INDEX TO LEASE

 

 

TABLE OF CONTENTS

 

		PAGE
ARTICLE I	BASIC LEASE PROVISIONS AND ENUMERATIONS OF EXHIBITS
1.1	INTRODUCTION	1
1.2	BASIC DATA	1
1.3	ENUMERATION OF EXHIBITS	4
ARTICLE II	PREMISES	5
2.1	DEMISE AND LEASE OF PREMISES	5
2.2	APPURTENANT RIGHTS AND RESERVATIONS	6
2.3	RIGHT OF FIRST OFFER	7
ARTICLE III	LEASE TERM AND EXTENSION OPTIONS	10
3.1	TERM	10
3.2	EXTENSION OPTION	10
ARTICLE IV	CONDITION OF PREMISES; ALTERATIONS	12
4.1	SUBSTANTIAL COMPLETION	12
4.2	TENANT’S COMPLETION REMEDIES	19
4.3	QUALITY AND PERFORMANCE OF WORK	19
4.4	SPECIAL ALLOWANCE	20
4.5	PAYMENT OF TENANT PLAN EXCESS COSTS	21
4.6	COMPLIANCE WITH LAW	22
ARTICLE V	ANNUAL FIXED RENT AND ELECTRICITY	23
5.1	FIXED RENT	23
5.2	ALLOCATION OF ELECTRICITY CHARGES	24
5.3	LANDLORD’S RECAPTURE RIGHT	24
ARTICLE VI	TAXES	25
6.1	DEFINITIONS	25
6.2	TENANT’S SHARE OF REAL ESTATE TAXES	26
ARTICLE VII	LANDLORD’S REPAIRS AND SERVICES	27
7.1	STRUCTURAL REPAIRS	27
7.2	OTHER REPAIRS TO BE MADE BY LANDLORD	28
7.3	SERVICES TO BE PROVIDED BY LANDLORD	28
7.4	OPERATING COSTS DEFINED	28
7.5	TENANT’S ESCALATION PAYMENTS	34
7.6	NO DAMAGE	36
ARTICLE VIII	TENANT’S REPAIRS	38
8.1	TENANT’S REPAIRS AND MAINTENANCE	38

 

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ARTICLE IX	ALTERATIONS	38
9.1	LANDLORD’S APPROVAL	38
9.1.1	CERTAIN ALTERATIONS	39
9.2	CONFORMITY OF WORK	40
9.3	PERFORMANCE OF WORK, GOVERNMENTAL PERMITS AND INSURANCE	40
9.4	LIENS	41
9.5	NATURE OF ALTERATIONS	41
9.6	INCREASES IN TAXES	43
ARTICLE X	PARKING	43
10.1	PARKING PRIVILEGES	43
10.2	PARKING CHARGES	44
10.3	GARAGE OPERATION	44
10.4	LIMITATIONS	45
ARTICLE XI	CERTAIN TENANT COVENANTS	45
ARTICLE XII	ASSIGNMENT AND SUBLETTING	49
12.1	RESTRICTIONS ON TRANSFER	49
12.2	EXCEPTIONS FOR AFFILIATED ENTITIES	50
12.3	LANDLORD’S TERMINATION RIGHT	50
12.4	CONSENT OF LANDLORD	51
12.5	TENANT’S NOTICE	53
12.6	PROFIT ON SUBLEASING OR ASSIGNMENT	54
12.7	ADDITIONAL CONDITIONS	54
ARTICLE XIII	INDEMNITY AND COMMERCIAL GENERAL LIABILITY INSURANCE	56
13.1	TENANT’S INDEMNITY	56
13.1A	LANDLORD’S INDEMNITY OF TENANT	56
13.2	COMMERCIAL GENERAL LIABILITY INSURANCE	56
13.3	TENANT’S PROPERTY INSURANCE	57
13.4	NON-SUBROGATION	57
13.5	TENANT’S RISK	58
13.6	LANDLORD’S INSURANCE	58
ARTICLE XIV	FIRE, CASUALTY AND TAKING	58
14.1	DAMAGE RESULTING FROM CASUALTY	58
14.2	UNINSURED CASUALTY	59
14.3	RIGHTS OF TERMINATION FOR TAKING	60
14.4	AWARD	61
ARTICLE XV	DEFAULT	61
15.1	TENANT’S DEFAULT	61

 

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15.2	TERMINATION; RE-ENTRY	63
15.3	CONTINUED LIABILITY; RE-LETTING	63
15.4	LIQUIDATED DAMAGES	64
15.5	WAIVER OF REDEMPTION	65
15.6	LANDLORD’S DEFAULT	65
ARTICLE XVI	MISCELLANEOUS PROVISIONS	66
16.1	WAIVER	66
16.2	CUMULATIVE REMEDIES	66
16.3	QUIET ENJOYMENT	67
16.4	SURRENDER	67
16.5	BROKERAGE	67
16.6	INVALIDITY OF PARTICULAR PROVISIONS	68
16.7	PROVISIONS BINDING, ETC.	68
16.8	RECORDING	8
16.9	NOTICES AND TIME FOR ACTION	69
16.10	WHEN LEASE BECOMES BINDING	69
16.11	PARAGRAPH HEADINGS	70
16.12	RIGHTS OF MORTGAGEE	70
16.13	RIGHTS OF GROUND LESSOR	71
16.14	NOTICE TO MORTGAGEE AND GROUND LESSOR	71
16.15	ASSIGNMENT OF RENTS	71
16.16	STATUS REPORT AND FINANCIAL STATEMENTS	73
16.17	SELF-HELP	73
16.18	HOLDING OVER	74
16.19	ENTRY BY LANDLORD	74
16.20	TENANT’S PAYMENTS	75
16.21	LATE PAYMENT	75
16.22	COUNTERPARTS	75
16.23	ENTIRE AGREEMENT	75
16.24	LANDLORD LIABILITY	76
16.25	NO PARTNERSHIP	76
16.26	SECURITY DEPOSIT	76
16.27	GOVERNING LAW	79
16.28	WAIVER OF TRIAL BY JURY	79
16.29	ROOFTOP ANTENNA	79
16.30	SIGNAGE	83
16.31	STORAGE SPACE; GENERATOR SPACE	83

 

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Estimated Commencement Date:		December 1, 2003
Outside Damages Date:		June 1, 2004
Outside Completion Date:		September 1, 2004
Term or Lease Term: (sometimes called the “Original Lease Term”)		One hundred twenty-four (124) calendar months (plus the partial month, if any, immediately following the Commencement Date), unless extended or sooner terminated as hereinafter provided.
Extension Option:		Two (2) periods of five (5) years as provided in and on the terms set forth in Section 3.2 hereof.
Lease Year:		A period of twelve (12) consecutive calendar months, commencing on the Rent Commencement Date and on each succeeding anniversary of the Rent Commencement Date.
Commencement Date:		As defined in Section 3.1 hereof.
Rent Commencement Date:		Subject to the provisions of Section 5.1(B), the date four (4) months after the Commencement Date
Premises:		The entirety of the thirty-fourth (34th) floor of the Building, in accordance with the floor plan annexed hereto as Exhibit D and incorporated herein by reference, as further defined and limited in Section 2.1 hereof.
Rentable Floor Area of the Premises:		26,296 square feet
Annual Fixed Rent:
		(a) During the Initial Term:

 

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Lease Year		Rent psf			Annual Fixed Rent			Monthly Payment
1-3		$	34.00		$	894,064.00		$	74,505.33
4-6		$	36.00		$	946,656.00		$	78,888.00
7-expiration of Initial Term		$	38.00		$	999,248.00		$	83,270.67

 

		(b) During the extension option period(s) (if any and if exercised), as determined pursuant to Section 3.2.
Tenant Electricity:		See Section 5.2
Additional Rent:		All charges and other sums payable by Tenant to Landlord or its affiliates or agents as set forth in this Lease, other than the Annual Fixed Rent.
Initial Minimum Limits of Tenant’s Commercial General Liability Insurance:		$4,000,000 combined single limit per occurrence on a per location basis. provided however, that Tenant may satisfy this requirement with a $2,000,000 base commercial general liability policy with a $2,000,000 umbrella insurance policy.
Total Rentable Floor Area of the Building:		1,226,539 square feet
Building:		For the purposes of this Lease, the Building shall mean the building commonly known as The Prudential Tower located in the Prudential Center (as hereinafter defined) as the same may be altered, expanded, reduced or otherwise changed by Landlord from time to time.
Prudential Center:		For purposes of this Lease, the Prudential Center shall mean the land described on Exhibit A and the buildings, garages and other improvements thereon, commonly known as Prudential Center, as depicted on the plan attached hereto as Exhibit A-1, as

 

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		the same may be altered, expanded, reduced or otherwise changed from time to time.
Permitted Use:		General office use.
PruOwner:		Each owner of record or tenant under a ground lease, from time to time, of all or any portion of the Prudential Center.
Broker:		Trammell Crow Company
Security Deposit:		Five Hundred Thousand and 00/100 ($500,000.00) Dollars, subject to reduction in accordance with Section 16.26

 

1.3                                 ENUMERATION OF EXHIBITS. The following Exhibits attached hereto are a part of this Lease, are incorporated herein by reference, and are to be treated as a part of this Lease for all purposes. Undertakings contained in such Exhibits are agreements on the part of Landlord and Tenant, as the case may be, to perform the obligations stated therein to be performed by Landlord and Tenant, as and where stipulated therein.

 

Exhibit A	—	Legal Description of the Prudential Center
Exhibit A-1	—	Plan Depicting the Prudential Center
Exhibit B	—	Tenant Plan and Working Drawing Requirements
Exhibit B-1	—	Plans and Construction Schedule
Exhibit C	—	Landlord’s Services
Exhibit D	—	Floor Plan
Exhibit E	—	Form of Commencement Date Agreement
Exhibit F	—	Location of Reserved Parking Stalls
Exhibit G	—	Intentionally Omitted
Exhibit H	—	Broker Determination of Prevailing Market Rent
Exhibit I	—	List of Mortgagees

 

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ARTICLE II

PREMISES

 

2.1                                 DEMISE AND LEASE OF PREMISES. Landlord hereby demises and leases to Tenant, and Tenant hereby hires and accepts from Landlord, the Premises in the Building, excluding exterior faces of exterior walls, the common stairways and stairwells, elevators and elevator walls, mechanical rooms, electric and telephone closets, janitor closets, and pipes, ducts, shafts, conduits, wires and appurtenant fixtures serving exclusively or in common other parts of the Building, and if the Premises includes less than the entire rentable area of any floor, excluding the common corridors, elevator lobbies and toilets located on such floor. Tenant hereby agrees with Landlord that, upon not less than ninety (90) days’ notice from Landlord made after the third anniversary of the Commencement Date, Tenant shall relocate from the Premises then demised to Tenant under this Lease (the “Original Premises”) to other premises (the “Relocated Premises”) within the Building and upon such relocation the Relocated Premises shall become the premises demised under this Lease and wherever the term “Premises” is used herein the same thereafter shall mean and refer to the Relocated Premises. The Relocated Premises shall (i) be on a floor in the Building higher than the floor containing the Original Premises, and (ii) contain similar finishes as the Premises and the same level of fit-out, and approximately the same Rentable Square Footage as the Premises and the same number of work stations, offices, breakrooms and reception areas as are contained in the Premises as of the date Tenant receives Landlord’s notice of relocation. In no event shall Tenant be required to pay more Annual Fixed Rent or Additional Rent for the Relocated Premises than it would have had to pay for the Original Premises. Landlord, at its sole cost and expense, shall perform the partitioning of the Relocated Premises and shall place the same into substantially equivalent condition to that in which the Original Premises were in prior to such relocation, including all telecommunications wiring and cabling. Landlord shall also reimburse Tenant for Tenant’s reasonable out-of-pocket moving expenses in so relocating to the Relocated Premises including all costs for moving Tenant’s furniture, equipment, supplies and other personal property, as well as the cost of printing and distributing change of address notices to Tenant’s customers and one month’s supply of stationery showing the new address, upon billing therefor from Tenant (which billing shall include reasonable evidence thereof in the form of paid invoices, receipts and the like). Landlord shall cooperate with Tenant to minimize the disruption to Tenant’s business caused by the relocation.. Landlord shall also reimburse Tenant for the reasonable cost of the time spent by Tenant’s employees in connection with the construction of and relocation to the Relocated Premises. Tenant shall not be required to vacate the Original Premises and to relocate to the Relocated Premises until the Relocated Premises shall be demonstrated, to Tenant’s reasonable satisfaction, to be substantially complete subject to punch list

 

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items and items of long lead time. Only one such relocation request may be made during the term of this Lease. Upon any such relocation the Tenant shall enter into an amendment to this Lease confirming such relocation, but the Tenant’s failure to enter into such amendment shall not affect in any manner the relocation of the Premises demised under this Lease from the Original Premises to the Relocated Premises.

 

2.2                                 APPURTENANT RIGHTS AND RESERVATIONS.

 

(A)                               Subject to Landlord’s or any other PruOwner’s right to change or alter any of the following in Landlord’s discretion as herein provided, Tenant shall have, as appurtenant to the Premises, the non-exclusive right to use in common with others, but not in a manner or extent that would materially interfere with the normal operation and use of the Building as a multi-tenant office building and subject to reasonable rules of general applicability to tenants of the Building from time to time made by Landlord or any other PruOwner of which Tenant is given reasonable prior notice: (i) the common lobbies, corridors, stairways, and elevators of the Building, and the pipes, ducts, shafts, conduits, wires and appurtenant meters and equipment serving the Premises in common with others, (ii) the loading areas serving the Building and the common walkways and driveways necessary for access to the Building, (iii) if the Premises include less than the entire rentable floor area of any floor, the common toilets, corridors and elevator lobby of such floor and (iv) the plazas and other common areas of the Prudential Center as Landlord or any other PruOwner makes the same available from time to time; and no other appurtenant rights and easements. Notwithstanding anything to the contrary herein, Landlord has no obligation to allow any particular telecommunication service provider to have access to the Building or to the Premises, but Landlord agrees not to unreasonably withhold its consent to particular providers. If Landlord permits such access, Landlord may condition such access upon the payment to Landlord by the service provider of fees assessed by Landlord in its sole discretion, provided that no such fees shall be assessed unless such service provider provides telecommunication service to more than one tenant in the Building. Landlord agrees that any of the following providers are acceptable to Landlord, and will not be required to pay any such access fees: BellAtlantic; Shared Technologies, Inc., MFS, Comcast, Teleport Communications and Cablevision of Boston.

 

(B)                                 Landlord reserves for its benefit and the benefit of any other PruOwner the right from time to time, without unreasonable interference with Tenant’s use: (i) to install, use, maintain, repair, replace and relocate for service to the Premises and other parts of the Building, or either, pipes, ducts, conduits, wires and appurtenant fixtures, wherever located in the Premises or the Building, and (ii) to alter or relocate any other common facility, provided that substitutions are substantially equivalent or better. Installations, replacements and relocations

 

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referred to in clause (i) above shall be located so far as practicable in the central core area of the Building, above ceiling surfaces, below floor surfaces or inside the perimeter walls of the Premises. Except in the case of emergencies, Landlord agrees to use all reasonable efforts to give, or cause such PruOwner to give, Tenant reasonable advance notice of any of the foregoing activities which require work in the Premises. In making any entry into the Premises, Landlord shall use reasonable efforts to minimize interference with the Tenant’s use and enjoyment of the Premises.

 

(C)                                 Landlord reserves and excepts for its benefit and the benefit of any other PruOwner all rights of ownership and use in all respects outside the Premises, including without limitation, the Building and all other structures and improvements and plazas and common areas in the Prudential Center, except that at all times during the term of this Lease Tenant shall have a reasonable means of access from a public street to the Premises. Without limitation of the foregoing reservation of rights by Landlord, it is understood that in its sole discretion Landlord or any other PruOwner, as the case may be, shall have the right to change and rearrange the plazas and other common areas, to change, relocate and eliminate facilities therein, to erect new buildings thereon, to permit the use of or lease all or part thereof for exhibitions and displays and to sell, lease or dedicate all or part thereof to public use; and further that Landlord or any other PruOwner, as the case may be, shall have the right to make changes in, additions to and eliminations from the Building and other structures and improvements in the Prudential Center, the Premises excepted; provided however that Tenant, its employees, agents, clients, customers, and invitees shall at all times have reasonably direct access to the Building and Premises. Landlord is not under any obligation to permit individuals without proper building identification to enter the Building after 6:00 p.m.

 

2.3                                 RIGHT OF FIRST OFFER.

 

(A)                               Subject to the provisions of Sections 2.3(C) and 2.3(D) below, provided that at the time that any separately demised portion of the thirty-fifth (35th) floor of the Building (each such portion being referred to as an “RFO Space”) first becomes available for reletting (i) there exists no “Event of Default” (defined in Section 15.1), (ii) this Lease is still in full force and effect, and (iii) Tenant has neither assigned this Lease nor sublet more than twenty percent (20%) of the Rentable Floor Area of the Premises (except for an assignment or subletting permitted without Landlord’s consent under Section 12.2 hereof), Landlord agrees not to enter into a lease to relet the RFO Space without first giving to Tenant an opportunity to lease such space for the RFO Annual Fixed Rent as determined by Landlord. An RFO Space shall be deemed to be available for reletting when Landlord, in its sole judgment, determines that: (x) such RFO Space will be vacated by the tenant of such RFO Space, (y) Landlord intends to offer such area

 

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for lease, and (z) all rights to lease such RFO Space which are superior to Tenant’s rights under this Section 2.3 have lapsed unexercised in accordance with this Section 2.3 or have been irrevocably waived. When the RFO Space becomes so available for reletting, Landlord shall notify Tenant of the availability of such space and shall advise Tenant of the RFO Annual Fixed Rent and other business terms upon which Landlord is willing to lease the RFO Space (“Landlord’s Notice”). If Tenant wishes to exercise Tenant’s right of first offer, Tenant shall do so, if at all, by giving Landlord notice (“Tenant’s RFO Exercise Notice”) of Tenant’s desire to lease the entire amount of such space (it being agreed that Tenant has no right to lease less than the entire amount of the RFO Space) on the terms provided herein within fifteen (15) days after receipt of Landlord’s Notice to Tenant of the availability of such space and Landlord’s quotation of the RFO Annual Fixed Rent and business terms, time being of the essence. If Tenant shall timely give such notice the same shall constitute an agreement to enter into an instrument in writing to lease such space within thirty (30) days thereafter upon all of the same terms and conditions in this Lease except for the provisions of this Section, the Annual Fixed Rent which shall be equal to the RFO Annual Fixed Rent as quoted by Landlord, such other business terms set forth in Landlord’s Notice and those provisions hereof which are inappropriate to the business agreement. If Tenant shall fail to timely give Tenant’s RFO Exercise Notice with respect to an RFO Space, time being of the essence in respect to such exercise, Landlord shall be free for two hundred seventy (270) days after the date of Landlord’s Notice to Lease such RFO Space, upon economic terms, taken as a whole, not less than ninety percent (90%) of the economic terms, taken as a whole, contained in Landlord’s Notice, and without again offering such space to Tenant for lease (it being agreed that if Landlord does not so lease such space during such two hundred seventy (270) day period or if Landlord proposes to lease such space upon economic terms, taken as a whole, less than ninety percent (90%) of the economic terms, taken as a whole contained in Landlord’s Notice during such two hundred seventy (270) day period, the terms of this Section shall continue to apply to the RFO Space).

 

(B)                                 If Tenant shall exercise any such right of first offer and if, thereafter, the then occupant of the RFO Space wrongfully fails to deliver possession of such premises at the time when its tenancy is scheduled to expire, commencement of the term of Tenant’s occupancy and lease of such additional space shall, in the event of such holding over by such occupant, be deferred until possession of the additional space is delivered to Tenant. The failure of the then occupant of such premises to so vacate shall not constitute or default or breach by Landlord and shall not give Tenant any right to terminate this Lease or to deduct from, offset against or withhold Annual Fixed Rent or additional rent (or any portions thereof). However, Landlord agrees to use good faith efforts (which shall be limited to the commencement and prosecution of eviction proceedings but shall not require the

 

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taking of any appeal) to cause the then occupant of the RFO Space to vacate such space when its tenancy expires.

 

(C)                                 As of the date hereof, the entire thirty-fifth (35th) floor of the Building as well as other premises in the Building are leased to The Gillette Company (The Gillette Company, as well as any successor to The Gillette Company which holds the tenant’s interest under The Gillette Company’s lease with Landlord, as such lease may be extended, amended or renewed, being hereinafter referred to as the “Existing Tenant”). Such existing lease and the term thereof, including, but not limited to, the original term thereof, options to extend the term thereof, any expansion options and any amendments thereto is hereinafter called the “Existing Lease”. Notwithstanding anything to the contrary herein contained, Tenant’s rights to lease the RFO Space shall be subject and subordinate (i) to the Existing Lease and the rights of the Existing Tenant thereunder, and (ii) to any other rights which Landlord may grant to the Existing Tenant in the future, pursuant to amendments to the Existing Lease or otherwise, all of which rights are prior to the rights of Tenant under this Section.

 

(D)                                Notwithstanding anything to the contrary herein contained, and in addition to the prior rights of the Existing Tenant as set forth in the preceding paragraph, Tenant’s rights to lease the RFO Space shall be subject and subordinate to (i) the rights, as of the Execution Date of this Lease, of any existing tenants (“Other RFO Tenants”) under existing leases with Landlord (“Other RFO Tenant Leases”) for space in the Building to lease the RFO Space, and to Landlord’s right to grant to any Other RFO Tenants a grace period (for the purpose of exercising such rights) of up to an additional thirty (30) days beyond the last day which such Other RFO Tenant has to exercise such rights. Other RFO Tenants include any entity which becomes the holder of the tenant’s interest under an Other RFO Tenant Lease; and (ii) the right of any tenant of the RFO Space (“RFO Existing Tenant”) to exercise any right which it has under its lease to extend or renew the term of its lease of the RFO Space. If any Other RFO Tenants or any RFO Existing Tenants lease the RFO Space pursuant to the Prior RFO Rights, Tenant shall have no right to lease such RFO Space pursuant to this Section 2.3 until such space again becomes available for relet, subject to, and in accordance with the provisions of this Section 2.3. Landlord represents that as of the Execution Date hereof, to the actual knowledge of David Provost, Vice President, Leasing, without further inquiry, the only Other RFO Tenants are the Existing Tenant and Digitas LLC.

 

(E)                                  Tenant’s rights under this Section 2.3 shall expire on, and Landlord shall have no obligation to deliver a Landlord’s Notice to Tenant after, the date that is twelve (12) months prior to the scheduled termination date of this Lease.

 

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extend beyond the two (2) Extended Terms referenced in this Section 3.2(A)) for two (2) periods of five (5) years as hereinafter set forth. Each option period is sometimes herein referred to as the “Extended Term.” Notwithstanding any implication to the contrary Landlord has no obligation to make any additional payment to Tenant in respect of any construction allowance or the like or to perform any work to the Premises as a result of the exercise by Tenant of any such option.

 

(B)                                 No earlier than ninety (90) days prior to the Extension Notice Date, as hereinafter defined, Tenant may request that Landlord designate the Annual Fixed Rent payable in respect of the Extended Term in question, and Landlord shall designate the Annual Fixed Rent payable during the Extended Term in question (“Landlord’s Rent Quotation”) within thirty (30) days thereafter but Landlord shall not be required to make such designation more than seventeen (17) months prior to the commencement of the Extended Term in question. If at the expiration of thirty (30) days after the date when Landlord provides such quotation to Tenant (the “Negotiation Period”), Landlord and Tenant have not reached agreement on a determination of an Annual Fixed Rent for such Extended Term and executed a written instrument extending the Term of this Lease pursuant to such agreement, then the provisions of Section 3.2(C) below shall apply.

 

(C)                                 If Tenant desires to exercise an option to extend the Term, then Tenant shall give notice (“Tenant’s Extension Exercise Notice”) to Landlord, not earlier than fifteen (15) months nor later than twelve (12) months prior to the expiration of the then Term of this Lease (as it may have been previously extended) (the Extension Notice Date”) exercising such option to extend. If Tenant shall not have timely given Tenant’s Extension Exercise Notice on or before the date twelve (12) months prior to the expiration of the then Term of this Lease (as it may have been previously extended), then such option shall be void and of no further force and effect. If Tenant does not agree with Landlord’s Rent Quotation, then Tenant shall have the right, for thirty (30) days following the expiration of the Negotiation Period but not later than the date twelve (12) months prior to the expiration of the then Term of this Lease (as it may have been previously extended), to make a request to Landlord for a broker determination (the “Broker Determination”) of the Prevailing Market Rent (as defined in Exhibit H) for such Extended Term, which Broker Determination shall be made in the manner set forth in Exhibit H. If Tenant shall have timely given Tenant’s Extension Exercise Notice and shall timely have requested the Broker Determination, then the Annual Fixed Rent for such Extended Term shall be ninety-five percent (95%) of the Prevailing Market Rent as determined by the Broker Determination. If Tenant shall have timely given Tenant’s Extension Exercise Notice but shall not have timely requested the Broker Determination, then the Annual Fixed Rent during the applicable Extended Term shall be equal to Landlord’s Rent Quotation.

 

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(D)                                Upon the giving of the Exercise Notice by Tenant to Landlord exercising Tenant’s applicable option to extend the Lease Term in accordance with the provisions of Section 3.2 (C) above, then this Lease and the Lease Term hereof shall automatically be deemed extended, for the applicable Extended Term, without the necessity for the execution of any additional documents, except that Landlord and Tenant agree to enter into an instrument in writing setting forth the Annual Fixed Rent for the applicable Extended Term as determined in the relevant manner set forth in this Section 3.2; and in such event all references herein to the Lease Term or the Term of this Lease shall be construed as referring to the Lease Term, as so extended, unless the context clearly otherwise requires, and except that there shall be no further option to extend the Lease Term. Notwithstanding anything contained herein to the contrary, in no event shall Tenant have the right to exercise more than one extension option at a time and, further, Tenant shall not have the right to exercise its second extension option unless it has duly exercised its first extension option and in no event shall the Lease Term hereof be extended for more than ten (10) years after the expiration of the Original Lease Term hereof.

 

ARTICLE IV

CONDITION OF PREMISES; ALTERATIONS

 

4.1                                 SUBSTANTIAL COMPLETION.

 

(A)                               PLANS AND CONSTRUCTION PROCESS.

 

(1)                                   PREPARATION OF THE PLANS. No later than dates set forth in Exhibit B-1, Tenant shall submit the specified plans to Landlord, or otherwise take the action specified. Landlord hereby acknowledges receipt and approval of the Permit/GMP Plans for the work to be performed by Landlord to prepare the Premises for Tenant’s occupancy (“Landlord’s Work”), provided, however, that the Landlord shall have no responsibility for the installation or connection of Tenant’s computer, telephone, other communication equipment, systems or wiring, unless otherwise agreed by Landlord in writing. By not later than the date set forth in Exhibit B-1, Tenant shall also submit full construction drawings for Landlord’s Work, which plans and specifications (the “Construction Plans”) shall contain at least the information required by, and shall conform to the requirements of, Exhibit B. Landlord shall have no obligation to perform Landlord’s Work until the Construction Plans shall have been presented to it and approved by it. Provided that the Construction Plans shall contain at least the information required by, and shall conform to the requirements of, Exhibit B, Landlord shall not unreasonably withhold or delay its approval of the Construction Plans. However, Landlord’s determination of matters relating to material aesthetic issues relating to alterations or changes visible from the common areas, or from the exterior of the Building at street level, shall be in Landlord’s sole discretion.

 

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Within five (5) days after Landlord’s receipt of Tenant’s request for approval of the Construction Plans (as well as receipt of the plans to be approved), Landlord shall notify Tenant as to whether Landlord approves the Construction Plans. If Landlord disapproves such plans, such notice shall state the grounds for such disapproval with reasonable specificity.

 

(1A)                         COST OF LANDLORD’S WORK. Landlord shall engage Shawmut Design & Construction, or another contractor reasonably acceptable to Tenant, to perform Landlord’s Work. Landlord shall be paid a fee, equal to four percent (4%) of the “Cost of the Work.” (as hereinafter defined) to compensate Landlord for the construction management services which Landlord provides with respect to the performance of Landlord’s Work. As used herein, “Cost of the Work” shall be defined as the total project costs for Landlord’s Work, including both hard and soft costs. The costs of Landlord’s Work shall be paid as set forth in Section 4.1(A)(2) below.

 

(2)                                   TENANT PLAN EXCESS COSTS. To the extent such costs exceed the Tenant Allowance set forth in Section 4.4, such excess costs are hereinafter referred to as “Tenant Plan Excess Costs” and shall be paid by Tenant in accordance with Section 4.5. Tenant shall notify Landlord in writing, within three (3) business days of receipt by Tenant of Landlord’s statement of Tenant Plan Excess Costs, of either its approval thereof and its authorization to Landlord to proceed with Landlord’s Work in accordance with the Construction Plans in the event Landlord had no objection to the Construction Plans, or changes in the Construction Plans prepared by Tenant’s architect which shall be responsive to any objections raised by Landlord. In the event of the latter modification, Landlord shall, as soon as practicable after Landlord obtains price quotations for any changes in the Construction Plans, quote to Tenant all changes in Tenant Plan Excess Costs resulting from said plan modifications and whether Landlord approves the revised Construction Plans. Tenant shall, within three (3) business days after receipt of Landlord’s revised quotation of Tenant Plan Excess Costs submit to Landlord any revisions to the Construction Plans required by Landlord.

 

(3)                                   AUTHORIZATION TO PROCEED DATE. Tenant shall, on or before the Authorization to Proceed Date, give Landlord written authorization to proceed with Landlord’s Work in accordance with Tenant’s approved Construction Plans (“Notice to Proceed”). In addition, Tenant shall, on or before the Authorization to Proceed Date, execute and deliver to Landlord any applications or other documentation required in order to obtain all permits and approvals necessary for Landlord to commence and complete Landlord’s Work on a timely basis (“Permit Documentation”). The Authorization to Proceed Date shall be extended on a day for day basis for each day of Landlord Delay. For purposes hereof, “Landlord Delay” shall mean a failure by Landlord to respond to plan submissions within the time frames or to the reasonableness standards set forth in Section 4.1(A)(1).

 

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(4)                                   CHANGE ORDERS. Tenant shall have the right, in accordance herewith, to submit for Landlord’s approval change proposals subsequent to Landlord’s approval of the Construction Plans and Tenant’s approval of the Tenant Plan Excess Costs, if any (each, a “Change Proposal”). Landlord agrees to respond to any such Change Proposal within such time as is reasonably necessary (taking into consideration the information contained in such Change Proposal) after the submission thereof by Tenant, advising Tenant of any anticipated costs (“Change Order Costs”) associated with such Change Proposal, as well as an estimate of any delay which would likely result in the completion of the Landlord’s Work if a Change Proposal is made pursuant thereto (“Landlord’s Change Order Response”). Tenant shall have the right to then approve or withdraw such Landlord’s Change Order Response within three(3) days after receipt of such Landlord’s Change Order Response. If Tenant fails to respond to Landlord’s Change Order Response within such three (3) day period, such Change Proposal shall be deemed withdrawn. If Tenant approves such Change Proposal, then such Change Proposal shall be deemed a “Change Order” hereunder and if the Change Order is made, then the Change Order Costs associated with the Change Order, if any, shall be deemed additions to the Tenant Plan Excess Costs and shall be paid in the same manner as Tenant Plan Excess Costs are paid as set forth in Section 4.5.

 

(5)                                   TENANT RESPONSE TO REQUESTS FOR INFORMATION AND APPROVALS. Except to the extent that another time period is expressly herein set forth, Tenant shall respond to any reasonable request from Landlord, Landlord’s architect, Landlord’s contractor and/or Landlord’s Construction Representative for approvals or information in connection with Landlord’s Work, within two (2) business days of Tenant’s receipt of such request, except that if the information requested is not readily available, Tenant shall so inform Landlord within two (2) business days of Tenant’s receipt of such request, whereupon Tenant shall respond to such request as soon as possible, but in no event more than ten (10) days after Tenant’s receipt of such request.

 

(6)                                   TIME OF THE ESSENCE. Time is of the essence in connection with Tenant’s obligations under this Section 4.1.

 

(B)                                 TENANT DELAY.

 

(1)                                   A “TENANT DELAY” shall be defined as the following:

 

(a)                                   Tenant’s failure to timely comply with the Plans and Construction Schedule set forth in Exhibit B-1 attached hereto, including without limitation Tenant’s failure to give authorization to Landlord to proceed with Landlord’s Work on or before the Authorization to Proceed Date (as the same may be

 

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extended as provided above) or to provide all required Permit Documentation to Landlord on or before the Authorization to Proceed Date; or

 

(b)                                  Tenant’s failure timely to respond to any reasonable request from Landlord, Landlord’s architect, Landlord’s contractor and/or Landlord’s Construction Representative within the time periods set forth in this Article IV (including, without limitation, Section 4.1(A)(5) above);

 

(c)                                   Tenant’s failure to pay the Tenant Plan Excess Costs in accordance with Section 4.5;

 

(d)                                  Any delay due to items of work for which there is a long lead time in obtaining the materials therefor or which are specially or specifically manufactured, produced or milled for the work in or to the Premises and require additional time for receipt or installation, but only with respect to items as to which Landlord notifies Tenant in writing at the time that Landlord approves Tenant’s plans and/or change orders related thereto that such items are long lead time items;

 

(e)                                   Any delay due to changes, alterations or additions required or made by Tenant after Landlord approves Tenant’s Construction Plans including, without limitation, Change Orders. With respect to any Tenant Delay under this clause (e), no period of time prior to the date that Landlord notifies Tenant of a Tenant Delay shall be considered to be a Tenant Delay; or

 

(f)                                     Any other delays caused by Tenant, Tenant’s contractors, architects, engineers or anyone else engaged by Tenant in connection with the preparation of the Premises for Tenant’s occupancy, including, without limitation, utility companies and other entities furnishing communications, data processing or other service, equipment, or furniture. With respect to any Tenant Delay under this clause (f), no period of time prior to the date that Landlord notifies Tenant of a Tenant Delay shall be considered to be a Tenant Delay.

 

The Tenant Delays defined in clauses (a), (b) and (c) of this Section 4.1(B)(1) are sometimes hereinafter referred to as “Accelerated Rent Tenant Delays”, the Tenant Delays defined in clauses (d), (e), and (f) of this Section 4.1(B)(1) are sometimes hereinafter referred to as “Other Tenant Delays”. Landlord agrees to give Tenant status reports from time to time upon Tenant’s written request of the status of any of the items set forth in this Section 4.1(B)(1).

 

(2)                                   TENANT OBLIGATIONS WITH RESPECT TO TENANT DELAYS.

 

(a)                                   Tenant covenants that no Tenant Delay shall delay commencement of the Term or the obligation to pay Annual Fixed Rent or Additional Rent,

 

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regardless of the reason for such Tenant Delay or whether or not it is within the control of Tenant or any such employee. Landlord’s Work shall be deemed substantially completed as of the date when Landlord’s Work would have been substantially completed but for any Tenant Delays, as certified by the project architect or Landlord’s architect, in the exercise of its professional judgment.

 

(b)                                  If any Accelerated Rent Tenant Delays occur: (i) Tenant shall, for the purpose of reimbursing Landlord for lost rent due to Landlord’s inability to proceed with Landlord’s Work as scheduled, pay to Landlord an amount (“Accelerated Rent Payment”) equal to one day of Annual Fixed Rent and Additional Rent for each day of Accelerated Rent Tenant Delay, (ii) the Estimated Commencement Date shall be extended by each day of Accelerated Rent Tenant Delay, and (iii) if the Commencement Date occurs before the Estimated Commencement Date, then any Accelerated Rent Payment paid by Tenant shall be credited against the Annual Fixed Rent and Additional Rent payable by Tenant in respect of the period commencing as of the Commencement Date and ending as of the Estimated Commencement Date.

 

(c)                                   Tenant shall reimburse Landlord the amount, if any, by which the cost of Landlord’s Work is increased as the result of any Tenant Delay in excess of the amounts paid under Section 4.1(B)(2)(b) above and not otherwise credited to Tenant under said Section 4.1(B)(2)(b). Notwithstanding the foregoing, no amounts shall be due from Tenant pursuant to this Section 4.1(B)(2)(c) unless and until the total cost of Landlord’s Work, including any increases therein due to Tenant Delay, exceeds the Tenant Allowance, as defined in Section 4.4 hereof.

 

(d)                                  Any amounts due from Tenant to Landlord under this Section 4.1(B)(2) shall be due and payable within thirty (30) days of billing therefor, and shall be considered to be Additional Rent. Nothing contained in this Section 4.1(B)(2) shall limit or qualify or prejudice any other covenants, agreements, terms, provisions and conditions contained in this Lease.

 

(C)                                 SUBSTANTIAL COMPLETION OF LANDLORD’S WORK.

 

(1)                                   LANDLORD’S OBLIGATIONS. Subject to Tenant Delays and delays due to Force Majeure, as defined in Section 14.1, Landlord shall use reasonable speed and diligence to have Landlord’s Work substantially completed on or before the Estimated Commencement Date, but Tenant shall have no claim against Landlord for failure so to complete construction of Landlord’s Work in the Premises, except for the right to terminate this Lease, without further liability to either party, in accordance with the provisions hereinafter specified in Section 4.2.

 

(2)                                   DEFINITION OF SUBSTANTIAL COMPLETION. The Premises shall be treated as having been substantially completed on the date that Landlord notifies Tenant

 

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(which notice may be by facsimile) that both of the following have occurred:

 

(a)                                   Landlord’s Work, together with common facilities for access and services to the Premises, has been completed (or would have been completed except for Tenant Delays, as determined in accordance with Section 4.1(B)(2)(a)) except for Punch List Items, as hereinafter defined, and

 

(b)                                  Permission has been obtained (or would have been obtained except for Tenant Delays) from the applicable governmental authority, to the extent required by law, for occupancy by Tenant of the Premises for the Permitted Use.

 

In the event of any dispute as to the date on which Landlord’s Work has been substantially completed, the reasonable determination of Landlord’s architect as to such date shall be deemed conclusive and binding on both Landlord and Tenant.

 

Landlord agrees to notify Tenant, from time to time upon Tenant’s written request, of Landlord’s estimate of when Landlord’s Work will be substantially completed.

 

(3)                                   PUNCH LIST ITEMS AND INCOMPLETE WORK.

 

(a)                                   “Punch List Items” shall be defined as those items of work and adjustment of equipment and fixtures in the Premises, the incompleteness of which does not cause material interference with Tenant’s use of the Premises, or access thereto, and which can be completed after Tenant commences its occupancy of the Premises without causing material interference with Tenant’s use of the Premises or access thereto. The Punch List Items shall be set forth in a so-called punch list prepared and signed by Tenant and Landlord (provided, however, that Landlord and Tenant shall use good faith efforts to arrange for a mutually acceptable time to walk through the Premises and compile the punch list. If despite such good faith efforts Landlord and Tenant are unable to agree upon a mutually acceptable time, Landlord shall give Tenant reasonable advance notice of the time when Landlord intends to walk through the Premises and compile the punch list, and if Tenant does not accompany Landlord on such walk-through, Tenant shall be bound by the punch list compiled by Landlord).

 

(b)                                  Landlord shall complete as soon as conditions practically permit the Punch List items and any long-lead time items which were not complete as of the substantial completion of the Premises, and Tenant shall cooperate with Landlord in providing access as may be required to complete such work in a normal manner. Landlord agrees to perform such completion work in a manner so as not to unreasonably interfere with Tenant’s use of the Premises, provided, however, that such work shall be performed during normal business hours unless Tenant elects to pay the excess cost for performing such work after normal

 

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business hours.

 

(4)                                   EARLY ACCESS BY TENANT. Landlord shall permit Tenant access for installing Tenant’s trade fixtures in portions of the Premises prior to substantial completion when it can be done without material interference with remaining work or with the maintenance of harmonious labor relations. Any such access by Tenant shall be at upon all of the terms and conditions of the Lease (other than the payment of Annual Fixed Rent) and shall be at Tenant’s sole risk, and Landlord shall not be responsible for any injury to persons or damage to property resulting from such early access by Tenant.

 

(5)                                   PROHIBITION ON ACCESS BY TENANT PRIOR TO ACTUAL SUBSTANTIAL COMPLETION. If, prior to the date that the Premises are in fact actually substantially complete, the Premises are deemed to be substantially complete pursuant to the provisions of this Section 4.1 (i.e. and the Commencement Date has therefore occurred), Tenant shall not (except with Landlord’s consent) be entitled to take possession of the Premises for the Permitted Use until the Premises are in fact actually substantially complete. Notwithstanding the foregoing, Landlord agrees to permit such occupancy of the Premises by Tenant provided that, in Landlord’s reasonable opinion, such occupancy will not materially interfere with or delay the completion of Landlord’s Work, nor will such occupancy endanger the safety of persons or property.

 

(6)                                   SPECIAL PROVISION CONCERNING POTENTIAL VERIZON STRIKE. The parties acknowledge that the employees of Verizon, a major provider of telecommunication services in the greater Boston area, are threatening to strike imminently. Notwithstanding anything to the contrary herein contained, the parties agree as follows:

 

(i)                                      If Tenant submits a work order for Tenant’s telecommunication services reasonably satisfactory to Landlord on or before September 5, 2003; and

 

(ii)                                   The installation and/or connection of Tenant’s telecommunication services is delayed due to an actual Verizon strike; and

 

(iii)                                As a result, Tenant is unable to use the Premises for the Permitted Use because it lacks telecommunication services; then

 

(iv)                               There shall be no Annual Fixed Rent due hereunder during the period, not to exceed seventy-five (75) days, after the Commencement Date and before Tenant has sufficient telecommunications services to be able to use the Premises for the Permitted Use.

 

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in compliance with all applicable laws, ordinances, rules, regulations, statutes, by-laws, court decisions, and orders and requirements of all public authorities (“Legal Requirements”) and all Insurance Requirements (as defined in Section 9.1 hereof). All of Tenant’s work shall be coordinated with any work being performed by or for Landlord and in such manner as to maintain harmonious labor relations. Each party may inspect the work of the other at reasonable times and shall promptly give notice of observed defects. Each party authorizes the other to rely in connection with design and construction upon approval and other actions on the party’s behalf by any Construction Representative of the party named in Section 1.2 or any person hereafter designated in substitution or addition by notice to the party relying. Except to the extent to which Tenant shall have given Landlord notice of respects in which Landlord has not performed Landlord’s construction obligations under this Article IV (if any) not later than the end of the eleventh (11th) full calendar month next beginning after the Commencement Date, Tenant shall be deemed conclusively to have approved Landlord’s construction and shall have no claim that Landlord has failed to perform any of Landlord’s obligations under this Article IV (if any). Landlord agrees to correct or repair at its expense items which are then incomplete or do not conform to the work contemplated under the Construction Plans and as to which, in either case, Tenant shall have given notice to Landlord, as aforesaid.

 

4.4                                  SPECIAL ALLOWANCE

 

(A)                               Landlord shall provide to Tenant a special allowance equal to $1,709,240.00, being the product of (i) $65.00 and (ii) the Rentable Floor Area of the Premises (the “Tenant Allowance”), in accordance with and subject to the provisions of this Section 4.4. The Tenant Allowance shall be used and applied by Landlord solely on account of the cost of Landlord’s Work. In no event shall Landlord’s obligations to pay or reimburse Tenant for any of the costs of Landlord’s Work which exceed the total Tenant Allowance. Notwithstanding the foregoing, Landlord shall be under no obligation to apply any portion of the Tenant Allowance for any purposes other than as provided in this Section 4.4.

 

(B)                                 In addition, in the event that (i) Tenant is in default under this Lease, or (ii) there are any liens against Tenant’s interest in the Lease or against the Building or the Site arising out of any work performed by Tenant or any litigation in which Tenant is a party which are not bonded to the reasonable satisfaction of Landlord, then, from and after the date of such event (“Event”), Landlord shall have no further obligation to fund any portion of the Tenant Allowance until such default has been cured or waived in writing or such lien has been released or bonded over to Landlord’s reasonable satisfaction.

 

(C)                                 Further, in no event shall Landlord be required to make application of any portion of the Tenant Allowance on account of any supervisory fees, overhead,

 

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management fees or other payments to Tenant, or any partner or affiliate of Tenant. In the event that the costs of Landlord’s Work are less than the Tenant Allowance, Tenant shall not be entitled to any payment or credit nor shall there be any application of the same toward Annual Fixed Rent or Additional Rent owed by Tenant under this Lease.

 

(D)                                In addition to the foregoing Tenant Allowance, Landlord shall also provide Tenant with an allowance (“Initial Fit Allowance”) of up to $2,629.60, being the product of (i) $0.10 and (ii) the Rentable Floor Area of the Premises, toward the cost of initial fit plans.

 

(E)                                  Provided that no Event of Default has occurred hereunder at the time that Tenant requests any requisition on account of the Initial Fit Allowance, Landlord shall pay the cost of the work shown on each requisition (as hereinafter defined) submitted by Tenant to Landlord within twenty (20) days of submission thereof by Tenant to Landlord.

 

For the purposes hereof, a “requisition” shall mean written documentation showing in reasonable detail the costs of the initial fit plans prepared for Tenant. Each requisition shall be accompanied by evidence reasonably satisfactory to Landlord that (if applicable) all work covered by previous requisitions has been fully paid by Tenant.

 

(F)                                  Notwithstanding anything to the contrary herein contained:

 

(i)                                      Landlord shall have no obligation to advance funds on account of the Initial Fit Allowance unless and until Landlord has received the requisition in question.

 

(ii)                                   Landlord shall have no obligation to pay the Initial Fit Allowance in respect of any requisition submitted after the date six (6) months after substantial completion of the Premises.

 

(iii)                                Tenant shall not be entitled to any unused portion of the Tenant Allowance of Initial Fit Allowance.

 

4.5                                  PAYMENT OF TENANT PLAN EXCESS COSTS. To the extent, if any, that there are Tenant Plan Excess Costs, Tenant shall pay Landlord the Monthly Improvement Cost Payment (as hereinafter defined), as Additional Rent, in order to repay Landlord for the amount of such Tenant Plan Excess Costs up to the Maximum Amount, as hereinafter defined (the “Amortization Amount”) as provided herein. However, in the event that the Tenant Plan Excess Costs exceed $525,920.00 (being the product of (i) $20.00 and (ii) the Rentable Floor Area of the Premises) (“Maximum Amount”), then Tenant shall pay to Landlord, as

 

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Additional Rent, prior to the commencement of Landlord’s Work, all such Tenant Plan Excess Costs in excess of the Maximum Amount.

 

Tenant shall reimburse Landlord, as Additional Rent, for the Amortization Amount amortized on a direct reduction basis over one hundred twenty-three (123) months at an interest rate of nine percent (9%) per annum in one hundred twenty-three (123) monthly payments (“Monthly Improvement Cost Payments”) payable on the first day of each month following the Commencement Date (provided that if the Commencement Date is the first day of a month such payments shall commence on the Commencement Date) in the same manner as provided in the Lease for the payment of Annual Fixed Rent. By way of example, if the Amortization Amount equals $262,960.00, Tenant shall make 123 Monthly Improvement Cost Payments of $3,280.96 each.

 

Neither the Amortization Amount nor the Monthly Improvement Cost Payments shall be abated or reduced for any reason whatsoever (including, without limitation, untenantability of the Premises or termination of the Lease). Without limiting the foregoing, the rent abatement provisions of Article XIV of the Lease shall not apply to the Amortization Amount or the Monthly Improvement Cost Payments. Since the payment of the Amortization Amount represents a reimbursement to Landlord of costs which Landlord will incur in connection with the construction of the Premises, if there is any default (beyond the expiration of any applicable grace periods) of any of Tenant’s obligations under the Lease (including, without limitation, its obligation to pay the Monthly Improvement Cost Payments) or if the term of this Lease is terminated for any reason whatsoever prior to the termination of the term of the Lease, Tenant shall pay to Landlord, immediately upon demand, the unamortized balance of the Amortization Amount. Tenant’s obligation to pay the unamortized balance of the Amortization Amount shall be in addition to all other rights and remedies which Landlord has based upon any default of Tenant under the Lease, and Tenant shall not be entitled to any credit or reduction in such payment based upon amounts collected by Landlord from reletting the Premises after the default of Tenant.

 

4.6                                  COMPLIANCE WITH LAW. Landlord represents to Tenant that, to the best of Landlord’s actual knowledge, the Building was constructed in accordance with the provisions of the Legal Requirements applicable to the Building as of the construction of the Building, and Landlord has not received any notices from any governmental authorities alleging that the Building is currently in violation of any Legal Requirement (except to the extent, if any, that Landlord may have received any such notice and corrected the violation claimed therein). Landlord shall use reasonable efforts to make the common areas of the Building and the “Base Building” (as hereinafter defined) (including the Base Building areas in the Premises) comply with Legal Requirements, provided that the foregoing shall not apply to (i) requirements of such Legal Requirements resulting from the use of, or

 

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additions, alterations or improvements in, any tenant space in the Building, including the Premises, and (ii) any additions, alterations and improvements (including the Landlord’s Work, as more fully set forth below) in any tenant space in the Building, including the Premises. For purposes of this Section 4.6, “Base Building” shall mean the structural elements of the Building and the heating, ventilating and air conditioning, electrical and plumbing systems and equipment bringing primary service to the tenant spaces in the Building. Landlord agrees that to the extent that Landlord receives notice that the common areas and/or the Base Building are not in compliance with Legal Requirements, Landlord shall, when, if and in the manner permitted or required by Legal Requirements, remedy such non-compliance at its sole cost and expense, except to the extent that the cost of such compliance may be properly included in Operating Expenses..

 

Tenant acknowledges that it is preparing the Construction Plans, and that Landlord has no responsibility whatsoever for the compliance of the Construction Plans with Applicable Laws. Landlord agrees to perform Landlord’s Work in accordance with the Construction Plans. Except to the extent due to Landlord’s failure to perform Landlord’s Work in accordance with the Construction Plans, Landlord shall have no responsibility for the compliance of Landlord’s Work with Applicable Laws.

 

Tenant at Tenant’s expense shall be responsible for (i) the compliance of any addition, alterations or improvements performed by or for Tenant or any assignee or subtenant of Tenant, including the Landlord’s Work except to the extent set forth in the preceding paragraph (“Tenant Improvements”) with the Federal Americans With Disabilities Act (the “ADA”), and (ii) compliance with the ADA required because of “Tenant’s Specific Use of the Premises” (as defined below) or Tenant Improvements. The term “Tenant’s Specific Use of the Premises” as used herein shall not refer to the general office use of the Premises, but shall refer to the specific products and operations Tenant and any assignee or subtenant of Tenant use in the Premises and the manner in which Tenant and any assignee or subtenant of Tenant use such products and conduct such operations.

 

4.7                                  DISPUTES.Any dispute between the parties with respect to the provisions of this Article IV shall be submitted to arbitration in accordance with Section 16.32.

 

ARTICLE V

ANNUAL FIXED RENT AND ELECTRICITY

 

5.1                                  FIXED RENT. Tenant agrees to pay to Landlord, or as directed by Landlord at such place as Landlord shall from time to time designate by notice, on the Rent Commencement Date, and thereafter monthly, in advance, on the first day of each and every calendar month during the Original Lease Term, a sum equal to one-twelfth (1/12) of the Annual Fixed Rent specified in Section 1.2 hereof and on the

 

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first day of each and every calendar month during each Extended Term (if exercised), a sum equal to one-twelfth of the Annual Fixed Rent as determined in Section 3.2 for the applicable Extended Term. Until notice of some other designation is given, Annual Fixed Rent and all other charges for which provision is herein made shall be paid by remittance to or to the order of BOSTON PROPERTIES LIMITED PARTNERSHIP, Agents at P.O. Box 3557, Boston, Massachusetts 02241-3557, and all remittances received by BOSTON PROPERTIES LIMITED PARTNERSHIP, as Agents as aforesaid, or by any subsequently designated recipient, shall be treated as a payment to Landlord.

 

Annual Fixed Rent for any partial month shall be paid by Tenant to Landlord at such rate on a pro rata basis, and, if the Rent Commencement Date shall be other than the first day of a calendar month, the first payment of Annual Fixed Rent which Tenant shall make to Landlord shall be a payment equal to a proportionate part of such monthly Annual Fixed Rent for the partial month from the Rent Commencement Date to the first day of the succeeding calendar month.

 

Additional Rent payable by Tenant on a monthly basis, as elsewhere provided in this Lease, likewise shall be prorated, and the first payment on account thereof shall be determined in similar fashion and shall commence on the Rent Commencement Date and other provisions of this Lease calling for monthly payments shall be read as incorporating this undertaking by Tenant.

 

Notwithstanding that the payment of Annual Fixed Rent payable by Tenant to Landlord shall not commence until the Rent Commencement Date, Tenant shall be subject to, and shall comply with, all other provisions of this Lease as and at the times provided in this Lease.

 

The Annual Fixed Rent and all other charges for which provision is made in this Lease shall be paid by Tenant to Landlord without setoff, deduction or abatement.

 

5.2                                  ALLOCATION OF ELECTRICITY CHARGES.   The Premises shall be separately metered for electricity, at Landlord’s expense, and Tenant shall pay for all electricity charges directly to the supplier of the same.

 

5.3                                  LANDLORD’S RECAPTURE RIGHT. Notwithstanding anything to the contrary in the Lease contained, if Tenant shall abandon or vacate the Premises for a period of no less than three hundred sixty-five (365) days, then Landlord shall have the right to terminate this Lease upon written notice to Tenant.

 

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ARTICLE VI

TAXES

 

6.1                                  DEFINITIONS.  With reference to the real estate taxes referred to in this Article VI, it is agreed that terms used herein are defined as follows:

 

(a)                                   “Tax Year” means the 12-month period beginning July 1 each year during the Lease Term or if the appropriate Governmental tax fiscal period shall begin on any date other than July 1, such other date.

 

(b)                                  “Landlord’s Tax Expenses Allocable to the Premises” means the same proportion of Landlord’s Tax Expenses as Rentable Floor Area of Tenant’s Premises bears to 100% of the Total Rentable Floor Area of the Building.

 

(c)                                   “Landlord’s Tax Expenses” with respect to any Tax Year means the aggregate “real estate taxes” (hereinafter defined) with respect to that Tax Year, reduced by any net abatement receipts with respect to that Tax Year; provided, however, that if in any Tax Year an abatement has been obtained on account of vacancies in the Building, or if the real estate taxes had initially been assessed in an amount to reflect such vacancies then Landlord’s Tax Expenses shall be determined to be an amount equal to the taxes which would normally be expected to have been assessed had occupancy been ninety-five percent (95%) as of the reference date or period on which or in relation to which such assessment was made. For this purpose, taxes on properties comparable to the Building may be used as a reference if such properties were occupied at ninety-five percent (95%) more or less during the relevant period.

 

(d)                                  “Real estate taxes” means all taxes and special assessments of every kind and nature and user fees and other like fees assessed by any Governmental authority on, or allocable to (i) the Building or (ii) the land, open areas, public areas and amenities, plazas, common areas and other non-leasable areas of the Prudential Center (for the purposes of this Subsection (d) “Common Areas”) which the Landlord shall be obligated to pay because of or in connection with the ownership, leasing or operation of the Building and reasonable expenses of and fees for any formal or informal proceedings for negotiation or abatement of taxes (collectively, Abatement Expenses”), which Abatement Expenses shall be excluded from Base Taxes. The amount of special taxes or special assessments to be included shall be limited to the amount of the installment (plus any interest other than penalty interest payable thereon) of such special tax or special assessment required to be paid during the year in respect of which such taxes are being determined. There shall be excluded from such taxes all income, estate, succession, inheritance and transfer taxes; provided, however, that if at any time during the Lease Term the present system of ad valorem taxation of real property shall be changed so that in lieu of, or

 

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in addition to, the whole or any part of the ad valorem tax on real property, there shall be assessed on Landlord a capital levy or other tax on the gross rents received with respect to the Building, or a Federal, State, County, Municipal, or other local income, franchise, excise or similar tax, assessment, levy or charge (distinct from any now in effect in the jurisdiction in which the Prudential Center is located) measured by or based, in whole or in part, upon any such gross rents, then any and all of such taxes, assessments, levies or charges, to the extent so measured or based, shall be deemed to be included within the term “real estate taxes” but only to the extent that the same would be payable if the Building, were the only property of Landlord. To the extent that the Building is not separately assessed for real estate tax purposes, but is assessed as part of a larger parcel, then the Landlord shall make a reasonable allocation as to the amount of the real estate taxes that should be allocated to the Building for the purposes of determination of the Tenant’s share of increases in real estate taxes under this Lease. The Landlord’s allocation, if made in good faith and for which Landlord has a reasonable basis shall be final, absent manifest error, provided that such allocation is consistently applied throughout the Lease. For the purposes of this Lease, real estate taxes shall include any payment in lieu of taxes or any payments made under Chapter 121A of the Massachusetts General Laws or any similar law.

 

(e)                                   “Base Taxes” means Landlord’s Tax Expenses (hereinbefore defined) for fiscal tax year 2004 (that is the period beginning July 1, 2003 and ending June 30, 2004).

 

(f)                                     “Base Taxes Allocable to the Premises” means the same proportion of Base Taxes as the Rentable Floor Area of Tenant’s Premises bears to 100% of the Total Rentable Floor Area of the Building.

 

(g)                                  If during the Lease Term the Tax Year is changed by applicable law to less than a full 12-month period, the Base Taxes and Base Taxes Allocable to the Premises shall each be proportionately reduced.

 

6.2                                  TENANT’S SHARE OF REAL ESTATE TAXES. If with respect to any full Tax Year or fraction of a Tax Year falling within the Lease Term Landlord’s Tax Expenses Allocable to the Premises for a full Tax Year exceed Base Taxes Allocable to the Premises or for any such fraction of a Tax Year exceed the corresponding fraction of Base Taxes Allocable to the Premises (such amount being hereinafter referred to as the “Tax Excess”), then Tenant shall pay to Landlord, as Additional Rent, the amount of such Tax Excess. Payments by Tenant on account of the Tax Excess shall be made monthly at the time and in the fashion herein provided for the payment of Annual Fixed Rent. The amount so to be paid to Landlord shall be an amount from time to time reasonably estimated by

 

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Landlord to be sufficient to provide Landlord, in the aggregate, a sum equal to the Tax Excess, ten (10) days at least before the day on which tax payments by Landlord would become delinquent. Not later than ninety (90) days after Landlord’s Tax Expenses Allocable to the Premises are determinable for the first such Tax Year or fraction thereof and for each succeeding Tax Year or fraction thereof during the Lease Term, Landlord shall render Tenant a statement in reasonable detail certified by a representative of Landlord showing for the preceding year or fraction thereof, as the case may be, real estate taxes allocated to the Building, abatements and refunds, if any, of any such taxes and assessments, expenditures incurred in obtaining such abatement or refund, the amount of the Tax Excess, the amount thereof already paid by Tenant and the amount thereof overpaid by, or remaining due from, Tenant for the period covered by such statement. Within thirty (30) days after the receipt of such statement, Tenant shall pay any sum remaining due. Any balance shown as due to Tenant shall be credited against Annual Fixed Rent next due, or promptly refunded to Tenant if the Lease Term has then expired and Tenant has no further obligation to Landlord. Expenditures for legal fees and for other expenses incurred in obtaining an abatement or refund may be charged against the abatement or refund before the adjustments are made for the Tax Year.

 

To the extent that real estate taxes shall be payable to the taxing authority in installments with respect to periods less than a Tax Year, the statement to be furnished by Landlord shall be rendered and payments made on account of such installments.

 

ARTICLE VII

 

LANDLORD’S REPAIRS AND SERVICES

AND TENANT’S ESCALATION PAYMENTS

 

7.1                                  STRUCTURAL REPAIRS. Except for (a) normal and reasonable wear and use and (b) damage caused by fire or casualty and by eminent domain, Landlord shall, throughout the Lease Term, at Landlord’s sole cost and expense, keep and maintain, or cause to be kept and maintained, in good order, condition and repair the following portions of the Building: the structural portions of the roof, the exterior and load bearing walls, the foundation, the structural columns and floor slabs and other structural elements of the Building; provided however, that Tenant shall pay to Landlord, as Additional Rent, the cost of any and all such repairs which may be required as a result of repairs, alterations, or installations made by Tenant or any subtenant, assignee, licensee or concessionaire of Tenant or any agent, servant, employee or contractor of any of them or to the extent of any loss, destruction or damage caused by the omission or negligence of Tenant, any assignee or subtenant or any agent, servant, employee, customer, visitor or contractor of any of them.

 

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7.2                                  OTHER REPAIRS TO BE MADE BY LANDLORD. Except for (a) normal and reasonable wear and use and (b) damage caused by fire or casualty and by eminent domain, and except as otherwise provided in this Lease, and subject to provisions for reimbursement by Tenant as contained in Section 7.5, Landlord agrees to keep and maintain, or cause to be kept and maintained, in good order, condition and repair the common areas and facilities of the Building, including heating, ventilating, air conditioning, plumbing and other Building systems equipment servicing the Premises, except that Landlord shall in no event be responsible to Tenant for (a) the condition of glass in and about the Premises (other than for glass in exterior walls for which Landlord shall be responsible unless the damage thereto is attributable to Tenant’s negligence or misuse, in which event the responsibility therefor shall be Tenant’s), or (b) any condition in the Premises or the Building caused by any act or neglect of Tenant or any agent, employee, contractor, assignee, subtenant, licensee, concessionaire or invitee of Tenant. Without limitation, Landlord shall not be responsible to make any improvements or repairs to the Building or the Premises other than as expressly provided in this Lease (including, without limitation, in Article IV, Section 7.1 and Section 7.2 hereof).

 

7.3                                  SERVICES TO BE PROVIDED BY LANDLORD. In addition, and except as otherwise provided in this Lease and subject to provisions for reimbursement by Tenant as contained in Section 7.5 and Tenant’s responsibilities in regard to electricity as provided in Section 5.2, Landlord agrees to furnish services, utilities, facilities and supplies as set forth in Exhibit C hereto equal in quality comparable to those customarily provided by landlords in high quality Class A office buildings in Boston. In addition, Landlord agrees to furnish, at Tenant’s expense, reasonable additional Building operation services which are usual and customary in similar buildings in Boston, and such additional special services as may be mutually agreed upon by Landlord and Tenant, upon reasonable and equitable rates from time to time established by Landlord. Tenant agrees to pay to Landlord, as Additional Rent, the cost of any such additional Building services requested by Tenant and for the cost of any additions, alterations, improvements or other work performed by Landlord in the Premises at the request of Tenant within thirty (30) days after being billed therefor.

 

7.4                                  OPERATING COSTS DEFINED. “Operating Expenses Allocable to the Premises” means the same proportion of the Operating Expenses for the Building (as hereinafter defined) as Rentable Floor Area of the Premises bears to 100% of the Total Rentable Floor Area of the Building. “Base Operating Expenses” means Operating Expenses for the Building for calendar year 2004 (that is the period beginning January 1, 2004 and ending December 31, 2004). Base Operating Expenses shall not include market-wide cost increases due to extraordinary circumstances, including but not limited to, Force Majeure (as defined in Section

 

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14.1), boycotts, strikes, conservation surcharges, embargoes or shortages. “Base Operating Expenses Allocable to the Premises” means the same proportion of Base Operating Expenses as the Rentable Floor Area of Tenant’s Premises bears to 100% of the Total Rentable Floor Area of the Building. “Operating Expenses for the Building” means the cost of operation of the Building and the Building’s share of the cost of operating other areas of the Prudential Center as more specifically provided below in Section 7.4, including those incurred in discharging the obligations under Sections 7.2 and 7.3; however there shall be excluded from the Operating Expenses for the Building the cost of operation of (x) the Garage, and (y) any retail areas of the Prudential Center which are outside the Building, except to the extent the costs attributable to the retail areas may be included in Operating Expenses pursuant to Section 7.4(i). In addition, such costs shall exclude payments of debt service and any other mortgage charges, brokerage commissions, salaries of executives and owners not directly employed in the management or operation of the Building, the general overhead and administrative expenses of the home office of Landlord or Landlord’s managing agent, and costs of special services rendered to tenants (including Tenant) for which a separate charge is made, but shall include, without limitation:

 

(a)                                   compensation, wages and all fringe benefits, workmen’s compensation insurance premiums and payroll taxes paid to, for or with respect to all persons for their services in the operating, maintaining, managing, insuring or cleaning of the Building or the Prudential Center, up to and including the level of general manager;

 

(b)                                  payments under service contracts with independent contractors for operating, maintaining or cleaning of the Building or the Prudential Center;

 

(c)                                   steam, water, sewer, gas, oil, electricity and telephone charges (excluding such utility charges separately chargeable to tenants for additional or separate services and electricity charges paid by Tenant in the manner set forth in Section 5.2) and costs of maintaining letters of credit or other security as may be required by utility companies as a condition of providing such services;

 

(d)                                  cost of maintenance, cleaning and repairs and replacements(other than repairs reimbursed from contractors under guarantees);

 

(e)                                   cost of snow removal and care of landscaping;

 

(f)                                     cost of building and cleaning supplies and equipment;

 

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on the basis of engineering estimates that a particular capital expenditure will effect savings in other Operating Expenses, including, without limitation, energy related costs, and that such projected savings will, on an annual basis (“Projected Annual Savings”), exceed the annual depreciation and Imputed Interest therefor, then and in such event the amount of depreciation for such capital expenditure shall be increased to an amount equal to the Projected Annual Savings; and in such circumstance, the increased depreciation (in the amount of the Projected Annual Savings) shall be made for such period of time as it would take to fully amortize the cost of the item in question, together with Imputed Interest, in equal monthly payments, each in the amount of 1/12th of the Projected Annual Savings, with such payment to be applied first to interest and the balance to principal; and

 

(k)                                   all other reasonable and necessary expenses paid in connection with the operating, cleaning and maintenance of the Building or the Prudential Center or said common areas and facilities and properly chargeable against income.

 

Notwithstanding the foregoing, in determining the amount of Operating Expenses for the Building for any calendar year or portion thereof falling within the Lease Term, if less than ninety-five percent (95%) of the Rentable Area of the Building shall have been occupied by tenants at any time during the period in question, then, at Landlord’s election, those components of Operating Expenses which vary based on occupancy (excluding Landlord’s Tax Expenses) for such period shall be adjusted to equal the amount such components of Operating Expenses would have been for such period had occupancy been ninety-five percent (95%) throughout such period.

 

Notwithstanding the foregoing, the following shall be excluded from Operating Expenses for the Building:

 

(i)                                      repair costs in connection with other buildings in the Prudential Center (provided that this clause (i) shall not be deemed to exclude costs associated with the Arcade);

 

(ii)                                   All capital expenditures and depreciation, except as otherwise explicitly provided in this Section 6.2;

 

(iii)                                Leasing fees or commissions, advertising and promotional expenses, legal fees, the cost of tenant improvements, build out allowances, moving expenses, assumption of rent under existing leases and other concessions incurred in connection with leasing space in the Building or in Prudential Center;

 

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(iv)                               Interest on indebtedness, debt amortization, ground rent, and refinancing costs for any mortgage or ground lease of the Building or the Prudential Center, provided however, that the foregoing shall not exclude the inclusion of the amortization and interest permitted to be included in Operating Expenses on account of capital improvements under Section 6.2(j) above;

 

(v)                                  Legal, auditing, consulting and professional fees and other costs, (other than those legal, auditing, consulting and professional fees and other costs incurred in connection with the normal and routine maintenance and operation of the Building and/or the Prudential Center), including, without limitation, those: (i) paid or incurred in connection with financings, refinancings or sales of any Landlord’s interest in the Building or the Prudential Center, (ii) relating to specific disputes with tenants, and (iii) relating to any special reporting required by securities laws

 

(vi)                               Costs incurred in performing work or furnishing services for any tenant (including Tenant), whether at such tenant’s or Landlord’s expense, to the extent that such work or services is in excess of any work or service that Landlord is obligated to furnish to Tenant at Landlord’s expense (e.g., if Landlord agrees to provide extra cleaning to another tenant, the cost thereof would be excluded since Landlord is not obligated to furnish extra cleaning to Tenant);

 

(vii)                            The cost of any item or service to the extent reimbursable to Landlord by insurance required to be maintained under the Lease, by any tenant, or any third party, such as the cost of supplying electricity for plugs and lights in a tenant’s premises;

 

(viii)                         Landlord’s general corporate overhead, including costs relating to accounting, payroll, legal and computer services to the extent rendered in locations outside the Building or Prudential Center;

 

(ix)                                 Insurance premiums to the extent any tenant causes Landlord’s existing insurance premiums to increase or requires Landlord to purchase additional insurance because of such tenant’s use of the Building for other than office purposes;

 

(x)                                    Any costs expressly excluded from Operating Expenses or real estate taxes elsewhere in this Lease or included as real estate taxes;

 

(xi)                                 Overhead and profit increment paid to Landlord, to affiliates or partners of Landlord, partners or affiliates of such partners, or affiliates of Landlord

 

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for goods and/or services in the Building or Prudential Center to the extent the same exceeds the costs or the overhead profit increment, as the case may be, of such goods and/or services rendered by unaffiliated third parties on a competitive basis in comparable buildings (provided however, that this clause (xi) shall not apply to the management fee);

 

(xii)                              Payments for rented equipment, the cost of which equipment would constitute a capital expenditure if the equipment were purchased to the extent that such payments exceed the amount which could have been included in Operating Expenses had Landlord purchased such equipment rather than leasing such equipment;

 

(xiii)                           Penalties, damages, and interest for late payment or violations of any obligations of Landlord, including, without limitation, taxes, insurance, equipment leases and other past due amounts;

 

(xiv)                          Contributions to charitable organizations;

 

(xv)                             Costs incurred in removing the property of former tenants or other occupants of the Building;

 

(xvi)                          The cost of testing, remediation or removal of “Hazardous Materials” (as defined in Section 11.2) in the Building or on the Prudential Center required by “Hazardous Materials Laws” (as defined in Section 11.2), provided however, that with respect to the testing, remediation or removal of any material or substance which, as of the Commencement Date, was not considered, as a matter of law, to be a Hazardous Material, but which is subsequently determined to be a Hazardous Material as a matter of law, the costs thereof shall be included in Operating Expenses, subject, however, to Section 6.2(j) to the extent that such cost is treated as a capital expenditure;

 

(xvii)                       The cost of acquiring, installing, moving or restoring objects or art;

 

(xviii)                    Wages, salaries, or other compensation paid to any executive employees above the grade of general manager at the Prudential Center, except that if any such employee performs a service which would have been performed by an outside consultant (and the cost of which service would otherwise have been includable in Operating Expenses), the compensation paid to such employee for performing such service shall be included in Operating Expenses, to the extent only that the cost of such service does not exceed competitive cost of such service had such service been rendered by an outside consultant;

 

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(xix)                            Costs, including permit, license and inspection costs, incurred in renovating or otherwise improving, decorating, painting or redecorating space for tenants or other occupants of the Building or Prudential Center;

 

(xx)                               The net (i.e. net of the reasonable costs of collection) amount recovered by Landlord under any warranty or service agreement from any contractor or service provider shall be credited against Operating Costs;

 

(xxi)                            The cost of installation of, space preparation for and subsidizing the operation of any amenities of the Prudential Center (the parties hereby agreeing that this clause (xxi) shall not be deemed to exclude the cost of subsidizing the operation of the shuttle bus service as described above); or

 

(xxii)                         Costs of mitigation or impact fees or subsidies (however characterized), imposed or incurred prior to the date of this Lease or imposed or incurred solely as a result of another tenant’s or tenants’ use of their Premises.

 

7.5                                  TENANT’S ESCALATION PAYMENTS. (A) If with respect to any calendar year falling within the Lease Term, or fraction of a calendar year falling within the Lease Term at the beginning or end thereof, the Operating Expenses Allocable to the Premises (as defined in Section 7.4) for a full calendar year exceed Base Operating Expenses Allocable to the Premises (as defined in Section 7.4) or for any such fraction of a calendar year exceed the corresponding fraction of Base Operating Expenses Allocable to the Premises (such amount being hereinafter referred to as the “Operating Cost Excess”), then Tenant shall pay to Landlord, as Additional Rent, on or before the thirtieth (30th) day following receipt by Tenant of the statement referred to below in this Section 7.5, the amount of such excess.

 

(B)                                 Payments by Tenant on account of the Operating Cost Excess shall be made monthly at the time and in the fashion herein provided for the payment of Annual Fixed Rent. The amount so to be paid to Landlord shall be an amount from time to time reasonably estimated by Landlord to be sufficient to cover, in the aggregate, a sum equal to the Operating Cost Excess for each calendar year during the Lease Term.

 

(C)                                 No later than one hundred twenty (120) days after the end of the first calendar year or fraction thereof ending December 31 and of each succeeding calendar year during the Lease Term or fraction thereof at the end of the Lease Term, Landlord shall render Tenant a statement in reasonable detail and according to usual accounting practices consistently applied from year to year certified by a representative of Landlord, showing for the preceding calendar year or fraction thereof, as the case may be, the Operating Expenses for the Building and the Operating Expenses Allocable to the Premises. Said statement to be rendered to Tenant also shall show for the preceding year or fraction thereof, as the case may

 

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be, the amounts already paid by Tenant on account of Operating Cost Excess and the amount of Operating Cost Excess remaining due from, or overpaid by, Tenant for the year or other period covered by the statement.

 

If such statement shows a balance remaining due to Landlord, Tenant shall pay same to Landlord on or before the thirtieth (30th) day following receipt by Tenant of said statement. Any balance shown as due to Tenant shall be credited against Annual Fixed Rent next due, or promptly refunded to Tenant if the Lease Term has then expired and Tenant has no further obligation to Landlord.

 

Any payment by Tenant for the Operating Cost Excess shall not be deemed to waive any rights of Tenant to claim that the amount thereof was not determined in accordance with the provisions of this Lease.

 

(D)                                Subject to the provisions of this paragraph, Tenant shall have the right, at Tenant’s cost and expense, to examine all documentation and calculations prepared in the determination of Operating Cost Excess:

 

1.                                        Such documentation and calculation shall be made available to Tenant at the offices where Landlord keeps such records during normal business hours within a reasonable time after Landlord receives a written request from Tenant to make such examination.

 

2.                                        Tenant shall have the right to make such examination no more than once in respect of any period for which Landlord has given Tenant a statement of the actual amount of Operating Expenses for the Building.

 

3.                                        Any request for examination in respect of any calendar year may be made no more than one hundred eighty (180) days after Landlord advises Tenant of the actual amount of Operating Expenses for the Building in respect of such calendar year and provides to Tenant the year-end statement required under Paragraph C of this Section 7.5, provided, however, if such examination results in a determination that Tenant was overcharged with respect to a calendar year, then Tenant shall have the right to review Landlord’s books as to the erroneous items for the two calendar years immediately prior to the calendar year in question.

 

4.                                        Such examination may be made only by an independent certified public accounting firm approved by Landlord, which approval shall not be unreasonably withheld. Without limiting Landlord’s approval rights, Landlord may withhold its approval of any examiner of Tenant who is being paid by Tenant on a contingent fee basis. Notwithstanding the foregoing, Landlord agrees that Tenant may retain a third party agent to review Landlord’s books and records which is not a CPA firm, so long as the third party agent retained by Tenant shall have expertise in and familiarity with general industry practice with respect to the

 

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operation of and accounting for a first class office building and whose compensation shall in no way be contingent upon or correspond to the financial impact on Tenant resulting from the review.

 

5.                                        As a condition to performing any such examination, Tenant and its examiners shall be required to execute and deliver to Landlord an agreement, in form reasonably acceptable to Landlord, agreeing to keep confidential any information which it discovers about Landlord or the Building in connection with such examination, provided however, that Tenant shall be permitted to share such information with each of its permitted subtenants so long as such subtenants execute and deliver to Landlord similar confidentiality agreements. Without limiting the foregoing, if Tenant uses any examiner which is other than a nationally recognized accounting firm, Tenant’s examiner shall be required to agree that it will not represent any other tenant in the Building or in other buildings located in the Prudential Center which are owned by Landlord or an affiliate of Landlord in connection with reviewing operating expenses for such tenant.

 

6.                                        If the results of such examination, as verified by Landlord’s accountant, show that Operating Expense Excess for the year in question was overstated by more than four percent (4%), then Landlord shall reimburse Tenant for the reasonable costs of performing such examination.

 

7.6                                  NO DAMAGE.

 

(A)                               NO LIABILITY. Landlord shall give Tenant reasonable advance notice (except in an emergency and except for normal cleaning and maintenance operations) prior to exercising any right which Landlord has to enter the Premises and Landlord shall use reasonable efforts to avoid material interference with Tenant’s use and enjoyment of the Premises; however, Landlord shall not be liable to Tenant for any compensation or reduction of rent by reason of inconvenience or annoyance or for loss of business arising from the necessity of Landlord or its agents entering the Premises for any purposes in this Lease authorized, or for repairing the Premises or any portion of the Building or Prudential Center however the necessity may occur. In case Landlord is prevented or delayed from making any repairs, alterations or improvements, or furnishing any services or performing any other covenant or duty to be performed on Landlord’s part, by reason of any cause reasonably beyond Landlord’s control, including, without limitation, strike, lockout, breakdown, accident, order or regulation of or by any Governmental authority, or failure of supply, or inability by the exercise of reasonable diligence to obtain supplies, parts or employees necessary to furnish such services, or because of war or other emergency, or for any cause due to any act or negligence of Tenant or Tenant’s servants, agents, employees, licensees or any person claiming by, through or under Tenant,

 

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Landlord shall not be liable to Tenant therefor, nor, except as expressly otherwise provided in this Lease, shall Tenant be entitled to any abatement or reduction of rent by reason thereof, nor shall the same give rise to a claim in Tenant’s favor that such failure constitutes actual or constructive, total or partial, eviction from the Premises.

 

(B)                                 STOPPAGE OF SERVICE. Landlord reserves the right to stop any service or utility system, when necessary by reason of accident or emergency, or until necessary repairs have been completed; provided, however, that in each instance of stoppage, Landlord shall exercise reasonable diligence to eliminate the cause thereof as soon as reasonably practicable. Except in case of emergency repairs, Landlord will give Tenant reasonable advance notice of any contemplated stoppage and will use reasonable efforts to avoid unnecessary inconvenience to Tenant by reason thereof.

 

(C)                                 RENT ABATEMENT. Notwithstanding anything to the contrary in this Lease contained, if due to Landlord’s failure to make any repairs, alterations, or improvements required to be made by Landlord hereunder, or to provide any service required to be provided by Landlord hereunder, any portion of the Premises becomes untenantable so that for the Premises Untenantability Cure Period, as hereinafter defined, the continued operation in the ordinary course of Tenant’s business is materially adversely affected, then, provided that Tenant ceases to use the affected portion of the Premises during the entirety of the Premises Untenantability Cure Period by reason of such untenantability, and that such untenantability and Landlord’s inability to cure such condition is not caused by the fault or neglect of Tenant or Tenant’s agents, employees or contractors, Annual Fixed Rent, Tax Excess and Operating Cost Excess shall thereafter be abated in proportion to such untenantability and its impact on the continued operation in the ordinary course of Tenant’s business until the day such condition is completely corrected. For the purposes hereof, the “Premises Untenantability Cure Period” shall be defined as five (5) consecutive business days after Landlord’s receipt of written notice from Tenant of the condition causing untenantability in the Premises, provided however, that the Premises Untenantability Cure Period shall be ten (10) consecutive business days after Landlord’s receipt of written notice from Tenant of such condition causing untenantability in the Premises if either the condition was caused by causes beyond Landlord’s control or Landlord is unable to cure such condition as the result of causes beyond Landlord’s control. The provisions of this Section 7.6(C) shall not apply in the event of untenantability caused by fire or other casualty, or taking.

 

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ARTICLE VIII

TENANT’S REPAIRS

 

8.1                                  TENANT’S REPAIRS AND MAINTENANCE. Tenant covenants and agrees that, from and after the date that possession of the Premises is delivered to Tenant and until the end of the Lease Term, Tenant will keep neat and clean and maintain in good order, condition and repair the Premises and every part thereof, excepting only for (i) those repairs for which Landlord is responsible under the terms of Article VII of this Lease, and (ii) damage by fire or casualty, and (iii) as a consequence of the exercise of the power of eminent domain, and (iv) reasonable wear and tear. Tenant shall not permit or commit any waste, and Tenant shall be responsible for the cost of repairs which may be made necessary by reason of damages to common areas in the Building or Prudential Center by Tenant, Tenant’s agents, employees, contractors, sublessees, licensees, concessionaires or invitees. Tenant shall maintain all its equipment, furniture and furnishings in good order and repair, reasonable wear and tear excepted.

 

If repairs are required to be made by Tenant pursuant to the terms hereof, Landlord may demand that Tenant make the same forthwith, and if Tenant refuses or neglects to commence such repairs and complete the same with reasonable dispatch after such demand, Landlord may (but shall not be required to do so) make or cause such repairs to be made and shall not be responsible to Tenant for any loss or damage that may accrue to Tenant’s stock or business by reason thereof, except (subject to the provisions of Section 13.4) to the extent caused by Landlord’s gross negligence or willful malfeasance. If Landlord makes or causes such repairs to be made, Tenant agrees that Tenant will forthwith on demand, pay to Landlord as Additional Rent the cost thereof together with interest thereon at the rate specified in Section 16.21, and if Tenant shall default in such payment, Landlord shall have the remedies provided for non-payment of rent or other charges payable hereunder.

 

ARTICLE IX

ALTERATIONS

 

9.1                                  LANDLORD’S APPROVAL. Tenant covenants and agrees not to make alterations, additions or improvements to the Premises, whether before or during the Lease Term, except in accordance with plans and specifications therefor first approved by Landlord in writing, which approval shall not be unreasonably withheld or delayed. However, Landlord’s determination of matters relating to aesthetic issues relating to alterations, additions or improvements which are visible from common areas outside the Premises or from the exterior of the Building shall be in Landlord’s sole discretion. Without limiting such standard, Landlord shall not be deemed unreasonable:

 

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(a)                                   for withholding approval of any alterations, additions or improvements which (i) in Landlord’s reasonable opinion might affect any structural or exterior element of the Building, any area or element outside of the Premises or any facility or base building mechanical system serving any area of the Building outside of the Premises, or (ii) involve or affect the exterior design, size, height or other exterior dimensions of the Building, or (iii) enlarge the Rentable Floor Area of the Premises, or (iv) are inconsistent, in Landlord’s judgment, with alterations satisfying Landlord’s standards for new alterations in the Building, or (v) will require unusual expense to readapt the Premises to normal office use on Lease termination or increase the cost of construction or of insurance or taxes on the Building or of the services called for by Section 7.3 unless Tenant first gives assurance acceptable to Landlord for payment of such increased cost and that such readaptation will be made prior to such termination without expense to Landlord.

 

(b)                                  for making its approval conditional on Tenant’s agreement to restore the Premises to its condition prior to such alteration, addition, or improvement at the expiration or earlier termination of the Lease Term.

 

Landlord’s review and approval of any such plans and specifications or under Section 4.1 and consent to perform work described therein shall not be deemed an agreement by Landlord that such plans, specifications and work conform with applicable Legal Requirements and requirements of insurers of the Building and the other requirements of the Lease with respect to Tenant’s insurance obligations (herein called “Insurance Requirements”) nor deemed a waiver of Tenant’s obligations under this Lease with respect to applicable Legal Requirements and Insurance Requirements nor impose any liability or obligation upon Landlord with respect to the completeness, design sufficiency or compliance of such plans, specifications and work with applicable Legal Requirements and Insurance Requirements. Within 30 days after receipt of an invoice from Landlord, Tenant shall pay to Landlord, as a fee for Landlord’s review of any plans or work (excluding any review respecting initial improvements performed pursuant to Section 4.1 hereof for which a fee had previously been paid), as Additional Rent, an amount equal to the sum of : (i) $1,000.00, plus (ii) third party expenses incurred by Landlord to review Tenant’s plans and Tenant’s work.

 

9.1.1                         CERTAIN ALTERATIONS. Notwithstanding the terms of Section 9.1, Tenant shall have the right, without obtaining the prior consent of Landlord, but upon at least five (5) business days’ prior written notice to Landlord, to make alterations, additions or improvements to the Premises where:

 

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insurance with a broad form comprehensive liability endorsement with such limits as Landlord may require reasonably from time to time during the Term of this Lease, but in no event less than the minimum amount of commercial general liability insurance or comprehensive general liability insurance Tenant is required to maintain as set forth in Section 1.2 hereof and as the same may be modified as provided in Section 13.2 hereof (all such insurance to be written in companies approved reasonably by Landlord and insuring Landlord, Landlord’s managing agent and Tenant as additional insureds as well as contractors) and to deliver to Landlord certificates of all such insurance. Tenant shall also prepare and submit to Landlord a set of as-built plans, in both print and electronic forms, showing such work performed by Tenant to the Premises promptly after any such alterations, improvements or installations are substantially complete and promptly after any wiring or cabling for Tenant’s computer, telephone and other communications systems is installed by Tenant or Tenant’s contractor. Without limiting any of Tenant’s obligations hereunder, Tenant shall be responsible, as Additional Rent, for the costs of any alterations, additions or improvements in or to the Building that are required in order to comply with Legal Requirements as a result of any work performed by Tenant. Landlord shall have the right to provide such rules and regulations relative to the performance of any alterations, additions, improvements and installations by Tenant hereunder and Tenant shall abide by all such reasonable rules and regulations and shall cause all of its contractors to so abide including, without limitation, payment for the costs of using Building services.

 

9.4                                  LIENS. Tenant covenants and agrees to pay promptly when due the entire cost of any work done on the Premises by Tenant, its agents, employees or contractors, and not to cause or permit any liens for labor or materials performed or furnished in connection therewith to attach to the Premises or the Building or the Prudential Center and immediately to discharge any such liens which may so attach.

 

9.5                                  NATURE OF ALTERATIONS. All work, construction, repairs, alterations, other improvements or installations made to or upon the Premises (including, but not limited to, the construction performed by Landlord under Article IV), shall become part of the Premises and shall become the property of Landlord and remain upon and be surrendered with the Premises as a part thereof upon the expiration or earlier termination of the Lease Term, except as follows:

 

(a)                                   All trade fixtures whether by law deemed to be a part of the realty or not, installed at any time or times by Tenant or any person claiming under Tenant shall remain the property of Tenant or persons claiming under Tenant and may be removed by Tenant or any person claiming under Tenant at any time or times during the Lease Term or any occupancy by Tenant thereafter and shall be removed by Tenant at the expiration or earlier termination of the Lease Term if so requested by Landlord. Tenant

 

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shall repair any damage to the Premises occasioned by the removal by Tenant or any person claiming under Tenant of any such property from the Premises. Notwithstanding the foregoing, Tenant shall have the right to grant security interests and/or to lease its business equipment and personal property in the Premises, provided that such lessor or secured party agrees (or to such other commercially reasonable terms as may be mutually agreed upon by Landlord and such lessor or secured party):

 

1.                                        That it will repair any damage to the Building or the Premises caused by the installation or removal of any such equipment or personal property;

 

2.                                        That it will give Landlord not less than five (5) days’ advance written notice prior to making any entry into the Premises;

 

3.                                        That it will not hold any auction or foreclosure sale on the Premises; and

 

4.                                        That it will have the right to remove such equipment or property only during the term of this Lease, if the term of this Lease expires in the normal course, or within five (5) days after the earlier termination of the term of this Lease.

 

(b)                                  At the expiration or earlier termination of the Lease Term, Tenant shall remove: (i) any wiring, cables or other installations appurtenant thereto for Tenant’s computer, telephone and other communication systems and equipment whether located in the Premises or in any other portion of the Building, including all risers (collectively, “Cable”), unless Landlord notifies Tenant in writing that such Cable shall remain in the Premises, and (ii) any alterations, additions and improvements made with Landlord’s consent during the Lease Term for which such removal was made a condition of such consent under Section 9.1(b). Upon such removal Tenant shall restore the Premises to their condition prior to such alterations, additions and improvements and repair any damage occasioned by such removal and restoration. Tenant shall have the right, upon written request to Landlord at any time on or after the date which is three (3) months prior to the expiration of the Lease Term, to ask Landlord if Tenant shall be required to remove such Cable at the termination of the Lease Term. Landlord shall respond to Tenant within fifteen (15) days of such request as to whether Tenant shall be required to remove such Cable at the expiration or earlier termination of the Lease Term and Landlord shall be bound by such response. If Landlord has not responded within such 15-day period, then Tenant may send Landlord a second notice, which shall state at the top, in all-capital bold-face print at least 10 points

 

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large, “WARNING: FAILURE TO RESPOND TO THIS NOTICE WITHIN FIVE (5) BUSINESS DAYS SHALL CONSTITUTE A WAIVER OF THE RIGHT TO REQUIRE TENANT TO REMOVE CABLE”. If Landlord does not respond to such second notice within five (5) business days, then Landlord shall be deemed to have waived its right to require Tenant to remove such Cable.

 

(c)                                   If Tenant shall make any alterations, additions or improvements to the Premises for which Landlord’s approval is required under Section 9.1 without obtaining such approval, then at Landlord’s request at any time during the Lease Term, and at any event at the expiration or earlier termination of the Lease Term, Tenant shall remove such alterations, additions and improvements and restore the Premises to their condition prior to same and repair any damage occasioned by such removal and restoration. Nothing herein shall be deemed to be a consent to Tenant to make any such alterations, additions or improvements, the provisions of Section 9.1 being applicable to any such work.

 

9.6                                  INCREASES IN TAXES. Tenant shall pay, as Additional Rent, one hundred percent (100%) of any increase in real estate taxes on the Building which shall, at any time after the Commencement Date, result from alterations, additions or improvements to the Premises made by Tenant if the taxing authority specifically determines such increase results from such alterations, additions or improvements made by Tenant.

 

ARTICLE X

PARKING

 

10.1                            PARKING PRIVILEGES. Landlord shall provide to Tenant monthly parking privileges in the Prudential Center Garage (the “Garage”) for eighteen (18) passenger automobiles for the parking of motor vehicles, sixteen (16) in unreserved stalls and two (2) in reserved stalls, in the Garage by Tenant’s employees commencing on the Commencement Date of the Term. Tenant’s reserved parking stalls shall initially be as shown on Exhibit F attached hereto. Landlord reserves the right to relocate such reserved stalls to another location, provided that (i) the stall numbered 1 on Exhibit F can only be relocated to a stall numbered 2 through 45 as shown on Exhibit F or another location which is approximately equally proximate to the entrance from the Garage to the Building, and (ii) the stall numbered 49 on Exhibit F can only be relocated to a space within the area reserved for reserved parking for tenants of the Building, as Landlord may designate such area from time to time. Tenant acknowledges that Landlord has advised Tenant that stall numbered 1 is not located within the reserved gate of the other reserved spaces in the Garage and, notwithstanding signs indicating that such stall is reserved, such space is often utilized by others. Therefore, Tenant

 

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acknowledges and agrees that Landlord shall have no obligation to police such stall and that Landlord’s only obligation with respect to such stall is to maintain reserved signage as is in place on the date of this Lease.

 

10.2                            PARKING CHARGES. Tenant shall pay for such parking privileges at the prevailing monthly rates from time to time charged by the operator or operators of the Garage, whether or not such operator is an affiliate of Landlord, for unreserved and, if applicable, reserved stalls. Such monthly parking charges for parking privileges shall be payable monthly as directed by Landlord upon billing therefor by Landlord or such operator. Tenant acknowledges that said monthly charges to be paid under this Section are for the use by the Tenant of the parking privileges referred to herein, and not for any other service. Tenant shall have the right to cease using any such parking privileges upon thirty (30) days’ notice to Landlord and such operator, whereupon Tenant shall no longer have any rights to use the relinquished privileges nor any obligation to pay any charges for such privileges accruing after the end of such 30-day period.

 

10.3                            GARAGE OPERATION. Unless otherwise determined by Landlord or the operator of such garage (the “Garage Operator”), the Garage is to be operated on a self-parking basis, and Tenant shall be obligated to park and remove its own automobiles, and Tenant’s parking shall be on an unreserved basis, Tenant having the right to park in any available stalls. Without limiting the foregoing, Landlord shall have the right to operate portions of the Garage, except for Tenant’s reserved stalls, on an attendant-managed basis, and Tenant shall cooperate with such attendants in parking and removing its automobiles, recognizing that Tenant may be required to leave keys for its vehicles with such attendants while such vehicles are in the Garage. Tenant’s access and use privileges with respect to the Garage shall be in accordance with regulations of uniform applicability to the users of the Garage from time to time established by the Landlord or the Garage Operator. Tenant shall receive one (1) identification sticker or pass and one (1) magnetic card so-called, or other suitable device providing access to the Garage, for each parking privilege paid for by Tenant. Tenant shall supply Landlord with an identification roster listing, for each identification sticker or pass, the name of the employee and the make, color and registration number of the vehicle to which it has been assigned, and shall provide a revised roster to Landlord monthly indicating changes thereto. Any automobile found parked in the Garage during normal business hours without appropriate identification will be subject to being towed at said automobile owner’s expense. The parking privileges granted herein are non-transferable (other than to a permitted assignee or subtenant pursuant to the applicable provisions of Article XII hereof). Landlord or the Garage Operator may institute a so-called valet parking program for the Garage, and in such event Tenant shall cooperate in all respects with such program. Landlord reserves for itself and any other PruOwner the right to alter the Garage as it sees fit and in such case to change the Garage including the reduction in area of the same, Tenant

 

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acknowledging that in connection with the potential expansion of buildings in the Prudential Center or the addition of other buildings thereto, it may be necessary to make significant changes to the Garage which may result in the reduction of the amount of parking available in the Garage and the change of location of such parking or may change the access to or egress from the Garage, all of which Landlord or any other PruOwner may perform in its sole and exclusive discretion, without limitation to its other rights in respect thereof.

 

10.4                            LIMITATIONS. Tenant agrees that it and all persons claiming by, through and under it, shall at all times abide by all reasonable rules and regulations promulgated by Landlord or the Garage Operator with respect to the use of the Garage. Except to the extent of gross negligence or willful acts, neither the Landlord nor the Garage Operator assumes any responsibility whatsoever for loss or damage due to fire or theft or otherwise to any automobile or to any personal property therein, however caused, and Tenant agrees, upon request from the Landlord, from time to time, to notify its officers, employees and agents then using any of the parking privileges provided for herein, of such limitation of liability. Tenant further acknowledges and agrees that a license only is hereby granted, and no bailment is intended or shall be created.

 

ARTICLE XI

CERTAIN TENANT COVENANTS

 

Tenant covenants during the Lease Term and for such further time as Tenant occupies any part of the Premises:

 

11.1                            To pay when due all Annual Fixed Rent and Additional Rent and all charges for utility services rendered to the Premises and service inspections therefor except as otherwise provided in Exhibit C and, as further Additional Rent, all charges for additional and special services rendered pursuant to Section 7.3.

 

11.2                            (A)                               To use and occupy the Premises for the Permitted Use only, and not to injure or deface the Premises or the Building or Prudential Center and not to permit in the Premises any auction sale, vending machine or flammable fluids or chemicals, or nuisance, or the emission from the Premises of any objectionable noise or odor and not to use or devote the Premises or any part thereof for any purpose other than the Permitted Use, nor any use thereof which is inconsistent with the maintenance of the Building as an office building of the first-class in the quality of its maintenance, use and occupancy, or which is improper, offensive, contrary to law or ordinance or liable to invalidate or increase the premiums for any insurance on the Building or its contents or liable to render necessary any alteration or addition to the Building.

 

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(B)                                 Further, (i) Tenant shall not, nor shall Tenant permit its employees, invitees, agents, independent contractors, contractors, assignees or subtenants to, keep, maintain, store or dispose of (into the sewage or waste disposal system or otherwise) or engage in any activity which might produce or generate any substance which is or may hereafter be classified as a hazardous material, waste or substance (collectively “Hazardous Materials”), under federal, state or local laws, rules and regulations, including, without limitation, 42 U.S.C. Section 6901 et seq., 42 U.S.C. Section 9601 et seq., 42 U.S.C. Section 2601 et seq., 49 U.S.C. Section 1802 et seq. and Massachusetts General Laws, Chapter 21E and the rules and regulations promulgated under any of the foregoing, as such laws, rules and regulations may be amended from time to time (collectively “Hazardous Materials Laws”), (ii) Tenant shall immediately notify Landlord of any incident in, on or about the Premises, the Building or the Prudential Center that would require the filing of a notice under any Hazardous Materials Laws, (iii) Tenant shall comply and shall cause its employees, invitees, agents, independent contractors, contractors, assignees and subtenants to comply with each of the foregoing and (iv) Landlord shall have the right to make such inspections (including testing) as Landlord shall elect from time to time to determine that Tenant is complying with the foregoing.

 

(C)                                 Landlord represents and warrants that, to its actual knowledge and as of the Date of this Lease, there are no Hazardous Materials in, on, under or emanating from the Prudential Center, including its interior, systems or structure, which are required to be assessed, reported, removed or remediated pursuant to applicable Hazardous Materials Laws, except as disclosed in the following reports have been provided to Tenant:

 

Phase I Environmental Site Assessment

Prudential Center

800 Boylston Street

Boston, MA

Dated July 11, 1997 prepared for Prudential Real Estate by

Levine-Fricke-Recon

 

and

 

Report of Phase I Environmental Site Assessment

Prudential Center

760 & 800 Huntington Avenue

Boston, Massachusetts

By Haley & Aldrich, Inc., Boston, Massachusetts

For Boston Properties Limited Partnership dated March, 1998

 

and

 

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Report on Phase I Environmental Site Assessment

Prudential Center

111 Huntington Avenue

Boston, Massachusetts

By Haley & Aldrich, Inc., Boston, Massachusetts

For Boston Properties dated July, 1999

 

Landlord shall indemnify Tenant and hold it harmless against any claims, damages, losses or liabilities (including reasonable attorneys’ and expert consultants’ fees) arising from any breach of the representations and warranties made by Landlord as set forth in this Paragraph (C) and from claims, damages, losses or liabilities arising in the event that Landlord, Landlord’s agents, employees or contractors release Hazardous Materials onto the Building or the Prudential Center; provided however, the foregoing indemnity shall not apply to: (i) any material or substance existing on the Prudential Center as of the Execution Date of this Lease which, as of the Date of this Lease, was not considered, as a matter of law, to be a Hazardous Material, but which is subsequently determined to be a Hazardous Material as a matter of law or (ii) any material or substance released or installed or placed on the Prudential Center after the Execution Date of this Lease which, as of the date of such release, installation or placement, was not considered, as a matter of law, to be a Hazardous Material but which is later determined, as a matter of law, to be a Hazardous Material. In addition, if Hazardous Materials are discovered in the Building or the Premises which are not caused by Tenant, its employees, invitees, agents, independent contractors, contractors, assignees or subtenants, then Landlord shall, if and as required by law, assess, remediate or remove the same, or cause the same to be assessed, remediated or removed.

 

11.3                            Not to obstruct in any manner any portion of the Building not hereby leased or any portion thereof or of the Prudential Center used by Tenant in common with others; not without prior consent of Landlord to permit the painting or placing of any signs, curtains, blinds, shades, awnings, aerials or flagpoles, or the like, visible from the common areas outside the Premises or from the exterior of the Building; and to comply with all reasonable rules and regulations now or hereafter made by Landlord, of which Tenant has been given notice, for the care and use of the Building and the Prudential Center and their facilities and approaches, but Landlord shall not be liable to Tenant for the failure of other occupants of the Building to conform to such rules and regulations.

 

11.4                            To keep the Premises equipped with all safety appliances required by law or ordinance or any other regulation of any public authority because of any use made by Tenant other than normal office use, and to procure all licenses and permits so required because of any use made by Tenant other than normal office use, and to procure all licenses and permits so required because of such use and, if requested

 

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by Landlord, to do any work so required because of such use, it being understood that the foregoing provisions shall not be construed to broaden in any way Tenant’s Permitted Use.

 

11.5                            Not to place a load upon any floor in the Premises exceeding an average rate