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RETAIL LEASE
____________________ (_____________ LINE) STATION
MASSACHUSETTS BAY TRANSPORTATION AUTHORITY
LANDLORD
__________________
TENANT
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STATION RETAIL CONCESSION LEASE
Table of Contents
Section 1.1 BASIC LEASE TERMS. ...........................................................................................................................4
Section 1.2 EXHIBITS. ................................................................................................................................................5
Section 1.3 NOTICE TO TENANT AND LANDLORD. ........................................................................................6
Section 2.1 LOCATION OF PREMISES. ..................................................................................................................7
Section 2.2 USE OF COMMON AREAS. .................................................................................................................7
Section 2.3 MARKETING PROGRAM/SALE OF TICKETS ................................................................................8
Section 3.1 COMMENCEMENT DATE. .................................................................................................................8
Section 3.2 TERM. .......................................................................................................................................................8
Section 3.3 STATEMENT. ..........................................................................................................................................8
Section 3.4 OBLIGATION OF TENANT BEFORE LEASE TERM BEGINS. .......................................................8
Section 3.5 RENEWAL OPTIONS. ...........................................................................................................................8
Section 4.1 TENANTS CONSTRUCTION AND FIXTURING. ............................................................................9
Section 4.2 ACCEPTANCE OF PREMISES. ............................................................................................................9
Section 4.3 SIGNS...................................................................................................................................................... 10
Section 4.4 DISCHARGE OF LIENS. ...................................................................................................................... 10
Section 4.5 CHANGES AND ADDITIONS. .......................................................................................................... 10
Section 5.1 FIXED MINIMUM RENT. .................................................................................................................... 10
Section 5.2 PERCENTAGE RENT. .......................................................................................................................... 11
Section 5.2.1 CALCULATION OF PERCENTAGE RENT - “PARTIAL LEASE YEAR”. ............................... 11
Section 5.3 DEFINITION OF "LEASE YEAR" AND “PARTIAL LEASE YEAR”. ............................................ 11
Section 5.4 DEFINITION OF GROSS SALES. ....................................................................................................... 12
Section 5.5 MAINTENANCE OF RECORDS AND EXAMINATIONS. ............................................................ 12
Section 5.6 PAYMENT OF PERCENTAGE RENT. .............................................................................................. 13
Section 5.7 ADDITIONAL RENT. .......................................................................................................................... 13
Section 5.8 PAST DUE RENTS. ............................................................................................................................... 13
Section 6.1 COMMON AREAS. .............................................................................................................................. 14
Section 6.2 REGULATIONS ON USE. ................................................................................................................... 14
Section 7.1 UTILITIES. ............................................................................................................................................. 15
Section 7.2 FURNISHING OF UTILITY SERVICE. .............................................................................................. 16
Section 7.3 TENANT'S REPAIRS. ........................................................................................................................... 16
Section 7.4 TENANT'S FAILURE TO REPAIR. .................................................................................................... 17
Section 7.5 CHANGES BY TENANT. .................................................................................................................... 17
Section 8.1 TAXES ON LEASEHOLD. ................................................................................................................... 17
Section 9.1 INDEMNIFICATION. .......................................................................................................................... 17
Section 9.2 INSURANCE. ........................................................................................................................................ 18
Section 9.3 INSURANCE OF TENANT'S FIXTURES. ......................................................................................... 20
Section 9.4 LOSS AND DAMAGE TO THE LEASED PREMISES. .................................................................... 20
Section 9.5 WAIVER OF SUBROGATION. ........................................................................................................... 20
Section 10.1 NOTICE BY TENANT. ....................................................................................................................... 20
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Section 10.2 TERMINATION OF LEASE. ............................................................................................................. 21
Section 10.3 RESTORATION. .................................................................................................................................. 21
Section 10.4 ABATEMENT OF RENT. ................................................................................................................... 21
Section 11.1 PROHIBITION. .................................................................................................................................... 22
Section 11.2 CONTINUING OBLIGATION OF TENANT. ................................................................................ 22
Section 11.3 CORPORATE OWNERSHIP. ............................................................................................................ 22
Section 12.1 ESTOPPEL CERTIFICATES. .............................................................................................................. 22
Section 12.2 ATTORNMENT. ................................................................................................................................. 23
Section 12.3 SUBORDINATION. ............................................................................................................................ 23
Section 12.4 REMEDIES. .......................................................................................................................................... 23
Section 13.1 RIGHT TO RE-ENTER. ...................................................................................................................... 23
Section 13.2 RIGHT TO RE-LET. ............................................................................................................................ 24
Section 13.3 LANDLORD'S RIGHT TO CURE DEFAULT. ................................................................................ 25
Section 13.4 LANDLORD'S EXPENSES................................................................................................................. 25
Section 13.5 WAIVERS OF DEFAULTS. ................................................................................................................ 25
Section 14.1 USE. ....................................................................................................................................................... 25
Section 14.2 OPERATION. ...................................................................................................................................... 25
Section 14.3 FAILURE TO DO BUSINESS. ............................................................................................................ 26
Section 14.4 REFERENCE TO MBTA STATION LOCATION. .......................................................................... 26
Section 14.5 SOLICITATION OF BUSINESS. ....................................................................................................... 26
Section 14.6 AWNINGS AND CANOPIES. .......................................................................................................... 26
Section 14.7 RULES AND REGULATIONS. ......................................................................................................... 27
Section 14.8 FOOD PREPARATION. ..................................................................................................................... 27
Section 15.1 ENTIRE AGREEMENT. ..................................................................................................................... 28
Section 15.2 QUIET ENJOYMENT. ........................................................................................................................ 28
Section 15.3 NOTICES. ............................................................................................................................................. 28
Section 15.4 NOTICE TO MORTGAGEE. ............................................................................................................. 28
Section 15.5 SECURITY DEPOSIT. ......................................................................................................................... 29
Section 15.6 FINANCIAL STATEMENT. .............................................................................................................. 29
Section 15.7 SEVERABILITY. .................................................................................................................................. 29
Section 15.8 APPROVAL, CANCELLATION AND EXCUSE OF LANDLORD'S PERFORMANCE. .......... 29
Section 15.9 DELAYS................................................................................................................................................ 29
Section 15.10 NOTICE OF LEASE. ......................................................................................................................... 30
Section 15.11 SURRENDER AND HOLDING OVER. ......................................................................................... 30
Section 15.12 TRANSFER OF LANDLORD'S INTEREST. .................................................................................. 31
Section 15.13 LANDLORD'S TITLE. ...................................................................................................................... 31
Section 15.14 BROKERAGE COMMISSION. ........................................................................................................ 31
Section 15.15 WASTE. .............................................................................................................................................. 31
Section 15.16 ACCESS BY LANDLORD. ............................................................................................................... 31
Section 15.17 GOVERNING LAW. ......................................................................................................................... 32
Section 15.18 BINDING EFFECT OF LEASE. ....................................................................................................... 32
Section 15.19 COUNTERPARTS. ............................................................................................................................ 32
Section 15.20 EQUAL OPPORTUNITY ................................................................................................................. 32
Section 15.22 WORK IN HARMONY. ................................................................................................................... 33
Section 15.23 ORDER OF PRECEDENCE. ........................................................................................................... 33
Section 15.24 INSPECTION OF RECORDS. .......................................................................................................... 33
Section 15.25 NO PERSONAL LIABILITY. ........................................................................................................... 33
Section 15.26 SELF HELP. ........................................................................................................................................ 34
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ARTICLE I
BASIC LEASE TERMS AND EXHIBITS
Section 1.1 BASIC LEASE TERMS.
(A) LEASED PREMISES: That certain portion of ____________ Station (the
“Station”), identified as Space _____, as shown and delineated on the plan
marked Exhibit A, attached hereto and made a part thereof. (See Section 2.1)
(B) COMMENCEMENT AND TERMINATION OF LEASE:
(i) First Term: Commencing the last execution of this Lease (the “Lease
Commencement Date” or “Commencement Date”) and terminating
______ months (plus the partial month, if any) after the Lease
Commencement Date (the “Termination Date”) (See Section 3.1, 3.2, 3.3)
(ii) Renewal Options: _____ _____-year option (See Section 3.5)
(iii) “Tenant’s Construction and Fixture Period” shall mean the first three
months of the First Term, during which Tenant shall endeavor to
complete its initial construction and fit-up of the Premises.
(C) RENT:
(i) Fixed Minimum Rent: The rent for the First Term shall be $_________ per
annum (See Section 5.1)
(ii) Percentage Rent: In addition to the “Fixed Minimum Rent” above, the
Tenant shall pay Percentage Rent equal to _______ percent (__%) of Gross
Sales above the Breakpoint. (See Sections 5.2 through 5.6)
(iii) Rent Commencement Date: Fixed Minimum Rent shall be due and
payable from the Tenant to the Landlord commencing with the earlier of
(i) 90 days following the Lease Commencement Date or (ii) the date
Tenant opens for business.(the “Rent Commencement Date”).
(D) SECURITY DEPOSIT: $_________ (equal to two months’ Fixed Minimum Rent)
as of the Commencement Date. The Security Deposit is subject to increase as the
Fixed Minimum Rent is increased in accordance with this Lease. (See Section
15.5)
(E) INSURANCE LIMITS: Tenant shall maintain commercial liability insurance for
personal injury, bodily injury and property damage with limits not less than One
Million Dollars ($1,000,000.00) per occurrence, Three Million Dollars ($3,000,000.00)
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in aggregate, and Umbrella liability coverage with limits of not less than Five
Million Dollars ($5,000,000.00). Such insurance shall be written on an occurrence
basis (as opposed to a claims made basis). These policies shall name Landlord as an
additional insured. (See Section 9.2 for full insurance requirements).
(F) USE OF PREMISES: The Premises shall be used for a ________________and any
other commercial retail purposes specifically approved in writing by the
Landlord in advance, provided such use is otherwise in compliance with the
provisions of this Lease, including without limitation, Article IV, local zoning
ordinances and all other applicable laws, rules, regulations and ordinances
(collectively, the “Allowed Uses”). (Without limiting the foregoing, the Premises
shall not be used for check-cashing services, ATMs, vending machines,
automated retail machines, the sale of popcorn, and the sale of alcohol or
tobacco.) Tenant at its own sole expense, shall obtain all necessary approvals,
permits and licenses for the use and occupancy of the Premises, including,
without limitation, permits and approvals from the Board of Health and Building
Inspector of the municipality in which the Premises are located, and any other
permit required for any construction or alteration thereof. Landlord shall not be
liable for any loss, damage or expense resulting from the failure of any licensing
or permitting authority to grant permits or licenses for such purposes.
Notwithstanding the foregoing, the Landlord reserves the right at any time
during the Term hereof to prohibit the sale of any product or service from or on
the Premises which Landlord deems offensive or not in the best interest of the
general public.
(G) REFERENCES AND CONFLICTS: References appearing in Section 1.1 are
intended to designate some of the other places in this Lease where additional
provisions applicable to the particular basic Lease provisions appear. These
references are for convenience only and shall not be deemed all inclusive. Each
contained in Section 1.1 shall be construed to incorporate all of the terms
provided for under such provisions, and such provisions shall be read in
conjunction with all other provisions of this Lease applicable thereto. If there is
any conflict between any of the basic Lease provisions set forth in Section 1.1 and
any other provisions of this Lease, the latter shall control.
(H) TENANT’S TRADE NAME: _____________________________
Section 1.2 EXHIBITS.
The following drawings and special provisions are attached hereto as exhibits and are hereby
made a part of this Lease:
EXHIBIT A. LEASE PLAN
EXHIBIT B. TENANT’S WORK
EXHIBIT C. M.G.L. c.7 § 40J DISCLOSURE FORM
EXHIBIT D. MBTA DESIGN GUIDELINES
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EXHIBIT E. MBTA MARKETPLACE MEMBER PROGRAM
EXHIBIT F. MBTA SPECIAL INSTRUCTIONS FOR TRANSIT (Subway)
EXHIBIT G. MBTA RAILROAD CONSTRUCTION SPECIFICATIONS
(Commuter)
EXHIBIT H. ESCALATOR/ELEVATOR SAFTEY
EXHIBIT I. SECURITY
EXHIBIT J. ALLOWED FOOD/PRODUCT LIST
Section 1.3 NOTICE TO TENANT AND LANDLORD.
(A) Landlord's Mailing Address:
Massachusetts Bay Transportation Authority
Ten Park Plaza
Boston, Massachusetts 02116
Attention: Assistant General Manager for Development
With a copy to:
Transit Realty Associates, LLC
77 Franklin Street
9th Floor
Boston, Massachusetts 02110
Attention: Tenant Administrator
(B) Tenant's Mailing Address:
_____________________________
_____________________________
_____________________________
_____________________________
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RETAIL LEASE
This Lease is dated for identification only as of _____________by and between the
MASSACHUSETTS BAY TRANSPORTATION AUTHORITY, a body politic and corporate
and a political subdivision of the Commonwealth of Massachusetts, established and existing
pursuant to Chapter 161A of the Massachusetts General Laws, having a usual place of business
at Ten Park Plaza, Boston, Massachusetts 02116 (hereinafter referred to as "MBTA" or
“Landlord”) and_______________ (hereinafter referred to as the "Tenant").
WITNESSETH:
WHEREAS, Landlord is the owner of the Station, and Tenant desires to lease a portion
of the space in the Station.
NOW, THEREFORE, in consideration of the rents herein reserved by the Landlord, to be
paid by the Tenant, and for other good and valuable consideration, the parties hereto covenant
and agree as follows:
ARTICLE II
LEASED PREMISES
Section 2.1 LOCATION OF PREMISES.
Landlord demises and leases to Tenant and Tenant leases from Landlord certain premises
situated within the Station, described in Section 1.1A (hereinafter referred to as "Leased
Premises"): The Leased Premises extend to the interior face of all exterior walls and to the
center line of interior walls separating the Leased Premises from any other premises and from
hallways and common space in the Station. Landlord reserves unto itself the use of the exterior
walls, the roof of the Station, all of the walks and other common areas and facilities of the
Station, and the right to install, maintain, use, repair and replace pipes, ducts, conduits, utility
lines and wires leading through, above or below the Leased Premises, in locations which will
not materially interfere with Tenant's use thereof.
Section 2.2 USE OF COMMON AREAS.
Tenant's use and occupancy of the Leased Premises shall include the non-exclusive right, in
common with Landlord and all others to whom Landlord has or may hereafter grant rights
(including the general public), to use and permit its customers to use such common areas within
the Station (including but not limited to parking areas, driveways, truckways, delivery
passages, truck-loading areas, access and egress roads, walkways, sidewalks, landscaped and
planted areas, pedestrian corridors (closed or open), courtyards and public washrooms) as
Landlord shall from time to time deem appropriate, but such rights shall always be subject to
the terms and conditions of this Lease and to regulations for the use thereof from time to time
established by Landlord pursuant to Section 6.2 hereof, and the right of Landlord to designate
and change from time to time, areas and facilities so to be used. Deliveries and trash pickup
7
will be done at such times and in such manner so as to minimize interference with the flow of
commuters.
Section 2.3 MARKETING PROGRAM/SALE OF TICKETS
Tenant shall cooperate with the Landlord’s Marketing Department in the promotion of
Landlord services and the promotion of special events and activities at the Station as well as
comply with the requirements of the MBTA Marketplace Membership Program set forth in
Exhibit E.
ARTICLE III
TERM OF LEASE
Section 3.1 COMMENCEMENT DATE.
The term of this Lease shall commence on Commencement Date.
Section 3.2 TERM.
The first term of this Lease shall commence upon the Commencement Date established
pursuant to Section 3.1 and shall continue until the Termination Date set forth in Section 1.1 (B)
(i) unless sooner terminated as herein provided.
Section 3.3 STATEMENT.
When the Rent Commencement Date and Termination Date have been determined as provided
herein, Landlord and Tenant shall execute and acknowledge a written statement specifying the
Commencement Date and Termination Date of the first term of this Lease.
Section 3.4 OBLIGATION OF TENANT BEFORE RENT COMMENCEMENT DATE.
Tenant shall complete work to be performed by it in a workmanlike manner and in accordance
with Exhibit B and shall observe and perform all of its obligations under this Lease (except its
obligation to pay rent) during the Tenant’s Construction and Fixture Period and prior to the
Rent Commencement Date.
Section 3.5 RENEWAL OPTIONS.
If the Tenant is not in default, with the consent of the Landlord, which consent may be
withheld, conditioned or delayed, in the Landlord’s sole discretion, the Tenant may extend the
Term of this Lease for the Renewal Options shown in Article I (each, a “Renewal Option” and
collectively, the “Renewal Options”), upon the terms and conditions set forth herein by giving
written notice to the Landlord of the election to extend at least six (6) months prior to the
expiration of the then current Lease Term. The Fixed Minimum Rent for the Option Term will
be the Fixed Minimum Rent from the previous year plus the Fixed Minimum Rent Escalation.
The Percentage Rent will be applied in the same manner as for the initial Lease Term.
ARTICLE IV
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TENANT'S CONSTRUCTION
Section 4.1 TENANTS CONSTRUCTION AND FIXTURE PERIOD.
Tenant shall, during Tenant's Construction and Fixture Period, perform at its sole expense all
work set forth in Exhibit B which shall be subject at all times to the requirements and standards
of Exhibit D, and shall equip the Leased Premises with all trade fixtures and personal property
suitable or appropriate to the regular and normal operation of the type of business in which
Tenant is engaged and shall open for business, fully fixtured, stock and staffed, no later than the
end of the Tenant's Construction and Fixture Period. Notwithstanding anything to the contrary
in Exhibit B, Tenant shall not be responsible for roof repairs. Tenant shall be responsible at its
sole cost for installation of any and all utility services, including but not limited to, plumbing,
electrical, power, telecommunications equipment, wiring and connections. In the event Tenant
is unable to open the Leased Premises within the time provided in this Lease, then the Landlord
shall have the right to collect Fixed Minimum Rent in full for every day of the lease term that
the Tenant shall fail to commence to do business as herein provided. Rent provided for herein
shall not be assessed to the extent that Tenant's failure to open is the fault of Landlord or to the
extent that Tenant's failure is caused by any one of the reasons enumerated in Section 15.9
herein.
Prior to the commencement of any work in the Premises, the Tenant shall submit to the
Landlord for approval plans and specifications for the Tenant’s Work as well as all of Tenant’s
proposed improvements to the Premises (and if at any time Tenant wishes to make additional
improvements, it shall also submit those plans to the Landlord for approval). Such plans and
specifications shall be in compliance with the Design Guidelines in Exhibit D, attached hereto
and incorporated herein, and shall be subject to the final written approval of the Landlord
through its Design and Construction Department and Safety Department. Once approved by
the Landlord, said plans and specifications shall be referred to as the “Construction Plans”.
Upon termination of this Lease for any reason, any and all improvements to the Premises shall
become part of the Premises and title thereto shall, automatically and without any action on the
part of either party, vest in the Landlord. Within thirty (30) days of substantial completion of
construction of any improvements to the Premises, Tenant shall deliver to the Landlord “as
built” plans in a form which complies with applicable building codes as well as in such
computer compatible form as the Landlord may request.
Improvements must be in compliance with the MBTA and the Boston Center for Independent
Living agreement which may be viewed on the MBTA website:
www.mbta.com/uploadedfiles/about_the_T/reports/capital_Investment_Program/bcil_settle
ment.pdf.
Section 4.2 ACCEPTANCE OF PREMISES.
The condition of the Leased Premises shall be deemed approved by Tenant in all respects when
Tenant opens for business in the Leased Premises.
9
Section 4.3 SIGNS.
Tenant's signs shall be subject to Landlord's written approval as to dimensions, material, color,
design, content, location and workmanship. Other than the foregoing, no sign, lettering or
advertising matter of any kind shall be placed on an exterior door, wall or window of the
Leased Premises, nor shall Tenant place in or on the glass of any window or door of the Leased
Premises any sign, lettering or advertising matter of any kind without first obtaining Landlord's
written approval and consent. All of Tenant's signs shall be in conformity with applicable laws
and ordinances, and shall be governed by the criteria set forth in Exhibit D, and shall be erected
and maintained by Tenant at Tenant's sole cost and expense. Landlord shall have the right,
without notice to Tenant, to remove any signs installed by Tenant in violation of this Section.
Section 4.4 DISCHARGE OF LIENS.
Tenant agrees to pay promptly all contractors and material men for any labor, services,
materials, supplies or equipment furnished by Tenant. Should any lien against the Leased
Premises be made or filed on account of Tenant's failure to make sure payment, then it shall be
immediately discharged by Tenant. In the event that Tenant should fail to discharge any lien
(by bond or removal) within ten (10) business days of the recording of such lien, Landlord shall
have the right, but not the obligation, to discharge any such lien against the Leased Premises.
Tenant shall promptly pay Landlord, upon demand, the full cost incurred by Landlord in
discharging such lien, including the cost of the lien, filing fees, attorneys fees as well as an
amount equal to twenty-five percent (25%) of the total amount of the lien to cover the
Landlord’s administrative expenses.
Section 4.5 CHANGES AND ADDITIONS.
Landlord hereby reserves the right at any time to make alterations or additions to and build
additional stories on the Station, and to build adjoining the same. Landlord also reserves the
right to construct additions or modifications to the Station from time to time; to make
alterations thereof or additions thereto; to build adjoining same; to construct double-deck or
elevated parking facilities; and to relocate the various buildings, automobile parking areas and
other common areas in the Station.
ARTICLE V
RENT
Section 5.1 FIXED MINIMUM RENT.
Tenant agrees to pay to Landlord at Landlord's mailing address or such other place as Landlord
may designate, monthly, in advance, starting on the Rent Commencement Date and on the first
(1st) day of each and every calendar month during the term of this Lease and any renewal
periods, without prior demand and without any deductions or tenant whatsoever, Fixed
Minimum Rent as set forth in Section 1.1 (C) (i).
Fixed Minimum Rent Escalation. During the Term, the Fixed Minimum Rent shall escalate each
Lease Year on the anniversary of the Lease Commencement Date by adding to the Fixed
10
Minimum Rent an amount determined by multiplying the Fixed Minimum Rent for the
previous year by the percentage increase in the Consumer Price Index, (“CPI”) during said
previous year, but not less than three (3%). The “CPI” is hereby defined to be the United States
Department of Labor, Bureau of Labor Statistics, Consumer Price Index for All Urban
Consumers (CPI-U) Boston – Brockton – Nashua, MA – NH – ME - CT or its replacement.
Should the Rent Commencement Date fall on a day other than the first day of a calendar month,
the first payment which Tenant shall make to Landlord for such partial month shall be prorated
upon a daily basis. Any other charges payable to Tenant on a monthly basis, as hereinafter
provided, shall likewise be prorated on a daily basis.
Section 5.2 PERCENTAGE RENT.
In addition to the payment of Fixed Minimum Rent, Tenant shall pay to Landlord as
Percentage Rent for each Lease Year included in the lease term as follows:
Tenant shall pay to Landlord Percentage equal to ______Percent (__%) of Gross Sales
over the Breakpoint (as hereinafter defined).
For the purposes of this Lease, the “Breakpoint” shall be defined as the quotient of the
Fixed Minimum Rent (as set forth in Section 1.1 (C)(i)) and _______ Percent (__%). Fixed
Minimum Rent ÷ __% = Breakpoint.
Section 5.2.1 CALCULATION OF PERCENTAGE RENT - “PARTIAL LEASE YEAR”.
For the purpose of computing Percentage Rent payable hereunder with respect to any "Partial
Lease Year", the "breakpoints" at which Percentage Rent becomes due shall be adjusted
according to the following formula:
Number of days in
Partial Lease Year x Gross Sales = adjusted breakpoint
365 days
For example: If a Tenant owes Percentage Rent on Gross Sales greater than $200,000.00 but
Tenant is open for business 305 days:
305 days x $200,000.00 (Gross Sales) = $167,123 adjusted Breakpoint
365 days
Section 5.3 DEFINITION OF "LEASE YEAR" AND “PARTIAL LEASE YEAR”.
For the purpose of computing Percentage Rent, the term "Lease Year" is defined to mean a
period of 12 consecutive calendar months commencing on the first day of January each year.
Any portion of the lease term which is less than a Lease Year shall be deemed a “Partial Lease
Year”. “Partial Lease Year” means the number of days in any calendar year which the Tenant
actually occupies the Leased Premises during any calendar year. The number of days in any
calendar year which Tenant is not actually open for business in the Leased Premises (regardless
11
of the reason) shall be subtracted from the number of days in a lease year, and the balance shall
constitute the days in a "Partial Lease Year".
Section 5.4 DEFINITION OF GROSS SALES.
The term "Gross Sales" as used herein is defined to mean the total amount in dollars of the
actual sales price, whether for cash or otherwise, of all sales of merchandise and services,
including all gift and merchandise certificates, and all other receipts whatsoever from business
conducted in or from the Leased Premises; including, but not limited to, all mail or telephone
orders taken on the Premises, whether or not said orders are filled elsewhere; receipts or sales
through any vending machine or coin-operated devices; and sales by any sublessee,
concessionaire, licenses or otherwise in the Leased Premises. Gross Sales shall not, however,
include any sums collected and paid out for any sales or retail excise tax imposed by any duly
constituted governmental authority and paid by customers of Tenant, nor shall they include
any exchange of goods or merchandise between the stores of Tenant where such exchange of
goods or merchandise is solely for the convenient operation of the business of Tenant and not
for the purpose of consummating a sale which has theretofore been made at, in or from the
Leased Premises, nor the amount of returns to shippers or manufacturers, nor the amount of
any cash or credit refund made upon any sale where the merchandise sold or some part thereof,
is thereafter returned by the purchaser and accepted by Tenant.
Section 5.5 MAINTENANCE OF RECORDS AND EXAMINATIONS.
Tenant agrees to prepare, keep and maintain for a period of not less than thirty six (36) months
after expiration of each Lease Year or Partial Lease Year, records conforming to usual
accounting practices showing all the Gross Sales at, in, from the upon the Leased Premises for
such Lease Year or Partial Lease Year, including all supporting data which would ordinarily be
examined by an independent accountant pursuant to accepted auditing standards in
performing an audit of Tenant's Gross Sales, including, without limitation, state and federal
income tax returns and sales tax returns. Such records may be kept on the Leased Premises or
at Tenant's main office. Tenant shall submit to Landlord on or before the thirtieth (30th) day of
the first full month following the end of each Lease Year, during the term hereof, a written
statement signed by an officer or by the authorized local manager of Tenant, certified to be true
and correct, showing the amount of Gross Sales for the preceding year, including copies of tax
returns affecting the Leased Premises that it has filed with any government or governmental
agency. The Landlord shall have the right from time to time during regular business hours by
its accountants or representatives, to audit all statements of Gross Sales, and in connection with
such audits to examine all of Tenant's records (including all supporting data) of Gross Sales
disclosed in any certified statement given to Landlord by Tenant; and Tenant shall make all
such records readily available for such examination. If such audit discloses that the actual
Gross Sales by Tenant exceed those reported by more than five percent (5%), Tenant shall pay
the cost of such audit and examination, in addition to the deficiency, which deficiency shall be
payable in any event. If such audit discloses that the actual Gross Sales by Tenant exceed those
reported by more than ten percent (10%), Landlord shall have the right to terminate the Lease
immediately upon written notice thereof to Tenant. Any information obtained by Landlord
pursuant to the provisions of this Section shall be treated as confidential except in any litigation
or arbitration proceedings between the parties.
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Section 5.6 PAYMENT OF PERCENTAGE RENT.
The Percentage Rent shall become due and payable thirty (30) days after the last day of each
Lease Year and/or Partial Lease Year.
The Tenant agrees to pay the Percentage Rent, if any, to the Landlord at Landlord's mailing
address or other place as Landlord may designate on the date set forth above without prior
demand. The Percentage Rent shall be based on Tenant’s auditable sales figures from the POS
system or Electronic Cash Register which Tenant is required to provide to the MBTA in
accordance with Exhibit E attached hereto Each payment shall be accompanied by a
statement certified by an independent certified public accountant stating the Gross Sales
(including an itemization of all claimed deductions therefrom) and the Percentage Rent for the
Partial Lease Year or such Lease Year as the case may be.
It is understood and agreed that Landlord shall never be treated as a partner or associate of
Tenant in the conduct of Tenant's business, nor shall Landlord be liable for any debts incurred
by Tenant in the conduct of Tenant's business or otherwise; it is understood that the
relationship is and at all times shall remain that of Landlord and Tenant.
Section 5.7 ADDITIONAL RENT.
In addition to Fixed Minimum Rent and Percentage Rent, all other payments to be made by
Tenant hereunder, shall be deemed for the purpose of securing the collection thereof, to be
Additional Rent hereunder, whether or not the same be designated as such, and shall be due
and payable on demand, or together with the next succeeding installment of Fixed Minimum
Rent, whichever shall first occur; and Landlord shall have the same rights and remedies upon
Tenant's failure to pay same as for the non-payment of Fixed Minimum Rent. Landlord, at its
election, shall have the right (but not the obligation) to pay for or perform any act which
requires the expenditures of any sums of money be reason of the failure or neglect of Tenant to
perform any of the provisions of this Lease within the grace period, if any, applicable thereto,
and in the event Landlord shall at its election pay such sums to perform such acts requiring the
expenditure of monies, Tenant agrees to reimburse and pay Landlord upon demand, all such
sums and expenses plus fifteen percent (15%) thereof for overhead and administration, which
total amount shall be additional rent hereunder and be payable by Tenant as such
Section 5.8 PAST DUE RENTS.
If Tenant shall fail to pay any rents or other charges when the same become due and payable,
such unpaid amounts shall bear interest from the due date thereof to the date of payment at the
rate of the lesser of: (i) one and one-half percent (1 ½%) per month; and (ii) the maximum
amount allowed by law, and such interest shall be deemed additional rent.
ARTICLE VI
COMMON AREAS
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Section 6.1 COMMON AREAS.
Landlord shall make available from time to time within the Station, such common areas as
Landlord shall deem appropriate. "Common Areas" as used herein shall mean all areas, space,
equipment and improvements made available by Landlord for the common and joint use and
benefit of Landlord, Tenant and all other tenants and occupants of the Station and their
respective employees, agents, subtenants, concessionaires, licenses, customers and other
invitees which may include, if provided, but shall not be limited to parking areas, driveways,
truckways, delivery passages, truck loading areas, access and egress roads, walkways,
sidewalks, pedestrian malls (enclosed or open), courts and public washrooms. All Common
Areas in the Station shall at all times be subject to the exclusive control and management of
Landlord, and Landlord shall operate, manage, equip, police, light, provide security for repair,
and maintain the Common Areas for their intended purposes in such manner as Landlord shall
in its sole discretion determine. Landlord may, from time to time, change the size, location,
nature and use of any Common Areas and may make installations therein and move and
remove same. Landlord reserves unto itself the right at any time, and from time to time, to erect
and maintain within the pedestrian malls (enclosed or open), courts, corridors, parking areas
and other common areas, such landscaping, decorative items, vending machines, telephones,
structures designed and leased for retail sales, areas for promotional activities, entertainment,
exhibits and the like as Landlord in its sole discretion shall deem appropriate, provided same
shall not unreasonably block or interfere with Tenant's means of ingress or egress to and from
the Leased Premises or unreasonably obstruct the view of Tenant's sign or display windows.
Section 6.2 REGULATIONS ON USE.
The use of Common Areas within the Station, shall be subject to such reasonable rules and
regulations as Landlord may from time to time impose, and make known to Tenant, pursuant to
the provisions of Section 14.7, its designation of specific areas in which cars owned by Tenant,
its concessionaires, officers, employees and agents must be parked. Tenant agrees, after notice
thereof, to abide by such rules and regulations and to use its best efforts to cause its
concessionaires, officers, employees, agents, customers and invitees to conform thereto.
Landlord may, at any time, temporarily close any common area to make repairs or changes; to
prevent the acquisition of public rights in such areas; or to discourage non-customer parking.
Landlord may do such other acts in and to the Common Areas which in Landlord's judgment
may be desirable to improve the convenience thereof. Tenant shall not at any time interfere
with the rights of Landlord and other tenants, their concessionaires, officers, employees, agents,
customers and invitees to use any part of the parking and other common areas. Tenant agrees
that it shall not keep or display any merchandise on or otherwise obstruct the sidewalks,
parking areas, mall space, hallways or any other common areas in the Station, without the prior
written consent of the Landlord.
Notwithstanding the foregoing, the Landlord reserves the right at any time during the Term
hereof to prohibit the sale of any product or service from or on the Premises which Landlord
deems offensive or not in the best interest of the general public.
ARTICLE VII
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UTILITIES AND REPAIRS
Section 7.1 UTILITIES.
Tenant shall pay or cause to be paid any and all charges, including but not limited to
those for electricity, telephone, telecommunications, power or other utility services (including
installation charges) at any time rendered to or used by a Tenant on or about the Leased
Premises. Phones lines shall be dedicated lines.
The MBTA shall have no obligation to provide telephone or data communication services.
Landlord makes no representation or warranty with respect to suitability of utilities and
systems for any purpose. The MBTA shall have no obligation to provide utilities or access to
utilities to the Leased Premises.
Any required upgrades to existing utilities and systems (e.g. HVAC, electric, fire protection,
telecommunications, and plumbing), for Tenant’s use shall be done at the Tenant’s sole
expense. Tenant shall pay or cause to be paid any and all utility charges, including installation
charges, at any time rendered to or used by Tenant on or about the Premises.
Tenant may tie into Landlord’s utilities subject to MBTA approval at the MBTA’s sole
discretion. Tenant’s utilities shall be separately metered at Tenant’s sole cost. Tenant shall
be solely responsible for engineering, installing, maintaining, and paying for any and all
utilities and related systems servicing the Premises. Tenant shall pay any connection or service
charges attributable to Tenant’s use.
Tenant shall confirm that electrical service and electrical outlet(s) provided by Landlord are
suitable for its power requirements prior to taking occupancy of the Leased Premises. The
MBTA makes no representation or warranty with respect to suitability of electric power or
electric system for any purpose. In the event additional electrical power must be installed to
meet Tenant’s power requirements, the MBTA shall install such electrical service at Tenant’s
cost, unless the MBTA waives this requirement in its sole discretion in which case the Tenant
shall install such electrical service at Tenant’s cost. Tenant shall promptly pay all charges for
electricity and telephone rendered or furnished in the Leased Premises directly to the utility
provider. In the event electrical utilities servicing the Leased Premises are not separately
metered, Tenant shall pay Landlord a mutually agreed to monthly electric fee based on
consumption but not less than $_______ per month for Tenant’s electric power consumption as
Additional Rent.
Tenant shall pay Landlord (or third party, as applicable) for rubbish removal services.
Depending on Tenant’s use of the Leased Premises, the MBTA may require separate electric
metering.
The following services are available at the Premises:
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Water/Sewer: x
Gas:
Electricity: x
Tenant shall pay Landlord for the following services at the Premises:
Water/Sewer: x
Gas:
Electricity:
Section 7.2 FURNISHING OF UTILITY SERVICE.
Any utility service which Landlord is required or elects to provide or causes to be provided to
the Leased Premises may be furnished by Landlord or by any agent employed by Landlord or
by an independent contractor selected by Landlord, and Tenant shall accept same therefrom to
the exclusion of all other suppliers, so long as the rates charged by the Landlord or by the
supplier of such utility or related service are competitive. Interruption or impairment of any
such utility service caused by or necessitated by repairs, improvements, or by hazards and other
circumstances beyond the reasonable control of Landlord shall not give rise to a right or cause
of action Tenant against Landlord in damages or otherwise.
All garbage, rubbish and refuse of Tenant shall be stored in proper containers within the Leased
Premises. At least once per day, the Tenant shall place refuse and trash in containers or
dumpsters to be provided by the Landlord. The Landlord will be responsible for removal of
refuse and rubbish placed in Station dumpsters.
Section 7.3 TENANT'S REPAIRS.
Tenant covenants to keep the Leased Premises and the equipment, facilities and fixtures therein,
at Tenant's expense, clean, neat and in good order, condition and repair (including all necessary
painting and decorating). Tenant shall maintain the Leased Premises at its sole cost including
all HVAC, utilities and systems, e.g., electric, plumbing, etc., located within the Leased
Premises. Tenant shall maintain all HVAC, utilities, and systems located outside the Leased
Premises to the extent that they service only the Premises. In the event that the Leased Premises
are serviced by any shared systems, Tenant shall be responsible for reimbursing Landlord
Tenant’s pro rata portion of the maintenance of such system(s). Tenant shall keep all glass
including that in windows and doors clean, neat and in good order (except that the Landlord
shall be responsible for the cleaning of the exterior face of all glass exposed to the weather).
Without limitation, Tenant shall maintain and use the Leased Premises in accordance with all
directions, rules and regulations of governmental agencies having jurisdiction, and all
recommendations of the Fire Underwriters Rating Bureau now or hereafter in effect, and Tenant
shall keep the Leased Premises equipped with all safety appliances required because of such
use. Tenant shall procure all licenses and permits required for its use of the Leased Premises.
Tenant shall make all repairs to the Leased Premises of any nature, required by applicable law,
code, or ordinances occurring subsequent to the Commencement Date as specified in Section 3.1
hereof.
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Section 7.4 TENANT'S FAILURE TO REPAIR.
If Tenant shall fail, refuse or neglect to make repairs in accordance with the terms and
provisions of this Lease, Landlord shall have the right, at its option, and after ten (10) days
written notice to Tenant (except in case of emergency) to enter the Leased Premises and make
sure repairs without liability to Tenant for any loss or damage that may accrue to Tenant's
merchandise, fixtures or property or to Tenant's business, and upon completion thereof, Tenant
shall pay upon demand, as additional rent, Landlord's cost for making such repairs plus fifteen
percent (15%) for overhead and administration.
Section 7.5 CHANGES BY TENANT.
Tenant shall not make any structural changes to the Leased Premises, including the storefront,
without first obtaining plans and specifications for such work at the time approval is sought
and without the express written permission of the Landlord.
ARTICLE VIII
REAL ESTATE AND OTHER TAXES
Section 8.1 TAXES ON LEASEHOLD.
Tenant shall be responsible for and shall pay before delinquency any and all taxes, levies,
betterments, assessments, license fees and public charges levied, assessed against Tenant or the
MBTA in relation to the Leased Premises, the occupation or operation thereof, the revenue
derived therefrom, or imposed upon Tenant's business or Tenant's fixtures, furniture and
personal property of any kind owned by or placed in, upon, or about the Leased Premises.
Tenant, upon written request of Landlord, shall make and prosecute applications for abatement
of taxes on any leasehold or real property a part of this Lease. If, however, Tenant fails to
commence or there after diligently continue the prosecution of applications for abatement of
taxes within fifteen (15) days of Landlord's written request so to prosecute, then Landlord shall
have the right to prosecute said applications for abatement of taxes in the name of Tenant,
provided, however, that the expenses of prosecuting such applications shall be borne by Tenant.
At Landlord's request, Tenant shall furnish Landlord with all data and information in Tenant's
possession concerning the Premises, and shall execute and deliver all documents necessary for
Landlord's application
ARTICLE IX
INSURANCE AND INDEMNITY
Section 9.1 INDEMNIFICATION.
Tenant agrees to defend, indemnify and hold forever harmless the Landlord, its employees,
officers, directors, managers and agents and their successors and assigns (collectively the
“Landlord and Successors”) from and against any and all loss, cost, claims, liabilities, damage
and expense (including reasonable attorney's fees) (the “Claims”) on account of damage to
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property, accident or injury (and/or death) to persons or the property of any persons directly or
indirectly caused in whole or in part by any act, omission or negligence of the Tenant or its
employees, assigns, agents contractors and/or subcontractors, related to the use, misuse or
occupancy of the Premises or in connection with any work or business conducted or act done or
omitted on the Premises or the Property or by reason of any omission or failure to fully perform
and observe the terms of this Lease or applicable law except when the Claim arose because of
the gross negligence or willful misconduct of the Landlord. The Landlord shall give Tenant
reasonable notice of any claim made or suit instituted against the Landlord and Successors,
which in any way would result in a claim of indemnification hereunder.
Tenant hereby releases the Landlord and Successors from any Claims that Tenant may have
based on the condition of the Premises on the Lease Commencement Date and also releases the
Landlord and Successors from any Claims based on Negative Impacts affecting the Premises
during the Term that arise because of the ongoing operation of the Landlord’s transportation
system, including, without limitation, noise, odor, vibrations, electromagnetic radiation,
lighting, particles, fumes and pollution.
Section 9.2 INSURANCE.
Prior to entry hereunder, the Tenant and its consultants and contractors shall provide the Landlord
with a certificate or certificates of insurance and shall, during the term hereof, renew and replace
any expired certificate, evidencing the insurance of the activities permitted hereunder, and
Tenant’s covenant of indemnification hereinabove, with companies that are reasonably acceptable
to the Landlord, as stated below, in which Tenant and others hereinafter specified are either
additional insureds as their interests may appear or named insureds and which provide minimum
liability coverage as follows:
1. Commercial General Liability Insurance.
Insuring the Tenant, the Landlord, the Premises, and all activities allowed
hereunder as well as Tenant’s indemnification obligations contained in Section 9.1,
with minimum liability coverage for personal injury, bodily injury and property
damage with limits not less than One Million Dollars ($1,000,000.00) per occurrence,
Three Million Dollars ($3,000,000.00) in aggregate, and Umbrella liability coverage
with limits of not less than Five Million Dollars ($5,000,000.00). Such insurance
shall be written on an occurrence basis (as opposed to a claims made basis). These
policies shall name the Landlord as an additional insured.
2. Workers’ Compensation Insurance.
Insuring all persons employed by Tenant in connection with any work done on or
about the Premises with respect to which claims for death or bodily injury could be
asserted against the Landlord or the Premises with limits of liability not less than
those required by Massachusetts General Laws, Chapter 152, as amended. The
policy shall contain a clause waiving the right of subrogation in favor of the
Landlord. Each of Tenant’s subcontractors and consultants shall have similar
policies covering their employees.
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3. Property Damage Insurance.
Tenant shall carry and maintain property damage insurance in an amount not
less than the full replacement cost from time to time of the Premises, insuring
such improvements against fire and other hazards customarily covered by so-
called “all-risk” insurance. Such insurance shall also cover business interruption.
All personal property located within the Premises shall be covered by “all-risk”
insurance.
4. Insurance During Construction
Tenant shall carry Builder’s All Risk insurance, naming Landlord in the same
manner as provided for comprehensive general liability coverage above, for all of
Tenant’s Work. In addition, whenever construction is occurring on the Premises,
Landlord may require additional insurance requirements, such as Builder’s All
Risk.
The required insurance coverages hereinbefore specified shall be placed with insurance
companies licensed by the Massachusetts Division of Insurance to do business in the
Commonwealth of Massachusetts and having a Best's rating of “B+” or better, shall be taken out
before the Lease is commenced and be kept in full force and effect throughout the term of the
Lease, shall be primary to and non-contributory to any insurance or self-insurance maintained
by the Landlord, and shall require that the Landlord be given at least 30 days advance written
notice in the event of any cancellation or materially adverse change in coverage. All such
required insurance shall be written on an occurrence basis form, as opposed to a claim made
basis form. The Landlord shall be named as an additional insured under the Commercial
General Liability, Automobile Liability, Umbrella, and Builder's Risk Insurance Policies. The
Workers' Compensation and Employers' Liability Insurance Policies shall include a waiver of
subrogation in favor of the Landlord, which precludes these insurers from being able to make
any subrogation claims against the Landlord. All such required insurance shall not contain any
exclusions for acts of terrorism, and shall fully cover any acts of terrorism, irrespective of
whether such acts of terrorism are caused by domestic or foreign terrorists, and irrespective of
whether such acts of terrorism are certified or non-certified by the Secretary of the Treasury, in
concurrence with the Secretary of State and the Attorney General of the United States, to be an
act of terrorism pursuant to the federal Terrorism Risk Insurance Act of 2002. All such
insurance as is required of the Tenant shall be provided by or on behalf of all subcontractors to
cover their operations performed. The Tenant shall be held responsible for any modifications,
deviations or omissions in the compliance with these requirements by its contractors. At the
inception date of the Lease and throughout the term of the Lease, the Landlord shall be
provided with certificates of insurance evidencing that such insurance policies are in place and
provide coverage as required.
In the event of the cancellation of any policy during the term of this Lease, or the failure to keep
in effect the insurance required by this section, the Landlord may, without further notice and at
its option, procure or renew such insurance on the account of the Tenant. Tenant agrees to
repay such Landlord expense, with interest thereon at the Default Rate, where such expenses
shall be deemed Additional Rent, within ten (10) calendar days of receiving an invoice from the
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Landlord. Interest shall begin on the date the expense was incurred by the Landlord.
Section 9.3 INSURANCE OF TENANT'S FIXTURES.
Tenant agrees that it shall at all times during the term of this Lease maintain on all of its
fixtures, equipment and property in the Leased Premises, a policy or policies of fire insurance
with a standard extended coverage endorsement attached, to the extent of at least ninety
percent (90%) of their full insurable value, the proceeds of which shall, so long as this Lease is in
effect, be used for the repair or replacement of the fixtures, equipment and property so insured.
It is understood that Landlord shall have no interest in the insurance on Tenant's equipment,
fixtures and property and will execute all documents necessary or proper in connection with the
settlement of any claim or loss by Tenant. Tenant shall also maintain and keep in full force and
effect plate glass insurance coverage on all plate glass in the Leased Premises.
Section 9.4 LOSS AND DAMAGE TO THE LEASED PREMISES.
Landlord shall not be liable for any damage to property of Tenant or of others located on or in
the Leased Premises, nor for the loss of or damage to any property to Tenant or of others by
theft or otherwise. All property of Tenant kept or stored on the Leased Premises shall be so
kept or stored at the risk of Tenant only and Tenant shall hold Landlord harmless from any
claim arising out of damage to same, including subrogation claims by Tenant's insurance
carrier, subject to the provisions of Section 9.5 below. Landlord shall not be liable to Tenant for
any injury or damage caused by other tenants or persons in the Leased Premises; occupants of
property adjacent to the Station; the public; or caused by the construction of any private, public
or quasi-public work.
Section 9.5 WAIVER OF SUBROGATION.
Insofar as, and to the extent that, the following provisions may be effective without invalidating
or making it impossible to secure insurance coverage obtainable from responsible insurance
companies doing business in the Commonwealth of Massachusetts (even though an extra
premium may result therefrom) Landlord and Tenant mutually agree that with respect to any
loss which is covered by insurance required by this Lease or, if coverage is greater, then being
carried by them, respectively, the one carrying such insurance and suffering said loss; and each
further mutually agrees that their respective insurance companies shall have no right of
subrogation against the other on account thereof.
ARTICLE X
DESTRUCTION OF LEASED PREMISES
Section 10.1 NOTICE BY TENANT.
Tenant shall give immediate notice to Landlord in the event of fire or any other serious damage
to the Leased Premises.
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Section 10.2 TERMINATION OF LEASE.
In the event that:
(a) The Leased Premises shall be damaged to the extent of fifty percent (50%) or more of the
cost of replacement thereof; or
(b) The Leased Premises shall be damaged as the result of a risk which is not insured under
the policy of insurance carried by Tenant for the benefit of Landlord pursuant to Section
9.4; or
(c) The Leased Premises shall be damaged in whole or in part during the last year of the
initial Lease Term or during the last year of any renewal term hereof; or
(d) Twenty-five percent (25%) or more of the floor area of the Station be destroyed by fire or
any other casualty or occurrence notwithstanding the fact that the Leased Premises may
not be so damaged.
then, in any such event, Landlord may terminate this Lease by written notice given to Tenant
within ninety (90) days after such event, and upon the date specified in such notice, which date
shall not be less than thirty (30) days nor more than forty-five (45) days after the giving of said
notice, this Lease shall terminate and come to an end and Tenant shall vacate and surrender the
Leased Premises to Landlord.
Section 10.3 RESTORATION.
If this Lease shall not be terminated pursuant to Section 10.2 hereof, Landlord, upon receipt of
the insurance proceeds, shall promptly repair and restore the Station to substantially the same
condition in which they were prior to the date of damage (consistent, however, with zoning and
building laws then in existence). Landlord's obligation to repair or restore shall be limited,
however, to the extent of the insurance proceeds received by Landlord therefore.
Section 10.4 ABATEMENT OF RENT.
If the casualty, repairs or rebuilding shall render the Leased Premises untenantable, in whole or
in part, a proportionate abatement of the Fixed Minimum Rent shall be allowed from the date
when the damage occurred until completion of the repairs or rebuilding, or in the event
Landlord elects to terminate this Lease pursuant to Section 10.2 until said date of termination.
The proportionate abatement of Fixed Minimum Rent shall be computed on the basis of the
ratio which the amount of floor space of the Leased Premises rendered untenantable bears to
the total floor space of the Leased Premises prior to such casualty, repairs or rebuilding.
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ARTICLE XI
ASSIGNMENT AND SUBLETTING
Section 11.1 PROHIBITION.
Tenant shall not assign, sell, mortgage, pledge, or in any manner transfer this Lease or its
interest therein, or sublet the Leased Premises or any part or parts thereof or permit occupancy
by anyone through or under it, without the prior written consent of Landlord. Any transfer of
this Lease by merger, consolidation, liquidation or by operation of law shall constitute an
assignment for the purposes of this Lease. Any such act without Landlord's prior written
consent shall constitute a breach of this Lease and Landlord may at its option, cancel this Lease
and terminate Tenant's interest therein.
Section 11.2 CONTINUING OBLIGATION OF TENANT.
Landlord's consent to any assignment, subletting or occupancy shall not relieve the Tenant
named herein of any of the obligations of Tenant under this Lease, and Tenant and each of the
guarantors of Tenant's obligations, if any, shall remain fully liable therefore. No assignment or
subletting approved by Landlord pursuant to Section 11.1 shall be effective unless and until an
instrument of assignment or subletting in form acceptable to Landlord shall have been executed
and acknowledged by Landlord, Tenant and the Assignee or sublessee.
Section 11.3 CORPORATE OWNERSHIP.
If Tenant is a corporation and if at any time during the Lease Term or any renewals the person
or persons who own a majority of its voting shares at the time of execution of this Lease cease to
own a majority of such shares (except as a result of transfers by bequest or inheritance) Tenant
shall notify Landlord and Landlord may at its option, cancel this Lease and terminate Tenant's
interest therein by giving written notice to Tenant within ninety (90) days after receipt of said
notice from Tenant. This Section shall not apply whenever Tenant is a corporation, the
outstanding voting stock of which is listed on a recognized security exchange or if at least
seventy-five (75%) percent of its voting stock is so listed. The term "voting stock" shall refer to
shares of stock regularly entitled to vote for the election of directors of the corporation.
ARTICLE XII
ESTOPPEL, ATTORNMENT AND SUBORDINATION
Section 12.1 ESTOPPEL CERTIFICATES.
At any time and from time to time, Tenant agrees within ten (10) days after written request
therefore by Landlord, to execute, acknowledge and deliver to Landlord a statement in writing
certifying:
(a) That this Lease is unmodified and in full force and effect (or if there have been any
modifications that the same is in full force and effect as modified and stating the
modifications);
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(b) The Commencement Date and Termination Date of the Lease Term;
(c) The dates to which the Fixed Minimum Rent, and other charges have been paid; and
(d) That there are no uncured defaults by Landlord or stating those claimed by Tenant.
Any certificate delivered pursuant to this Section may be relied upon by any purchaser,
mortgagee or assignee of any mortgagee of the Leased Premises or of the Station.
Section 12.2 ATTORNMENT.
In the event of a sale, transfer or assignment of Landlord's interest in the Station or any part
thereof which shall include the Leased Premises; or in the event any proceedings are brought
for the foreclosure of or for the exercise of any power of sale under any mortgage made by
Landlord covering the Station or any part thereof which shall include the Leased Premises,
Tenant agrees to attorn to and to recognize such transferee, purchaser, ground or underlying
lessor or mortgagee as Landlord under this Lease.
Section 12.3 SUBORDINATION.
Upon written request by Landlord, Tenant agrees to execute, acknowledge and deliver an
agreement subordinating this Lease to any mortgage or deed of trust that is now or may
hereafter be placed upon the Leased Premises and to any and all advances made or to be made
thereunder, and to the interest thereon, and to all renewals, replacements and extensions
thereof, provided the mortgagee or trust deed shall agree to recognize the validity of this Lease
in the event of foreclosure if Tenant is not in default hereunder.
Section 12.4 REMEDIES.
Failure of Tenant to execute any of the above instruments within fifteen (15) days after receipt
of written request therefore, shall constitute a breach of this Lease and Landlord may, at its
option, cancel this Lease and terminate Tenant's interest therein.
ARTICLE XIII
DEFAULT BY TENANT AND REMEDIES
Section 13.1 RIGHT TO RE-ENTER.
In the event of the failure of Tenant to pay any rental or other charges due hereunder within
ten (10) days after receipt of written notice from Landlord to Tenant that the same is due
(provided, however, that Tenant is entitled to that notice only twice in any 12 consecutive
months, and the third time in 12 consecutive months, Tenant will be in default if any rental or
other charges due hereunder is not timely received); or in the event of the failure of Tenant to
perform any of their terms, conditions or covenants of this Lease to be observed or performed
by Tenant for more than thirty (30) days after receipt of written notice of such default or if such
default shall be of such nature that the same cannot be reasonably cured or completely
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remedied within said thirty (30) day period, and if Tenant shall not in good faith have
commenced the curing or remedying such default to the extent not completely curable in thirty
days within such thirty (30) day period and shall not thereafter diligently proceed therewith to
completion; or if Tenant shall abandon the Leased Premises; or if this Lease or the estate created
hereby, shall be taken in execution or by other process of law; or if Tenant shall be adjudicated
insolvent or bankrupt pursuant to the provisions of any state of federal insolvency or
bankruptcy act; or if a receiver or trustee of the property of Tenant shall be appointed by reason
of Tenant's insolvency and inability to pay its debts; or any assignment shall be made of
Tenant's property for the benefit of creditors, then in any such event, Landlord, besides other
rights or remedies it may have, shall have the immediate right to re-enter the Leased Premises
and to remove all persons and property therefrom and such property may be stored in a public
warehouse or elsewhere at the cost and for the account of Tenant, without evidence or notice or
resort of legal process and without being deemed guilty of trespass, or becoming liable for any
loss or damage which may be occasioned thereby.
Section 13.2 RIGHT TO RE-LET.
Should Landlord elect to re-enter as herein provided, or should it take possession pursuant to
legal proceedings or pursuant to any notice provided by law, it may either terminate this Lease,
or it may from time to time, without terminating this Lease, make such alterations and repairs
as may be necessary in order to re-let the Leased Premises, and re-let same or any part thereof
for such term or terms (which may be for a term extending beyond the term of this Lease) and
at such rental or rentals and upon such other terms and conditions as Landlord in its sole
discretion may deem advisable. Upon each such re-letting, all rentals received by Landlord
from such re-letting shall be applied, first, to the payment of any indebtedness other than rent
due hereunder from Tenant to Landlord; second, to the payment of any costs and expenses of
such re-letting including brokerage fees and attorney fees and of costs of such alterations and
repairs; third, to the payment of rent due and unpaid hereunder; and the residue, if any, shall
be held by Landlord and applied in payment of future rent as the same may become due and
payable hereunder. If such rentals received from such re-letting during any month be less than
that to be paid during the month by Tenant hereunder, Tenant shall pay any such deficiency to
Landlord. Such deficiency shall be calculated and paid monthly. No re-entry or taking
possession of the Leased Premises by Landlord shall be construed as an election on its part to
terminate this Lease unless a written notice of such intent be given to Tenant or unless the
termination thereof be decreed by a court of competent jurisdiction. Notwithstanding any such
re-letting without termination, Landlord may at any time thereafter elect to terminate this Lease
for such previous breach. In addition to any other remedies it may have, Landlord may recover
from Tenant all damages it may incur by reason of such breach, including the cost of recovering
the Leased Premises reasonable attorney fees, and the worth at the time of such termination of
the excess, if any, of the amount of rent and charges equivalent to rent reserved in this Lease, for
the remainder of the stated term over the then reasonable rental value of the Leased Premises
for the remainder of the stated term, all of which amounts shall be immediately due and
payable from Tenant to Landlord. Landlord will make reasonable efforts to lease the space to a
suitable tenant at the highest possible rent at the earliest possible date, but Landlord may favor
other vacant space over the Leased Premises.
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Section 13.3 LANDLORD'S RIGHT TO CURE DEFAULT.
Landlord may, but shall not be obligated to cure, at any time, without notice, any default by
Tenant under this Lease; and whenever Landlord so elects, all costs and expenses incurred by
Landlord in curing such default, including without limitation, reasonable attorney fees,
interests on the amount of costs and expenses so incurred at the rate of one and one-half (1 ½%)
percent per month, and fifteen (15%) percent thereof for overhead and administration, shall be
paid by Tenant to Landlord on demand.
Section 13.4 LANDLORD'S EXPENSES.
In the event suit shall be brought for recovery of possession of the Leased Premises, for the
recovery of rent or any other amount due under the provisions of this Lease, or because of the
breach of any covenants herein contained on the part of Tenant to be kept or performed, and a
breach shall be established, Tenant shall pay to Landlord all expenses incurred therefore,
including reasonable attorney fees.
Section 13.5 WAIVERS OF DEFAULTS.
No consent or waiver, expressed or implied, by Landlord to or of any breach of any covenant,
condition of duty of Tenant shall be construed as a consent or waiver to or of any other breach
of the same or any other covenant, condition or duty.
ARTICLE XIV
OPERATION OF BUSINESS
Section 14.1 USE.
Tenant agrees that the Leased Premises shall be used and occupied by Tenant only for the
purposes specified as the use thereof in Section 1.1(F) and for no other purpose or purposes
whatsoever. Tenant shall operate and advertise its business in the Leased Premises under the
trade name specified in Section 1 of this Lease (Tenant representing that it has the right to use
such name) unless Landlord shall otherwise consent. In no event shall the Leased Premises by
used for any unlawful purpose.
The Landlord reserves the right at any time during the Term hereof to prohibit the sale of any
product or service from or on the Premises which Landlord deems offensive or not in the best
interest of the general public.
Tenant’s retail operations must not have a negative impact on the operation of the Station. The
MBTA may require specific operational modifications that minimize pedestrian traffic
congestion.
Tenant shall not have any exclusive rights within the Station.
Section 14.2 OPERATION.
Except when and in the extent that the Leased Premises are untenantable by reason of fire or
other casualty, Tenant agrees to continuously and uninterruptedly use all of the Leased
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Premises for the use specified in Section 1.1 (F) other than minor portions thereof as are
reasonably required for storage and office purposes; to carry a full and complete stock of
seasonable merchandise; to maintain adequately trained personnel for efficient service to
customers; to keep lighted display windows in the Leased Premises during such period of time
as display windows throughout a substantial portion of the retail and service areas within the
Station are so lighted; and to conduct its business at all times so as to produce the maximum
volume of Gross Sales and to help establish and maintain a high reputation for the Station.
Tenant shall conduct its business during regular, posted and normal business hours.
Section 14.3 FAILURE TO DO BUSINESS.
The parties covenant and agree that because of the difficulty or impossibility of determining
Landlord's damages by way of loss of anticipated Percentage Rent from Tenant or other tenants
or occupants in the Station or by way of loss of value in the property because of diminished
salability or mortgageability, or adverse publicity or appearance the Tenant's action, should
Tenant vacate, abandon or desert the Leased Premises, cease operating Tenant's business
therein (except where the Leased Premises are rendered untenantable by reason of fire,
casualty, permitted repairs or alterations or other causes beyond Tenant's control not resulting
from the negligent acts or omissions of Tenant or Tenant's employees, agents, contractors,
licensees, concessionaires or invitees); or should Tenant fail or refuse to maintain business hours
as provided in Section 14.2 hereof; then and in any of such events (hereinafter collectively
referred to as "Failure To Do Business") Landlord shall have the right, at its option either to
collect not only the Fixed Minimum Rent and other charges herein reserved, but also additional
rent equal to one half (½) of the Fixed Minimum Rent reserved for the period of Tenant's Failure
To Do Business, computed at a daily rate for each and every day during such period, and such
additional rent shall be deemed to be liquidated damages in lieu of any Percentage Rent that
might have been earned by Landlord during such period, or, Landlord may treat such Failure
To Do Business as a default under Article XIV of this Lease.
Section 14.4 REFERENCE TO MBTA STATION LOCATION.
Tenant shall refer specifically to The Station and its address and identity in any advertising
done by the Tenant for the purpose of promoting the Leased Premises and its operation.
Section 14.5 SOLICITATION OF BUSINESS.
Tenant and Tenant's employees and agents shall not solicit business in the parking or other
common areas, nor shall Tenant distribute any handbills or other advertising matter in
automobiles parked in the parking areas or in other common areas except as may be permitted
only with the prior written consent of the Landlord.
Section 14.6 AWNINGS AND CANOPIES.
Tenant will not place of suffer to be placed or suffer to be placed or maintained on an exterior
door, exterior wall or exterior window of the Leased Premises any lighting, awning, canopy or
other thing of any kind without first obtaining Landlord's written approval and consent.
Tenant shall not place shades or curtains or otherwise obstruct the view through any windows
with a view to the exterior of the Station without the prior written approval and consent of the
Landlord.
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Section 14.7 RULES AND REGULATIONS.
The Rules and Regulations promulgated by the Landlord from time to time are hereby made a
part of this Lease, and Tenant agrees to comply with and observe same (including, but not
limited to, those rules and regulations adopted by Landlord and set forth in Exhibits D, E, F, G,
H and I attached hereto). Tenant's failure to keep and observe said Rules and Regulations shall
constitute a breach of the terms of this Lease in the same manner as if the same were contained
herein as covenants. Landlord reserves the right from time to time to amend or supplement
said Rules and Regulations and to adopt and promulgate additional Rules and Regulations
applicable to the Leased Premises and to the Station. Notice of supplements, if any, shall be
given to Tenant, and Tenant agrees thereupon to comply with and observe all such Rules and
Regulations and amendments thereto and supplements thereof so long as same are reasonable.
Section 14.8 FOOD PREPARATION.
Only with the prior approval and consent of the Landlord, Tenant may prepare and serve on
the Premises the food listed in Exhibit J, provided that no open flames may be used on the
Premises at any time.
In the event that Tenant engages in the preparation of food, Tenant agrees, at Tenant's own cost
and expense:
(a) To install chemical extinguishing devices approved by the local fire insurance rating
organization and Landlord's insurance carriers and to keep such devises in good
working order and repair and regularly serviced under a maintenance agreement as
may be required by Landlord or by such fire insurance rating organization or carriers;
(b) To keep and maintain the Tenant's Leased Premises including all toilets, and all exhaust
ducts and filters in a clean condition;
(c) To install within or without the Leased Premises as may be required by Local and State
codes and regulations a grease trap of a pattern and make approved in writing by
Landlord, and Tenant shall keep and maintain same in a clean and sanitary condition
and in good working order and repair;
(d) Not to allow odors or vapors to emanate from the Leased Premises;
(e) To pay any increase in the insurance rates and premiums on the Leased Premises or the
Station of which it forms a part which shall result solely from Tenant's use of the Leased
Premises;
(f) Tenant agrees to take all steps required to keep the Leased Premises and the
immediately adjacent area clean and free of debris from the Leased Premises; to keep all
trash entirely contained in covered barrels inside the Leased Premises or entirely within
the dumpster; to keep the Leased Premises, including the food preparation area and the
area adjacent to the dumpster, scrupulously clean and entirely free of insect and rodent
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and animal infestation; to take all steps necessary to prevent patrons from eating take-
out food in the Station or on the street; to refrain from disposing of waste grease, oil and
other improper debris in the sewer or septic system; and generally to conduct its
business as a high grade operation serving first quality food and beverages. Tenant
acknowledges that one of its essential responsibilities is to minimize odors and smoke in
and around the Leased Premises. To that end, Tenant agrees to maintain and use, as
circumstances warrant, ventilation equipment adequate to minimize odors and smoke in
and around the Leased Premises. Further, Tenant shall submit all ventilation-related
plans and specifications to Landlord for approval prior to installation. Landlord agrees
to review such plans and specifications promptly upon receipt. Landlord and Tenant
acknowledge that predicting the extent of odors that will be emitted from Tenant's
operation is difficult. Accordingly, and notwithstanding Landlord's approval for a
ventilation system, Tenant agrees to cooperate with its neighbors and Landlord in the
event of complaints made as a result of Tenant's odors and smoke.
ARTICLE XV
MISCELLANEOUS PROVISIONS
Section 15.1 ENTIRE AGREEMENT.
This Lease and the Exhibits attached hereto and forming a part hereof, and the matters referred
to in Section 15.23 below, set forth all the covenants, promises, agreements, conditions and
understandings either oral or written, between Landlord and Tenant concerning the Leased
Premises. No subsequent alteration, amendment, change or addition to this Lease shall be
binding upon Landlord or Tenant unless reduced to writing and signed by each party.
Section 15.2 QUIET ENJOYMENT.
Tenant, upon payment of the rents herein provided, and upon the observance and performance
of all the covenants, terms and conditions on Tenant's part to be observed and performed shall
peacefully and quietly hold and enjoy the Leased Premises for the term hereby demised without
hindrance or interruption by Landlord or its agents, subject, nevertheless, to the terms and
conditions of this Lease.
Section 15.3 NOTICES.
Any notice, demand, request or other instrument which may be or is required to be given under
this Lease shall be deemed served if mailed by Registered or Certified Mail addressed, if to
Tenant at the address of Tenant set forth in Section 1.3(B). or such other address as Tenant shall
have the last designated by notice in writing to Landlord, and, if to Landlord, to the address of
Landlord as set forth in Section 1.3(A), or such other address as Landlord shall have last
designated by notice in writing to Tenant. Such notice or demand shall be deemed served when
so mailed.
Section 15.4 NOTICE TO MORTGAGEE.
After receiving notice of default from any person, firm or other entity that holds a mortgage
which includes the Leased Premises as a part of the mortgaged premises, no notice from Tenant
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to Landlord shall be effective unless and until a copy of same is given to such holder and such
holder given reasonable time thereafter to cure same. The curing of any of Landlord's defaults
by such holder shall be treated as performance by Landlord.
Section 15.5 SECURITY DEPOSIT.
If a Security Deposit is specified in Section 1.1(D), Tenant agrees that same will be paid upon
execution and delivery of this Lease, and that Landlord shall hold same throughout the term of
this Lease as security for the performance by Tenant of all obligations on the part of Tenant to
be kept and performed. Landlord shall have the right from time to time without prejudice to
any other remedy Landlord may have on account thereof, to apply such Security Deposit, or
any part thereof, to Landlord's damages arising from any default on the part of Tenant. Should
the entire Security Deposit, or any portion thereof, be applied by Landlord in accordance with
the provisions hereof, Tenant shall forthwith upon demand pay to Landlord an amount
sufficient to restore such Security Deposit to the original amount specified herein. Landlord
shall have the same rights and remedies for the non-payment by Tenant of any amount due on
account of the Security Deposit as Landlord has hereunder for the failure of Tenant to pay rent.
Provided Tenant shall not be in default and provided Tenant has turned over the Leased
Premises to Landlord as set forth in Section 15.11, Landlord shall return the Security Deposit, or
so much thereof as shall not have theretofore been applied in accordance with the terms of this
Section to Tenant within 30 days following the end of the Lease Term or earlier termination of
this Lease. Interest, if any, on the Security Deposit shall accrue to the benefit of Landlord. In
the event, the term of this Lease is extended in accordance with Section 3.5 of the Lease, the
Security Deposit shall be increased to be equal to two (2) months of the first year’s Minimum
Fixed Rent for the Option Term which amount shall be paid upon commencement of the Option
Term.
Section 15.6 FINANCIAL STATEMENT.
Upon Landlord's written request, Tenant shall promptly furnish Landlord, from time to time,
financial statements reflecting Tenant's current financial condition.
Section 15.7 SEVERABILITY.
The invalidity or unenforceability of any provisions of this Lease shall not affect or impair any
other provision. The headings of the several Articles and Sections contained herein are for
convenience only and do not define, limit or construe the contents of such Articles or Sections.
Section 15.8 APPROVAL, CANCELLATION AND EXCUSE OF LANDLORD'S
PERFORMANCE.
Notwithstanding anything in this agreement to the contrary, providing such is not due to the
willful act of Landlord, the Landlord shall not be deemed to be in default with respect to the
performance of any of the terms, covenants or conditions of this Lease and Landlord shall not
be liable to Tenant for damages or otherwise, for delays or failure to render the Leased Premises
ready for occupancy, for failure to furnish, or delay in furnishing or interruption of, any
services to be provided by Landlord pursuant to this Lease regardless of the reason.
Section 15.9 FORCE MAJEURE CIRCUMSTANCES.
A delay in or a failure of performance by Tenant in the performance of its obligations under this
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Lease shall not constitute a default under this Lease to the extent that such delay or failure of
performance (i) could not be prevented by Tenant's exercise of reasonable diligence and (ii)
results from war, terrorism, acts of God, or of the public enemy, acts of Governmental
Authority, fires, floods, or other casualties (including significant utility interruptions),
epidemics, quarantine restrictions, freight embargoes, unusually severe weather, or other causes
beyond Tenant's control ("Force Majeure Circumstances") and the time for performance
(including the completion of Tenant’s Construction) shall be extended for the period of delay
from such cause or causes; provided, however, that the period of the extension and the reasons
therefore shall be in writing signed by Tenant and provided that the Tenant shall, within fifteen
(15) days after the beginning of any such delay, have notified Landlord in writing stating the
cause or causes thereof and the projected delay. If Tenant does not notify Landlord within such
fifteen (15) day period, the time for performance (including Tenant’s Construction completion)
shall be extended for the period of delay from the date that Tenant actually notifies Landlord of
the Force Majeure Circumstances regardless of the actual date of the commencement of the
Force Majeure Circumstances. The following shall, in no event, be deemed to be Force Majeure
Events: inability to obtain financing; Tenant's financial condition; inability to obtain Approvals;
delays due to soil conditions; strikes or other labor disturbances. Tenant agrees to use diligent
efforts to minimize the delay and other adverse effects of any Force Majeure Circumstances.
Notwithstanding any Force Majeure Circumstances, Tenant shall use all reasonable efforts to
diligently and continuously prosecute to completion Tenant's Construction. The provisions of
this Section shall not operate to excuse Tenant from prompt payment of Fixed Rent, or any
other payments required by the terms of this Lease, except when the Commencement Date of
this Lease is delayed by the provisions hereof.
Section 15.10 NOTICE OF LEASE.
Tenant agrees not to record this Lease without the written consent of Landlord. Upon the
request of either party hereto, the other party agrees to execute, acknowledge and deliver to the
other a notice of lease in recordable form and complying with applicable law. In no event shall
such document set forth the rental or other charges payable under this Lease; and any such
document will expressly state that it is executed pursuant to the provisions contained in this
Lease and is not intended to vary the terms and conditions of this Lease.
Section 15.11 SURRENDER AND HOLDING OVER.
Upon the expiration or earlier termination of the term of this Lease, Tenant shall quit and
surrender the Leased Premises in a neat and clean condition and in good order, condition and
repair, (normal wear and tear and damage by fire or the elements excepted), and all work,
alterations and additions which may have been made or installed in, on or to the Leased
Premises prior to or during the term of this Lease, (except for the usual trade fixtures which
may be removed by Tenant) shall become the property of the Landlord. Tenant agrees to repair
any and all damage to the Leased Premises resulting from such removal. Any or all of the
property to be removed by Tenant from the Leased Premises or by the expiration of the term of
this Lease which is not so removed shall, at Landlord's option, either become the exclusive
property of Landlord or may be disposed of by Landlord without further notice or demand
upon Tenant. Any holding over by Tenant after the expiration of the term of this Lease shall be
construed to be a tenancy from month-to-month at the sufferance of Landlord and subject to all
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the provisions of this Lease, except that the Fixed Minimum Rent shall be at a monthly rate
equal to twice the sum of one monthly installment of Fixed Minimum Rent at the rate in effect
during the last month of the Lease Term. If Landlord gives reasonable notice to Tenant that Landlord
is subject to extraordinary harm by Tenant holding over (e.g., Landlord has executed a lease with a new
tenant to occupy the Leased Premises, and the new lease relies on Tenant timely vacating), then Tenant
will be liable for all extraordinary damages actually incurred by Landlord and arising solely from
Tenant’s failure to vacate.
Section 15.12 TRANSFER OF LANDLORD'S INTEREST.
In the event of any transfer or transfers of Landlord's interest in the Leased Premises or the
Station, the transferor shall be automatically relieved of any and all obligations and liabilities on
the part of Landlord accruing from and after the date of such transfer. Notwithstanding any
provisions to the contrary, Tenant shall look solely to the equity of Landlord in and to the
portion of the Station then owned by Landlord, in the event of a breach or default by Landlord
pursuant to the provisions of this Lease, and Tenant agrees that the liability of Landlord under
this Lease shall not exceed the value of such equity of Landlord in the Station. No other
properties or assets of Landlord shall be subject to levy, execution or other enforcement
procedures for the satisfaction of any judgment (or other judicial process) arising out of, or in
connection with this Lease; and if Tenant shall acquire a lien on any such other properties or
assets by judgment or otherwise, Tenant shall promptly release such lien on such other
properties and assets by executing, acknowledging and delivering to Landlord such
instruments and documents prepared by Landlord's attorneys.
Section 15.13 LANDLORD'S TITLE.
Landlord represents that it has full right and power to execute this Lease and that on the
commencement of Tenant's Construction and Fixture period it shall have a good and
marketable estate in fee simple (subject to mortgages) to the land.
Section 15.14 BROKERAGE COMMISSION.
Each of the parties represents and warrants that there are no claims for brokerage commissions
or finder's fees in connection with the execution of this Lease and each of the parties agrees to
indemnify the other against and hold it harmless from all liabilities arising from any such claim
including, without limitation, the cost of attorney's fees in connection therewith.
Section 15.15 WASTE.
Tenant shall not commit or suffer to be committed any waste upon the Leased Premises or any
nuisance or any act or thing which may disturb the quiet enjoyment of any other tenant in the
Station.
Section 15.16 ACCESS BY LANDLORD.
Landlord or Landlord's agent shall have the right to enter the Leased Premises during regular
business hours to examine same and to make such repairs, alterations, improvements or
additions as Landlord may deem necessary or desirable and Landlord shall be allowed to take
all material into and upon the Leased Premises that may be required therefore, without the
same constituting an eviction of Tenant in whole or in part and the rent reserved shall not abate
while such repairs, alterations, improvements or additions are being made by reason of loss or
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interruption of business of Tenant or otherwise. During the last six (6) months of the term of
this Lease or any renewal term, Landlord may exhibit the Leased Premises to prospective
tenants of the Station and may place upon the Leased Premises the usual notices "to let" or "to
rent", which notices shall not be removed, obliterated or hidden by Tenant.
Section 15.17 GOVERNING LAW.
This lease shall be governed exclusively by the provisions hereof and the laws of the
Commonwealth of Massachusetts, as the same may from time to time exist.
Section 15.18 BINDING EFFECT OF LEASE.
The covenants, agreements and obligations herein contained except as herein otherwise
specifically provided, shall extend to, bind and insure to the benefit of the parties hereto and
their respective personal representatives, heirs, successors and assigns.
Section 15.19 COUNTERPARTS.
This Lease may be executed in multiple original counterparts, each of which, when executed by
the parties hereto, shall be deemed an original.
Section 15.20 EQUAL OPPORTUNITY
(a) Equal Opportunity
With respect to its exercise of all rights and privileges herein granted, Tenant shall
undertake affirmative action as required by Federal and State laws, rules and
regulations pertinent to Civil Rights and Equal Opportunity unless Tenant is otherwise
exempted therefrom. Tenant agrees that it shall comply with any and all affirmative
action plans submitted pursuant to the directives of any Federal agency and in
accordance with Federal Law.
(b) Non-Discrimination Policy
In accordance with Title VI of the Civil Rights Act, as amended, 42 U.S.C. §2000d,
Section 303 of the Age Discrimination Act of 1975, as amended, 42 U.S.C. §6102, Section
202 of the Americans with Disabilities Act of 1990, 42 U.S.C. §12132, and Federal transit
law at 49 U.S.C. §5332, Tenant agrees that it will not discriminate against any employee
or applicant for employment because of race, color, creed, national origin, sex, age, or
disability. In addition, Tenant agrees to comply with applicable Federal implementing
regulations and other implementing requirements FTA may issue.
(c) Requirements of 49 CFR Part 21
This Lease is subject to the requirement of the U.S. Department of Transportation's
regulations at 49 CFR Part 21. Tenant agrees that it will not discriminate against any
business owner because of the owner's race, color, creed, national origin, age, sex, sexual
orientation, disability or Vietnam era veteran status in connection with the award or
performance of any contracts or agreements covered by 49 CFR Part 21. Tenant agrees
to include the above statements in any subsequent contracts or agreements that it enters
and cause those businesses to include such statements in further agreements.
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(d) Minority, Female and Community Participation
Tenant shall take all necessary and reasonable steps to encourage and utilize minority
and female business enterprises, consistent with reasonable numerical goals established
from time to time by the MBTA.
Section 15.21 DISCLOSURE OF BENEFICIAL INTEREST. In compliance with the provisions
of M.G.L. c.7, s 40J, upon execution of this Lease, Tenant shall file a signed statement listing the
holders of all beneficial interests under this Lease with the Deputy Commissioner of Capital
Planning and Operations and shall send the MBTA a copy, the proper form is attached hereto as
Exhibit C. Tenant agrees to deliver a revised form to said Commissioner and to the MBTA
within ten (10) days of a change in the beneficial interests of Tenant.
Section 15.22 WORK IN HARMONY.
Tenant agrees that in the use of the Premises or any work performed in or about the Premises, it
will employ only labor which can work in harmony with all elements of labor being employed
at the Property and on the MBTA's transportation system.
Section 15.23 ORDER OF PRECEDENCE.
In the event of any conflict or inconsistency between the terms set forth in the Lease, any
subsequent written amendments to the Lease, the MBTA’s Invitation to Bid (“ITB”), or the
Tenant’s Bid in response to the ITB, the governing order of precedence will be as follows:
1. Any written amendments to this Lease agreed to by both Landlord and
Tenant after the execution of this Lease.
2. This Lease, including exhibits and attachments hereto.
3. Tenant’s Improvement Plan(s) as approved by the MBTA.
4. The MBTA’s Invitation to Bid dated__________________.
5. Tenant’s bid dated_________________.
Section 15.24 INSPECTION OF RECORDS.
The MBTA or its representative shall have the right to inspect, review or audit, at a location
convenient to the MBTA in the Boston, Massachusetts area, in conformity with accepted
auditing and accounting practice, the accounts, books, records and activities of the Tenant to
ensure compliance with the provisions and requirements of this Lease.
Section 15.25 NO PERSONAL LIABILITY.
No member, director, or officer, contractor, employee, or agent of the MBTA shall be charged
personally or held contractually liable under any terms or provisions of this Lease or because of
any breach thereof or because of the execution of this Lease.
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Section 15.26 SELF HELP.
If Tenant shall default in the observance or performance of any term or condition of this Lease,
the MBTA without being under any obligation to do so and without thereby waiving such
default, may remedy such default at the expense of Tenant, immediately and without notice in
case of emergency, or in any other case, if Tenant shall fail to remedy such default within the
time set forth in this Lease. In the event the MBTA exercises such right, Tenant shall pay to the
MBTA immediately upon demand all of the MBTA's cost of performing the same, including
reasonable attorney's fees, plus an administrative charge equal to twenty-five percent (25%) of
the MBTA costs. Such amount shall, from the date such expense was incurred by the MBTA,
until paid in full, be subject to interest at the Default Rate. Such amount shall constitute
Additional Rent hereunder.
Section 15.27 SECURITY.
Tenant shall be solely responsible for the security of its customers, equipment, cash contents,
armored service, employees and subcontractors in connection with the installation,
maintenance, operation, and use of its business. Depending on Tenant’s use of the Premises, the
MBTA may require Tenant, at Tenant’s sole expense, to install and maintain security alarms for
the Premises. Tenant shall be responsible for compliance with MBTA policy and applicable
requirements for security as provided in Exhibit I of the Lease.
REMAINDER OF PAGE LEFT BLANK INTENTIONALLY
SEE ATTACHED SIGNATURE PAGES
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IN WITNESS WHEREOF, Landlord and Tenant have signed and sealed this Lease as of
the day and year first above written.
LANDLORD: TENANT:
MASSACHUSETTS BAY TRANSPORTATION ______________________
AUTHORITY
By:_____________________________________ By:_____________________________________
Name: Jonathan Davis Name:
Its: Acting General Manager and Its:
Rail and Transit Administrator Date:
Date:
APPROVED AS TO FORM:
By:_____________________________________
Name: Rachael Rollins
Its: General Counsel
Date:
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EXHIBIT A
LEASE PLAN
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EXHIBIT B
TENANT’S WORK
Tenant is responsible for all work required by the report except for______________. In
addition, Tenant will___________________.
Tenant will complete Tenant’s Work within ___ days of the Commencement Date.
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EXHIBIT C
M.G.L c. 7 §40J DISCLOSURE STATEMENT
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EXHIBIT D
DESIGN GUIDELINES
A copy of which may be found electronically at:
http://www.transitrealty.com/pdf/TenantDesignGuidelines.pdf
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EXHIBIT E
MBTA MARKETPLACE MEMBER PROGRAM
MBTA Marketplace Member Program:
While operating any retail business, tenant will be required to use a Point-of-Sale (POS)
system or Electronic Cash Register with polling capabilities.
o Any additional expenses in connection to the register, software or hardware will
be the responsibility of the tenant.
Tenant is required to provide the MBTA, and its agent TRA, auditable sales figures from
the POS system or Electronic Cash Register.
Tenant will also have the option to opt-in to the retail marketing program for a fee.
Benefits of this program include:
o Tenants can offer specials and couponing directly through the program
o Reach customers directly though social marketing
o Allows for communicating directly with customers about retail program
o Create customer loyalty programs
o Allows tenants to take advantage of MBTA Brand to drive sales
o Facebook polling allows customers to give opinions about products and services
to be offered
o Data can be used to attract customers
o Marketing association for MBTA tenants
o Potential future uses may include:
Access to MBTA APPS for purchase in a single location
Use of Charlie Card for purchases
On-line sales by MBTA tenants
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EXHIBIT F
MBTA SPECIAL INSTRUCTIONS FOR TRANSIT (Subway)
The MBTA Special Instructions for Transit (Subway) in existence from time to time. The
current Special Instructions may be found electronically at:
http://www.transitrealty.com/licenses/insurance_reqs_transit.pdf
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EXHIBIT G
MBTA RAILROAD CONSTRUCTION SPECIFICATIONS (Commuter)
The MBTA Railroad Construction Specifications (Commuter) in existence from time to time.
The current Specifications may be found electronically at:
http://www.transitrealty.com/licenses/mbta_special_instruc.pdf
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EXHIBIT H
ESCALATOR/ELEVATOR SAFTEY
All Contractors:
The Massachusetts Bay Transportation Authority’s “Safety First” mission underscores a proactive
approach to escalator accident prevention. It focuses on identifying and resolving hazards that pose the
greatest risk to passenger safety, thereby preventing accidents or recurrences. Therefore, this letter is to
remind you that all MBTA escalators are specifically designed for use only by pedestrians. The
transporting of packages or material through the use of two wheel or other wheeled carts on escalators is
strictly prohibited. This type of misuse will damage a variety of escalator components and may not
always be visible. Nonetheless, the risk to all escalator passengers greatly increases.
MBTA policy requires all contractors, vendors and employees to comply with the attached
Special Order #97-108 regarding escalator/elevator safety and never to use escalators to move freight,
heavy objects, construction supplies and/or vendor supplies.
MBTA officials and the escalator maintenance contractor will aggressively monitor for
compliance. Be advised that any contractor or vendor who violates this Directive will be required to
reimburse the MBTA for all costs associated with repair or damage incurred by misuse.
The MBTA will continue to explore and evaluate administrative and engineering measures as
part of its commitment to keep passenger escalator safety a top priority.
Sincerely,
s/Mark E. Boyle
Mark E. Boyle
Assistant General Manager for Development
Consistent with the Authority’s system safety efforts, this Special Order focuses on
escalator/elevator safety. All employees are reminded that escalators/elevators designed to
carry people should NEVER be used to move: Freight - Heavy Objects - Carts - Parcels.
The safe use of escalators/elevators will be enhanced by observing the following guidelines:
Do not carry heavy or bulky items on escalator/elevator.
Keep floor landing areas near escalators clear of tripping hazards.
Employees who work near escalators/elevators must report any unsafe acts or
conditions that might cause an accident.
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Report immediately any defects, no matter how minor, to Operations Support Systems
at
(617) 222-5728. Upon notification, Operations Support Systems will respond and/or
request immediate responses by the maintenance contractor.
Erratic operating conditions must be brought to the immediate attention of Operation
Support Systems at Extension 5728 and the escalator/elevator must be taken out of
service.
Learn the location and operation of the emergency STOP buttons.
Stop and barricade the escalator/elevator if any accident occurs.
Report immediately any accidents, no matter how minor to Central Control.
Chief Inspectors/Inspectors must conduct daily inspections and report defects or report
misuse of escalators/elevators by MBTA employees, concessionaires and contractors
immediately to Central Control.
Do not restart any escalator/elevator following an accident involving injuries until the
escalator/elevator is inspected and approved for operation by the escalator/elevator
maintenance contractor and the Department of Public Safety’s Escalator/Elevator
Division and the Safety Department.
In an effort to provide additional assurance and safety for our patrons, the following
procedures must be followed when a restart of an escalator is necessary:
Perform a visual inspection of the escalator for defects. The inspection can include, but
not necessarily be limited to, handrails, comb plates, steps and panels.
If a restart is pursued, the station official must observe several (two plus) complete
cycles of the equipment.
Any visible impropriety or uncommon sound emanating from the equipment as a result
of the restart must be reported to the Operations Control Center Dispatcher and the
elevator/escalator must be taken out of service.
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EXHIBIT I.
SECURITY
(Vendor Identification Badge if Required by MBTA)
The Tenant will be required to comply with the Authority’s current policy and applicable
requirements for security and anti-terrorism as the same may be amended from time to time:
Current MBTA Security Requirements
Tenant must submit a complete list of employees who will work on MBTA property.
Tenant must provide information for each employee including: name, address, job title,
hours and location of work.
Tenant must notify the MBTA in writing when an employee will no longer work at the
station and when new employees begin work at the station.
Tenant must issue photo-IDs to employees who work on MBTA property.
The photos (not older than 5 years), must display name of employee, company name and
date of issue and employees must display the photo-IDs at all times while on the property.
Tenant’s employees are not allowed on MBTA property except as required for their work
and are not allowed on MBTA property before or after service hours unless explicitly,
contractually required to be there.
Tenant’s employees are forbidden from carrying firearms on MBTA property.
Tenant and employee must be available for security training and follow-up.
Tenant is responsible for monitoring/auditing its employees on MBTA property.
Tenant must be able to provide upon request any background documents about employees
that might be pertinent to a determination of how an employee may behave on MBTA
property. This may include CORI forms/checks for all employees provided by the MBTA.
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EXHIBIT J.
ALLOWED FOOD/PRODUCT LIST
Landlord approves the following food/products to be sold at the Leased Premises.
_______________________
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