EXHIBIT 10.7
EIGHTH AMENDMENT TO LEASE
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EIGHTH AMENDMENT TO LEASE dated as of this 30/th/ day of July, 1999, by and
between BP PRUCENTER ACQUISITION, LLC, a Delaware limited liability company (as
successor-in-interest to The Prudential Insurance Company of America)
("Landlord") and BRONNERCOM, LLC, formerly known as XXXXXXX XXXXXXXX XXXXXXXX,
LLC, a Delaware limited liability company, as successor-in-interest to Xxxxxxx
Xxxxxxxx Xxxxxxxx, Inc. ("Tenant").
RECITALS
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By Lease dated May 31, 1995, as amended by a First Amendment of Lease dated
June 21, 1996, a Second Amendment of Lease dated September 1, 1996, a Third
Amendment of Lease dated November 5, 1996, a Fourth Amendment of Lease dated
January 22,1997, a Fifth Amendment and Partial Termination of Lease dated July
11, 1997, a Sixth Amendment and Partial Termination of Lease dated May 15, 1998
and a Seventh Amendment to Lease dated March 29, 1999 (the "Lease"), Landlord's
predecessor-in-interest did lease to Tenant and Tenant did hire and lease from
Landlord's predecessor-in-interest certain premises (the "Initial Premises")
located in the Tower Building (the "Building"), Prudential Center, Boston,
Massachusetts, which Initial Premises are described with greater particularity
in the Lease.
Tenant has determined to lease from Landlord 2,020 square feet of rentable
floor area on the fifth (5/th/) floor of the Building, pursuant to Paragraph 5
of the First Amendment of Lease and referred to therein as the "Pru Timber
Space", which space is shown hatched on Exhibit A attached hereto (the "Eighth
Amendment Space A").
Tenant has determined to lease from Landlord 1,518 square feet of rentable
floor area on the fifth (5/th/) floor of the Building, pursuant to Paragraph 5
of the First Amendment of Lease and referred to therein as the "Waterhouse"
space, which space is shown cross-hatched on Exhibit A attached hereto (the
"Eighth Amendment Space B").
Landlord and Tenant are entering into this instrument to set forth said
leasing of the Eighth Amendment Space A and the Eighth Amendment Space B, to
integrate the Eighth Amendment Space A and Eighth Amendment Space B into the
Lease and to amend the Lease.
NOW THEREFORE, in consideration of One Dollar ($1.00) and other good and
valuable consideration in hand this date paid by each of the parties to the
other, the receipt and sufficiency of which are hereby severally acknowledged,
and in further consideration of the mutual promises herein contained, Landlord
and Tenant hereby agree to and with each other as follows:
A. EIGHTH AMENDMENT SPACE A
1. Effective as of the "Eighth Amendment Space A Commencement Date" (as
defined in Section 3 hereof) the Eighth Amendment Space A shall
constitute a part of the "Premises" (as defined and used in the
Lease), so that the Premises (as defined and used in the Lease) shall
include the Initial Premises and the Eighth Amendment Space A.
2. The Eighth Amendment Space A Commencement Date shall be June 1, 1999
(i.e., the date on which Tenant commenced beneficial use of the Eighth
Amendment Space A). The parties acknowledge that, prior to the Eighth
Amendment Space A Commencement Date, Landlord repainted the Eighth
Amendment Space A, shampooed the carpeting therein and delivered the
Eighth Amendment Space A to Tenant vacant, in broom-clean condition
and in a condition which was at least as good as shell condition, as
required by Paragraph 5 of the First Amendment of Lease and that
Tenant has accepted the Eighth Amendment Space A in the condition in
which it was delivered on the Eighth Amendment Space A Commencement
Date. Notwithstanding anything to the contrary herein or in the Lease
contained, Landlord has no obligation to perform any other work in the
Eighth Amendment Space A or to provide to Tenant any allowance in
respect of the Eighth Amendment Space A.
3. The Term of the Lease for the Eighth Amendment Space A shall commence
on the Eighth Amendment Space A Commencement Date and shall expire on
November 30, 2005, unless sooner terminated in accordance with the
provisions of the Lease as herein amended, upon all the same terms and
conditions contained in the Lease as herein amended.
4. Rent for the Eighth Amendment Space A from the Eighth Amendment Space
A Commencement Date through the expiration of the Eighth Amendment
Space A Lease Term shall be payable at the annual rate of $80,800.00
(being the product of (i) $40.00 and (ii) the rentable floor area of
the Eighth Amendment Space A (being 2,020 square feet).
5. Commencing on the Eighth Amendment Space A Commencement Date, Tenant
shall reimburse Landlord for Increased Operating Expenses (pursuant to
Section 3.2 of the Lease) for the Eighth Amendment Space A in excess
of the Operating Expenses incurred by Landlord during calendar year
1999 (being January 1, 1999 through December 31, 1999).
6. Commencing on the Eighth Amendment Space A Commencement Date, Tenant
shall reimburse Landlord for increased Real Estate Taxes (pursuant to
Section 3.4 of the Lease) for the Eighth Amendment Space A in excess
of the Real Estate Taxes paid by Landlord in fiscal year 2000 (being
July 1, 1999
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through June 30, 2000).
7. Tenant's Share with respect to the Eighth Amendment Space A consisting
of a total of 2,020 rentable square feet will be .16%.
8. Tenant shall reimburse Landlord monthly in arrears within thirty (30)
days of receipt of Landlord's invoice for the cost of electricity
consumed in the Eighth Amendment Space A as determined by a check
meter (which check meter is presently installed) and Landlord's cost
of electricity from time to time.
9. Tenant shall not be entitled to any additional parking passes in
connection with Tenant's demise of the Eighth Amendment Space A.
10. Tenant's extension rights set forth in Section 12.15 of the Lease, as
amended by Section II(1) of the Fourth Amendment of Lease, shall apply
to the Eighth Amendment Space A.
11. There shall be no modification of the terms regarding the reduction
and/or increase in the Original LC and/or the Third Amendment LC in
connection with Tenant's demise of the Eighth Amendment Space A.
12. Notwithstanding anything to the contrary herein or in the Lease
contained, if, during the term of the Lease in respect of Eighth
Amendment Space A, Tenant elects to remove the existing carpeting and
install new carpeting in the Eighth Amendment Space A and/or to
replace the original building column enclosures within the Eighth
Amendment Space A (collectively, "Tenant's Space A Work"), Landlord
shall, at Landlord's cost, during the performance of Tenant's Space A
Work, remove the floor tile and mastic from the Eighth Amendment Space
A and, to the extent that the building columns contain asbestos
containing material ("ACM"), remove the ACM from the columns to the
extent required by applicable laws ("Landlord's Space A Removal
Work"). Landlord shall coordinate the Landlord's Space A Removal Work
with Tenant's Space A Work. In no event shall Tenant be entitled to
any diminution in rental value in respect of the Eighth Amendment
Space A on account of the performance of Landlord's Space A Removal
Work.
B. EIGHTH AMENDMENT SPACE B
1. Effective as of the "Eighth Amendment Space B Commencement Date" (as
defined in Section 4 hereof) the Eighth Amendment Space B shall
constitute a part of the part of the "Premises" (as defined and used
in the Lease), so that the Premises (as defined and used in the Lease)
shall include the Initial Premises, the Eighth Amendment Space A and
the Eighth Amendment Space
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B.
2. The Eighth Amendment Space B Commencement Date shall be the earlier to
occur of (a) the date on which the Eighth Amendment Space B is ready
for occupancy as provided below or (b) the date on which Tenant
commences beneficial use of the Eighth Amendment Space B (Tenant shall
be treated as having commenced beneficial use when it begins to move
furniture and equipment into the Eighth Amendment Space B for its
regular business operation). The Eighth Amendment Space B shall be
deemed to be ready for occupancy at such time as Landlord shall, at
Landlord's cost, have completed repainting and recarpeting the Eighth
Amendment Space B using Building standard paint and carpeting and
removal of the floor tiles and mastic from the Eighth Amendment Space
B (the "Eighth Amendment Space B Landlord Work") and delivered the
Eighth Amendment Space B to Tenant vacant and in broom-clean condition
and in a condition which is at least as good as shell condition, as
required by Paragraph 5 of the First Amendment of Lease. Tenant shall,
on or before November 30, 1999, advise Landlord of the color
selections required by Landlord in order to commence the Eighth
Amendment Space B Landlord Work. Landlord shall use reasonable efforts
to complete the Eighth Amendment Space B Landlord Work on or before
February 1, 2000. If the Eighth Amendment Space B is not ready for
occupancy on or before April 1, 2000, then Tenant shall have the
right, upon written notice to Landlord given on or after April 1, 2000
but on or before the date that the Eighth Amendment Space B is ready
for occupancy, to cancel Tenant's exercise of its option to lease the
Eighth Amendment Space B, effective as of the date of such notice. If
Tenant fails timely to make the color selections required by Landlord
in order to commence the Eighth Amendment Space B Landlord Work, then,
notwithstanding anything to the contrary herein contained, (i) the
Eighth Amendment Space B Commencement Date shall be the earlier to
occur of (a) February 1, 2000 or (b) the date on which Tenant
commences beneficial use of the Eighth Amendment Space B, (ii) Tenant
shall have no right to cancel Tenant's exercise of its option to lease
the Eighth Amendment Space B pursuant to the immediately preceding
sentence on account of Landlord's failure to perform the Eighth
Amendment Space B Landlord Work, (iii) Landlord shall complete the
Eighth Amendment Space B Landlord Work promptly after Tenant makes
such color selections and (iv) Landlord shall deliver the Eighth
Amendment Space B to Tenant in the condition and within the time-frame
otherwise required by this Paragraph B.2. If Landlord is required to
perform the Eighth Amendment Space B Landlord Work after the Eighth
Amendment Space B is delivered to Tenant pursuant to the immediately
preceding sentence, Tenant agrees to cooperate with Landlord during
the performance of the Eighth Amendment Space B Work and Tenant shall,
upon billing therefor, as additional rent, reimburse Landlord for any
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overtime or other premium costs incurred by Landlord in connection
with the performance of the Eighth Amendment Space B Work which costs
would not have been incurred by Landlord had Landlord performed the
Eighth Amendment Space B Work prior to delivering the Eighth Amendment
Space B to Tenant.
3. The Term of the Lease for the Eighth Amendment Space B shall commence
on the Eighth Amendment Space B Commencement Date and shall expire on
November 30, 2005, unless sooner terminated in accordance with the
provisions of the Lease as herein amended, upon all the same terms and
conditions contained in the Lease as herein amended.
4. Rent for the Eighth Amendment Space B from the Eighth Amendment Space
B Commencement Date through the expiration of the Eighth Amendment
Space B Lease Term shall be payable at the annual rate of $60,720.00
(being the product of (i) $40.00 and (ii) the rentable floor area of
the Eighth Amendment Space B (being 1,518 square feet).
5. Commencing on the Eighth Amendment Space B Commencement Date, Tenant
shall reimburse Landlord for Increased Operating Expenses (pursuant to
Section 3.2 of the Lease) for the Eighth Amendment Space B in excess
of the Operating Expenses incurred by Landlord during calendar year
1999 (being January 1, 1999 through December 31, 1999).
6. Commencing on the Eighth Amendment Space B Commencement Date, Tenant
shall reimburse Landlord for increased Real Estate Taxes (pursuant to
Section 3.4 of the Lease) for the Eighth Amendment Space B in excess
of the Real Estate Taxes paid by Landlord in fiscal year 2000 (being
July 1, 1999 through June 30, 2000).
7. Tenant's Share with respect to the Eighth Amendment Space B consisting
of a total of 1,518 rentable square feet will be .12%.
8. Tenant shall reimburse Landlord monthly in arrears within thirty (30)
days of receipt of Landlord's invoice for the cost of electricity
consumed in the Eighth Amendment Space B as determined by a check
meter (which check meter is presently installed) and Landlord's cost
of electricity from time to time.
9. Tenant shall not be entitled to any additional parking passes in
connection with Tenant's demise of the Eighth Amendment Space B.
10. Tenant's extension rights set forth in Section 12.15 of the Lease, as
amended by Section II(1) of the Fourth Amendment of Lease, shall apply
to the Eighth
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Amendment Space B.
11. There shall be no modification of the terms regarding the reduction
and/or increase in the Original LC and/or the Third Amendment LC in
connection with Tenant's demise of the Eighth Amendment Space B.
12. Notwithstanding anything to the contrary herein or in the Lease
contained, if, during the term of the Lease in respect of Eighth
Amendment Space B, Tenant elects to replace the original building
column enclosures within the Eighth Amendment Space B (collectively,
"Tenant's Space B Work"), to the extent that the building columns
contain asbestos containing material ("ACM"), Landlord shall, at
Landlord's cost, during the performance of Tenant's Space B Work,
remove the ACM from the columns to the extent required by applicable
laws ("Landlord's Space B Removal Work"). Landlord shall coordinate
the Landlord's Space B Removal Work with Tenant's Space B Work. In no
event shall Tenant be entitled to any diminution in rental value in
respect of the Eighth Amendment Space B on account of the performance
of Landlord's Space B Removal Work.
C. RIGHT OF FIRST OFFER
Subject to the rights of the existing tenant of a portion of the First
Offer Space, as hereinafter defined, and the rights of another tenant in the
Building, MCI Telecommunications Corporation to lease the First Offer Space, all
of which rights are prior to the rights of Tenant under this Paragraph C, and
provided that at the time the First Offer Space first becomes available for
reletting (i) Tenant is not in default, beyond the expiration of applicable
notice and grace periods, of any of its obligations under the Lease, (ii) Tenant
has not assigned the Lease or sublet more than thirty percent (30%) of the
Premises then demised to Tenant (other than an assignment or subletting pursuant
to the last sentence of Section 5.2 of the Lease) and (ii) the Lease is still in
full force and effect, Landlord agrees not to enter into a lease or leases to
relet the First Offer Space or any portion thereof without first giving to
Tenant an opportunity to lease such space as hereinafter set forth. For the
purposes of this Paragraph C, the "First Offer Space" shall be defined as the
balance of the fifth (5/th/) floor of the Building which is not leased to
Tenant, containing 3,298 rentable square feet, substantially as shown on Exhibit
A attached hereto. When such First Offer Space becomes available for reletting,
Landlord shall notify Tenant ("Landlord's Notice") of the availability of such
space and shall advise Tenant of the business terms upon which Landlord is
willing so to lease such space, except that the rent and other economic terms
with respect to the First Offer Space shall be ninety-five percent (95%) of the
then fair market rental and the term of the Lease in respect of the First Offer
Space shall expire on November 30, 2005, unless sooner terminated or extended in
accordance with the provisions of the Lease as herein amended (it being
understood that Tenant's extension rights set forth in Section 12.15 of the
Lease, as amended by Section II(1) of the Fourth Amendment of Lease, shall apply
to the
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First Offer Space). If Tenant wishes to exercise Tenant's right of first offer,
Tenant shall do so, if at all, by giving Landlord written notice of Tenant's
desire to lease such space (Tenant having no right to lease less than the entire
amount of such First Offer Space offered to Tenant) on such terms within ten
(10) business days after receipt of Landlord's Notice to Tenant of the
availability of such space and of such terms. If Tenant shall give such notice,
the same shall constitute an agreement to enter into an amendment to the Lease
to incorporate the entire amount of such First Offer Space into the Premises
demised under the Lease within thirty (30) days after Tenant's notice to
Landlord. If Tenant shall not so exercise such right within such ten (10)
business day period or Landlord and Tenant shall not execute an amendment to the
Lease to incorporate the First Offer Space into the Premises within thirty (30)
days of Tenant's exercise of such right, time being of the essence, Tenant shall
have no further right of first offer hereunder.
D. OTHER TERMS
1. Tenant hereby acknowledges and confirms that the indemnity set forth
in Section 11.1 of the Lease shall apply, and always has applied, to
the use or occupancy by Tenant of the Premises in its entirety and to
the acts or omissions of Tenant, its agents, employees or any
contractors brought onto the Premises in its entirety by Tenant.
2. (A) Tenant warrants and represents that Tenant has not dealt with any
broker in connection with the consummation of this Eighth Amendment
other than Xxxxxxxx & Grew, Incorporated (the "Recognized Broker");
and in the event any claim is made against Landlord relative to
dealings by Tenant with brokers other than the Recognized Broker,
Tenant shall defend the claim against Landlord with counsel of
Tenant's selection first approved by Landlord (which approval will not
be unreasonably withheld) and save harmless and indemnify Landlord on
account of loss, cost or damage which may arise by reason of such
claim.
(B) Landlord warrants and represents that Landlord has not dealt with
any broker in connection with the consummation of this Eighth
Amendment other than the Recognized Broker; and in the event any claim
is made against Tenant relative to dealings by Landlord with brokers
other than the Recognized Broker, Landlord shall defend the claim
against Tenant with counsel of Landlord's selection and save harmless
and indemnify Tenant on account of loss, cost or damage which may
arise by reason of such claim. Landlord shall be responsible for
paying the commission due to the Recognized Broker in connection with
this Eighth Amendment.
3. Except as otherwise expressly provided herein, all capitalized terms
used herein without definition shall have the same meanings as are set
forth in the
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Lease.
4. Except as herein amended the Lease shall remain unchanged and in full
force and effect. All references to the "Lease" shall be deemed to be
references to the Lease as herein amended.
EXECUTED as a sealed instrument as of the date and year first above
written.
WITNESS: LANDLORD:
____________________________ BP PRUCENTER ACQUISITION, LLC
By: BOSTON PROPERTIES LIMITED
PARTNERSHIP, its Manager
By: BOSTON PROPERTIES, INC.,
its general partner
By /s/ Xxxxxx X. Xxxxxx
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Name Xxxxxx X. Xxxxxx
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Title Vice President
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WITNESS: TENANT:
/s/ X. Xxxxxx-Xxxxx BRONNERCOM, LLC
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By: BSH Holding, LLC, its Manager
By: Xxxxxxx Xxxxxxxx
Xxxxxxxx Co., its
Manager
By /s/ Xxxxx X. Xxxxxxxxxx
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Name Xxxxx X. Xxxxxxxxxx
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Title EVP
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EXHIBIT A
[DIAGRAM]
5TH FLOOR PRUDENTIAL TOWER - RENTAL PLAN
TOTAL FLOOR (New York)
18,834 usable
24,501 rentable
The Prudential Center
EXHIBIT A
[Diagram]
Xxxxxxx Xxxxxxxx Xxxxxxxx
5th Floor Prudential Tower -- Rental Plan
Total Floor (New York)
18,834 usable
24,501 rentable
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