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EXHIBIT 10.1
COPLEY PLACE
BOSTON, MASSACHUSETTS
OFFICE LEASE
to
DIGITAS LLC
FROM THE OFFICE OF:
Goulston & Storrs, P.C.
400 Atlantic Avenue
Boston, Massachusetts 02110-3333
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OFFICE LEASE
COPLEY PLACE
BOSTON, MASSACHUSETTS
TABLE OF CONTENTS
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1. BASIC DATA
2. HABENDUM; TERM
3. POSSESSION
4. BASE RENT
5. ADDITIONAL RENT
A. Definitions
(i) Base Year
(ii) Base Year Operating Expenses
(iii) Calendar Year
(iv) Intentionally Omitted
(v) Tenant's Proportionate Share
(vi) Taxes
(vii) Operating Expenses
B. Expense Adjustment
C. Adjustment for Services not Rendered by Landlord
6. USE OF PREMISES
7. CONDITION OF PREMISES
8. SERVICES
A. List of Services
B. Billing for Electricity
C. Interruption of Services
D. Charges for Services
E. Energy Conservation
9. REPAIRS; HAZARDOUS MATERIALS
10. ADDITIONS AND ALTERATIONS
11. COVENANT AGAINST LIENS
12. INSURANCE
A. Waiver of Subrogation
B. Coverage
C. Avoid Action Increasing Rates
13. FIRE OR CASUALTY
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14. WAIVER OF CLAIMS - INDEMNIFICATION
15. NONWAIVER
16. CONDEMNATION
17. ASSIGNMENT AND SUBLETTING
18. SURRENDER OF POSSESSION
19. HOLDING OVER
20. ESTOPPEL CERTIFICATE
21. SUBORDINATION
22. CERTAIN RIGHTS RESERVED BY LANDLORD
23. RULES AND REGULATIONS
24. LANDLORD'S REMEDIES
25. EXPENSES OF ENFORCEMENT
26. COVENANT OF QUIET ENJOYMENT
27. SECURITY DEPOSIT
28. REAL ESTATE BROKER
29. UNDERLYING LEASES
30. NOTICE TO MORTGAGEE AND GROUND LESSOR
31. ASSIGNMENT OF RENTS
32. PERSONAL PROPERTY TAXES
33. MISCELLANEOUS
A. Rights Cumulative
B. Interest
C. Terms
D. Binding Effect
E. Lease Contains All Terms
F. Delivery for Examination
G. No Air Rights
H. Modification of Lease
I. Intentionally Omitted
J. Transfer of Landlord's Interest
K. Landlord's Title
L. Prohibition Against Recording
M. Captions
N. Covenants and Conditions
O. Only Landlord/Tenant Relationship
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P. Application of Payments
Q. Definition of Landlord
R. Time of Essence
S. Governing Law
T. Partial Invalidity
U. Size of Premises
34. NOTICES
35. LIMITATION ON LANDLORD'S LIABILITY
36. LANDLORD'S DESIGNATED AGENT
37. COMMENCEMENT AND TERMINATION DATES
38. SIGNAGE
39. EXTENSION OPTION
Exhibit A. Plan of Premises
Exhibit B. Intentionally Omitted
Exhibit C. Rules and Regulations
Exhibit D. Cleaning Specifications
Exhibit E. Measurement Standards
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OFFICE LEASE
COPLEY PLACE
BOSTON, MASSACHUSETTS
THIS INSTRUMENT is an Agreement of Lease in which the Landlord and the
Tenant are the parties hereinafter named, and which relates to space in the
Office Section of Copley Place (hereinafter referred to as the "Office Section")
located at 100 Huntington Avenue, Boston, Suffolk County, Massachusetts (the
project known as Copley Place, including without limitation the hotel portions
thereof, plazas, pedestrian bridges, service areas and all other common areas,
together with all present and future easements, additions, improvements, air
rights and other rights appurtenant thereto, is hereinafter referred to as the
"Property"), subject to the covenants, terms, provisions and conditions of this
Lease. The "Office Section" means that portion of the building (the "Building")
located at the aforesaid address consisting of seven (7) levels of office area
containing approximately 845,000 square feet of rentable floor area. The
Building also contains retail shopping, restaurant, parking and other
facilities, which are not included within the Office Section. The Building does
not, however, include the hotel or residential portions of the Property or the
pedestrian bridges.
In consideration thereof, Landlord and Tenant covenant and agree as
follows:
1. BASIC DATA.
The following sets forth basic data and, where appropriate, constitutes
definitions of the terms hereinafter listed.
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Date: March 3, 2000
Landlord: COPLEY PLACE ASSOCIATES, LLC,
a Delaware limited liability company
Present Mailing Address c/o Overseas Management, Inc.
of Landlord: Two Copley Place, Suite 100
Boston, Massachusetts 02116-6502
Tenant: Digitas, LLC
Present Mailing Address The Prudential Tower
of Tenant: 800 Boylston Street
Boston, Massachusetts 02199
Commencement Date: Subject to Paragraph 37 hereof, June 1, 2000,
or the date on which Tenant takes occupancy of
the Premises or any portion thereof, whichever
is the first to occur.
Termination Date: February 28, 2002, unless sooner terminated as
provided in this Lease.
Base Rent: From June 1, 2000 through December 31, 2000,
at the rate of Eight Hundred Twenty-Four
Thousand Three Hundred Ninety and no/100
Dollars ($824,390.00) per annum, in equal
monthly installments of Sixty-Eight Thousand
Six Hundred Ninety-Nine and 17/100 Dollars
($68,699.17) (computed on the basis of $35.00
per rentable square foot per annum at 23,554
rentable square feet of space); and from
January 1, 2001 through February 28, 2002, at
the rate of Nine Hundred Forty-Two Thousand
One Hundred Sixty and no/100 Dollars
($942,160.00) per annum, in equal monthly
installments of Seventy-Eight Thousand Five
Hundred Thirteen and 33/100 Dollars
($78,513.33) (computed on the basis of $40.00
per rentable square foot per annum at 23,554
rentable square feet of space). (See Paragraph
4)
Base Year: The Calendar Year 2000.
Base Year
Operating Expenses: The amount of Operating Expenses incurred with
respect to the Base Year.
Tenant's Proportionate
Share: 2.93416% (computed on the basis of 95%
occupancy).
Use: General office purposes.
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Premises: That portion of the Office Section designated
on the plan attached hereto as Exhibit A and
commonly described as approximately 23,554
rentable square feet, consisting of a portion
of the fifth floor of Four Copley Place.
Excepted and excluded from the Premises are
the roof or ceiling, the floor and all
perimeter walls of the Premises, except the
inner surfaces thereof, but the entry doors to
the Premises are not excluded from the
Premises and are a part thereof for all
purposes; and Tenant agrees that Landlord
shall have the right to place in the Premises
(but in such manner as to reduce to a minimum
interference with Tenant's use of the
Premises) utility lines, pipes and the like,
to serve premises other than the Premises, and
to replace and maintain and repair such
utility lines, pipes and the like, in, over
and upon the Premises.
Common Areas: Those portions of the Property not leased to
any tenant, but for the benefit of the
Property and its tenants, such as landscaped
areas, malls, pedestrian walkways and bridges,
restrooms, service areas and the like.
Guarantor of Tenant's
Obligations:
Security Deposit: None
Broker: ___________________
2. HABENDUM; TERM.
To have and to hold the Premises for the term (hereinafter referred to as
the "Term") commencing on the Commencement Date and ending on the Termination
Date unless sooner terminated as provided herein, and the right to use the
Common Areas during such term in common with others entitled thereto.
3. POSSESSION.
A. The Tenant shall take possession of the Premises on the Commencement
Date and the obligation of Tenant to begin paying Rent shall commence on the
Commencement Date.
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B. If Tenant shall enter the Premises or any part thereof prior to the
Commencement Date (which Tenant may not do without Landlord's prior written
consent), such entry shall be at Tenant's sole risk and without interference to
any work then being performed in the Building by Landlord or other tenants or
occupants, and all of the covenants and conditions of this Lease shall be
binding upon the parties hereto with respect to such whole or part of the
Premises.
C. Except as set forth in Paragraph 37 hereof, the occurrence of any of
the events described in this Paragraph 3 shall not be deemed to accelerate the
Termination Date.
4. BASE RENT.
Tenant shall pay to Landlord or Landlord's agent without notice or demand
at the present mailing address of Landlord, or at such other place as Landlord
may from time to time designate in writing, in coin or currency which, at the
time of payment, is legal tender for private or public debts in the United
States of America, the Base Rent specified in Paragraph 1 hereof in the equal
monthly installments specified in Paragraph I hereof in advance on or before the
first day of each and every month during the Term, without any abatement,
counterclaim, set-off or deduction whatsoever, except as may be otherwise
specifically provided herein. If the Term commences other than on the first day
of a month or ends other than on the last day of the month, the Base Rent for
such month shall be prorated. The prorated Base Rent for the portion of the
month in which the Term commences shall be paid on the first day of the first
full month during the Term.
5. ADDITIONAL RENT.
In addition to paying the Base Rent specified in Paragraph 4 hereof,
Tenant shall pay as "Additional Rent" the amounts determined pursuant to
Sub-Paragraphs B and C,
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inclusive, of this Paragraph 5. The Base Rent and the Additional Rent are
sometimes herein collectively referred to as the "Rent". All amounts due under
this Paragraph as Additional Rent shall be payable for the same periods and in
the same manner, time and place as the Base Rent, without any abatement,
counterclaim, set-off or deduction whatsoever, except as may be otherwise
specifically provided herein. Without limitation on other obligations of Tenant
which shall survive the expiration of the Term, the obligations of Tenant to pay
the Additional Rent provided for in this Paragraph S shall survive the
expiration of the Term. For any partial Calendar Year, Tenant shall be obligated
to pay only a pro rata share of the Additional Rent, based on the number of days
of the Term falling within such Calendar Year.
A. Definitions. As used in this Paragraph 5, the terms:
(i) "Base Year" shall mean the calendar year specified in Paragraph
1 hereof.
(ii) "Base Year Operating Expenses" shall mean the sum specified in
Paragraph 1 hereof.
(iii) "Calendar Year" shall mean each calendar year in which any
part of the Term falls, through and including the year in which the Term
expires.
(iv) Intentionally omitted.
(v) "Tenant's Proportionate Share" shall mean the percentage
specified in Paragraph I hereof, being the percentage calculated by
dividing the rentable area contained in the Premises by 802,750 (being 95%
of the rentable square foot area of the Office Section), rentable area to
be determined by Landlord on a uniform basis for the tenants of the Office
Section.
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(vi) "Taxes" shall mean all real estate taxes and assessments,
special or otherwise, levied or assessed upon or with respect to the
Building or any part thereof and Common Areas which Landlord determines in
its sole judgment to be for the benefit of the Building and ad valorem
taxes for any personal property of Landlord used in connection therewith.
Should the Commonwealth of Massachusetts, or any political subdivision
thereof, or any other governmental authority having jurisdiction over the
Building, (a) impose a tax, assessment, charge or fee, which Landlord
shall be required to pay, by way of substitution for or as a supplement to
such real estate taxes and ad valorem personal property taxes, or (b)
impose an income or franchise tax or a tax on rents in substitution for or
as a supplement to a tax levied against the Building or any part thereof
and/or the personal property used in connection with the Building or any
part thereof, all such taxes, assessments, fees or charges (hereinafter
defined as "in lieu of taxes") shall be deemed to constitute Taxes
hereunder. Taxes shall also include, in the year paid, all fees and costs
incurred by Landlord in seeking to obtain a reduction of, or a limit on
the increase in, any Taxes, regardless of whether any reduction or
limitation is obtained. Except as hereinabove provided with regard to "in
lieu of taxes", Taxes shall not include any inheritance, estate,
succession, transfer, gift, franchise, net income or capital stock tax.
(vii) "Operating Expenses" shall mean (a) Taxes and (b) all
expenses, costs and disbursements of every kind and nature, paid or
incurred by Landlord in operating, owning, managing, leasing, repairing
and maintaining the Office Section, the Building, the Property and their
appurtenances as such Taxes, expenses, costs and disbursements are
reasonably, in a manner consistent with past practice, allocated to the
Office Section by the Landlord in its sole judgment or as the same are
incurred directly in the operation of Office Section, including but
without limitation: premiums for fire, casualty, liability and such other
insurance as Landlord may from time to time maintain; security expenses;
compensation and all fringe benefits, workmen's compensation insurance
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premiums and payroll taxes paid by Landlord to, for or with respect to all
persons engaged in operating, maintaining, or cleaning; steam, water,
sewer, electric, gas, telephone, and other utility charges not billed
directly to tenants by Landlord or the utility; expenses incurred in
connection with the central plant furnishing heating, ventilating and air
conditioning to the Office Section (and to the Building and the Property
where and to the extent the expenses of the Building and the Property are
otherwise allocable to the Office Section), which expenses may include a
fee paid to the operator of such central plant; costs of lighting,
ventilating, (including maintaining and repairing ventilating fans and fan
rooms) making routine repairs to and maintenance of underground roadways
(and the access ramps servicing such roadways) and railroad platforms and
railroad rights of way (including track); costs of repairing and
maintaining fire protection systems relating to the underground roadways,
access ramps, railroad platforms and railroad rights of way; costs of
building and cleaning supplies and equipment (including rental); cost of
maintenance, cleaning and repairs; cost of snow plowing or removal, or
both, and care of interior and exterior landscaping; payments to
independent contractors under contracts for cleaning, operating,
management, maintenance and repair (which payments may be to affiliates of
Landlord); all other expenses paid in connection with cleaning, operating,
management, maintenance and repair, including reasonable reserves for the
replacement of capital improvements and equipment contained in and/or used
in connection with operations; costs of any capital improvements completed
after the Base Year as reasonably amortized by Landlord, with interest on
the unamortized amount at the rate of the greater of (i) 12% per annum or
(ii) 2% per annum above the base rate of interest charged from time to
time by The First National Bank of Boston (but in no event at a rate which
is more than the highest lawful rate allowable in The Commonwealth of
Massachusetts), to the extent the cost of the particular capital
improvement exceeds the amount of the unused reserve, if any, for the
replacement thereof previously included in Operating Expenses and
insurance proceeds, if any, received by Landlord on account of damage to
the
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particular capital improvement; increases in ground rent or similar
payments, if any (determined for the applicable Calendar Year on an
accrual basis). Operating Expenses shall not, however, include the
following:
a. Costs of alterations of any tenant's premises for a particular
tenant and not for the benefit of the Office Section or any group of
tenants therein; and
b. Principal or interest payments on loans secured by mortgages or
trust deeds on the Building and/or on the Property.
If less than 95% of the Office Section's rentable area shall have
been occupied by tenant(s) at any time during any Calendar Year, Operating
Expenses shall be determined for such Calendar Year to be an amount equal
to the like expense which would normally be expected to be incurred had
such occupancy been 95% throughout such Calendar Year.
B. Expense Adjustment. Tenant shall pay to Landlord or Landlord's agent as
Additional Rent, a sum ("Expense Adjustment Amount") equal to Tenant's
Proportionate Share of the amount by which (i) Operating Expenses (subject to
adjustment pursuant to Paragraph 36C hereof) incurred with respect to each
Calendar year exceeds (ii) Base Year Operating Expenses. The Expense Adjustment
Amount with respect to each Calendar Year shall be paid in monthly installments,
in an amount estimated from time to time by Landlord and communicated by written
notice to Tenant, which estimate may be revised to reflect, without limitation,
increases in Taxes during any period. Landlord shall cause to be kept books and
records showing Operating Expenses in accordance with an appropriate system of
accounts and accounting practices consistently maintained. Following the close
of each Calendar Year, Landlord shall cause the amount of the Expense Adjustment
Amount for such Calendar Year to be computed based on Operating Expenses for
such Calendar Year and Landlord shall deliver to Tenant a statement of such
amount and Tenant shall pay any deficiency to Landlord as shown by such
statement
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within thirty (30) days after receipt of such statement. If the total of the
estimated monthly installments paid by Tenant during any Calendar Year exceed
the actual Expense Adjustment Amount due from Tenant for such Calendar Year, at
Landlord's option such excess shall be either credited against payments next due
hereunder or refunded by Landlord, provided Tenant is not then in default
hereunder. Delay in computation of the Expense Adjustment Amount or failure to
deliver a statement of such amount shall not be deemed a default hereunder or a
waiver of Landlord's right to collect the Expense Adjustment Amount, but Tenant
shall have no obligation to make a payment of the Expense Adjustment Amount for
a particular year until Landlord shall have delivered the statement with respect
to such year. In computing the Expense Adjustment Amount, the following
provisions relating to Taxes shall be applicable: The amount of any refund of
Taxes received by Landlord shall be credited against Taxes for the Calendar Year
in which such refund is received; provided, however, that in the event Landlord
receives a refund of Taxes after the termination date (as the same may be
accelerated or extended as provided elsewhere in this Lease) which refund
relates to a Calendar Year during the Term hereof, the amount of such refund
fairly allocable to Tenant shall be refunded to Tenant by Landlord (net of
Tenant's allocated share of the cost of obtaining such refund and the cost, if
any, of making such refund); and further provided that if Tenant expands into
space formerly occupied by other tenants, which expansion space becomes subject
to this Lease, Tenant shall not be entitled to any refund or credit in
connection with a refund or abatement of Taxes for periods prior to Tenant's
occupancy of such expansion space. All references to Taxes "for" a particular
Calendar Year shall be deemed to refer to Taxes due and payable during such
Calendar Year without regard to when such Taxes are assessed or levied.
C. Adjustment For Services Not Rendered by Landlord. Tenant acknowledges
that if after the Base Year Landlord is not furnishing any particular work or
service the cost of which was included in Base Year Operating Expenses and if
performed by Landlord would be included in Operating Expenses, to any tenant who
has undertaken to perform such work or service in lieu of the performance
thereof by
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Landlord, Operating Expenses shall be deemed for the purpose of determining the
Expense Adjustment Amount to be increased by an amount equal to the additional
Operating Expenses which would reasonably have been incurred during such period
by Landlord if it had at its own expense furnished such work or service to such
tenant.
6. USE OF PREMISES.
Tenant shall use and occupy the Premises in accordance with law; and
solely as an office for the type of business specified in Paragraph 1 hereof and
for no other purpose or purposes.
7. CONDITION OF PREMISES.
The Premises are demised to Tenant and Tenant accepts the same "as-is,
where-is". Tenant's taking possession of any portion of the Premises shall be
conclusive evidence that such portion of the Premises was in good order and
satisfactory condition when Tenant took possession excluding items of damage
caused by Tenant or its agents, independent contractors or suppliers. No promise
of Landlord to alter, remodel or improve the Premises, the Office Section or the
Building and no representation by Landlord or its agents respecting the
condition of the Premises, the Office Section or the Building have been made to
Tenant or relied upon by Tenant other than as may be contained in this Lease or
in any written amendment hereto signed by Landlord and Tenant.
8. SERVICES.
A. List of Services.
Landlord shall provide the following services, the costs of which are
included within Operating Expenses, on all days during the Term, except Sundays
and holidays,
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unless otherwise stated, and subject to all governmental rules, regulations and
guidelines applicable thereto:
(i) Heating and air conditioning in the Premises during the normal
heating and air conditioning seasons, from Monday through Friday, during
the period from 8 a.m. to 6 p.m. and on Saturday during the period from 8
a.m. to 1 p.m. Tenant will pay for all heating and air conditioning
requested and furnished prior to or following such hours at rates to be
established from time to time by Landlord. Currently, after-hours HVAC is
available at a rate of $45.00 per hour per floor. Requests for any
additional services shall be in writing and delivered to Landlord not
later than 2 p.m. of the previous day.
(ii) Adequate electrical wiring and facilities for standard building
lighting fixtures provided by Landlord and for Tenant's incidental uses
(it being understood that Tenant is to bear the cost of replacement of all
lamps, tubes, ballasts and starters for lighting fixtures in the
Premises); provided that (a) the connected electrical load for lighting
and incidental use equipment does not exceed an average of three watts per
square foot of the Premises; (b) the electricity so furnished for
incidental uses will be at a nominal 120 volts and no electrical circuit
for the supply of such incidental use will have a current capacity
exceeding 20 amperes; and (c) such electricity will be used only for
equipment and accessories normal to office usage. If Tenant's requirements
for electricity for lighting and incidental uses are in excess of those
set forth in the preceding sentence, Landlord reserves the right to
require Tenant to install the conduit, wiring and other equipment
necessary to supply electricity for such excess incidental use
requirements at Tenant's expense.
(iii) City water from the regular Building outlets for drinking,
lavatory and toilet purposes.
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(iv) Janitorial services as delineated in Exhibit D attached hereto.
(v) Window washing of the inside and outside of windows in the
Building's perimeter walls as may be situated in the Premises as
delineated in Exhibit D attached hereto.
(vi) Non-exclusive automatic passenger elevator service at all
times.
(vii) Non-exclusive freight elevator service subject to scheduling
by Landlord.
B. Billing for Electricity.
Landlord shall submeter Tenant's use of all electrical service to the
Premises (other than the electrical service necessary for Landlord to fulfill
its obligation to provide heating and air conditioning as provided in Paragraph
8A(i) hereof) or shall determine such usage through an Intellimeter or similar
device. Tenant shall pay Landlord as further Additional Rent, in monthly
installments at the time prescribed for monthly installments, the cost of such
electrical usage. Tenant's obligation for electricity usage by Tenant during the
Term shall survive the termination of this Lease and/or Tenant's right to
occupancy of all or any part of the Premises.
C. Interruption of Services.
Tenant agrees that except as provided in this Subparagraph C, Landlord
shall not be liable in damages, by abatement of Rent or otherwise, for failure
to furnish or delay in furnishing any service, or for any diminution in the
quality or quantity thereof, when such failure or delay or diminution is
occasioned, in whole or in part, by repairs, renewals, or improvements, by any
strike, lockout or other labor trouble, by inability to secure electricity, gas,
water, or other fuel at the Building after reasonable effort so to do, by any
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accident or casualty whatsoever, by act or default of Tenant or other parties,
or by any other cause beyond Landlord's reasonable control; and such failures or
delays or diminution shall in any such event not be deemed to constitute an
eviction or disturbance of Tenant's use and possession of the Premises or
relieve Tenant from paying Rent or performing any of its obligations under this
Lease. Notwithstanding anything in this Lease to the contrary, if as a result of
a cessation limited to utilities or interruption of utilities or access which
Landlord is required to provide hereunder for any reason other than (i) reasons
arising as a result of negligence, willful misconduct on the part of Tenant or
any of Tenant's contractors, agents or employees or breach of this Lease by
Tenant, (ii) reasons arising out of Tenant's use and occupancy of the Premises,
(iii) any other reason within the reasonable control of Tenant, Tenant is unable
to use all or a portion of the Premises for its business purposes for a period
of seven (7) consecutive days, the Base Rent and Additional Rent relating to
periods subsequent to such seven (7) day period and thereafter due hereunder
shall abate until Tenant is again able to use such portion of the Premises for
its business purposes.
D. Charges for Services.
Charges for any service for which Tenant is required to pay, from time to
time hereunder, including but not limited to hoisting services or after hours
lighting, heating or air conditioning shall be due and payable at the same time
as the installment of Rent with which they are billed, or if billed separately,
shall be due and payable as further Additional Rent within thirty (30) days
after such billing.
E. Energy Conservation.
Notwithstanding anything to the contrary in this Paragraph 8 or elsewhere
in this Lease, Landlord shall have the right to institute such policies,
programs and measures as may be necessary or desirable, in Landlord's reasonable
discretion, for the conservation and/or preservation of energy or energy related
services if consistent with similar
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programs instituted generally in first-class office buildings in Boston, or as
may be required to comply with any applicable codes, rules and regulations,
whether mandatory or voluntary.
9. REPAIRS; HAZARDOUS MATERIALS.
Tenant will, at Tenant's own expense, keep the Premises, including all
improvements, fixtures and furnishings therein, in good order, repair and
condition at all times during the Term, and Tenant shall promptly and adequately
repair all damage to the Premises and replace or repair all damaged or broken
glass, fixtures and appurtenances, under the supervision and subject to the
reasonable approval of Landlord, and within any reasonable period of time
specified by Landlord. If Tenant does not do so, Landlord may, but shall not be
obligated to, make such repairs and replacements, and Tenant shall pay Landlord
the cost thereof, including a percentage of the cost thereof (to be uniformly
established for the Office Section) sufficient to reimburse Landlord for all
overhead, general conditions, fees and other costs or expenses arising from
Landlord's involvement with such repairs and replacements forthwith upon being
billed for same. Landlord may, but shall not be required to, enter the Premises
at all reasonable times upon reasonable advance notice (and at any time in
emergency situations) to make such repairs, alterations, improvements and
additions to the Premises, to the Office Section or the Building or to any
equipment located in the Office Section or the Building as Landlord shall desire
or deem necessary or as Landlord may be required to do by governmental authority
or court order or decree.
Tenant shall not (either with or without negligence) cause or permit the
escape, disposal or release of any biologically or chemically active or
hazardous substances, or materials (collectively the "Hazardous Materials").
Tenant shall not allow the storage or use of Hazardous Materials in any manner
not sanctioned by law or by the highest standards prevailing in the industry for
the storage and use of such Hazardous Materials, nor allow to be brought into
the Building any Hazardous Materials except to use in the
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ordinary course of Tenant's business, and then only after written notice is
given to Landlord of the identity of Hazardous Materials. Without limitation,
Hazardous Materials shall include those described in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended, 42
U.S.C. Section 9601 et seq., the Resource Conservation and Recovery Act, as
amended, 42 U.S.C. Section 6901 et seq., any applicable state or local laws and
the regulations adopted under these acts. If any lender or governmental agency
shall ever require testing to ascertain whether or not there has been any
release of Hazardous Materials, then the reasonable costs thereof shall be
reimbursed by Tenant to Landlord upon demand as additional charges if such
requirement applies to the Premises. In addition, Tenant shall execute
affidavits, representations and the like from time to time at Landlord's
reasonable request concerning Tenant's best knowledge and belief regarding the
presence of Hazardous Materials on the Premises. In all events, Tenant shall
indemnify Landlord in the manner elsewhere provided in this Lease from any
release of Hazardous Materials on the Premises occurring while Tenant is in
possession or elsewhere if caused by Tenant or persons acting under Tenant.
Landlord shall indemnify Tenant against loss cost and damage to the Premises
(incurred by Tenant) resulting from any release by Landlord or employees or
persons acting as agents of Landlord (but not its contractors, other tenants or
third parties) of Hazardous Materials and such indemnification shall not be
included in Operating Costs in which Tenant is to share. The within covenants
shall survive the expiration or earlier termination of the Term.
10. ADDITIONS AND ALTERATIONS.
A. Tenant shall not, without the prior written consent of Landlord, make
any alterations, improvements or additions to the Premises; provided, however,
Landlord's consent shall not be required with respect to nonstructural
alterations, improvements or additions below finished ceilings costing less than
$5,000 to implement. Landlord hereby consents on the understanding that the
applicable provisions of this Lease shall be complied with, to the installation
of telephone and data lines by Tenant above the finished
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ceiling of the Premises provided Tenant uses reputable, qualified line
installers for the purpose of such installation and obtains any and all
permits required in connection with such installation prior to such
installation. Tenant shall in all events provide notice to Landlord prior to
commencing any alterations, improvements or additions (with a summary
description of the work to be done and a statement, pursuant to Paragraph 9,
describing any Hazardous Materials to be brought into the Building in
connection with the work) whether or not consent is required. If Landlord
consents to said alterations, improvements or additions, it may impose such
conditions with respect thereto as Landlord deems appropriate, including,
without limitation, requiring Tenant to furnish Landlord with security for
the payment of all costs to be incurred in connection with such work,
insurance against liabilities which may arise out of such work, and plans and
specifications plus permits necessary for such work, requiring Tenant to
perform such work at times designated by Landlord. The work necessary to make
any alterations, improvements or additions to the Premises, whether prior to
or subsequent to the Commencement Date, shall be done at Tenant's expense by
employees of or contractors hired by Landlord except to the extent Landlord
gives its prior written consent to Tenant's hiring its own contractors. It is
understood that Landlord's consent to the hiring by Tenant of Tenant's own
contractors may be withheld if Landlord's permitting such hiring might
reasonably be expected to adversely affect other construction in the Building
or might reasonably be expected to result in an interruption of services
provided to tenants of the Building. Tenant shall promptly pay to Landlord or
Tenant's contractors, as the case may be, when due, the cost of all such work
and of all decorating required by reason thereof. Tenant shall also pay to
Landlord a percentage of the cost of such work (such percentage to be
established on a uniform basis for the Office Section) sufficient to
reimburse Landlord for all overhead, general conditions, fees and other costs
and expenses arising from Landlord's involvement with such work. In
connection with seeking Landlord's approval, Tenant shall provide to Landlord
plans and specifications regarding proposed alterations, additions or
improvements, as Landlord shall reasonably require, and Tenant shall, in
addition to all other expenses which Tenant is obligated to pay to Landlord
hereunder, pay to Landlord the expense reasonably incurred by Landlord
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in connection with the review of such information. Upon completion of such work
Tenant shall deliver to Landlord, if payment is made directly to contractors,
evidence of payment, contractors' affidavits and full and final waivers of all
liens for labor, services or materials, all in form reasonably satisfactory to
Landlord. Tenant shall defend and hold Landlord, Landlord's lessor, any
mortgagee, the MTA (hereinafter defined), the Property and the Building harmless
from all costs, damages, liens and expenses related to such work. All work done
by Tenant or its contractors pursuant to Paragraphs 9 or 10 shall be done in a
first-class workmanlike manner using only good grades of materials and shall
comply with all insurance requirements and all applicable laws and ordinances
and rules and regulations of governmental departments or agencies.
B. All alterations, improvements and additions to the Premises, whether
temporary or permanent in character, made or paid for by Landlord or Tenant,
shall without compensation to Tenant become Landlord's property at the
termination of this Lease by lapse of time or otherwise and shall, unless
Landlord requests their removal (in which case Tenant shall remove the same as
provided in Paragraph 18), be relinquished to Landlord in good condition,
ordinary wear excepted.
Tenant may install, maintain, replace, remove or use any communications or
computer wires, cables and related devices (collectively the "Lines") at the
Property in or serving the Premises, provided: (a) Tenant shall obtain
Landlord's prior written consent (which shall not be unreasonably withheld or
delayed), use an experienced and qualified contractor approved in writing by
Landlord, and comply with all of the other provisions of Paragraph 10A, (b) any
such installation, maintenance, replacement, removal or use shall not interfere
with the use of any then existing Lines at the Building, (c) an acceptable
number of spare Lines and space for additional Lines shall be maintained for
existing and future occupants of the Building, as determined in Landlord's
reasonable opinion, (d) if Tenant at any time uses any equipment that may create
an electromagnetic field exceeding the normal insulation ratings or ordinary
twisted pair riser cable or cause radiation higher than normal background
radiation, the Lines therefor (including riser
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cables) shall be appropriately insulated to prevent such excessive
electromagnetic fields or radiation, (e) as a condition to permitting the
installation of new Lines, Landlord may require that Tenant remove existing
Lines located in or serving the Premises, (f) Tenant's rights shall be subject
to the rights of any regulated telephone company, and (g) Tenant shall pay all
costs in connection therewith. Landlord reserves the right to require that
Tenant remove any Lines located in or serving the Premises which are installed
in violation of these provisions, or which are at any time in violation of any
laws, ordinances, rules or regulations or represent a dangerous or potentially
dangerous condition (whether such Lines were installed by Tenant or any other
party), within three (3) days after written notice.
Landlord may (but shall not have the obligation to): (i) install new Lines
at the Building, (ii) create additional space for Lines at the Property, and
(iii) reasonably direct, monitor and/or supervise the installation, maintenance,
replacement and removal of, the allocation and periodic re-allocation of
available space (if any) for, and the allocation of excess capacity (if any) on,
any Lines now or hereafter installed at the Building by Landlord, Tenant or any
other party (but Landlord shall have no right to monitor or control the
information transmitted through such Lines). Such rights shall not be in
limitation of other rights that may be available to Landlord by law or
otherwise. If Landlord exercises any such rights, Landlord may charge Tenant for
the costs attributable to Tenant, or may include those costs and all other costs
in Operating Expenses under Paragraph 5A(vii) (including without limitation,
costs for acquiring and installing Lines and risers to accommodate new Lines and
spare Lines, any associated computerized system and software for maintaining
records of Line connections, and the fees of any consulting engineers and other
experts); provided, any capital expenditures included in Operating Expenses
hereunder shall be amortized (together with reasonable finance charges) as
provided in Paragraph 5A(vii).
Notwithstanding anything to the contrary in this Lease, Landlord reserves
the right to require that Tenant remove any or all Lines installed by or for
Tenant within or
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serving the Premises upon termination of this Lease, provided Landlord notifies
Tenant prior to or within thirty (30) days following such termination. Any Lines
not required to be removed pursuant to this Article shall, at Landlord's option,
become the property of Landlord (without payment by Landlord). If Tenant fails
to remove such Lines as required by Landlord, or violates any other provision of
this Paragraph, Landlord may, after twenty (20) days' written notice to Tenant,
remove such Lines or remedy such other violation, at Tenant's expense (without
limiting Landlord's other remedies available under this Lease or applicable
Law). Tenant shall not, without the prior written consent of Landlord in each
instance, grant to any third party a security interest or lien in or on the
Lines, and any such security interest or lien granted without Landlord's written
consent shall be null and void. Except to the extent arising from the
intentional or negligent acts of Landlord or Landlord's agents or employees,
Landlord shall have no liability for damages arising from, and Landlord does not
warrant that the Tenant's use of any Lines will be free from the following
(collectively called "Line Problems"): (x) any eavesdropping or wire-tapping by
unauthorized parties, (y) any failure of any Lines to satisfy Tenant's
requirements, or (z) any shortages, failures, variations, interruptions,
disconnections, loss or damage caused by the installation, maintenance,
replacement, use or removal of Lines by or for other tenants or occupants at the
Building, by any failure of the environmental conditions or the power supply for
the Building to conform to any requirements for the Lines or any associated
equipment, or any other problems associated with any Lines by any other cause.
Under no circumstances shall any Line Problems be deemed an actual or
constructive eviction of Tenant, render Landlord liable to Tenant for abatement
of Rent, or relieve Tenant from performance of Tenant's obligations under this
Lease. Landlord in no event shall be liable for damages by reason of loss of
profits, business interruption or other consequential damage arising from any
Line Problems.
11. COVENANT AGAINST LIENS.
Tenant has no authority or power to cause or permit any lien or
encumbrance of any kind whatsoever, whether created by act of Tenant, operation
of law or otherwise, to
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attach to or be placed upon the Property, the Building or the Premises, or to
affect any estate or interest of Landlord, Landlord's lessor, any mortgagee or
the MTA. Tenant covenants and agrees not to suffer or permit any lien of
mechanics, materialmen or others to be placed against the Property, the Building
or the Premises, or to affect any estate or interest of Landlord, Landlord's
lessor, any mortgagee or the MTA, with respect to work or services claimed to
have been performed for or materials claimed to have been furnished to Tenant or
the Premises, and, in case of any such lien attaching or notice of any lien, or
claim therefor being asserted, Tenant covenants and agrees to cause same to be
immediately released and removed of record. In the event that such lien is not
immediately released and removed, Landlord, at its sole option, may take all
action necessary to release and remove such lien (without any duty to
investigate the validity thereof) and Tenant shall promptly upon notice
reimburse Landlord for all sums, costs and expenses (including reasonable
attorneys' fees) incurred by Landlord in connection therewith.
12. INSURANCE.
A. Waiver of Subrogation.
Landlord and Tenant each hereby waive any and every claim for recovery
from the other for any and all loss of or damage to the Building or the Premises
or to the contents thereof, which loss or damage is covered by valid and
collectible physical damage insurance policies, to the extent that such loss or
damage is recoverable under said insurance policies. Inasmuch as this mutual
waiver will preclude the assignment of any such claim by subrogation (or
otherwise) to an insurance company (or any other person), Landlord and Tenant
each agree to give to each insurance company which has issued, or in the future
may issue, to it policies of physical damage insurance, written notice of the
terms of this mutual waiver, and to have said insurance policies properly
endorsed, if necessary, to prevent the invalidation of said insurance coverage
by reason of
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said waiver. Tenant's waiver of subrogation as hereinabove set forth shall also
run to the benefit of and extend to Landlord's lessor and the MTA.
B. Coverage.
Tenant shall purchase and maintain insurance during the entire Term for
the benefit of Tenant, Landlord, Landlord's lessor, any mortgagee and the MTA
(as their respective interests may appear) with terms, coverages and in
companies reasonably satisfactory to Landlord, and with such reasonable
increases in limits as Landlord may from time to time request, but initially
Tenant shall maintain the following coverages in the following amounts:
(i) Commercial General Liability Insurance covering Tenant,
Landlord, Landlord's lessor, the MTA and Landlord's management agent for
claims of bodily injury, personal injury and property damage arising out
of Tenant's operations, assumed liabilities or use of the Premises, for
limits of liability not less than:
Bodily Injury and Property $3,000,000 each occurrence
Damage Liability $3,000,000 annual aggregate
Personal Injury Liability $3,000,000 annual aggregate
0% Insured's participation
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(ii) In the event Tenant uses automobiles in its operations,
Comprehensive Automobile Insurance covering all owned, non-owned and hired
automobiles of Tenant so used including the loading and unloading of any
automobile with limits of liability not less than:
Bodily Injury and Property $3,000,000 each person
Damage Liability $3,000,000 each accident
(iii) Physical Damage Insurance covering all additions, improvements
and alterations to the Premises which are beyond the building standard
tenant improvements provided by Landlord and all office furniture, trade
fixtures, office equipment, merchandise and all other items of Tenant's
property on the Premises. Such insurance shall be written on an "all
risks" of physical loss or damage basis, for the full replacement cost
value of the covered items and in amounts that meet any coinsurance
clauses of the policies of insurance.
Tenant shall, prior to the commencement of the Term, furnish to Landlord
certificates evidencing such coverage, on ACORD Form 27, which
certificates shall state that such insurance coverage may not be changed
or canceled without at least thirty (30) days' prior written notice to
Landlord and Tenant and shall name Landlord and Landlord's management
agent as additional insureds.
C. Avoid Action Increasing Rates.
Tenant shall comply with all applicable laws and ordinances, all orders
and decrees of court and all requirements of other governmental authorities
having jurisdiction over the Building and of the applicable rating bureau, and
shall not, directly or indirectly, make any use of the Premises which may
thereby be prohibited or be dangerous to person or property or which may
jeopardize any insurance coverage or may increase the cost of insurance or
require additional insurance coverage. If by reason of
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the failure of Tenant to comply with the provisions of this Paragraph 12C, (i)
any insurance coverage is jeopardized Landlord may, in addition to all other
remedies which may be available to Landlord, terminate this Lease or (ii)
insurance premiums are increased, Landlord shall have the option either to
terminate this Lease or to require Tenant to make immediate payment of the
increased insurance premium.
13. FIRE OR CASUALTY.
A. If the Premises or the "Critical Common Areas" (hereinafter defined)
shall be damaged by fire or casualty, Landlord shall within sixty (60) days of
the date of such damage, provide Tenant with Landlord's good faith estimate of
the date as of which Landlord will be able substantially to complete restoration
of the Premises and such common areas. Landlord shall not be obligated to
restore any portion of the Office Section or the Building outside of the
Premises other than access and egress to the Building, the Building lobby
servicing the Premises, elevator access to the Premises, and Building Systems
servicing such areas and the Premises (collectively, the "Critical Common
Areas"). In the event the date of substantial completion is estimated at not
more than two hundred seventy (270) days after the date of such damage, subject
to Paragraph 13B, below, Landlord shall promptly and diligently, restore the
Premises and the Critical Common Areas and this Lease shall continue in full
force and effect. Such restoration shall be to substantially the same conditions
of the Premises and quality of such common areas as existed prior to the
casualty; except for modifications required by zoning and building codes and
other laws, or by the holder of a mortgage on the Building, or any other
modifications to such common areas deemed desirable by Landlord, except that
Landlord shall not be required to repair or replace any of Tenant's furniture,
furnishings, fixtures or equipment or any modification made to the Premises
after the Commencement Date. Landlord shall not be liable for any inconvenience
or annoyance to Tenant or its visitors, or injury to Tenant's business resulting
in any way from such damage or the repair thereof, except that Landlord shall
allow a proportionate abatement of Rent during the time and to the extent the
Premises are unfit for occupancy for the
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purposes permitted under this Lease, and not occupied by Tenant as a result
thereof. If Landlord's estimate of the date of substantial completion is more
than two hundred seventy (270) days from the date of such damage (plus an
extension of up to ninety (90) days for events not within Landlord's control) or
if the date of substantial completion is in fact more than two hundred seventy
(270) days from the date of damage, subject to an extension of such period by an
additional ninety (90) days by reason of events not within Landlord's control,
Tenant shall have the right to terminate this Lease by notice to Landlord given
within ten (10) days of Tenant having received Landlord's estimated date of
substantial completion or, if applicable, at any time prior to such substantial
completion after the end of the construction period permitted to Landlord
hereunder; provided, however, if Landlord is, at the time Landlord receives such
notice of termination diligently pursuing substantial completion of such
completion, such termination shall not be effected unless Landlord shall not
have substantially completed such construction within fifteen (15) business days
after receipt of such termination notice from Tenant. Furthermore, if the date
estimated for substantial completion is more than two hundred seventy (270) days
from the date of damage (including time necessary to obtain permits) or would
occur less than twelve (2) months prior to the end of the Term, Landlord shall
have the right to terminate this Lease as of the date of such damage by notice
to the Tenant given within thirty (30) days of the date of delivery to Tenant of
estimated substantial completion date. Notwithstanding the foregoing, so long as
Landlord is carrying the insurance required under Paragraph 14D, in no event
shall Landlord be obligated to expend an amount in excess of the proceeds of
insurance recovered with respect to any fire or casualty.
B. In the event the Premises, the Office Section or the Building is
damaged by fire or other casualty resulting from the act or neglect of Tenant,
its agents, contractors, employees or invitees and if this Lease shall not be
terminated by Landlord as a result of such damage, Tenant shall not be released
from any of its obligations hereunder including, without limitation, its duty to
pay Rent, and Rent shall not be abated except as provided in Paragraph 13A.
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C. Notwithstanding anything to the contrary herein set forth, Landlord
shall have no duty pursuant to this Paragraph 13 to repair or restore any
portion of the alterations, additions or improvements in the Premises or the
decorations thereto except to the extent that such alterations, additions,
improvements and decorations were provided by Landlord, at Landlord's cost, at
the beginning of the Term. If Tenant desires any other or additional repairs or
restoration and if Landlord consents thereto, the same shall be done at Tenant's
sole cost and expense subject to all of the provisions of Paragraph 9 hereof.
Tenant acknowledges that if Landlord restores the Premises, Landlord shall be
entitled to the full proceeds of any insurance coverage, whether carried by
Landlord or Tenant, for damage to alterations, additions, improvements or
decorations provided by Landlord either directly or through an allowance to
Tenant.
14. WAIVER OF CLAIMS - INDEMNIFICATION.
Except for the negligence or willful acts of the Landlord, its agents,
contractors or employees and except as otherwise prohibited by law (but subject
in all events to the provisions of Paragraph 12A of this Lease), Landlord, its
partners, its managing agent, Landlord's lessor, any mortgagee, the MTA and
their respective officers, agents, servants and employees shall not be liable
for any damage either to person or property or resulting from the loss of use
thereof sustained by Tenant or by other persons due to the Building or any part
thereof or any appurtenances thereof becoming out of repair, or due to the
happening of any accident or event in or about the Office Section, the Premises
or the Building, or due to any act or neglect of any tenant or occupant of the
Office Section, the Building or of any other person or entity. This provision
shall apply particularly, but not exclusively, to damage caused by gas,
electricity, snow, frost, steam, sewage, sewer gas or odors, fire, water, noise,
vibration, fumes or by the bursting or leaking of pipes, faucets, sprinklers,
plumbing fixtures and windows, and shall apply without distinction as to the
person whose act or neglect was responsible for the damage and whether the
damage was due to any of the causes specifically enumerated above or to some
other
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cause of an entirely different kind. Tenant further agrees that all personal
property upon the Premises, or upon loading docks, receiving and holding areas,
or freight elevators of the Building shall be at the risk of Tenant only, and
that Landlord shall not be liable for any loss or damage thereto or theft
thereof. Without limitation of any other provisions hereof, Tenant agrees to
defend, protect, indemnify and save harmless Landlord, Landlord's lessor, any
mortgagee and the MTA from and against all liability to third parties which
arose (or which were claimed to have arisen) within or without the Premises
(except if the same arose out of the negligence or wilfull misconduct of
Landlord, its agents, contractors or employees) or which arose out of acts or
omissions of Tenant and its servants, agents, employees, contractors, suppliers,
workers or invitees.
15. NONWAIVER.
No waiver of any provision of this Lease shall be implied by any failure
of Landlord to enforce any remedy on account of the violation of such provision,
even if such violation be continued or repeated subsequently, and no express
waiver shall affect any provision other than the one specified in such waiver
and that one only for the time and in the manner specifically stated. No receipt
of monies by Landlord from Tenant after the termination of this Lease shall in
any way alter the length of the Term or of Tenant's right of possession
hereunder or after the giving of any notice shall reinstate, continue or extend
the Term or affect any notice given Tenant prior to the receipt of such monies,
it being agreed that after the service of notice or the commencement of a suit
or after final judgment for possession of the Premises, Landlord may receive and
collect any Rent due, and the payment of said Rent shall not waive or affect
said notice, suit or judgment.
16. CONDEMNATION.
If the Property, the Building or any portion thereof shall be taken or
condemned by any competent authority for any public or quasi-public use or
purpose (a "taking"), or
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if the configuration of any roadway, street, alley, or railroad line adjacent to
or beneath the Building is changed by any competent authority and such taking or
change in configuration makes it necessary or desirable to remodel or
reconstruct the Building or any part thereof, Landlord shall have the right,
exercisable at its sole discretion, to cancel this Lease upon not less than
ninety (90) days' notice prior to the date of cancellation designated in the
notice. No money or other consideration shall be payable by Landlord to Tenant
for the right of cancellation and Tenant shall have no right to share in the
condemnation award or in any judgment for damages caused by such taking or
change in configuration.
17. ASSIGNMENT AND SUBLETTING.
A. Tenant shall not, without the prior written consent of Landlord (which
consent may be withheld arbitrarily) (i) assign, convey or mortgage this Lease
or any interest hereunder; (ii) permit to occur or exist any assignment of this
Lease, or any lien upon Tenant's interest, voluntarily or by operation of law;
(iii) sublet the Premises or any part thereof; or (iv) permit the use of the
Premises by any parties other than Tenant and its employees. Any such action on
the part of Tenant shall be void and of no effect. Landlord's consent to any
assignment, subletting or transfer or Landlord's election to accept any
assignee, subtenant or transferee as the tenant hereunder and to collect rent
from such assignee, subtenant or transferee shall not release Tenant or any
subsequent tenant from any covenant or obligation under this Lease. Landlord's
consent to any assignment, subletting or transfer shall not constitute a waiver
of Landlord's right to withhold its consent to any future assignment,
subletting, or transfer. If Tenant is a corporation and if at any time during
the Term the person or persons who own a majority of its voting shares at the
time of the execution of this Lease cease to own a majority of such shares,
Tenant shall so notify Landlord, and Landlord may terminate this Lease by notice
to Tenant given not later than ninety (90) days thereafter. This provision shall
not apply whenever Tenant is a corporation the outstanding voting stock of which
is listed on a recognized security exchange. For the purposes of this provision,
stock ownership shall
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be determined in accordance with Section 544 of the Internal Revenue Code of
1986, as amended through December 31, 1989, and the regulations thereunder, and
the term "voting stock" shall refer to shares of stock regularly entitled to
vote for the election of directors of the corporation.
B. If Tenant requests Landlord's consent to assign this Lease or sublet
all or any portion of the Premises, in addition to withholding its consent,
Landlord shall have the option, exercisable by written notice to Tenant given
within thirty (30) days after receipt of such request, to terminate this Lease
for the entire Premises, in the case of an assignment or subletting of the
whole, and for the portion of the Premises, in the case of a subletting of a
portion. In the event that Landlord exercises such right to terminate, Landlord
shall be entitled to recover possession of and Tenant shall surrender the whole
or such portion of the Premises on the later of (i) the proposed date for
possession by such assignee or subtenant, or (ii) ninety (90) days after the
date of Landlord's notice of termination to Tenant. In the event of termination
in respect of a portion of the Premises, the portion so eliminated shall be
delivered to Landlord in good order and condition and thereafter, to the extent
necessary in Landlord's judgment, Landlord, at its own cost and expense, may
have access to and may make modification to the Premises so as to make such
portion a self-contained rental unit with access to common areas, elevators and
the like. Base Rent and Tenant's Proportionate Share shall be adjusted according
to the extent of the Premises for which the Lease is terminated. Without
limitation of the rights of Landlord hereunder in respect thereto, if there is
any assignment of this Lease by Tenant or a subletting of the whole of the
Premises by Tenant at a rent which, in either case, exceeds the rent payable
hereunder by Tenant, or if there is a subletting of a portion of the Premises by
Tenant at a rent in excess of the subleased portion's pro rata share of the rent
payable hereunder by Tenant, then Tenant shall pay to Landlord, as additional
rent, forthwith upon Tenant's receipt of each installment of any such excess
rent, the full amount of any such excess rent. The provisions of this paragraph
shall apply to each and every assignment of the Lease and each and every
subletting of all or a portion of the Premises, whether to a subsidiary or
controlling corporation or any other person, firm or
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entity, in each case on the terms and conditions set forth herein. Each request
by Tenant for permission to assign this Lease or to sublet the whole or any part
of the Premises shall be accompanied by a warranty by Tenant as to the amount of
rent to be paid to Tenant by the proposed assignee or sublessee. Landlord or its
authorized representatives shall have the right at all reasonable times to audit
the books, records and papers of Tenant relating to any consideration received
in connection with such an assignment or subletting, and shall have the right to
make copies thereof. If the excess rent being paid shall be found understated,
Tenant shall within thirty (30) days after demand pay the deficiency, and
Landlord's cost of such audit and if understated by more than five percent (5%),
Landlord shall have the right to terminate this Lease upon thirty (30) days'
notice. For the purposes of this Paragraph 17B, the term "rent" shall mean all
Base Rent, Additional Rent or other payments and/or consideration payable by one
party to another related to the use and occupancy of all or a portion of the
Premises.
18. SURRENDER OF POSSESSION.
Upon the expiration of the Term or upon the termination of Tenant's right
of possession to all or a portion of the Premises, whether by lapse of time or
at the option of Landlord as herein provided, Tenant shall forthwith quietly and
peaceably surrender the Premises or portion thereof to Landlord in good order,
repair and condition, ordinary wear excepted, and shall, if Landlord so
requires, restore the Premises or portion thereof to the condition existing at
the beginning of the Term. Any interest of Tenant in the alterations,
improvements and additions to the Premises made or paid for by Landlord or
Tenant shall, without compensation to Tenant, become, at Landlord's option,
Landlord's property at the termination of this Lease by lapse of time or
otherwise and if such option is exercised such alterations, improvements and
additions shall be relinquished to Landlord in good condition, ordinary wear
excepted. If Landlord does not exercise such option with respect to any such
alteration, improvement or addition, Tenant's restoration obligation referred to
above shall be applicable. Prior to the termination of the Term or of Tenant's
right of possession Tenant shall remove office furniture, trade fixtures, office
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equipment and all other items of Tenant's property on the Premises. Tenant shall
pay to Landlord upon demand the cost of repairing any damage to the Premises and
to the Building caused by any removal required hereunder. If Tenant shall fail
or refuse to remove any such property from the Premises not later than the
termination date of this Lease, Tenant shall be conclusively presumed to have
abandoned the same, and title thereto shall thereupon pass to Landlord without
any cost either by set-off, credit, allowance or otherwise, and Landlord may at
its option accept the title to such property or, at Tenant's expense, may (i)
remove the same or any part in any manner that Landlord shall choose, repairing
any damage to the Premises caused by such removal, and (ii) store, destroy or
otherwise dispose of the same without incurring liability to Tenant or any other
person.
19. HOLDING OVER.
In addition to performing all of Tenant's other obligations hereunder,
Tenant shall pay to Landlord an amount as Rent equal to the greater of (i) the
monthly market rental rate for a term of not less than one (1) year for similar
premises in the Building without regard to concessions such as tenant
improvement allowance and free rent, if any, or (ii) the sum of one hundred
fifty percent (150%) of one-twelfth the Base Rent and one hundred fifty percent
(150%) of one-twelfth the Additional Rent paid by Tenant during the previous
Calendar Year herein provided, such amount to be paid monthly during each month
or portion thereof for which Tenant shall retain possession of the Premises or
any part thereof after the termination of the Term or of Tenant's right of
possession, whether by lapse of time or otherwise. At the option of Landlord,
expressed in a written notice to Tenant and not otherwise, if the Tenant holds
over for a period in excess of fifteen (15) days, such holding over shall
constitute a renewal of this Lease for a period of one year at such Base Rent
and Additional Rent as would be applicable for such year, and if Landlord does
not so notify Tenant, such holding over shall constitute the Tenant a
tenant-at-will from month to month at the rates set forth in the first sentence
of this
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Paragraph 19. The provisions of this Paragraph 19 shall not be deemed to limit
or constitute a waiver of any other rights or remedies of Landlord provided
herein or at law.
20. ESTOPPEL CERTIFICATE.
Tenant agrees that, from time to time upon not less than ten (10) business
days' prior request by Landlord, Landlord's lessor or any mortgagee, Tenant or
Tenant's duly authorized representative having knowledge of the following facts
will deliver to Landlord a statement in writing certifying to the best of its
knowledge (i) that this Lease is unmodified and in full force and effect (or if
there have been modifications, a description of such modifications and that the
Lease as modified is in full force and effect); (ii) the dates to which Rent and
other charges have been paid; (iii) that Landlord is not in default under any
provision of this Lease, or, if in default, the nature thereof in detail; (iv)
that the Premises have been delivered to Tenant by Landlord and accepted by
Tenant; (v) that there are no proceedings pending against Tenant which have been
adversely decided and which would affect Tenant's obligations under this Lease;
(vi) that Tenant has not made a claim against Landlord which has not been
resolved or satisfied; and (vii) such further matters as may be requested by
Landlord, it being intended that any such statement may be relied upon by any
prospective assignee of Landlord, any mortgagee or prospective mortgagee of the
Building, any prospective assignee of any such mortgagee, or any prospective
and/or subsequent purchaser or transferee of all or a part of Landlord's
interest in the Property, the Office Section or the Building, or any other
person having an interest therein. Tenant shall execute and deliver whatever
instruments may be required for such purposes, and in the event Tenant fails so
to do within ten (10) business days after demand in writing, Tenant shall be
considered in default under this Lease.
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21. SUBORDINATION.
This Lease and all rights of Tenant hereunder are subject and subordinate
to any mortgage or mortgages, blanket or otherwise, made by Landlord and which
do now or may hereafter affect the Property or the Building and to any and all
renewals, modifications, consolidations, replacements and extensions thereof,
and to any ground or other lease, or similar instrument now or hereafter placed
against the Building. It is the intention of the parties that this provision be
self-operative and that no further instrument shall be required to effect such
subordination of this Lease. Tenant shall, however, upon demand at any time or
times execute, acknowledge and deliver to Landlord without expense to Landlord,
any and all instruments that may be necessary or proper to subordinate this
Lease and all rights of Tenant hereunder to any such mortgage or mortgages or to
confirm or evidence such subordination. Tenant covenants and agrees, in the
event any proceedings are brought for the foreclosure of any such mortgage, to
attorn, without any deductions or set-offs whatsoever, to the purchaser upon any
such foreclosure sale if so requested to do by such purchaser, and to recognize
such purchaser as the Landlord under this Lease. Tenant agrees to execute and
deliver at any time and from time-to-time, upon the request of Landlord or of
any holder of such mortgage or of such purchaser, any instrument which, in the
sole judgment of such requesting party, may be necessary or appropriate in any
such foreclosure proceeding or otherwise to evidence such attornment. Tenant
further waives the provisions of any statute or rule of law, now or hereafter in
effect, which may give or purport to give Tenant any right or election to
terminate or otherwise adversely affect this Lease, or the obligations of Tenant
hereunder in the event any such foreclosure proceeding is brought, prosecuted or
completed. Tenant and Landlord further agree that if so requested by any
mortgagee of Landlord, this Lease shall be made superior to any such mortgage
and that they will execute such documents as may be required by such mortgagee
to effect the superiority of this Lease to such mortgage.
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22. CERTAIN RIGHTS RESERVED BY LANDLORD.
Landlord shall have the following rights (but not obligations), each of
which Landlord may exercise with reasonable prior notice to Tenant and without
liability to Tenant for damage or injury to property, person or business on
account of the exercise thereof, and the exercise of any such rights shall not
be deemed to constitute an eviction or disturbance of Tenant's use or possession
of the Premises and shall not give rise to any claim for set-off or abatement of
Rent or any other claim:
(i) To change the Building's name or street address.
(ii) To install, affix and maintain any and all signs on the
exterior and on the interior of the Building.
(iii) To decorate or to make repairs, alterations, additions, or
improvements, whether structural or otherwise, in and about the Building,
or any part thereof, and for such purposes to enter upon the Premises, and
during the continuance of any of said work, to temporarily close doors,
entryways, public space and corridors in the Building and to interrupt or
temporarily suspend services or use of facilities, all without affecting
any of Tenant's obligations hereunder, so long as the Premises are
reasonably accessible and usable.
(iv) To furnish door keys for the entry door(s) in the Premises at
the commencement of this Lease and to retain at all times, and to use in
appropriate instances, keys to all doors within and into the Premises.
Tenant agrees to purchase only from Landlord additional duplicate keys as
required, to change no locks, and not to affix locks on doors without the
prior written consent of Landlord. Notwithstanding the provisions for
Landlord's access to Premises, Tenant relieves and releases Landlord of
all responsibility arising out of theft, robbery, pilferage and personal
assault. Upon the expiration of the Term or of
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Tenant's right of possession, Tenant shall return all keys to Landlord and
shall disclose to Landlord the combination of any safes, cabinets or
vaults left in the Premises.
(v) To designate and approve all window coverings used in the
Building.
(vi) To approve the weight, size and location of safes, vaults and
other heavy equipment and articles in and about the Premises and the
Building so as not to exceed the legal live load per square foot
designated by the structural engineers for the Building, and to require
all such items and furniture and similar items to be moved into or out of
the Building and Premises only at such times and in such manner as
Landlord shall direct in writing. Tenant shall not install or operate
machinery or any mechanical devices of a nature not directly related to
Tenant's ordinary use of the Premises without the prior written consent of
Landlord. Movements of Tenant's property into or out of the Building or
the Premises and within the Building are entirely at the risk and
responsibility of Tenant, and Landlord reserves the right to require
permits before allowing any property to be moved into or out of the
Building or the Premises.
(vii) To establish security policies and other controls for the
purpose of regulating all property and packages, both personal and
otherwise, to be moved into or out of the Building and Premises and all
persons using the Building both during and after normal office hours.
(viii) To regulate delivery and service of supplies and the usage of
the loading docks, receiving areas and freight elevators.
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(ix) To show the Premises to prospective tenants at reasonable times
within the last twelve (12) months of the Term and, if vacated or
abandoned, to show the Premises at any time and to prepare the Premises
for re-occupancy.
(x) To erect, use and maintain pipes, ducts, wiring and conduits,
and appurtenances thereto, in and through the Premises at reasonable
locations.
(xi) To enter the Premises at any reasonable time to inspect the
Premises.
(xii) To grant to any person or to reserve unto itself the exclusive
right to conduct any business or render any service in the Building. If
Landlord elects to make available to tenants in the Building any services
or supplies, or arranges a master contract therefor, Tenant agrees to
obtain its requirements, if any, therefor from Landlord or under any such
contract, provided that the charges therefor are reasonable.
23. RULES AND REGULATIONS.
Tenant agrees to observe the rules and regulations for the Building
attached hereto as Exhibit C and made a part hereof. Landlord shall have the
right from time to time to prescribe additional rules and regulations which, in
its reasonable judgment, may be desirable for the use, entry, operation and
management of the Premises, the Office Section and the Building, each of which
rules and regulations and any amendments thereto shall become a part of this
Lease. Tenant shall comply with all such rules and regulations; provided,
however, that such rules and regulations shall not contradict or abrogate any
right or privilege herein expressly granted to Tenant.
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24. LANDLORD'S REMEDIES.
If default shall be made in the payment of the Rent or any installment
thereof or in the payment of any other sum required to be paid by Tenant under
this Lease or under the terms of any other agreement between Landlord and Tenant
and such default shall continue for five (5) days after written notice to
Tenant, or if default shall be made in the observance or performance of any of
the other covenants or conditions in this Lease which Tenant is required to
observe and perform and such default shall continue for thirty (30) days after
written notice to Tenant, or if a default involves a hazardous condition and is
not cured by Tenant immediately upon written notice to Tenant, or if the
interest of Tenant in this Lease shall be levied on under execution or other
legal process, or if any voluntary petition in bankruptcy or for corporate
re-organization or any similar relief shall be filed by Tenant, or if any
involuntary petition in bankruptcy shall be filed against Tenant under any
federal or state bankruptcy or insolvency act and shall not have been dismissed
within forty-five (45) days from the filing thereof, or if a receiver shall be
appointed for Tenant or any of the property of Tenant by any court and such
receiver shall not have been dismissed within thirty (30) days from the date of
his appointment, or if Tenant shall make and assignment for the benefit of
creditors, or if Tenant shall admit in writing Tenant's inability to meet
Tenant's debts as they mature, then Landlord may treat the occurrence of any one
or more of the foregoing events as a breach of this Lease, and thereupon at its
option may, without notice or any demand of any kind to Tenant or any other
person, have any one or more of the following described remedies in addition to
all other rights and remedies provided at law or in equity or elsewhere herein:
(i) Landlord may terminate this Lease and the Term created hereby
and shall give Tenant written notice of Landlord's election to do so and
the effective date thereof (the "Effective Date"), in which event Landlord
may forthwith repossess the Premises and shall be entitled to recover,
forthwith as liquidated damages, in addition to any other sums or damages
for which Tenant may be liable to Landlord, a sum of money equal to the
present value (such
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present value to be computed on the basis of a per annum discount rate
equal to 200 basis points below the effective annual yield on U.S.
Treasury obligations which could be purchased on the business day next
succeeding the Effective Date and mature closest to the Termination Date)
of the Rent provided to be paid by Tenant for the balance of the Term over
the present value of the fair market rental value of the Premises, after
deduction from the present value of such fair market rental value of all
anticipated expenses of reletting. Should the present value of the fair
market rental value of the Premises, after deduction of all anticipated
expenses of reletting, for the balance of the Term exceed the present
value of the Rent provided to be paid by Tenant for the balance of the
Term, Landlord shall have no obligation to pay to Tenant the excess or any
part thereof or to credit such excess or any part thereof against any
other sums or damages for which Tenant may be liable to Landlord.
(ii) Landlord may terminate this Lease and the Term as provided in
(i) above and forthwith repossess the Premises and shall be entitled to
recover forthwith, in addition to any other sums or damages for which
Tenant may be liable to Landlord, a sum of money equal to amounts then due
and the present value (computed as aforesaid) of all or a portion of the
Rent and other sums to become due under this Lease for all or a part of
the period from the Effective Date to the Termination Date. Furthermore,
Landlord shall have the right from time to time to recover from Tenant,
and Tenant shall remain liable for all Rent which would have been due,
other than Rent accelerated and paid pursuant to the foregoing sentence,
and any other sums thereafter accruing as they become due under this Lease
during the period from the Effective Date to the Termination Date. In any
such case, Landlord may (but shall be under no obligation to, except as
required by law) relet the Premises or any part thereof for the account of
Tenant, for such rent, from time to time (which may be for a term
extending beyond the Term of this Lease), and upon such terms as Landlord
in Landlord's sole discretion shall determine, and Landlord shall not be
required to accept any
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tenant offered by Tenant or to observe any instructions given by Tenant
relative to such reletting. Also, in any such case, Landlord may change
the locks or other entry devices of the Premises and make repairs,
alterations and additions in or to the Premises and redecorate same to the
extent deemed by Landlord necessary or desirable, and Tenant shall upon
written demand pay the cost thereof together with Landlord's expenses of
reletting, including without limitation, brokerage commissions payable to
Landlord's agent or to others. Landlord shall collect the rents from any
such reletting and apply the same to the payment of expenses of reentry,
redecoration, repair and alterations and the expenses of reletting and the
excess or residue remaining to the payment of Rent and other sums in this
Lease provided to be paid by Tenant and not theretofore paid by
acceleration or otherwise, and any such excess or residue shall operate
only as an offsetting credit against the amount of Rent and other sums
then due and owing or, at Landlord's option, shall be refunded to Tenant
to the extent paid as a result of acceleration or shall be applied as an
offsetting credit against Rent and other sums thereafter becoming due and
payable hereunder; provided that in no event shall Tenant be entitled to a
credit on its indebtedness to Landlord or refunds of amounts accelerated
in excess of the aggregate of the amount paid as a result of acceleration
and the amount would have been payable by Tenant for the period for which
the credit to Tenant is being determined, had no default occurred. No such
reentry, repossession, repairs, alterations, additions or reletting shall
operate to release Tenant in whole or in part from any of Tenant's
obligations hereunder, and Landlord may, at any time and from time to
time, sue and recover judgment for any deficiencies from time to time
remaining after the application from time to time of the proceeds of any
such reletting.
(iii) Landlord, without thereby waiving such default, may cure the
same for the account and at the expense of Tenant, without notice in a
case of emergency, as determined by Landlord in its sole discretion, or in
case of correction of a dangerous or hazardous condition, and in any other
case if such
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default continues after ten (10) days from the date of the giving by
Landlord to Tenant of written notice of such default or of intention to
cure. Bills for any expense incurred by Landlord in connection with any
such performance by Landlord shall be for the account of Tenant, and shall
be due and payable in accordance with the terms of said bills, and if not
paid when due, the amounts thereof shall become immediately due and
payable as Additional Rent under this Lease.
25. EXPENSES OF ENFORCEMENT.
Tenant shall pay upon demand all reasonable and actual Landlord's costs,
charges and expenses including the fees and out-of-pocket expenses of counsel,
agents and others retained by Landlord incurred in enforcing Tenant's
obligations hereunder or incurred by Landlord in any litigation, negotiation or
transaction in which Tenant causes Landlord without Landlord's fault to become
involved or concerned.
26. COVENANT OF QUIET ENJOYMENT.
Landlord covenants that Tenant, on paying the Rent, charges for services
and other payments herein reserved and on keeping, observing and performing all
the other terms, covenants, conditions, provisions and agreements herein
contained on the part of Tenant to be kept, observed and performed shall, during
the Term, peaceably and quietly have, hold and enjoy the Premises subject to the
terms, covenants, conditions, provisions and agreements hereof, without
hindrance or ejection by any persons claiming by, through or under Landlord, the
foregoing covenant of quiet enjoyment being in lieu of any other covenant,
expressed or implied.
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27. SECURITY DEPOSIT. NONE REQUIRED
Tenant hereby deposits with Landlord the sum of the Security Deposit
specified in Paragraph 1 hereof (hereinafter referred to as "Collateral"), as
security for the prompt, full and faithful performance by Tenant of each and
every provision of this Lease and of all obligations of Tenant hereunder.
A. If Tenant fails to perform any of its obligations hereunder, Landlord
may use, apply or retain the whole or any part of the Collateral for the payment
of (i) any Rent or other sums of money which Tenant may not have paid when due,
(ii) any sum expended by Landlord on Tenant's behalf in accordance with the
provisions of this Lease, and/or (iii) any sum which Landlord may expend or be
required to expend by reason of Tenant's default, including, without limitation,
any damage or deficiency in or from the reletting of the Premises as provided in
Paragraph 24. The use, application or retention of the Collateral, or any
portion thereof, by Landlord shall not prevent Landlord from exercising any
other right or remedy provided by this Lease or by law (it being intended that
Landlord shall not first be required to proceed against the Collateral) and
shall not operate as a limitation on any recovery to which Landlord may
otherwise be entitled. If any portion of the Collateral is used, applied or
retained by Landlord for the purposes set forth above, Tenant agrees, within ten
(10) days after written demand therefor is made by Landlord, to deposit cash
with Landlord in an amount sufficient to restore the Collateral to its original
amount.
B. If Tenant shall fully and faithfully comply with all of the provisions
of this Lease, the Collateral, or any balance thereof, shall be returned to
Tenant without interest after the expiration of the Term or upon any later date
after which Tenant has vacated the Premises. In the absence of evidence
satisfactory to Landlord of any permitted assignment of the right to receive the
Collateral, or of the remaining balance thereof, Landlord may return the same to
the named Tenant herein regardless of one or more assignments of Tenant's
interest in this Lease or the Collateral. In such event, upon the
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return of the Collateral, or the remaining balance thereof to the named Tenant,
Landlord shall be completely relieved of liability under this Paragraph 27 or
otherwise with respect to the Collateral.
C. Tenant acknowledges that Landlord has the right to transfer or mortgage
its interest in the Premises and the Building and in this Lease and Tenant
agrees that in the event of any such transfer or mortgage, Landlord shall have
the right to transfer or assign the Collateral to the transferee or mortgagee.
Upon such transfer or assignment, Landlord shall thereby be released by Tenant
from all liability or obligation for the return of such Collateral and Tenant
shall look solely to such transferee or mortgagee for the return of the
Collateral, such transferee or mortgagee having no greater obligations in
respect of the Collateral than the Landlord had.
28. REAL ESTATE BROKER.
The Tenant represents that Tenant has dealt with (and only with) the
Broker specified in Paragraph 1 hereof as broker in connection with this Lease,
and that insofar as Tenant knows, no other broker negotiated this Lease or is
entitled to any commission in connection therewith. Tenant agrees to indemnify,
defend and hold harmless Landlord its employees and agents from and against any
claims made by any broker or finder other than the Broker named above for a
commission or fee in connection with this Lease or any sublease hereunder, but
nothing herein shall be construed as permitting any such sublease, provided that
Landlord has not in fact retained such broker or finder.
29. UNDERLYING LEASES.
Landlord is the lessee of the air rights premises within which the
Building is constructed pursuant to that certain Sublease (the "Sublease") dated
September 1, 1982 by and between a predecessor of Urban Investment and
Development Co. ("Urban"), as lessor. Urban is the lessee of said air rights
premises and other adjacent air rights
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premises which collectively are referred to as Copley Place, pursuant to that
certain Amended and Restated Lease (the "Underlying Lease") dated January 31,
1980 by and between Urban and the Massachusetts Turnpike Authority ("MTA"), as
lessor.
Landlord hereby gives notice to Tenant that it supports the Affirmative
Action and Resident Preference goals set forth in Paragraph 6 of Schedule D to
the Underlying Lease and in Attachment C to the City of Boston's Urban
Development Action Grant application for Copley Place, and encourages Tenant to
pursue such goals in Tenant's own employment practices. In connection with
hiring to fill permanent jobs at the Premises, Tenant shall not discriminate
against any employee or applicant for employment because of race, color,
religious creed, national origin, age or sex. Tenant shall comply to the extent
applicable, with Title VII of the U.S. Civil Rights Act and M.G.L. c.151B with
respect to employment at the Premises.
30. NOTICE TO MORTGAGEE AND GROUND LESSOR.
After receiving notice from any person, firm or other entity that it holds
a mortgage which includes the Premises, the Building or the Office Section as
part of the mortgaged premises, or that it is the ground lessor under a ground
lease (which term shall include the Underlying Lease and the Sublease) with
Landlord, as ground lessee, which includes the Premises, the Building or the
Office Section as part of the demised premises, no notice from Tenant to
Landlord shall be effective unless and until a copy of the same is given to such
holder or ground lessor, and the curing of any of Landlord's defaults by such
holder or ground lessor shall be treated as performance by Landlord. Such holder
or ground lessor shall be given such reasonable time as may be necessary to
effect such cure or to foreclose the mortgage or terminate the ground lease, as
the case may be. For the purposes of Paragraph 21, this Paragraph 30, Paragraph
31 and Paragraph 34, the term "mortgage" includes a mortgage on a leasehold
interest of Landlord (but not one on Tenant's leasehold interest).
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31. ASSIGNMENT OF RENTS.
With reference to any assignment by Landlord of Landlord's interest in
this Lease, or the rents payable hereunder, conditional in nature or otherwise,
which assignment is made to the holder of a mortgage or ground lease (which term
shall include the Underlying Lease and the Sublease) on property which includes
the Premises, the Building or the Office Section, Tenant agrees:
(i) that the execution thereof by Landlord, and the acceptance
thereof by the holder of such mortgage, or the ground lessor, shall never
be treated as an assumption by such holder or ground lessor of any of the
obligations of Landlord hereunder, unless such holder, or ground lessor,
shall, by notice sent to Tenant, specifically otherwise elect; and
(ii) that, except as aforesaid, such holder or ground lessor shall
be treated as having assumed Landlord's obligations hereunder only upon a
foreclosure of such holder's mortgage and the taking of possession of the
Premises, or in the case of a ground lessor, the assumption of Landlord's
position hereunder by such ground lessor. In no event shall the
acquisition of title to the Building and the land on which the same is
located by a purchaser which, simultaneously therewith, leases the entire
Building or such land back to the seller thereof be treated as an
assumption, by operation of law or otherwise, of Landlord's obligations
hereunder, but Tenant shall look solely to such seller-lessee, and its
successors from time to time in title, for performance of Landlord's
obligations hereunder. In any such event, this Lease shall be subject and
subordinate to the lease to such seller. For all purposes, such
seller-lessee, and its successors in title, shall be the landlord
hereunder unless and until Landlord's position shall have been assumed by
such purchaser-lessor.
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32. PERSONAL PROPERTY TAXES.
Tenant shall pay all taxes which may be lawfully charged, assessed, or
imposed upon all fixtures and equipment of every type and also upon all personal
property in the Premises, and Tenant shall pay all license fees which may
lawfully be imposed upon the business of Tenant conducted upon the Premises.
33. MISCELLANEOUS.
A. Rights Cumulative. All rights and remedies of Landlord under this Lease
shall be cumulative and none shall exclude any other rights and remedies allowed
by law.
B. Interest. All payments becoming due under this Lease and remaining
unpaid when due shall bear interest until paid at the rate of the greater of (i)
eighteen percent (18%) per annum or (ii) two percent (2%) per annum above the
prime rate of interest charged from time to time by The First National Bank of
Boston (but in no event at a rate which is more than the highest rate which is
at the time lawful in the Commonwealth of Massachusetts).
C. Terms. The necessary grammatical changes required to make the
provisions hereof apply either to corporations or partnerships or individuals,
men or women, as the case may require, shall in all cases be assumed as though
in each case fully expressed.
D. Binding Effect. Each of the provisions of this Lease shall extend to
and shall, as the case may require, bind or inure to the benefit not only of
Landlord and of Tenant, but also of their respective successors or assigns,
provided this clause shall not permit any assignment by Tenant contrary to the
provisions of Paragraph 17 hereof. All indemnities, covenants and agreements of
Tenant contained herein shall inure to the benefit of Landlord's agents and
employees.
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E. Lease Contains All Terms. All of the representations and obligations of
Landlord and Tenant, respectively, are contained herein and in the Exhibits
attached hereto, and no modification, waiver or amendment of this Lease or of
any of its conditions or provisions shall be binding upon Landlord or Tenant
unless in writing signed by Landlord and Tenant or by a duly authorized agent of
Landlord or Tenant, respectively, empowered by a written authority signed by
Landlord or Tenant, respectively.
F. Delivery for Examination. Submission of this Lease for examination
shall not bind Landlord in any manner, and no lease or obligations of Landlord
shall arise until this instrument is signed by both Landlord and Tenant and
delivery is made to each.
G. No Air Rights. No rights to any view or to light or air over any
property, whether belonging to Landlord or any other person, are granted to
Tenant by this Lease.
H. Modification of Lease. If any lender requires, as a condition to its
lending funds the repayment of which is to be secured by a mortgage or trust
deed on the Premises and Building or either, that certain modifications be made
to this Lease, which modifications will not require Tenant to pay any additional
amounts or otherwise change materially the rights or obligations of Tenant
hereunder, Tenant shall, upon Landlord's request, execute appropriate
instruments effecting such modifications.
I. Intentionally Omitted.
J. Transfer of Landlord's Interest. Tenant acknowledges that Landlord has
the right to transfer its interest in the Premises, the Office Section and the
Building and in this Lease, and Tenant agrees that in the event of any such
transfer, provided such transferee assumes Landlord's obligations under this
Lease, Landlord shall, to the extent of such assumption, automatically be
released from liability under this Lease and Tenant
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agrees to look solely to such transferee for the performance of Landlord's
obligations assumed hereunder. Tenant further acknowledges that Landlord may
assign its interest in this Lease to a mortgage lender as additional security
and agrees that such an assignment shall not release Landlord from its
obligations hereunder and that Tenant shall continue to look to Landlord for the
performance of its obligations hereunder.
K. Landlord's Title. Landlord's title is and always shall be paramount to
the title of Tenant. Nothing herein contained shall empower Tenant to commit or
engage in any act which can, shall or may encumber the title of Landlord.
L. Prohibition Against Recording. This Lease shall not be recorded by
Tenant or by anyone acting through, under or on behalf of Tenant, and the
recording thereof in violation of this provision shall make this Lease null and
void at Landlord's election. At Tenant's request, Landlord agrees to execute a
Notice of Lease in recordable form for recording with the Suffolk County
Registry of Deeds.
M. Captions. The captions of paragraphs and subparagraphs are for
convenience only and shall not be deemed to limit, construe, affect or alter the
meaning of such paragraphs or subparagraphs.
N. Covenants and Conditions. All of the covenants of Tenant hereunder
shall be deemed and construed to be "conditions", if Landlord so elects, as well
as "covenants" as though the words specifically expressing or importing
covenants and conditions were used in each separate instance.
O. Only Landlord/Tenant Relationship. Nothing contained in this Lease
shall be deemed or construed by the parties hereto or by any third party to
create the relationship of principal and agent, partnership, joint venturer or
any association between Landlord and Tenant, it being expressly understood and
agreed that neither the method of computation of Rent nor any act of the parties
hereto shall be deemed to create any
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relationship between Landlord and Tenant other than the relationship of landlord
and tenant.
P. Application of Payments. Landlord shall have the right to apply
payments received from Tenant pursuant to this Lease (regardless of Tenant's
designation of such payments) to satisfy any obligations of Tenant hereunder, in
such order and amounts as Landlord in its sole discretion may elect.
Q. Intentionally Omitted.
R. Time of Essence. Time is of the essence of this Lease and each of its
provisions.
S. Governing Law. Interpretation of this Lease shall be governed by the
law of the Commonwealth of Massachusetts.
T. Partial Invalidity. If any term, provision or condition contained in
this Lease shall, to any extent, be invalid or unenforceable, the remainder of
this Lease (or the application of such term, provision or condition to persons
or circumstances other than those in respect of which it is invalid or
unenforceable) shall not be affected thereby, and each and every other term,
provision and condition of this Lease shall be valid and enforceable to the
fullest extent possible permitted by law.
U. Size of Premises. The size of Premises will be determined on the basis
of the standards set forth in Exhibit E attached hereto. With regard to Base
Rent, Operating Expenses, and with regard to all other payments which are
computed based upon the rentable area of the Premises, it is understood that the
amounts payable as set forth in this Lease are predicated upon assumed rentable
area set forth in this Lease. Not later than ninety (90) days after the
Commencement Date, an exact measurement of the rentable area of the Premises
shall be made in accordance with Exhibit E, and if said measurement
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shall indicate rentable area different from that recited in this Lease, Landlord
and Tenant shall promptly execute a supplemental instrument adjusting the
amounts payable hereunder to conform to the exact measurements. Such adjustments
shall be made by multiplying the amount subject to adjustment by a fraction, the
numerator of which is the actual rentable area of the Premises and the
denominator of which is the rentable area of the Premises originally set forth
herein. Any payment due from either party to the other as a result of any
adjustments made hereunder shall be paid promptly upon rendition of a statement
by the party entitled to additional Rent, or Rent refund, as the case may be.
34. NOTICES.
All notices to be given under this Lease shall be in writing and either
hand delivered; delivered by reputable overnight courier, delivery acknowledged
by recipient; or deposited in the United States mail, certified or registered
mail with return receipt requested, postage prepaid, addressed as follows:
A. If to Landlord:
c/o Overseas Management, Inc.
Two Copley Place, Suite 100
Boston, Massachusetts 02116-6502
Attn: Building Manager
with copies to:
Urban Retail Properties
Suite 1300
900 North Michigan Avenue
Chicago, Illinois 60611-1575
Attn: Law Department
or to such other person or such other address designated by notice sent by
Landlord or Tenant, and as provided in Paragraph 30 of this Lease.
-48-
<PAGE>
B. If to Tenant:
Addressed to Tenant at Tenant's present address set forth
above, and after occupancy of the Premises by Tenant, at Four
Copley Place, Boston, Massachusetts 02116, in any event with
copy of such notice to the attention of Corporate Counsel or
to such other address as is designated by Tenant in a notice
to Landlord.
After receiving notice from any person, firm or other entity that it holds
a mortgage which includes the Building as part of the mortgaged premises, no
notice from Tenant to Landlord shall be effective unless and until a copy of the
same is given to such holder, and the curing of any of Landlord's defaults by
such holder shall be treated as performance by Landlord. Such holder shall be
given such reasonable time as may be necessary to effect such cure or to
foreclose the mortgage, as the case may be. For the purposes of Paragraph 21,
Paragraph 30, Paragraph 31 and this Paragraph 34, the term "mortgage" includes a
mortgage on a leasehold interest of Landlord (but not one on Tenant's leasehold
interest).
Notice by mail shall be deemed to have been given as of the date of
mailing as aforesaid, but for purposes of computing the period during which a
party may cure notice shall be deemed to have been given three (3) business days
after mailing. Notice by hand delivery or reputable overnight courier shall be
deemed to have been given at the time of delivery.
35. LIMITATION ON LANDLORD'S LIABILITY.
It is expressly understood and agreed by Tenant that none of Landlord's
covenants, undertakings or agreements are made or intended as personal
covenants, undertakings or agreements by Landlord or its partners, and any
liability for damage or breach or nonperformance by Landlord shall be
collectible only out of Landlord's interest in the Building and no personal
liability is assumed by, nor at any time may be asserted against, Landlord or
its partners or any of its or their directors, officers, agents,
-49-
<PAGE>
employees, legal representatives, successors or assigns, all such liability, if
any, being expressly waived and released by Tenant. The provisions of this
Paragraph 35 shall expressly be applicable to and inure to the benefit of
Landlord's successors and assigns. In no event shall Landlord or its constituent
partners be liable for any incidental or consequential damages in connection
with its obligations (including without limitation obligations of
indemnification, if any) under, or any action taken by Landlord or its
constituent partners in connection with, this Lease.
36. LANDLORD'S DESIGNATED AGENT.
It is expressly understood and agreed by Tenant that the provisions of
this Lease may be enforced on behalf of Landlord by an agent designated in
writing to Tenant by Landlord for such purpose, and such enforcement shall be
equally effective whether in the name of Landlord or such agent.
37. COMMENCEMENT AND TERMINATION DATES.
If Landlord shall not have substantially delivered the Premises by the
Commencement Date, then notwithstanding Paragraph 3 of this Lease, the
Commencement Date shall be deferred for the number of days after June 1, 2000
until the delivery of the Premises.
38. SIGNAGE.
Tenant shall have the right to install in the fifth floor lobby, building
standard signage, at Tenant's sole cost and expense. Landlord shall, at its
expense, provide building standard signage, naming the Tenant and its location,
on building directories located in the Sky Lobby and in the lobby of Four Copley
Place.
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<PAGE>
39. EXTENSION OPTION.
A. Subject to the existing rights of existing tenants of the Building,
Tenant shall have the right to extend the Term of this Lease for two (2)
additional years, such right of Tenant to be conditioned upon this Lease at the
time of election being in full force and effect and Tenant not then being in
default under this Lease beyond any applicable notice and cure period, such
extension period to commence upon the expiration of the original Term of this
Lease.
B. Tenant's right of extension shall be exercised, if at all, by written
notice to Landlord given at least twelve (12) months prior to the expiration of
the original Term of this Lease. If a notice is given in compliance with the
provisions hereof, this Lease shall, thereupon, be extended, subject to the
terms of this paragraph, without the need for any further instrument to be
executed (but either party shall execute such a confirmatory instrument upon the
request of the other); and if no such notice is given, Tenant's right of
extension shall be null and void. All of the terms, conditions and provisions of
this Lease shall be applicable to any extension of the Term hereof, as if the
termination date of the extension period were the date originally set forth
herein for the expiration of the Term, except that (i) the exercised right of
extension shall be of no further force or effect, so that there shall be no
further right of extension with respect thereto, (ii) the Base Rent during the
extension period shall be the "Fair Market Rent" (as hereinafter defined) and
(iii) the Base Year shall be the calendar year in which the extension Term
begins.
C. "Fair Market Rent" shall mean the rent for Class A office space in the
Back Bay area similar in size, condition of building, and services provided for
a term of two (2) years as of the date the extension is to commence, (i) without
taking into account actual improvements (regardless of who paid for such
improvements), or the cost of demolition of the space, and (ii) taking into
account the Base Year and the magnitude of free rent, if any, buildout
allowance, if any, and other market tenant inducements which would be offered to
new tenants but are not being offered to Tenant and (iii) taking into
-51-
<PAGE>
account the brokerage commissions, if any, to be paid in connection with the
renewal and compared to the market commission for 2-year leases.
D. Within fifteen (15) days after exercise of the extension right, but not
earlier than fifteen (15) months prior to the expiration of the original Term,
Landlord shall provide Tenant with its quotation of the "Fair Market Rent" as of
the first day of the extension period. If within thirty (30) days of having
received Landlord's quotation, Tenant shall not have notified Landlord of its
objection to Landlord's quotation and of Tenant's calculation of Fair Market
Rent, the "Fair Market Rent" quoted by Landlord shall be the new Base Rent. If
Tenant so notifies Landlord, the parties shall discuss the matter in good faith
for thirty (30) days after Tenant's notice. If within forty-five (45) days of
having received Tenant's notice the parties have not agreed in writing, then,
Landlord and Tenant shall, during a period of forty-five (45) days, attempt to
agree on an arbitrator not affiliated with either party (and if they are unable
to do so, either party may request that the President of the American
Arbitration Association in Boston choose an arbitrator (as promptly as possible)
meeting the criteria of the second to last sentence of this grammatical
paragraph). Such arbitrator shall have a period of thirty (30) days to pick
either Landlord's quotation of "Fair Market Rent" or Tenant's determination of
"Fair Market Rent" as the "Fair Market Rent" hereunder. Such arbitrator shall
have at least ten (10) years' experience in the valuation and appraisal of
office rents real estate in the Greater Boston area. "Fair Market Rent" so
determined by the arbitrator shall be the new Base Rent and shall be binding on
the parties.
The expenses of the arbitrator shall be borne equally by the Landlord and
the Tenant.
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<PAGE>
Executed as a sealed instrument as of the date first above written.
LANDLORD:
COPLEY PLACE ASSOCIATES, LLC,
a Delaware limited liability company
By: Overseas Management, Inc.,
a Delaware corporation,
Managing Agent
By: /s/ Paul C. Grant
------------------------
Paul C. Grant
Its: Vice President
-------------------
TENANT:
DIGITAS LLC
By: Marshall Smith
------------------------------
Its Manager
Hereunto duly authorized
-53-
<PAGE>
EXHIBIT 'A' PREMISES
23,554 RSF
[LOGO]
COPLEY
PLACE
DARTMOUTH STREET
[GRAPHIC OMITTED: FLOOR PLAN]
5TH FLOOR
<PAGE>
EXHIBIT B
COPLEY PLACE
OFFICE LEASE
FOR
DIGITAS
BOSTON, MASSACHUSETTS
INTENTIONALLY OMITTED
B-1
<PAGE>
EXHIBIT C
COPLEY PLACE
OFFICE LEASE
FOR
DIGITAS
BOSTON, MASSACHUSETTS
RULES AND REGULATIONS
RULES AND REGULATIONS. Tenant agrees to observe the rights reserved to
Landlord in the Lease and agrees, for itself, its employees, agents, clients,
customers, invitees and guests, to comply with the following rules and
regulations and with such reasonable and uniform modifications thereof and
additions thereto as Landlord may make, from time to time, for the Building.
(a) Any sign, lettering, picture, notice, or advertisement installed within
Tenant's Premises (including but not limited to Tenant identification
signs on doors to the Premises) which is visible outside of the
Premises shall be installed at Tenant's cost and in such manner,
character and style as Landlord may approve in writing. No sign,
lettering, picture, notice or advertisement shall be placed on any
outside window or in any position so as to be visible from outside the
Building or from any atrium or lobbies of the Building.
(b) Tenant shall not use the name of the Building or use pictures or
illustrations of the Building in advertising or other publicity,
without the prior written consent of Landlord.
(c) Tenant, its customers, invitees, licensees, and guests shall not
obstruct sidewalks, entrances, passages, courts, corridors, vestibules,
halls, elevators and stairways in and about the Building. Tenant shall
not place objects against glass partitions or doors or windows or
adjacent to any open common space which would be unsightly from the
Building corridors or from the exterior of the Building, and will
promptly remove the same upon notice from Landlord.
(d) Tenant shall not make noises, cause disturbances, create vibrations,
odors or noxious fumes or use or operate any electrical or electronic
devices or other devices that emit sound, waves or are dangerous to
other tenants and occupants of the Building or that would interfere
with the operation of any device or equipment or radio or television
broadcasting or reception from or within the Building or elsewhere, or
with the operation of roads or highways in the vicinity of the Building
and shall not place or install any projections, antennae, aerials or
similar devices inside or outside of the Premises.
(e) Tenant shall not make any room-to-room canvass to solicit business from
other tenants in the Building, and shall not exhibit, sell or offer to
sell, use, rent or exchange any item or services in or from the
Premises unless ordinarily embraced within Tenant's use of the Premises
as specified in its lease.
C-1
<PAGE>
(f) Tenant shall not waste electricity or water and agrees to cooperate
fully with Landlord to assure the most effective operation of the
Building's heating and air conditioning and shall refrain from
attempting to adjust any controls. Tenant shall keep public corridor
doors closed.
(g) Door keys for doors in the Premises will be furnished at the
commencement of the Lease by Landlord. Tenant shall not affix
additional locks on doors and shall purchase duplicate keys only from
Landlord. When the Lease is terminated, Tenant shall return all keys to
Landlord and will provide to Landlord the means of opening any safes,
cabinets or vaults left in the Premises.
(h) Tenant assumes full responsibility for protecting its space from theft,
robbery and pilferage, which includes keeping doors locked and other
means of entry to the Premises closed and secured.
(i) Peddlers, solicitors and beggars shall be reported to the office of the
Building or as Landlord otherwise requests.
(j) Tenant shall not install nor operate machinery or any mechanical
devices of a nature not directly related to Tenant's ordinary use of
the Premises without the written permission of Landlord.
(k) No person or contractor not employed by Landlord shall be used to
perform window washing, cleaning, decorating, repair or other work in
the Premises.
(l) Tenant shall not, and Tenant shall not permit or suffer anyone to:
(1) Cook in the Premises except by a microwave or toaster oven solely
for the use of employees and business invitees;
(2) Place vending or dispensing machines of any kind in or about the
Premises except those exclusively for the use of employees and
business invitees;
(3) At any time sell or purchase or give away except for on-Premises
consumption by employees and business invitees, or permit the
sale, purchase or gift of, food in any form, except for
consumption by employees and business invitees;
(m) Tenant shall not:
(1) Use the Premises for lodging, manufacturing or for any immoral or
illegal purposes.
(2) Use the Premises to engage in the manufacture or sale of, or
permit the use of, any spirituous, fermented, intoxicating or
alcoholic beverages on the Premises.
(3) Use the Premises to engage in the manufacture or sale of, or
permit the use of, any illegal drugs on the Premises.
(n) In no event shall any person bring into the Building inflammables such
as gasoline, kerosene, naphtha and benzene, or explosives or firearms
or any
C-2
<PAGE>
other article of intrinsically dangerous nature. If by reason of the
failure of Tenant to comply with the provisions of this paragraph, any
insurance premium payable by Landlord for all or any part of the
Building shall at any time be increased above normal insurance premiums
for insurance not covering the items aforesaid, Landlord shall have the
option to either terminate the Lease or to require Tenant to make
immediate payment for the whole of the increased insurance premium.
(o) Tenant shall comply with all applicable federal, state and municipal
laws, ordinances and regulations and building rules, and shall not
directly or indirectly make any use of the Premises which may be
prohibited thereby or which shall be dangerous to person or property or
shall increase the cost of insurance or require additional insurance
coverage.
(p) If Tenant desires signal, communication, alarm or other utility or
service connection installed or changed, the same shall be made at the
expense of Tenant, with approval and under direction of Landlord.
(q) Bicycles shall not be permitted in the Building in other than Landlord
designated locations.
(r) Tenant shall cooperate and participate in all security programs
affecting the Building.
(s) Landlord's failure to prevent another tenant of the Building from
acting in a manner prohibited herein shall not be preclude Landlord
from denying any other tenant the right to do any such act.
(t) Tenant, or the employees, agents, servants, visitors or licensees of
Tenant shall not at any time place, leave or discard any rubbish,
paper, articles, or objects of any kind whatsoever outside the doors of
the Premises or in the corridors or passageways of the Building. No
animals (other than seeing-eye dogs) or birds shall be brought or kept
in or about the Building.
(u) Landlord shall have the right to prohibit any advertising by Tenant
which, in Landlord's opinion, tends to impair the reputation of the
Building or its desirability for offices, and, upon written notice from
Landlord, Tenant will refrain from or discontinue such advertising.
(v) Tenant shall not mark, paint, drill into, or in any way deface any part
of the Building or the Premises. No boring, driving of nails or screws,
cutting or stringing of wires shall be permitted, except with the prior
written consent of Landlord, and as Landlord may direct. Tenant shall
not install any resilient tile or similar floor covering in the
Premises except with the prior approval of Landlord. The use of cement
or other similar adhesive material is expressly prohibited.
(w) Landlord shall have the right to limit or control the number and format
of listings on the main Building directory.
C-3
<PAGE>
EXHIBIT D
COPLEY PLACE
OFFICE LEASE
FOR
DIGITAS
BOSTON, MASSACHUSETTS
CLEANING SPECIFICATIONS
--------------------------------------------------------------------------------
I. CLEANING - TENANT'S AREAS
A. NIGHTLY - MONDAY THROUGH FRIDAY HOLIDAYS EXCLUDED
--------------------------------------------------------------------------------
1 DUST MOP, ALL STONE, CERAMIC, TILE, TERRAZZO, AND OTHER TYPES OF UNWAXED
FLOORING, USING A TREATED MOP.
2 DUST MOP ALL VINYL, ASBESTOS, ASPHALT, RUBBER AND SIMILAR TYPES OF
FLOORING, USING A TREATED MOP. THIS INCLUDES REMOVAL OF GUM AND OTHER
SIMILAR SUBSTANCES USING A SCRAPING DEVICE.
3 VACUUM ALL CARPETED AREAS.
4 DUST MOP ALL PRIVATE AND PUBLIC STAIRWAYS AND VACUUM IF CARPETED.
5 HAND DUST AND WIPE CLEAN ALL HORIZONTAL SURFACES INCLUDING FURNITURE, FILE
CABINETS, FIXTURES, AND WINDOW SILLS, USING A CHEMICALLY TREATED DUST
CLOTH. PAPERS ON DESK SHALL REMAIN UNDISTURBED.
6 DUST AND SANITIZE ALL TELEPHONES USING A DISINFECTANT SOLUTION.
7 REMOVE FINGER MARKS FROM ALL PAINTED SURFACES NEAR LIGHT SWITCHES, ENTRANCE
DOORS, ETC.
8 REMOVE ALL GUM AND FOREIGN MATTER ON SIGHT.
9 EMPTY AND CLEAN ALL WASTE RECEPTACLES AND REMOVE WASTE PAPER AND WASTE
MATERIALS TO A DESIGNATED AREA. REPLACE LINERS IN EACH RECEPTACLE.
10 DAMP DUST INTERIORS OF ALL WASTE DISPOSAL RECEPTACLES AND WASH AS
NECESSARY.
D-1
<PAGE>
11 CLEAN AND SANITIZE USING A DISINFECTANT SOLUTION, ALL WATER FOUNTAINS AND
WATER COOLERS. SINKS/FLOORS ADJACENT TO SINKS/FOUNTAINS TO BE WASHED
NIGHTLY.
12 SPOT MOP FLOORS FOR SPILLAGES, ETC.
13 EMPTY AND DAMP CLEAN ALL ASH TRAYS AND SCREEN ALL SAND URNS.
14 REMOVE FINGER MARKS AND DUST DOORS OF ELEVATOR HATCHWAYS.
15 CLEAN ALL LOW LEDGES, SHELVES, BOOKCASES, CHAIR RAILS, TRIM, PICTURES,
CHARTS, ETC., WITHIN REACH.
16 CLEAN SINKS, TOILETS, AND RELATED PLUMBING FIXTURES.
17 CLEAN MIRRORS, METALWORK, AND GLASS TABLE TOPS.
18 UPON COMPLETION OF WORK, ALL SLOP SINKS ARE TO BE THOROUGHLY CLEANED AND
ALL CLEANING EQUIPMENT AND SUPPLIES STORED NEATLY IN LOCATIONS DESIGNATED
BY THE OFFICE OF THE BUILDING.
19 ALL CLEANING OPERATIONS SHALL BE SCHEDULED SO THAT A MINIMUM OF LIGHTS ARE
TO BE LEFT ON AT ANY TIME. UPON COMPLETION OF CLEANING ALL LIGHTS ARE T0 BE
TURNED OFF. ALL ENTRANCE DOORS ARE TO BE KEPT LOCKED DURING THE CLEANING
OPERATION.
B. WEEKLY
--------------------------------------------------------------------------------
1 HAND DUST ALL DOOR LOUVERS AND OTHER VENTILATING LOUVERS WITHIN REACH.
2 DUST ALL BASEBOARDS.
3 MOVE AND VACUUM UNDERNEATH ALL FURNITURE THAT CAN BE MOVED.
4 IN HIGH TRAFFIC AREAS, DAMP MOP IF NECESSARY AND APPLY SPRAY BUFFING
SOLUTION IN A FINE MIST AND BUFF WITH A SYNTHETIC PAD.
5 BUFF TRAFFIC AREAS AND PIVOT POINTS.
6 DAMP MOP ALL NON-CARPETED AND PUBLIC STAIRWAYS.
7 WIPE CLEAN ALL BRIGHT WORK.
8 CLEAN INTERIOR GLASS PARTITIONS AND DOORS.
D-2
<PAGE>
9 DUST ALL CHAIR RAILS.
C. QUARTERLY
--------------------------------------------------------------------------------
1 VACUUM UPHOLSTERED FURNITURE.
2 MACHINE SCRUB FLOORING.
3 WASH AND APPLY ONE COAT OF APPROVED FLOOR FINISH TO COMPOSITION FLOORING.
4 DUST ALL VERTICAL SURFACES SUCH AS WALLS, FURNITURE, PARTITIONS, AND
SURFACES NOT REACHED IN NIGHTLY CLEANING.
5 DUST EXTERIOR OF LIGHTING FIXTURES.
6 WASH ALL BASEBOARDS.
7 STRIP ALL RESILIENT FLOORING USING DILUTED STRIPPING SOLUTION. MACHINE
SCRUB FLOOR USING PAD TO REMOVE ALL FLOOR FINISH. THOROUGHLY RINSE WITH
CLEAR WATER AND APPLY TWO COATS OF FLOOR FINISH.
II. LAVATORIES
A. NIGHTLY - MONDAY THROUGH FRIDAY
--------------------------------------------------------------------------------
1 POLICE LAVATORIES DURING THE DAY WITH MATRON OR PORTER TO PICK UP WASTE AND
REPLENISH MATERIALS.
2 CLEAN, SANITIZE (USING DISINFECTANT SOLUTION), AND POLISH ALL VITREOUS
FIXTURES INCLUDING TOILET BOWLS, URINALS, AND WASH BASINS.
3 SWEEP AND WASH FLOORING WITH APPROVED GERMICIDAL SOLUTION.
4 WASH AND POLISH MIRRORS, POWDER SHELVES, DISPENSERS, HAND DRYERS,
BRIGHTWORK, INCLUDING FLUSHOMETERS, PIPING, AND TOILET SEAT HINGES.
5 CLEAN AND SANITIZE BOTH SIDES OF TOILET SEATS.
6 EMPTY ALL CONTAINERS AND DISPOSAL UNITS AND INSERT NEW LINERS WHERE
REQUIRED.
7 WASH AND SANITIZE (USING A DISINFECTANT SOLUTION) EXTERIOR OF ALL
CONTAINERS.
D-3
<PAGE>
8 EMPTY, CLEAN, AND SANITIZE ALL SANITARY NAPKIN DISPOSAL UNITS.
9 DUST AND SPOT WASH, WHERE NECESSARY, PARTITIONS, TILE WALLS, DISPENSERS,
CEILINGS, LIGHTS, SWITCHES AND RECEPTACLES.
10 REFILL ALL DISPENSERS TO NORMAL LIMITS INCLUDING NAPKINS, SOAP, TISSUE,
TOWELS, ETC.
11 VACUUM ENTIRE CARPETED AREAS, IF ANY.
12 REMOVE ALL RUBBISH.
B. WEEKLY
--------------------------------------------------------------------------------
1 WET MOP ALL TILE FLOORS AND WASH BASEBOARDS.
2 MACHINE SCRUB FLOORS, HAND BRUSH CORNERS, AND HAND BRUSH TOILET EDGES WITH
APPROVED GERMICIDAL DETERGENT SOLUTION.
C. MONTHLY
--------------------------------------------------------------------------------
1 WASH ALL PARTITIONS, TILE WALLS, AND ENAMEL SURFACES WITH APPROVED
GERMICIDAL DETERGENT SOLUTION.
D. QUARTERLY
--------------------------------------------------------------------------------
1 DUST ALL HVAC GRILLS AND LOUVERS.
D-4
<PAGE>
E. OTHER
--------------------------------------------------------------------------------
1 CLEANING OF COMPUTER ROOMS AND KITCHENS WILL BE THE RESPONSIBILITY OF
INDIVIDUAL TENANTS.
III. PUBLIC CORRIDORS, STAIRWELLS, AND SERVICE AREAS:
A. NIGHTLY
--------------------------------------------------------------------------------
1 VACUUM AND SPOT CLEAN CARPETING.
2 SWEEP AND DAMP MOP PUBLIC AREA CONCRETE FLOORS.
3 SWEEP AND DAMP MOP PUBLIC STAIRWELLS AND LANDINGS.
4 CLEAN BASEBOARDS OF SCUFFS AND MARKS.
5 EMPTY AND CLEAN ASHTRAYS AND SAND URNS.
6 CLEAN ALL DIRECTORIES AND LOBBY SECURITY CONSOLE.
7 CLEAN CORRIDOR GLASS AND METAL WORK.
8 SPOT CLEAN WALLS, CEILINGS, LIGHTS, ETC.
9 REMOVE TRASH TO COMPACTOR.
10 CLEAN TELEPHONES, TELEPHONE BOOTH AREAS AND MAIL DROPS.
11 KEEP SLOP SINKS, CLOSETS, SUPPLY ROOMS, AND OTHER JANITORIAL AREAS IN A
CLEAN CONDITION.
12 KEEP ELECTRICAL AND TELEPHONE CLOSETS CLEAN AND FREE OF STORAGE.
13 CLEAN AND SANITIZE ALL PUBLIC DRINKING FOUNTAINS.
14 SWEEP AND WASH ALL FLOORS IN PUBLIC LOBBY.
15 CLEAN AND VACUUM CARPETING IN PASSENGER ELEVATOR CABS AND SPOT CLEAN AS
NECESSARY.
16 DUST AND WIPE CLEAN WALLS, DOORS AND METAL WORK ON ALL PASSENGER ELEVATORS.
17 CLEAN FLOORS AND WALLS OF SERVICE ELEVATORS.
18 CLEAN AND REMOVE ANY DEBRIS FROM CEILING FIXTURES IN PASSENGER ELEVATORS.
D-5
<PAGE>
19 WASH ALL LOBBY WALK OFF MATS.
B. WEEKLY
--------------------------------------------------------------------------------
1 CLEAN ALL DOOR VENTS.
2 DUST ALL VERTICAL SURFACES WITHIN REACH.
C. MONTHLY
--------------------------------------------------------------------------------
1 DRY SHAMPOO ALL LOBBY CARPETING.
D. QUARTERLY
--------------------------------------------------------------------------------
1 STEAM CLEAN ALL LOBBY CARPETING.
2 VACUUM ALL CEILING GRILLS AND AIR LOUVERS.
IV. WINDOW CLEANING
--------------------------------------------------------------------------------
1 WINDOWS WILL BE CLEANED AS NECESSARY, BUT NOT LESS THAN THE FOLLOWING
FREQUENCIES:
EXTERIOR OF EXTERIOR GLASS - NOT LESS THAN 5 TIMES/YEAR.
INTERIOR OF EXTERIOR GLASS - NOT LESS THAN 2 TIMES/YEAR.
EXTERIOR OF INTERIOR GLASS - NOT LESS THAN 1 TIMES/YEAR.
INTERIOR OF INTERIOR GLASS - NOT LESS THAN 2 TIMES/YEAR.
D-6
<PAGE>
EXHIBIT E
COPLEY PLACE
OFFICE LEASE
FOR
DIGITAS
BOSTON, MASSACHUSETTS
MEASUREMENT STANDARDS
I. Measurement Standards - Single Tenancy Floors. Three steps, in sequence,
are to be followed to determine the Total Rentable Area: (i) compute gross area,
(ii) deduct certain areas, and (iii) add applicable share of areas to be
apportioned (see paragraph C below).
A. Gross Area: The gross area of a floor shall be the entire area within
the exterior walls. If the exterior wall consists in whole or part of
windows, fixed clear glass or other transparent material, the
measurement along the entire such wall shall be taken to a line
established by the vertical plan of the inside of the glass or other
transparent material. If it consists solely of a nontransparent
material, the measurement shall be taken to the inside surface of the
outer building wall. If a floor has no exterior wall within the
property line, measurements shall be taken to the property line. If a
floor has no full-height enclosure wall, measurement shall be taken to
the edge of the floor slab.
B. Deductions from Gross Area: The following non-rentable building areas
with one-half of their enclosing walls are to be deducted.
1. Public elevator shafts and associated elevator machine rooms.
2. Required egress stairways.
3. Areas within the gross area which are to be apportioned pursuant
to paragraph (C) below.
C. Areas to be apportioned ("Attributable Area"):
1. Common facilities including, without limitation, all heating,
ventilating, air conditioning, mechanical, electrical, cooling
tower, telephone and other service floors, rooms or areas,
containing equipment or supplies (exclusive of any tenant special
air conditioning or mechanical area or facilities) and all public
lobbies (including monumental stair and/or escalator), loading
and other common service areas, throughout and within the Building
including one-half of their enclosing walls, are to be
apportioned.
2. Whenever the height of any room or space used for a heating,
ventilating, air conditioning, mechanical, or electrical facility
above the ground floor shall exceed the average story height in
the Building by more than 25 percent, then the floor area of such
room or space shall be
E-1
<PAGE>
determined by multiplying the actual floor area by the percentage
that the height of the room or space exceeds the average story
height, and adding the area so determined to the actual floor
area of such room or space; however, if any such rooms or spaces
penetrate the next higher floor, then the entire area of such
room or space on both floors shall be apportioned under this
paragraph (C).
II. Measurement Standards - Multiple Occupancy Floors. The sum of the Total
Rentable Area for two or more tenants on a floor shall be the Total Rentable
Area for that floor as computed in the manner for single tenancy floors. Three
steps are to be followed to determine the Total Rentable Area for each tenant on
a multiple occupancy floor: (i) compute the Net Rentable Area for such floor
pursuant to (a) below, (ii) compute the Net Rentable Area for each tenant
pursuant to (b) below, and (iii) multiply the Total Rentable Area of such floor
by a fraction whose numerator is the Net Rentable Area for such tenant and whose
denominator is the Net Rentable Area for such floor.
A. Net Rentable Area for Any Floor: The Net Rentable Area shall be the
gross area as described for single tenancy floors less the entire core
area (measured to the finished enclosing walls thereof, but excluding
any part of the core rented to a tenant) and corridors (measured to the
corridor side of the finished enclosing walls of the corridor).
B. Net Rentable Area for Each Tenant: Exterior walls are to be measured as
described in the procedure for gross area. Demising walls between
tenants are to be equally divided. Corridor walls to the finished
corridor side are to be included in the Net Rentable Area of each
tenant.
III. Rentable Calculation. Rentable Area is determined by measuring usable area
(assuming all full floor occupants) and multiplying by 1.165.
E-2
