.
Notwithstanding the foregoing, Tenant may, following notice to Landlord
but without the requirement of obtaining Landlord's consent or affording
Landlord an opportunity to terminate this Lease, and so long as Tenant is not
in default beyond the applicable grace or cure period at the time of such
notice or at any time thereafter until the effective date of the assignment
or the commencement date of the term of the subletting (as the case may be),
assign this Lease or sublease all or any portion of the Demised Premises to
any entity which is a parent, subsidiary or affiliate of Tenant or assign
this Lease to any entity with which Tenant may merge or consolidate or which
results from any such merger or consolidation or to which Tenant may sell all
or substantially all of its assets as a going concern (such entity with which
Tenant may merge or consolidate or which results from any such merger or
consolidation or to which Tenant may sell all or substantially all of its
assets as aforesaid being hereinafter referred to as a "Successor"), provided
however that, forthwith upon any assignment allowed pursuant to this
paragraph, Tenant shall deliver to Landlord an agreement in form and
substance reasonably satisfactory to Landlord which contains an appropriate
covenant of assumption by such assignee, and provided further that in the
case of any such assignment to a Successor, such Successor shall have
financial resources and a general business reputation comparable to those of
Tenant as of the time of such assignment.
The listing of any name other than that of Tenant, whether on the doors
of the Demised Premises or on the Building directory, or otherwise, shall not
operate to vest any right or interest in this Lease or in the Demised
Premises or be deemed to be the written consent of Landlord mentioned in this
Article, it being expressly understood that any such listing is a privilege
-23-
extended by Landlord revocable at will by written notice to Tenant.
If this Lease be assigned, or if the Demised Premises or any part
thereof be sublet or occupied by anybody other than Tenant, Landlord may at
any time and from time to time following any default by Tenant hereunder
beyond the applicable grace period, collect rent and other charges from the
assignee, subtenant or occupant, and apply the net amount collected to the
Rent and other charges herein reserved, but no such collection shall be
deemed a waiver of this covenant, or the acceptance of the assignee,
subtenant or occupant as a tenant, or a release of Tenant from the further
performance by Tenant of covenants on the part of Tenant herein contained.
The consent by Landlord to an assignment or subletting or occupancy shall not
in any way be construed to relieve Tenant from obtaining the express consent
in writing of Landlord to any further assignment or subletting or occupancy.
15. MISCELLANEOUS COVENANTS
15.1 RULES AND REGULATIONS. Tenant and Tenant's servants, employees,
agents, visitors and licensees will faithfully observe such Rules and
Regulations as are attached hereto as Exhibit C and made a part hereof or as
Landlord hereafter at any time or from time to time may make and may
communicate in writing to Tenant and which in the reasonable judgment of
Landlord shall be necessary for the reputation, safety, care or appearance of
the Property, or the preservation of good order therein, or the operation or
maintenance of the Property, or the equipment thereof, or the comfort of
tenants or others in the Building, provided, however, that in the case of any
conflict between the provisions of this Lease and any such Rules and
Regulations, the provisions of this Lease shall control. Such Rules and
Regulations shall be applied in a non-discriminatory manner so as to be
generally applicable to other tenants of the Building whose permitted
business activities are comparable to those of Tenant hereunder, provided
however that nothing contained in this Lease shall be construed to impose
upon Landlord any duty or obligation to enforce such Rules and Regulations or
the terms, covenants or conditions in any other lease as against any other
tenant and Landlord shall not be liable to Tenant for violation of the same
by any other tenant, its servants, employees, agents, visitors, invitees or
licensees. Notwithstanding any conflicting provisions of Exhibit C or any
other Rules and Regulations, Tenant be entitled within the Demised Premises
to make use of microwave ovens and other food preparation equipment not
requiring exterior venting.
15.2 ACCESS TO PREMISES - SHORING. Tenant shall: (i) permit Landlord
to erect, use and maintain pipes, ducts and conduits in and through the
Demised Premises, provided the same do not materially reduce the floor area
or materially adversely affect the appearance thereof and are concealed
wherever
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practicable below floors, above finished ceilings or beyond finished walls;
(ii) permit the Landlord and any Mortgagee to have free and unrestricted
access to and to enter upon the Demised Premises at all reasonable hours upon
prior oral or written notice (except in case of emergency) for the purposes
of inspection or of making repairs, replacements or improvements in or to the
Demised Premises or the Building or equipment (including, without limitation,
sanitary, electrical, heating, air conditioning or other systems) or of
complying with all laws, orders and requirements of governmental or other
authority or of exercising any right reserved to Landlord by this Lease
(including the right during the progress of any such repairs, replacements or
improvements or while performing work and furnishing materials in connection
with compliance with any such laws, orders or requirements to take upon or
through, or to keep and store within, the Demised Premises all necessary
materials, tools and equipment); and (iii) permit Landlord, at reasonable
times upon prior oral or written notice, to show the Demised Premises during
ordinary business hours to any Mortgagee, prospective purchaser of any
interest of Landlord in the Property, prospective Mortgagee, or prospective
assignee of any Mortgage, and during the period of twelve months next
preceding the Termination Date to any person contemplating the leasing of the
Demised Premises or any part thereof. If Tenant shall not be personally
present to open and permit any entry into the Demised Premises at any time
when for any reason an entry therein shall be necessary or permissible
following notice (to the extent hereinabove required), Landlord or Landlord's
agents must nevertheless be able to gain such entry by contacting a
responsible representative of Tenant, whose name, address and telephone
number shall be furnished by Tenant, or (at Landlord's election) by using
keys to the Demised Premises in Landlord's possession. Locks serving the
Demised Premises shall not be altered or replaced, nor shall new locks be
added by Tenant without the prior written consent of Landlord in every case
(which consent shall not be unreasonably withheld or delayed). Provided that
Landlord shall (except in case of emergency) incur no additional expense
thereby, Landlord shall exercise its rights of access to the Demised Premises
permitted under any of the terms and provisions of this Lease (including
Landlord's right to keep and store materials, tools and equipment therein as
hereinabove set forth) in such manner as to minimize to the extent
practicable interference with Tenant's use and occupation of the Demised
Premises. If an excavation shall be made upon land adjacent to the Demised
Premises or shall be authorized to be made, Tenant shall afford, to the
person causing or authorized to cause such excavation (subject to the same
provisions applicable hereunder in the case of work to be performed by
Landlord), license to enter upon the Demised Premises for the purpose of
doing such work as said person shall deem necessary to preserve the Building
from injury or damage and to support the same by proper foundations without
any claim for damage or indemnity against Landlord, or diminution or
abatement of Rent.
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15.3 ACCIDENTS TO SANITARY AND OTHER SYSTEMS. Tenant shall give to
Landlord prompt notice of any fire or accident in the Demised Premises or in
the Building and of any damage to, or defective condition in, any part or
appurtenance of the Building's systems located in, or passing through, the
Demised Premises.
15.4 SIGNS, BLINDS AND DRAPES. Tenant shall not place any signs on the
exterior of the Building or on or in any window, public corridor or door
visible from the exterior of the Demised Premises. Landlord shall include
Tenant's name (together with the names of up to seven (7) authorized
subtenants and/or individuals having offices in the Demised Premises) in any
standard Building directory maintained by Landlord and shall affix, or permit
Tenant to affix, signage outside the main entryway of the Demised Premises
identifying Tenant as an occupant thereof, provided however that the exact
size, design and location of any such sign shall be subject to Landlord's
prior approval. No blinds may be put on or in any window nor may any
Building drapes or blinds be removed by Tenant. Tenant may hang its own
drapes, provided that they shall not, without the prior written approval of
Landlord, in any way interfere with any Building drapery or blinds or be
visible from the exterior of the Building.
15.5 ESTOPPEL CERTIFICATE. Tenant shall at any time and from time to
time upon not less than ten (10) days' prior notice by Landlord to Tenant,
execute, acknowledge and deliver to Landlord a statement in writing
certifying that this Lease is unmodified and in full force and effect (or if
there have been modifications, that the same is in full force and effect as
modified and stating the modifications), and the dates to which Rent has been
paid in advance, if any, and stating whether or not to the best knowledge of
the signer of such certificate Landlord is in default in performance of any
covenant, agreement, term, provisions or condition contained in this Lease
and, if so, specifying each such default of which the signer may have
knowledge, it being intended that any such statement delivered pursuant
hereto may be relied upon by any prospective purchaser of any interest of
Landlord in the Property, any Mortgagee or prospective Mortgagee, any
prospective assignee of any Mortgage, or any other party reasonably
designated by Landlord.
15.6 PROHIBITED ITEMS. Tenant shall not bring or permit to be brought
or kept in or on the Demised Premises or elsewhere in the Building any
hazardous, inflammable, combustible or explosive fluid, material, chemical or
substance (except such as are related to Tenant's use of the Demised
Premises, provided that the same are stored and handled in a proper fashion
consistent with applicable legal standards).
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15.7 REQUIREMENTS OF LAW - FINES AND PENALTIES. Tenant at its sole
expense shall comply with all laws, rules, orders and regulations of Federal,
State, County and Municipal Authorities and with any direction of any public
officer or officers, pursuant to law, which shall impose any duty upon
Landlord or Tenant with respect to and arising out of Tenant's use or
occupancy of the Demised Premises, provided however that Landlord shall be
responsible for compliance therewith to the extent necessary to allow the
continued use of the Demised Premises for general office purposes. In
particular, Tenant shall be responsible for compliance with requirements
imposed by the Americans with Disabilities Act relative to the layout of the
Demised Premises and any work performed by Tenant therein, including without
limitation all such requirements applicable to removing barriers, furnishing
auxiliary aids and insuring that, whenever alterations are made, the affected
portions of the Demised Premises are readily accessible to and usable by
individuals with disabilities. Notwithstanding the foregoing, Landlord shall
be responsible for compliance with any requirements imposed by said Act
relative to the entryways, elevators and other common areas of the Property.
If Tenant receives notice of any violation of law, ordinance, order or
regulation applicable to the Demised Premises, it shall give prompt notice
thereof to Landlord.
15.8 TENANT'S ACTS - EFFECT ON INSURANCE. Tenant shall not do or permit
to be done any act or thing upon the Demised Premises or elsewhere in the
Building which will invalidate or be in conflict with any insurance policies
covering the Building and the fixtures and property therein and shall not do,
or permit to be done, any act or thing upon the Demised Premises which shall
subject Landlord to any liability or responsibility for injury to any person
or persons or to property by reason of any business or operation being
conducted on the Demised Premises or for any other reason. Tenant at its own
expense shall comply with all rules, orders, regulations or requirements of
the Board of Fire Underwriters or any other similar body having jurisdiction,
and shall not (i) do, or permit anything to be done, in or upon the Demised
Premises, or bring or keep anything therein, except as now or hereafter
permitted by the Fire Department, Board of Underwriters, Fire Insurance
Rating Organization, or other authority having jurisdiction, and then only in
such quantity and manner of storage as will not increase the rate for any
insurance applicable to the Building, or (ii) use the Demised Premises in a
manner which shall increase such insurance rates on the Building or on
property located therein, over that applicable when Tenant first took
occupancy of the Demised Premises hereunder (unless Tenant pays such
increase). If by reason of failure of Tenant to comply with the provisions
hereof the insurance rate applicable to any policy of insurance shall at any
time thereafter be higher than it otherwise would be, then Tenant shall
reimburse Landlord for that part of any insurance premiums thereafter paid by
Landlord, which shall have been charged because of such failure by Tenant.
Landlord acknowledges that the installation and use
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of a generator in accordance with Section 27.9 will not violate the
provisions of this Section or require Tenant to pay any increased insurance
premiums hereunder.
15.9 MISCELLANEOUS. Tenant shall not suffer or permit the Demised
Premises or any fixtures, equipment or utilities therein or serving the same,
to be overloaded, damaged or defaced.
16. DAMAGE BY FIRE, ETC.
Landlord shall keep in force casualty insurance with respect to the
Building in an amount approximately equal to the full replacement cost
thereof. Such insurance shall afford protection against fire and the other
perils customarily covered by a so-called "all risk" policy.
In the event of loss of, or damage to, the Demised Premises or the
Building by fire or other casualty, the rights and obligations of the parties
hereto shall be as follows:
(a) If the Demised Premises, or any part thereof, shall be damaged
by fire or other casualty, Tenant shall give prompt notice thereof to
Landlord, and Landlord, upon receiving such notice, shall proceed promptly
and with due diligence, subject to unavoidable delays, to repair, or cause to
be repaired, such damage. If the Demised Premises or any part thereof shall
be rendered untenantable by reason of such damage, whether to the Demised
Premises or to the Building, Yearly Fixed Rent and Additional Rent payable
pursuant to Sections 6.2 and 6.3 shall proportionately abate for the period
from the date of such damage to the date when such damage shall have been
repaired.
(b) If, as a result of fire or other casualty, the whole or a
substantial portion of the Building or the Demised Premises is rendered
untenantable, Landlord, within ninety (90) days from the date of such fire or
casualty, may terminate this Lease by notice to Tenant, specifying a date not
less than twenty (20) nor more than forty (40) days after the giving of such
notice on which the Term of this Lease shall terminate. If Landlord does not so
elect to terminate this Lease, then Landlord shall proceed with diligence to
repair the damage to the Demised Premises and all facilities serving the same,
if any, which shall have occurred, and the Yearly Fixed Rent and Additional Rent
payable pursuant to Sections 6.2 and 6.3 shall meanwhile proportionately abate,
all as provided in Paragraph (a) of this Section. However, if such damage is
not repaired and the Demised Premises restored to substantially the same
condition as they were prior to such damage within six (6) months from the date
of such damage, Tenant within thirty (30) days from the expiration of such six
(6) month period or from the expiration of any extension thereof by reason of
unavoidable delays as hereinafter provided, may terminate this Lease by notice
to Landlord, specifying a date not more than sixty (60) days after the giving of
such notice on which the Term of this Lease shall terminate.
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The period within which the required repairs may be accomplished shall be
extended by the number of days, not to exceed ninety (90) days, lost as a
result of unavoidable delays, which term shall be defined to include all
delays referred to in Article 24.
(c) If the Demised Premises shall be rendered untenantable by fire
or other casualty during the last year of the Term of this Lease, either
party may terminate this Lease effective as of the date of such fire or other
casualty upon notice to the other given within thirty (30) days after such
fire or other casualty.
(d) Landlord shall not be required to repair or replace any of
Tenant's business machinery, equipment, cabinet work, furniture, personal
property or other installations made by Tenant (all of which shall, however,
be restored by Tenant within a reasonable time after Landlord shall have
completed any repair or restoration required under the terms of this
Article), and no damages, compensation or claim shall be payable by Landlord
for inconvenience, loss of business or annoyance arising from any repair or
restoration of any portion of the Demised Premises or of the Building. Any
insurance proceeds received by Tenant in connection with such loss or damage
shall be applied by Tenant to such repair or restoration to the extent
reasonably necessary to accomplish the same.
(e) The provisions of this Article shall be considered an express
agreement governing any instance of damage or destruction of the Building or
the Demised Premises by fire or other casualty, and any law now or hereafter
in force providing for such a contingency in the absence of express agreement
shall have no application.
(f) In the event of any termination of this Lease pursuant to this
Article, the Term of this Lease shall expire as of the effective termination
date as fully and completely as if such date were the date herein originally
scheduled as the Termination Date.
(g) Landlord's Architect's certificate, given in good faith, shall
be deemed conclusive of the statements therein contained and binding upon
Tenant with respect to the performance and completion of any repair or
restoration work undertaken by Landlord pursuant to this Article or Article 18.
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17. WAIVER OF SUBROGATION
In any case in which Tenant shall be obligated under any provision of
this Lease to pay to Landlord any loss, cost, damage, liability, or expense
suffered or incurred by Landlord, Landlord shall allow to Tenant as an offset
against the amount thereof (i) the net proceeds of any insurance collected by
Landlord for or on account of such loss, cost, damage, liability or expense,
provided that the allowance of such offset does not invalidate or prejudice
the policy or policies under which such proceeds were payable and (ii) if
such loss, cost, damage, liability or expense shall have been caused by a
peril against which Landlord has agreed to procure insurance coverage under
the terms of this Lease, the amount of such insurance coverage, if not
actually procured by Landlord.
In any case in which Landlord shall be obligated under any provision of
this Lease to pay to Tenant any loss, cost, damage, liability or expense
suffered or incurred by Tenant, Tenant shall allow to Landlord as an offset
against the amount thereof (i) the net proceeds of any insurance collected by
Tenant for or on account of such loss, cost, damage, liability, or expense,
provided that the allowance of such offset does not invalidate the policy or
policies under which such proceeds were payable and (ii) if such loss, cost,
damage, liability or expense shall have been caused by a peril against which
Tenant has agreed to procure insurance coverage under the terms of this
Lease, the amount of such insurance coverage, if not actually procured by
Tenant.
The parties hereto shall each endeavor to procure an appropriate clause
in, or endorsement on, any fire or extended coverage insurance policy
covering the Demised Premises and the Building and personal property,
fixtures and equipment located thereon or therein, pursuant to which the
insurance companies waive subrogation or consent to a waiver of right of
recovery, and having obtained such clauses and/or endorsements of waiver of
subrogation or consent to a waiver of right of recovery each party hereby
agrees that it will not make any claim against or seek to recover from the
other for any loss or damage to its property or the property of others
resulting from fire or other perils covered by such fire and extended
coverage insurance; provided, however, that the release, discharge,
exoneration and covenant not to sue herein contained shall be limited by the
terms and provisions of the waiver of subrogation clauses and/or endorsements
or clauses and/or endorsements consenting to a waiver of right of recovery
and shall be co-extensive therewith. If either party may obtain such clause
or endorsement only upon payment of an additional premium, such party shall
promptly so advise the other party and shall be under no obligation to obtain
such clause or endorsement unless such other party pays the premium.
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18. CONDEMNATION - EMINENT DOMAIN
In the event that the whole or any part of the Building shall be taken
or appropriated by eminent domain or shall be condemned for any public or
quasi-public use, or (by virtue of any such taking, appropriation or
condemnation) shall suffer any damage (direct, indirect or consequential) for
which Landlord or Tenant shall be entitled to compensation then (and in any
such event) this Lease and the Term hereof may be terminated at the election
of Landlord by a notice in writing of its election so to terminate which
shall be given by the Landlord to Tenant within sixty (60) days following the
date on which Landlord shall have received notice of such taking,
appropriation or condemnation. In the event that a substantial part of the
Demised Premises or of the means of access thereto within the perimeter of
the Property shall be so taken, appropriated or condemned, then (and in any
such event) this Lease and the Term hereof may be terminated at the election
of Tenant by a notice in writing of its election so to terminate which shall
be given by Tenant to Landlord within sixty (60) days following the date on
which Tenant shall have received notice of such taking, appropriation or
condemnation.
Upon the giving of any such notice of termination (either by Landlord or
Tenant) this Lease and the Term hereof shall terminate on or retroactively as
of the date on which Tenant shall be required to vacate any part of the
Demised Premises or shall be deprived of a substantial part of the means of
access thereto, provided, however, that Landlord may in Landlord's notice
elect to terminate this Lease and the Term hereof retroactively as of the
date on which such taking, appropriation or condemnation became legally
effective. In the event of any such termination, this Lease and the Term
hereof shall expire as of the effective termination date as fully and
completely as if such date were the date herein originally scheduled as the
Termination Date. If neither party (having the right so to do) elects to
terminate Landlord will, with reasonable diligence and at Landlord's expense,
restore the remainder of the Demised Premises, or the remainder of the means
of access, as nearly as practicably may be to the same condition as obtained
prior to such taking, appropriation or condemnation in which event (i) a just
proportion of the Yearly Fixed Rent and Additional Rent payable pursuant to
Sections 6.2 and 6.3, according to the nature and extent of the taking,
appropriation or condemnation and the resulting permanent injury to the
Demised Premises and the means of access thereto, shall be permanently
abated, and (ii) a just proportion of the remainder of the Yearly Fixed Rent
and Additional Rent payable pursuant to Sections 6.2 and 6.3, according to
the nature and extent of the taking, appropriation or condemnation and the
resultant injury sustained by the Demised Premises and the means of access
thereto, shall be abated until what remains of the Demised Premises and the
means of access thereto shall have been restored as fully as may be for
permanent
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use and occupation by Tenant hereunder. Except for any award specifically
reimbursing Tenant for moving or relocation expenses, there are expressly
reserved to Landlord all rights to compensation and damages created, accrued
or accruing by reason of any such taking, appropriation or condemnation, in
implementation and in confirmation of which Tenant does hereby acknowledge
that Landlord shall be entitled to receive and retain all such compensation
and damages, grants to Landlord all and whatever rights (if any) Tenant may
have to such compensation and damages, and agrees to execute and deliver all
and whatever further instruments of assignment as Landlord may from time to
time request. In the event of any taking of the Demised Premises or any part
thereof for temporary use, (i) this Lease shall be and remain unaffected
thereby, and (ii) Tenant shall be entitled to receive for itself any award
made for such use, provided, that if any taking is for a period extending
beyond the Term of this Lease, such award shall be apportioned between
Landlord and Tenant as of the Termination Date.
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19. DEFAULT
19.1 CONDITIONS OF LIMITATION - RE-ENTRY - TERMINATION. This Lease and
the herein term and estate are upon the condition that if (a) Tenant shall
neglect or fail to perform or observe any of the Tenant's covenants herein,
including (without limitation) the covenants with regard to the payment when
due of Rent; or (b) Tenant shall be involved in financial difficulties as
evidenced by an admission in writing by Tenant of Tenant's inability to pay
its debts generally as they become due, or by the making or offering to make
a composition of its debts with its creditors; or (c) Tenant shall make an
assignment or trust mortgage, or other conveyance or transfer of like nature,
of all or a substantial part of its property for the benefit of its
creditors; or (d) the leasehold hereby created shall be taken on execution or
by other process of law and shall not be revested in Tenant within sixty (60)
days thereafter; or (e) a receiver, sequester, trustee or similar officer
shall be appointed by a court of competent jurisdiction to take charge of all
or a substantial part of Tenant's property and such appointment shall not be
vacated within sixty (60) days; or (f) any proceeding shall be instituted by
or against Tenant pursuant to any of the provisions of any Act of Congress or
State law relating to bankruptcy, reorganization, arrangements, compositions
or other relief from creditors, and, in the case of any such proceeding
instituted against it, if Tenant shall fail to have such proceeding dismissed
within thirty (30) days or if Tenant is adjudged bankrupt or insolvent as a
result of any such proceeding; or (g) any event shall occur or any
contingency shall arise whereby this Lease, or the term and estate thereby
created, would (by operation of law or otherwise) devolve upon or pass to any
person, firm or corporation other than Tenant, except as expressly permitted
under Article 14 hereof - then, and in any such event (except as hereinafter
in Article 19.2 otherwise provided) Landlord may, in a manner consistent with
applicable law, immediately or at any time thereafter declare this Lease
terminated by notice to Tenant, in which case (and without prejudice to any
remedies which might otherwise be available for arrears of Rent or preceding
breach of covenant and without prejudice to Tenant's liability for damages as
hereinafter stated), this Lease shall terminate. As used in items (b), (c),
(e) and (f) of this Section, the term "Tenant" shall also be deemed to refer
to any guarantor of Tenant's obligations hereunder.
19.2 DAMAGES - ASSIGNMENT FOR BENEFIT OF CREDITORS.
[Intentionally Omitted]
19.3 DAMAGES - TERMINATION. Upon the termination of this Lease under
the provisions of this Article, then except as hereinabove in Section 19.2
otherwise provided, Tenant shall pay to Landlord the Rent payable by Tenant
to Landlord up to the time of such termination, shall continue to be liable
for any
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preceding breach of covenant, and in addition, shall pay to Landlord as
damages, at the election of Landlord
either:
(x) the amount by which, at the time of the termination of this
Lease (or at any time thereafter if Landlord shall have initially elected
damages under Subparagraph (y), below), (i) the aggregate of the Rent
projected over the period commencing with such time and ending on the
originally-scheduled Termination Date as stated in Article 1 exceeds (ii) the
aggregate projected rental value of the Demised Premises for such period,
or,
(y) amounts equal to the Rent which would have been payable by
Tenant had this Lease not been so terminated, payable upon the due dates
therefor specified herein following such termination and until the
originally-scheduled Termination Date as specified in Article 1, provided,
however, if Landlord shall re-let the Demised Premises during such period,
that Landlord shall credit Tenant with the net rents received by Landlord
from such re-letting, such net rents to be determined by first deducting from
the gross rents as and when received by Landlord from such re-letting the
expenses incurred or paid by Landlord in terminating this Lease, as well as
the expenses of re-letting, including altering and preparing the Demised
Premises for new tenants, brokers' commissions, and all other similar and
dissimilar expenses properly chargeable against the Demised Premises and the
rental therefrom, it being understood that any such re-letting may be for a
period equal to or shorter or longer than the remaining term of this Lease;
and provided, further, that (i) in no event shall Tenant be entitled to
receive any excess of such net rents over the sums payable by Tenant to
Landlord hereunder and (ii) in no event shall Tenant be entitled in any suit
for the collection of damages pursuant to this Subparagraph (y) to a credit
in respect of any net rents from a re-letting except to the extent that such
net rents are actually received by Landlord. If the Demised Premises or any
part thereof should be re-let in combination with other space, then proper
apportionment on a square foot area basis shall be made of the rent received
from such re-letting and of the expenses of re-letting. Landlord shall
endeavor in good faith to mitigate damages payable pursuant to the provisions
of this subparagraph.
Suit or suits for the recovery of such damages, or any installments
thereof, may be brought by Landlord from time to time at its election, and
nothing contained herein shall be deemed to require Landlord to postpone suit
until the date when the term of this Lease would have expired if it had not
been terminated hereunder.
Nothing herein contained shall be construed as limiting or precluding
the recovery by Landlord against Tenant of any sums or damages to which, in
addition to the damages particularly provided above, Landlord may lawfully be
entitled by reason of
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any default hereunder on the part of Tenant.
19.4 FEES AND EXPENSES. If Tenant shall default in the performance of
any covenant on Tenant's part to be performed as in this Lease contained,
Landlord may immediately, or at any time thereafter, subject (except in case
of emergency) to notice and expiration of the applicable grace period,
perform the same for the account of Tenant. If Landlord at any time is
compelled to pay or elects to pay any sum of money, or do any act which will
require the payment of any sum of money, by reason of the failure of Tenant
to comply with any provision hereof, or if Landlord is compelled to or does
incur any expense, including without limitation reasonable attorneys' fees,
in instituting, prosecuting and/or defending any action or proceeding arising
by reason of any default of Tenant hereunder, Tenant shall on demand pay to
Landlord by way of reimbursement the sum or sums so paid by Landlord.
Without limiting the generality of the foregoing, in the event that any Rent
is more than ten (10) days in arrears, Tenant shall pay, as Additional Rent,
a delinquency charge equal to two and one-half percent (2-1/2%) of the
arrearage for each calendar month (or fraction thereof) during which it
remains unpaid.
19.5 LANDLORD'S REMEDIES NOT EXCLUSIVE. The specified remedies to which
Landlord may resort hereunder are cumulative and are not intended to be
exclusive of any remedies or means of redress to which Landlord may at any
time be lawfully entitled, and Landlord may invoke any remedy (including
without limitation the remedy of specific performance) allowed at law or in
equity as if specific remedies were not herein provided for.
19.6 GRACE PERIOD. Notwithstanding anything to the contrary in this
Article contained, Landlord agrees that this Lease will not terminate and
that Landlord will not take any action to terminate this Lease (a) for
default by Tenant in the payment when due of Rent, if Tenant shall cure such
default within ten (10) days after written notice thereof given by Landlord
to Tenant, or (b) for default by Tenant in the performance of any other
covenant, if Tenant shall cure such default within a period of thirty (30)
days after written notice thereof given by Landlord to Tenant (except where
the nature of the default is such that remedial action should appropriately
take place sooner, as indicated in such written notice), or with respect to
covenants other than to pay a sum of money within such additional period as
may reasonably be required to cure such default if (because of governmental
restrictions or any other cause beyond the reasonable control of Tenant) the
default is of such a nature that it cannot be cured within such thirty
(30)-day period, provided, however, (1) that there shall be no extension of
time beyond such thirty (30)-day period for the curing of any such default
unless, not more than twenty-five (25) days after the receipt of the notice
of default, Tenant in writing (i) shall specify the cause on account of which
the default cannot be cured during such period and shall advise Landlord of
its intention
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duly to institute all steps necessary to cure the default and (ii) shall as
soon as may be reasonable duly institute and thereafter diligently prosecute
to completion all steps necessary to cure such default and, (2) that no
notice of the opportunity to cure a default need be given, and no grace
period whatsoever shall be allowed to Tenant, if the covenant or condition
the breach of which gave rise to the default had, by reason of a breach on a
prior occasion during the preceding twelve (12) month period, been the
subject of a notice hereunder to cure such default.
20. END OF TERM - ABANDONED PROPERTY
Upon the expiration or other termination of the Term of this Lease,
Tenant shall peaceably quit and surrender to Landlord the Demised Premises
and all alterations and additions thereto which Tenant is not entitled or
required to remove under the provisions of this Lease, broom clean in good
order, repair and condition excepting only reasonable use and wear and damage
by fire or other casualty for which, under other provisions of this Lease,
Tenant has no responsibility of repair or restoration. Tenant's obligation
to observe or perform this covenant shall survive the expiration or other
termination of the Term of this Lease. If the last day of the Term of this
Lease or any renewal thereof falls on a day other than a Business Day, this
Lease shall expire on the Business Day immediately preceding.
Any personal property in which Tenant has an interest which shall remain
in the Building or on the Demised Premises after the expiration or
termination of the Term of this Lease shall be conclusively deemed to have
been abandoned, and may be disposed of in such manner as Landlord may see
fit; provided, however, notwithstanding the foregoing, that Tenant will, upon
request of Landlord made not later than thirty (30) days after the expiration
or termination of the Term hereof, promptly remove from the Building any such
personal property or, if any part thereof shall be sold, that Landlord may
receive and retain the proceeds of such sale and apply the same, at its
option, against the expenses of the sale, the cost of moving and storage, any
arrears of Rent payable hereunder by Tenant to Landlord and any damages to
which Landlord may be entitled under Article 19 hereof or pursuant to law,
with the balance if any, to be paid to Tenant.
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21. RIGHTS OF MORTGAGEES
21.1 SUPERIORITY OF LEASE. Except to the extent that it may be provided
otherwise by written agreement between Tenant and a Mortgagee, this Lease
shall be superior, and shall not be subordinated, to a Mortgage or to any
other voluntary lien or encumbrance affecting the Land or Building or any
part thereof and hereafter granted by Landlord. Any Mortgagee shall have the
right, at its option, to subordinate its Mortgage to this Lease, in whole or
in part, by recording a unilateral declaration to such effect.
21.2 ENTRY AND POSSESSION. Upon entry and taking possession of the
Property by a Mortgagee, for the purpose of foreclosure or otherwise, such
Mortgagee shall have all the rights of Landlord, and shall be liable to
perform all the obligations of Landlord arising during the period of such
possession, provided, however, that upon the return of possession to Landlord
by such Mortgagee, such rights and obligations of Mortgagee shall cease until
a subsequent entry.
21.3 RIGHT TO CURE. No act or failure to act on the part of Landlord
which would entitle Tenant under the terms of this Lease, or by law, to be
relieved of Tenant's obligations hereunder or to terminate this Lease, shall
result in a release or termination of such obligations or a termination of
this Lease unless (i) Tenant shall have first given written notice of
Landlord's act or failure to act to first Mortgagees of record, if any, and
to any other Mortgagees of whom Tenant has been given written notice,
specifying the act or failure to act on the part of Landlord which could or
would give basis to Tenant's rights; and (ii) such Mortgagees, after receipt
of such notice, have failed or refused to correct or cure the condition
complained of within a reasonable time thereafter, but nothing contained in
this paragraph shall be deemed to impose any obligation on any such
Mortgagees to correct or cure any such condition. "Reasonable time" as used
above means and includes a reasonable time to obtain possession of the Land
and Building if any such Mortgagee elects to do so and a reasonable time to
correct or cure the condition if such condition is determined to exist,
provided that such Mortgagee shall investigate the condition complained of
within thirty (30) days after notice thereof and thereafter pursue any
required corrective action with all due diligence.
21.4 PREPAID RENT. No Rent shall be paid more than thirty (30) days
prior to the due dates thereof and, as to a first Mortgagee of record and any
other Mortgagees of whom Tenant has been given written notice, payments made
in violation of this provision shall (except to the extent that such rents
are actually received by such Mortgagee) be a nullity as against such
Mortgagee and Tenant shall be liable for the amount of such payments to such
Mortgagee.
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21.5 CONTINUING OFFER. The covenants and agreements contained in this
Lease with respect to the rights, powers and benefits of a Mortgagee
(particularly, without limitation thereby, the covenants and agreements
contained in this Article) constitute a continuing offer to any person,
corporation or other entity, which by accepting or requiring an assignment of
this Lease or by entry or foreclosure assumes the obligations herein set
forth with respect to such Mortgagee; every such Mortgagee is hereby
constituted a party to this Lease as an obligee hereunder to the same extent
as though its name was written hereon as such; and such Mortgagee shall be
entitled to enforce such provisions in its own name.
21.6 SUBORDINATION. Notwithstanding the foregoing provisions of this
Article, Tenant agrees, at Landlord's request, to execute and deliver
promptly any certificate or other instrument which Landlord may request
subordinating this Lease and all rights of Tenant hereunder to any Mortgage,
and to all advances made under such Mortgage and/or agreeing to attorn to
such Mortgagee in the event that it succeeds to Landlord's interest in the
Property, provided that (i) the holder of any such Mortgage shall execute and
deliver to Tenant a non-disturbance agreement to the effect that, in the
event of any foreclosure of such Mortgage, such holder will not name Tenant
as a party defendant to such foreclosure nor disturb its possession under the
Lease and will otherwise recognize Tenant's rights hereunder, or (ii) any
such Mortgage shall contain provisions substantially to the same effect as
those contained in such a non-disturbance agreement. Landlord warrants and
represents that the Property is not presently subject to any Mortgage
21.7 LIMITATIONS ON LIABILITY. Nothing contained in the foregoing
Section 21.6 or in any such non-disturbance agreement or non-disturbance
provision shall however, affect the prior rights of the holder of any
Mortgage with respect to the proceeds of any award in condemnation or of any
fire insurance policies affecting the Building, or impose upon any such
holder any liability (i) for the erection or completion of the Building, or
(ii) in the event of damage or destruction to the Building or the Demised
Premises by fire or other casualty, for any repairs, replacements, rebuilding
or restoration except such repairs, replacements, rebuilding or restoration
as can reasonably be accomplished from the net proceeds of insurance actually
received by, or made available to, such holder, or (iii) for any default by
Landlord under the Lease occurring prior to any date upon which such holder
shall become Tenant's landlord, or (iv) for any credits, offsets or claims
against the Rent as a result of any acts or omissions of Landlord committed
or omitted prior to such date, or (v) for return of any security deposit or
other funds unless the same shall have been received by such holder, and any
such agreement or provision may so state.
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22. QUIET ENJOYMENT
Landlord covenants that if, and so long as, Tenant keeps and performs
each and every covenant, agreement, term, provision and condition herein
contained on the part and on behalf of Tenant to be kept and performed,
Tenant shall quietly enjoy the Demised Premises from and against the claims
of all persons claiming by, through or under Landlord subject, nevertheless,
to the covenants, agreements, terms, provisions and conditions of this Lease
and to all Mortgages to which this Lease is subject and subordinate.
Without incurring any liability to Tenant, Landlord may permit access to
the Demised Premises and open the same, whether or not Tenant shall be
present, upon any demand of any sheriff, marshall or court officer entitled
to, or reasonably purporting to be entitled to, such access for any lawful
purpose (but this provision and any action by Landlord hereunder shall not be
deemed a recognition by Landlord that the person or official making such
demand has any right or interest in or to this Lease, or in or to the Demised
Premises), or upon demand of any representative of the fire, police,
building, sanitation or other department of the city, county, state or
federal governments. Landlord shall endeavor to give Tenant prior oral or
written notice of any access to the Demised Premises hereunder unless
prohibited from doing so by the person making such demand.
23. ENTIRE AGREEMENT - WAIVER - SURRENDER
23.1 ENTIRE AGREEMENT. This Lease and the Exhibits made a part hereof
contain the entire and only agreement between the parties and any and all
statements and representations, written and oral, including previous
correspondence and agreements between the parties hereto, are merged herein.
Tenant acknowledges that all representations and statements upon which it
relied in executing this Lease are contained herein and that Tenant in no way
relied upon any other statements or representations, written or oral. Any
executory agreement hereafter made shall be ineffective to change, modify,
discharge or effect an abandonment of this Lease in whole or in part unless
such executory agreement is in writing and signed by the party against whom
enforcement of the change, modification, discharge or abandonment is sought.
Nothing herein shall prevent the parties from agreeing to amend this Lease
and the Exhibits made a part hereof as long as such amendment shall be in
writing and shall be duly signed by both parties.
23.2 WAIVER. The failure of either party to seek redress for violation,
or to insist upon the strict performance, of any covenant or condition of
this Lease, or (in the case of Landlord) any of the Rules and Regulations
promulgated hereunder, shall not prevent a subsequent act, which would have
originally constituted a violation, from having all the force and effect of
an original
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violation. The receipt by Landlord of Rent with knowledge of the breach of
any covenant of this Lease shall not be deemed a waiver of such breach. The
failure of Landlord to enforce any of such Rules and Regulations against
Tenant and/or any other tenant or subtenant in the Building shall not be
deemed a waiver of any such Rules and Regulations. No provisions of this
Lease shall be deemed to have been waived by either party unless such waiver
be in writing signed by such party. No payment by Tenant or receipt by
Landlord of a lesser amount than the monthly rent herein stipulated shall be
deemed to be other than on account of the stipulated rent, nor shall any
endorsement or statement on any check or any letter accompanying any check or
payment as rent be deemed an accord and satisfaction, and Landlord may accept
such check or payment without prejudice to Landlord's right to recover the
balance of such rent or pursue any other remedy in this Lease provided.
23.3 SURRENDER. No act or thing done by Landlord during the term hereby
demised shall be deemed an acceptance of a surrender of the Demised Premises,
and no agreement to accept such surrender shall be valid, unless in writing
signed by Landlord. No employee of Landlord or of Landlord's agents shall
have any power to accept the keys of the Demised Premises prior to the
termination of this Lease. The delivery of keys to any employee of Landlord
or of Landlord's agents shall not operate as a termination of the Lease or a
surrender of the Demised Premises.
24. INABILITY TO PERFORM - EXCULPATORY CLAUSE
Except as otherwise expressly provided in this Lease, this Lease and the
obligations of Tenant to pay Rent hereunder and perform all other covenants,
agreements, terms, provisions and conditions hereunder on the part of Tenant
to be performed shall in no way be affected, impaired or excused because
Landlord is unable to fulfill any of its obligations under this Lease or is
unable to supply or is delayed in supplying any service expressly or
impliedly to be supplied or is unable to make or is delayed in making any
repairs, replacements, additions, alterations, improvements or decorations or
is unable to supply or is delayed in supplying any equipment or fixtures if
Landlord is prevented or delayed from doing so by reason of strikes or labor
troubles or any other similar or dissimilar cause whatsoever beyond
Landlord's reasonable control, including but not limited to, governmental
preemption in connection with a national emergency or by reason of any rule,
order or regulation of any department or subdivision thereof of any
governmental agency or by reason of the conditions of supply and demand which
have been or are affected by war, hostilities or other similar or dissimilar
emergency. In each such instance of inability of Landlord to perform,
Landlord shall exercise reasonable diligence to eliminate the cause of such
inability to perform.
Tenant shall neither assert nor seek to enforce any claim for breach of
this Lease against any of Landlord's assets other
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than Landlord's interest in the Property and in the rents, issues and profits
thereof, and Tenant agrees to look solely to such interest for the
satisfaction of any liability of Landlord under this Lease, it being
specifically agreed that in no event shall Landlord (which term shall
include, without limitation any of the officers, trustees, directors,
partners, beneficiaries, joint venturers, members, stockholders or other
principals or representatives, disclosed or undisclosed, of Landlord or any
managing agent) ever be personally liable for any such liability. This
paragraph shall not limit any right that Tenant might otherwise have to
obtain injunctive relief against Landlord or to take any other action which
shall not involve the personal liability of Landlord to respond in monetary
damages from Landlord's assets other than the Landlord's interest in said
real estate, as aforesaid. In no event shall Landlord ever be liable for
consequential damages.
25. BILLS AND NOTICES
Any notice, consent, request, bill, demand or statement hereunder by
either party to the other party shall (except as otherwise herein specified)
be in writing and either delivered or served personally or sent by certified
or registered mail, return receipt requested, in a postpaid envelope,
deposited in the United States mails addressed to the respective party at its
Address as stated in Article 1, or if any Address for notices shall have been
duly changed as hereinafter provided, if mailed as aforesaid to the party at
such changed Address. Either party may at any time change the Address for
such notices, consents, requests, bills, demands or statements by delivering
or mailing, as aforesaid, to the other party a notice stating the change and
setting forth the changed Address, provided such changed address is within
the United States. Any such notice, consent, request, bill, demand or
statement shall be effective when received or refused.
All bills and statements for reimbursement or other payments or charges
due from Tenant to Landlord hereunder shall be due and payable in full thirty
(30) days, unless herein otherwise provided, after submission thereof by
Landlord to Tenant. Tenant's failure to make timely payment of any amounts
indicated by such bills and statements, whether for work done by Landlord at
Tenant's request, reimbursement provided for by this Lease or for any other
sums properly owing by Tenant to Landlord, shall be treated as a default in
the payment of Rent, in which event Landlord shall have all rights and
remedies provided in this Lease for the nonpayment of Rent.
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26. PARTIES BOUND - SEIZIN OF TITLE
The covenants, agreements, terms, provisions and conditions of this
Lease shall bind and benefit the successors and assigns of the parties hereto
with the same effect as if mentioned in each instance where a party hereto is
named or referred to, except that no violation of the provisions of Article
14 hereof shall operate to vest any rights in any successor or assignee of
Tenant and that the provisions of this Article shall not be construed as
modifying the conditions of limitation contained in Article 19 hereof.
If in connection with or as a consequence of the sale, transfer or other
disposition of the real estate (Land and/or Building, either or both, as the
case may be) of which the Demised Premises are a part Landlord ceases to be
the owner of the reversionary interest in the Demised Premises, Landlord
shall be entirely freed and relieved from the performance and observance
thereafter of all covenants and obligations hereunder accruing thereafter on
the part of Landlord to be performed and observed, it being understood and
agreed in such event (and it shall be deemed and construed as a covenant
running with the land) that the person succeeding to Landlord's ownership of
said reversionary interest shall thereupon and thereafter assume, and perform
and observe, any and all of such covenants and obligations of Landlord.
Landlord shall, upon any such sale, transfer or other disposition, remit to
Landlord's successor the security deposit referenced in Section 27.7.
27. MISCELLANEOUS
27.1 SEPARABILITY. If any provision of this Lease or portion of such
provision or the application thereof to any person or circumstance is for any
reason held invalid or unenforceable, the remainder of the Lease (or the
remainder of such provision) and the application thereof to other persons or
circumstances shall not be affected thereby.
27.2 CAPTIONS. The captions are inserted only as a matter of
convenience and for reference, and in no way define, limit or describe the
scope of this Lease nor the intent of any provisions thereof.
27.3 BROKER. Each party represents and warrants that it has not
directly or indirectly dealt, with respect to the leasing of space in the
Building, with any broker or had its attention called to the Demised Premises
or other space to let in the Building, by any broker other than the Broker
listed in Article 1 whose commission shall be the responsibility of Landlord.
Each party agrees to exonerate and save harmless and indemnify the other
against any claims for a commission by any other broker, person or firm, with
whom such party has dealt in connection with the execution and delivery of
this Lease or out of negotiations
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between Landlord and Tenant with respect to the leasing of other space in the
Building.
27.4 GOVERNING LAW. This Lease is made pursuant to, and shall be
governed by, and construed in accordance with, the laws of the Commonwealth
of Massachusetts.
27.5 ASSIGNMENT OF LEASE AND/OR RENT. With reference to any assignment
by Landlord of its interest in this Lease and/or the Rent payable hereunder,
conditional in nature or otherwise, which assignment is made to or held by a
bank, trust company, insurance company or other institutional lender holding
a Mortgage on the Building, Landlord and Tenant agree:
(a) that the execution thereof by Landlord and acceptance thereof
by such Mortgagee shall never be deemed an assumption by such Mortgagee of
any of the obligations of the Landlord hereunder, unless such Mortgagee
shall, by written notice sent to the Tenant, specifically otherwise elect; and
(b) that, except as aforesaid, such Mortgagee shall be treated as
having assumed the Landlord's obligations hereunder only upon foreclosure of
such Mortgagee's Mortgage and the taking of possession of the Demised
Premises after having given notice of its intention to succeed to the
interest of the Landlord under this Lease.
27.6 NOTICE OF LEASE. Neither party shall record this Lease in any
Registry of Deeds or Registry District, provided however that either party
shall at the request of the other, execute and deliver a recordable Notice of
this Lease in the form prescribed by Chapter 183, Section 4 of the
Massachusetts General Laws.
27.7 SECURITY DEPOSIT. Landlord acknowledges receipt from Tenant of a
deposit in the amount of $16,764.34 to be held by Landlord during the Term of
this Lease as security for the full, faithful and punctual performance by
Tenant of all the covenants of this Lease on Tenant's part to be performed,
it being understood that said deposit is not to be considered prepaid rent,
nor shall damages be limited to the amount of said deposit, nor shall
Landlord be required, because of said deposit, to waive its right under
Article 19 to terminate this Lease in the event of default. Said deposit
shall be refunded to Tenant, without interest, subject to any deductions
necessary on account of Tenant's failure to satisfactorily comply with its
covenants hereunder, following the fifth (5th) anniversary of the Term
Commencement Date, so long as Tenant has not prior thereto been in default
hereunder beyond the applicable grace or cure period, or otherwise following
the termination of the Term of this Lease.
27.8 PARKING. So long as this Lease remains in full force and
effect, Landlord shall allocate to Tenant three (3) unreserved parking spaces
in the garage owned by Landlord at 17 Farnsworth Street, Boston,
Massachusetts. Tenant shall comply
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with all regulations imposed by Landlord or the operator of any parking
facility used by Tenant hereunder, including without limitation payment of
such fees (currently $170 per space on a monthly basis) as may be generally
applicable from time to time. To the fullest extent permitted by law,
Landlord shall have no responsibility for securing any such parking facility,
nor shall Landlord be liable for any theft, injury or damage occurring
therein.
27.9 EXTERIOR FACILITIES. Landlord will allow Tenant, at Tenant's sole
cost and expense, to the extent permitted by law, and subject in all respects
to the provisions of this Lease, to install, maintain and connect to the
Demised Premises (a) an emergency electrical generator to be placed in the
location shown on Exhibit F attached hereto and made a part hereof and
connected to the Demised Premises through a separate electrical riser
extending from said generator to the electrical room on the first floor of
the Building and thence vertically within the Building's electrical closets
and (b) various heating, ventilating and air conditioning units to be placed
in locations acceptable to Landlord on the roof of the Building and connected
therefrom through said roof to the Demised Premises (said generator and units
being hereinafter collectively referred to as the "Facilities"). All terms
and conditions of this Lease governing alterations, installations, additions
and improvements within the Demised Premises shall be deemed to apply to the
Facilities (including for purposes hereof all equipment related thereto).
Without limiting the generality of the foregoing, (a) Tenant shall keep the
Facilities in good order and condition and make all repairs and replacements
to the Building as may be necessitated in whole or in part by the
installation, maintenance or operation thereof; (b) Tenant shall comply with
all laws, rules, orders, regulations and directions imposed by law with
respect to the Facilities; (c) Landlord shall have the right to approve the
exact design, size, materials and method of installation of the Facilities
(which approval shall not be unreasonably withheld or delayed); (d) Tenant
shall remove the Facilities at the end of the Term of this Lease and repair
any damage to the Property arising from such removal; and (e) Tenant shall
purchase the energy required for operation of the Facilities.
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IN WITNESS WHEREOF, Landlord and Tenant have caused this instrument to
be executed under seal, all as of the day and year first above written.
LANDLORD:
BOSTON WHARF CO.
By
--------------------------------------------
On behalf of P & O Properties Boston Inc. and
Summer St. Properties Inc., its sole General
Partners
TENANT:
INVESTMENT TECHNOLOGY GROUP, INC.
By
--------------------------------------------
Its
-------------------------------------------
(duly-authorized) title
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EXHIBIT A
[PLAN OF DEMISED PREMISES]
EXHIBIT B
SCHEDULE OF CLEANING SERVICES
NIGHTLY
Empty wastebaskets and replace plastic liners as needed (liners to be paid
for by tenant).
Empty and damp wipe ashtrays.
Dust furniture and fixtures, office equipment, ledges, windowsills,
telephones and bookshelves.
Spot clean walls around door frames and light switches. Clean and sanitize
drinking fountains. Damp wipe desk and table tops.
Vacuum carpeting.
Spot clean carpeting.
Dry mop composition floors using chemically treated dry mops.
Spot mop composition floors.
Vacuum and/or sweep and dust stairways.
LOBBY
Damp wipe elevator doors and walls.
Dust elevator doors and walls.
Clean elevator tracks.
Vacuum elevator rugs.
Wash entrance door glass.
CAFETERIA
Wash table tops in cafeteria.
Wipe down chairs in cafeteria.
COMPUTER ROOM
Special care in cleaning of computer room.
LAVATORIES
Wash and disinfect sinks, commodes and urinals. Wash and polish mirrors and
bright work. Empty receptacles and remove to central area. Dust partitions,
dispensers and receptacles.
Replenish toilet tissue, paper towel and hand soap dispensers (supplies to be
furnished by Landlord).
Sweep, wash and disinfect floors.
Wash and polish all marble.
WEEKLY
Dust bottoms of chairs, typewriter tables, etc.
Remove fingerprints and smudges from doors, door frames, and partitions.
Wash composition floors.
Spray buff composition floors.
Wash stairs.
MONTHLY
Dust venetian blinds.
Wash and redress composition floors.
QUARTERLY
Dust ceiling diffusers.
Machine strip and refinish composition floors.
WINDOW CLEANING
Wash and clean interior and exterior windows including all metal mullions and
sashes, which shall be wiped clean during the window cleaning operation once
every three (3) months.
EXHIBIT C
RULES AND REGULATIONS
.1. The sidewalks, entrances, passages, courts, elevators, vestibules,
stairways, corridors or halls of the Building shall not be obstructed or
encumbered or used for any purpose other than ingress and egress to and from
the premises demised to any tenant or occupant.
.2. No awnings or other projections shall be attached to the outside
walls or windows of the Building without the prior consent of Landlord. No
curtains, blinds, shades, or screens shall be attached or hung in, or used in
connection with, any window or door of the premises demised to any tenant or
occupant, without the prior consent of Landlord. Such awnings, projections,
curtains, blinds, shades, screens, or other fixtures must be of a quality
type, design and color, and attached in a manner, approved by Landlord.
.3. No sign, advertisement, object, notice or other lettering shall be
exhibited, inscribed, painted or affixed on any part of the outside or inside
of the premises demised to any tenant or occupant or of the Building without
the prior consent of Landlord. Interior signs on doors and directory tables,
if any, shall be of a size, color and style approved by Landlord.
.4. The sashes, sash doors, skylights, windows, and doors that reflect
or admit light and air into the halls, passageways or other public places in
the Building shall not be covered or obstructed, nor shall any bottles,
parcels, or other articles be placed on any window sills.
.5. No show cases or other articles shall be put in front of or affixed
to any part of the exterior of the Building, nor placed in the halls,
corridors, vestibules or other parts of the Building.
.6. The water and wash closets and other plumbing fixtures shall not be
used for any purposes other than those for which they were constructed, and
no sweepings, rubbish, rags, or other substances shall be thrown therein.
.7. No tenant or occupant shall mark, paint, drill into, or in any way
deface any part of the Building or the premises demised to such tenant or
occupant. No boring, cutting or stringing of wires shall be permitted,
except with the prior consent of the Landlord, and as Landlord may direct.
No tenant or occupant shall install any carpeting in the premises demised to
such tenant or occupant except in manner approved by Landlord and in
accordance with the following minimum specifications:
Padding - 40 ounces in weight per square yard
Carpeting - 25 ounces in face weight per square yard
.8. No bicycles, vehicles or animals of any kind shall be brought into
or kept in or about the premises demised to any tenant. Bicycles may be
stored in racks, if any, furnished for such purpose by Landlord in a common
area of the Property. No cooking shall be done or permitted in the Building
by any tenant without the approval of Landlord. No tenant shall cause or
permit any unusual or objectionable odors to emanate from the premises
demised to such tenant.
.9. Without the prior consent of Landlord, no space in the Building
shall be used for manufacturing, or for the sale of merchandise, goods or
property of any kind at auction.
.10. No tenant shall make, or permit to be made, any unseemly or
disturbing noises or disturb or interfere with other tenants or occupants of
the Building or neighboring buildings or premises whether by the use of any
musical instrument, radio, television set or other audio device, unmusical
noise, whistling, singing, or in any other way. Nothing shall be thrown out
of any doors or windows.
.11. Each tenant must, upon the termination of its tenancy, restore to
Landlord all keys of stores, storage areas, offices and toilet rooms, either
furnished to, or otherwise procured by, such tenant.
.12. All removals from the Building, or the carrying in or out of the
Building or the premises demised to any tenant, of any safes, freight,
furniture, or bulky matter of any description must take place at such time
and in such manner as Landlord or its agents may determine, from time to
time. Landlord reserves the right to inspect all freight to be brought into
the Building and to exclude from the Building all freight which violates any
of the Building Rules or the provisions of such tenant's lease.
.13. No tenant shall use or occupy, or permit any portion of the
premises demised to such tenant to be used or occupied, as an office for a
public stenographer or typist, or as a barber or manicure shop, or as an
employment bureau. No tenant or occupant shall engage or pay any employees
in the Building, except those actually working for such tenant or occupant in
the Building, nor advertise for laborers giving an address at the Building.
.14. No tenant or occupant shall purchase spring water, ice, food,
beverage, lighting maintenance, cleaning towels or other like service, from
any company or person not approved by Landlord, such approval not
unreasonably to be withheld.
.15. Landlord shall have the right to prohibit any advertising by any
tenant or occupant which, in Landlord's opinion, tends to impair the
reputation of the Building or its
desirability as a building for offices, and upon notice from Landlord, such
tenant or occupant shall refrain from or discontinue such advertising.
.16. Landlord reserves the right to exclude from the Building, between
the hours of 6:00 p.m. and 8:00 a.m. on Business Days and otherwise at all
hours, all unauthorized persons.
.17. Each tenant, before closing and leaving the premises demised to
such tenant at any time, shall see that all entrance doors are locked and
windows closed.
.18. No premises shall be used, or permitted to be used, for lodging or
sleeping, or for any immoral or illegal purpose.
.19. There shall not be used in the Building, either by any tenant or
occupant or by their agents or contractors, in the delivery or receipt of
merchandise, freight or other matter, any hand trucks or other means of
conveyance except those equipped with rubber tires, rubber side guards and
such other safeguards as Landlord may require.
.20. Canvassing, soliciting and peddling in the Building are prohibited
and each tenant and occupant shall cooperate in seeking their prevention.
.21. If the premises demised to any tenant become infested with vermin,
such tenant, at its sole cost and expense, shall cause its premises to be
exterminated from time to time, to the satisfaction of Landlord, and shall
employ such exterminators therefor as shall be approved by Landlord.
.22. No tenant shall move, or permit to be moved, into or out of the
Building or the premises demised to such tenant, any heavy or bulky matter,
without the specific approval of Landlord. If any such matter requires
special handling, only a person holding a Master Rigger's license shall be
employed to perform such special handling. No tenant shall place, or permit
to be placed, on any part of the floor or floors of the premises demised to
such tenant, a load exceeding the floor load per square foot which such floor
was designed to carry and which is allowed by law. Landlord reserves the
right to prescribe the weight and position of safes and other heavy matter,
which must be placed so as to distribute the weight. Whenever any passenger
elevator is used for the transport of freight, protective padding furnished
by Landlord shall be attached to the side and rear walls of said elevator
during such use.
.23. The requirements of tenants will be attended to only upon
application at the office of the building. Building employees shall not be
required to perform, and shall not be
requested by any tenant or occupant to perform, any work outside of their
regular duties, unless under specific instructions from the office of the
managing agent of the building.
.24. The possession of any lighted cigarette, cigar, pipe or other
smoking articles shall be prohibited throughout the Building and the
sidewalks adjoining the Building.
EXHIBIT D
APPROVED CONTRACTORS
EXHIBIT E
PLANS AND SPECIFICATIONS FOR TENANT'S INITIAL WORK
EXHIBIT F
PLAN SHOWING GENERATOR LOCATION