Exhibit 10.1


 


100 HIGH
STREET


BOSTON, MASSACHUSETTS


 


 


OFFICE
LEASE AGREEMENT


 


BETWEEN


 


 


MA-100
HIGH STREET, L.L.C., a Delaware limited liability company


(“LANDLORD”)


 


 


AND


 


 


INVESTMENT
TECHNOLOGY GROUP, INC., a Delaware corporation


(“TENANT”)


 

















 


OFFICE
LEASE AGREEMENT


 


THIS OFFICE LEASE AGREEMENT (this “Lease”)
is made and entered into as of July 24, 2009 (the “Lease Execution Date”), by and between MA-100 HIGH STREET, L.L.C., a Delaware limited liability company
(“Landlord”) and INVESTMENT
TECHNOLOGY GROUP, INC., a Delaware corporation (“Tenant”).  The
following exhibits and attachments are incorporated into and made a part of
this Lease:  Exhibit A-1
(Outline and Location of 16th Floor), Exhibit A-2
(Outline and Location of 17th Floor), Exhibit A-3
(Outline and Location of Data Center), Exhibit A-4 (Outline and Location of 15th and 18th Floors), Exhibit A-5 (Outline and Location of
18th and 19th Floors), Exhibit A-6
(Tenant’s Proposed Alteration Layout on 16th Floor), Exhibit B (Expenses and Taxes), Exhibit C
(Outline and Location of the Roof Space), Exhibit D
(Commencement Letter), Exhibit E
(Building Rules and Regulations), Exhibit F
(Intentionally Deleted), Exhibit G
(Notice of Lease), Exhibit H (Definition
of Shell Condition), Exhibit I
(Form of SNDA), Exhibit J (Janitorial
Cleaning Specifications), Exhibit K (Plans
and Specifications for Generator and Scope of Work), Exhibit L (Outline and Location of Generator Area and
Fuel Tank Area), Exhibit M (Proposed
Electrical Routing of Electrical Lines for Generator), Exhibit N (Rentable Square Footage of
Floors 14 through 20) and Exhibit O (Outline
and Location of Demising Wall for a Partial Floor Contraction).


 


1.                                      Basic Lease Information.


 


1.01         “Building” shall
mean the building located at 150 Federal Street, Boston, Massachusetts 02110,
which address is expected to be changed to 100 High Street, Boston,
Massachusetts 02110 after the execution of this Lease.  Landlord agrees to use reasonable efforts to
cause such address change to occur within ninety (90) days after the Lease
Execution Date.  Notwithstanding anything
to the contrary in this Lease, Landlord shall reimburse Tenant for any actual
costs incurred by Tenant with respect to its stationery and its web site arising
out of or in connection with Landlord’s failure to change the address of the
Building as provided above within one hundred twenty (120) days after the
execution of this Lease.  “Rentable  Square Footage of the
Building” is deemed and agreed to be 552,731 rentable square feet.


 


1.02         “Premises” shall
mean the Initial Premises and the Additional Premises collectively, as the same
may be expanded or contracted to the extent permitted in this Lease.  If the Premises include one or more floors in
their entirety, all corridors and restroom facilities located on such full
floor(s) shall be considered part of the Premises.
Prior to the Commencement Date for the Additional Premises, the “Rentable Square Footage of the Premises” shall be the
rentable square footage of the Initial Premises as set forth in Section 1.03
below. After the Commencement Date for the Additional Premises, the “Rentable Square Footage of the Premises” shall be deemed and
agreed to be either (i) 72,607 rentable square feet, or (ii) 73,076
rentable square feet, as determined in accordance with Section 1.04.  The Rentable Square Footage of the Premises
shall be adjusted as the Premises may be expanded or contracted to the extent
permitted in this Lease by utilizing the modified BOMA/ANSI Z65.1-1996 method
of measurement which, in each instance, shall be consistent with the
measurements set forth in Exhibit N.


 


1.03         “Initial Premises”
shall be deemed and agreed to be 35,847 rentable square feet, consisting of the
18,229 rentable square feet, located on the 16th floor of the 


 

















 


Building, as more particularly shown on Exhibit A-1  attached
hereto and the 17,618 rentable square feet, located on the 17th floor of the
Building, as more particularly shown on Exhibit A-2  attached hereto. 
That portion of the Initial Premises located on the 16th floor which is
to be used by Tenant for its data center shall be referred to as the “Data
Center Space,” and such Data Center Space is shown on Exhibit A-3 attached hereto and shall
be deemed and agreed to be 3,426 rentable square feet.  The remaining portion of the 16th Floor shall be
referred to as the “Phase II 16th Floor Space” and shall be deemed and agreed to be 14,803 rentable
square feet.  Tenant shall be permitted
to install doors and walls on the 16th Floor and such other Alterations (as defined
in Section 10) as Tenant deems necessary to secure the Data Center Space
subject to (a) Landlord’s approval of the plans and specifications, which
approval shall not be unreasonably withheld, conditioned or delayed, and (b) Tenant’s
compliance with all other provisions of this Lease and all Law with respect
thereto.  Landlord hereby consents to
Tenant’s proposed alteration layout on the 16th Floor as shown on the plan attached hereto as Exhibit A-6; however, such consent
shall apply only to the proposed locations of the various elements and Tenant
shall continue to be obligated to comply with this Lease with respect to all
proposed Alterations, including without limitation, Section 4 and Section 10.


 


1.04         “Additional Premises”  shall be deemed and agreed to be two (2) additional
floors as determined by Landlord by notice to Tenant on or before February 1,
2010, which may be either (i) the 15th floor and the 18th floor, deemed and agreed to be 36,760  rentable square feet, as more particularly
shown on Exhibit A-4 attached
hereto, or (ii) the 18th floor and the 19th floor, deemed and agreed to be 37,229  rentable square feet, as more particularly
shown on Exhibit A-5 attached
hereto.  Failure by Landlord to provide
such notice shall not affect Landlord’s or Tenant’s obligations with respect to
the Additional Premises, and if Landlord has not provided such notice by such
date, then the Additional Premises shall be deemed to be the 15th Floor and the
18th Floor.


 


2

















 


1.05         “Base
Rent”:


 


	
  Portion
  of

  the Premises

  	
   

  	
  Period

  	
   

  	
  Annual
  Rate

  Per Square

  Foot

  	
   

  	
  Monthly

  Base Rent

  
	
  Initial Premises (assuming exclusion of Phase II 16th Floor Space)

  	
   

  	
  *the “Initial
  Premises Commencement Date” as defined in Section 1.09 below)
  to the Initial Term Expiration Date (as defined in Section 1.09 below)

  	
   

  	
  $43.50

  	
   

  	
  $76,284.50**

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Additional Premises (assuming inclusion of Phase II
  16th Floor Space)

  	
   

  	
  * the “Additional
  Premises Commencement Date” as defined in Section 1.09 below)
  to the Initial Term Expiration Date

  	
   

  	
  $43.50

  	
   

  	
  Either (i) $186,915.88 or
  (ii) $188,616.00, as determined in accordance with Section 1.04 and
  as the same may be affected by the exercise by Tenant of the Contraction
  Option**

  



 






*Rent shall be abated (a) from the Initial Premises Commencement
Date for a period of six and one-half (6 1⁄2) calendar months with respect to the
Initial Premises (except for the Phase II 16th Floor Space for which Rent shall
be abated until the earlier of (1) the Additional Premises Rent
Commencement Date and (2) the occupancy thereof for the conduct of Tenant’s
business), and (b) from the Additional Premises Commencement Date for a
period of six and one-half (6 1⁄2) calendar months with respect to the Additional
Premises (each such six and one-half month period, an “Abatement Period”).  The later of (i) the day after the
applicable Abatement Period or (ii) the applicable Rent Floor Date (as
defined below) shall be the relevant “Rent
Commencement Date” for the Initial Premises (except for the Phase II
16th Floor
Space for which the Rent Commencement Date shall be the earlier of (1) the
Additional Premises Rent Commencement Date and (2) the occupancy thereof
for the conduct of Tenant’s business and (3) where the Contraction
Premises consists of the entire Additional Premises, such that the actual
Additional Premises Rent Commencement Date would never occur, the date that is
fourteen and one-half (14 1⁄2) calendar months after the date of Tenant’s
Contraction Notice) and the Additional Premises, as applicable.  The “Rent
Floor Date” (i) for the Initial Premises shall be November 16,
2010, and (ii) for the Additional Premises shall be December 16,
2011.  The Rent Commencement Date for
each of the Initial Premises and the Additional Premises may also be postponed
further as set forth in Section 3.04. 
Notwithstanding any contrary provision in this Lease, the actual “Rent
Commencement Date” with respect to the Initial Premises and/or the Additional
Premises shall be postponed on a day for day basis for each day of Landlord
Delay, as defined below in Section 4.10, but only if such Landlord Delay
has not 


 


3

















 


postponed the Rent Commencement Date under Section 3.04.  All references to the “Rent Commencement Date”
shall be deemed to refer to the Rent Commencement Date, as so
postponed/extended by Section 3.04 or Section 4.10.


 


**Monthly Base Rent for the Initial Premises may be increased pursuant
to Tenant’s occupancy of the Phase II 16th Floor Space prior to the Additional Premises
Rent Commencement Date for the conduct of Tenant’s business as set forth in the
foregoing footnote.  Monthly Base Rent
for the Additional Premises may be adjusted upon the exercise by Tenant of the
Contraction Option as defined in Section 27, such that Monthly Base Rent
shall equal (i) $43.50 times (ii) the reduced Rentable Square Footage
of the Additional Premises divided by (iii) twelve (12).


 


1.06         “Tenant’s Pro Rata Share”:  shall be the percentage from time to time
equal to (i) 100 times (ii) the Rentable Square Footage of the
Premises divided by the Rentable Square Footage of the Building.


 


1.07         With respect to the Initial Premises
(except for the Phase II 16th Floor Space unless the same is occupied for
the conduct of business by Tenant prior to the Additional Premises Commencement
Date in which case the Phase II 16th Floor Space shall be treated as part of the
Initial Premises for purposes of this Section from and after the
commencement of Tenant’s occupancy thereof for the conduct of business) during
the Initial Term (defined below), “Base Year” for
Taxes (defined in Exhibit B):  Fiscal Year (defined below) 2011 (i.e.,  July 1, 2010 to June 30, 2011); “Base Year” for Expenses (defined in Exhibit B):  calendar year 2010.


 


With respect to the Additional Premises and the Phase
II 16th Floor Space (unless the Phase II 16th Floor Space is
treated as part of the Initial Premises as provided in the preceding paragraph)
during the Initial Term, “Base Year”
for Taxes:  Fiscal Year 2012 (i.e., July 1,
2011 to June 30, 2012); “Base Year”
for Expenses:  calendar year 2011.


 


With respect to the Premises during the Extension Term
(defined in Section 28) if the Tenant has exercised its Extension Option
(defined in Section 28), “Base Year”
for Taxes:  Fiscal Year 2022 (e.g., July 1,
2021 to June 30, 2022); “Base Year”
for Expenses:  calendar year 2021.


 


For purposes hereof, “Fiscal Year”
shall mean the Base Year for Taxes and each period of July 1 to June 30
thereafter.


 


1.08         The “Term” shall
mean the Initial Term (as defined below) together with the Extension Term if
the Tenant has exercised its Extension Option. 
In addition, Landlord and Tenant shall also execute and Tenant may
register or record, as appropriate, at Tenant’s cost and expense, a Notice of
Lease in the form attached as Exhibit G.  Landlord agrees to provide, at its cost and
expense, any necessary proof of authority required by the relevant registry of
deeds in order to register or record the Notice of Lease.


 


4

















 


1.09         The “Initial
Term” shall commence for each component of the Premises on the
applicable Commencement Date (as defined below), and expire, unless sooner
terminated in accordance with this Lease, on the date that is ten (10) years
from the Additional Premises Commencement Date, provided, however, if such date
falls on a day other than the last day of a calendar month then such date shall
be extended until the last day of such calendar month (the “Initial Term Expiration Date”).   Subject to the terms of Section 3.01,
the Commencement Date for the Initial Premises shall mean the date that is nine
(9) calendar months after the Delivery Date (as defined in Section 3.01)
for the Initial Premises (the “Initial
Premises Commencement Date”), and the Commencement Date for the
Additional Premises shall mean the date that is eight (8) calendar months
after the Delivery Date for the Additional Premises (the “Additional Premises Commencement Date”).  Notwithstanding the foregoing, Landlord
agrees to use best efforts to allow Tenant to have access to each component of
the Premises prior to the applicable Delivery Date in order to make the Initial
Alterations (as defined in Section 1.15), all subject to obtaining
Landlord’s prior approval of any plans and specifications relating thereto as
more particularly set forth, and to the extent required, in Section 4 and Section 10.  Prior to any such entry onto the Premises,
Tenant shall deliver to Landlord certificates of insurance evidencing the
coverages required under this Lease. 
With respect to the period commencing upon such early entry, all of
Tenant’s obligations under this Lease shall commence (other than its obligation
to pay Rent (as defined in Section 5.01 and which includes, without
limitation, all Expenses and Taxes, which obligations shall only commence on
the applicable Rent Commencement Date); however, notwithstanding the foregoing
and any other provision of this Lease to the contrary, to the extent separately
metered or submetered and not part of Expenses, Tenant’s obligation to pay all
utility charges shall commence on the earlier of (a) the date on which
Tenant commences business operations at the Premises and (b) the
applicable Rent Commencement Date.


 


1.10         “Broker(s)”:  Colliers Meredith & Grew and GVA
Thompson Hennessey & Partners.


 


1.11         “Permitted Use”:  General office purposes, including the right
to install and operate a generator and a data center ancillary to general
office purposes.


 


1.12         “Notice
Address(es)”:


 


	
  Landlord:

  	
   

  	
  Tenant:

  
	
   

  	
   

  	
   

  
	
  MA-100 High Street, L.L.C.

  c/o Equity Office

  125 Summer Street, 17th Floor

  Boston, Massachusetts 02110

  Attn: Property Manager

  	
   

  	
  Investment Technology Group, Inc.

  Attn: General Counsel

  380 Madison Avenue

  New York, New York 10017

  



 


5

















 


	
  With a copy of any notices to Landlord shall be sent
  to:

   

  Equity Office

  Two North Riverside Plaza

  Suite 2100

  Chicago, Illinois 60606

  Attn: General Counsel

   

  and a copy to:

   

  Nutter, McClennen &
  Fish, LLP

  155 Seaport Boulevard

  Boston, Massachusetts 02210

  Attn : Michael F. Burke, Esq.

   

  and a copy to:

   

  Neal, Gerber & Eisenberg LLP

  Two North LaSalle Street

  Suite 1700

  Chicago, Illinois 60602

  Attn: Audrey E. Selin, Esq.

  	
   

  	
  With a copy of any notices to Tenant shall be sent
  to:

   

  Investment Technology Group, Inc.

  Attn : Facilities Manager

  44 Farnsworth Street

  Boston, Massachusetts 02210

   

  and a copy to :

   

  Brennan, Dain, Le Ray, Wiest,
  Torpy & Garner, P.C.

  129 South Street

  Boston, Massachusetts 021111

  Attn: Joseph Torpy, Esq.

   

  and a copy to:

   

  GVA Thompson Hennessey & Partners

  125 High Street

  Suite 1000

  Boston, Massachusetts 02110

  Attn : John Hennessey

   

  



 


1.13         “Business Day(s)”
are Monday through Friday of each week, exclusive of New Year’s Day, Presidents
Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day and Christmas
Day (“Holidays”).  Landlord may designate additional Holidays
that are commonly recognized by other office buildings in the area where the
Building is located.  “Building Service Hours” are 8:00 A.M. to 6:00 P.M.
on Business Days and 8:00 A.M. to 1:00 P.M. on Saturdays.


 


1.14         “Landlord Work”
means the work, if any, that Landlord is obligated to perform in order to
deliver the Premises in the condition described on Exhibit H attached to this Lease (“Shell Condition”).


 


1.15         “Initial Alterations”
means all improvements and alterations necessary or desired to prepare the
Premises for initial occupancy by Tenant, excepting only the Landlord Work.


 


1.16         “Property” means
the Building, the existing parking facilities, and the parcel(s) of land
on which it is located and, at Landlord’s discretion, other improvements, if
any, serving the Building and the parcel(s) of land on which they are
located.  The Building is part of the 150
Federal Street Condominium (the “Condominium”)
created by Master Deed dated September 30, 1988 and recorded with the
Suffolk County Registry of Deeds (the “Registry”)
in Book 15066, Page 201 (the “Master
Deed”).


 


6
















 


1.17         Tenant shall not record this Lease but
shall have the right to record a memorandum or notice of this Lease, at Tenant’s
cost and expense (and in a form attached as Exhibit G
or other form reasonably satisfactory to Landlord).  If this Lease is terminated before the Term
expires, upon Landlord’s request the parties shall execute, deliver and record
an instrument acknowledging the above and the date of the termination of this
Lease.


 


2.                                      Lease Grant.


 


Landlord
hereby leases the Premises to Tenant and Tenant hereby leases the Premises from
Landlord.  Tenant has the non-exclusive
right to use any portions of the Property that are designated by Landlord for
the common use of tenants as well as (a) the parking areas serving the
Building to the extent more particularly described in, and in accordance with,
the terms and conditions of Section 34 below, (b) the driveways and
walkways necessary for access to the Building and/or such parking areas, (c) the
entrances, lobbies, stairways between full floors of the Premises (in cases of
emergency situations, Tenant shall have access to the fire egress stairwell
between all floors of the Building), and passenger elevators of the Building, (d) the
loading docks and freight elevators serving the Building, (e) the roof and
other areas to the extent specified in this Lease, and (f) the heating,
ventilating, air conditioning, plumbing, electrical, emergency and other
mechanical systems and equipment serving the Premises in common with other
portions of the Building (collectively, the “Common
Areas”), all such use to be in accordance with the Rules and
Regulations (as defined below), all other provisions of this Lease, and all
Law.  Landlord shall not during the term
of this Lease reduce access to, reconfigure, or reduce the area of the Common
Areas unless the same does not unreasonably interfere with Tenant’s use and
enjoyment of the Premises or increase Tenant’s Pro Rata Share hereunder.  In no event will the rentable area
measurements of the Premises be increased during the Term (as may be extended)
except pursuant to Section 29, Section 30, or Section 31.  Landlord represents
and warrants to Tenant that, as of the date of this Lease, Landlord: (i) is
the sole owner of all of the units in, and 100% of the common areas
and facilities of, the Condominium, and (ii) is solely in control of
the organization of unit owners of the Condominium. 
Landlord agrees that Landlord, and its successors and
assigns, shall be and remain the sole owner of all of the units
in, and 100% of the common areas and facilities of, the
Condominium, as well as solely in control of the organization of unit owners of the Condominium, until the earlier to
occur of: (a) the expiration or earlier termination of the Term of this
Lease, and (b) removal of the property of which the Premises are a part
from the effects of M.G.L. Chapter 183A, which removal is hereby approved in
advance by Tenant whereupon this Lease shall become a direct lease with the
Landlord or its affiliate as the owner of the Building.  Landlord hereby reserves the
right to collapse the existing condominium structure, that is, remove the
Building from the effects of M.G.L. Chapter 183A as aforesaid and agrees to use
commercially reasonable efforts to do so as soon as reasonably practicable.


 


3.                                      Preparation of Premises.


 


3.01                         Landlord shall deliver exclusive
possession of the Initial Premises in Shell Condition by the date which is
thirty (30) days from the date hereof and shall deliver exclusive possession of
(a) the Additional Premises (if the Contraction Option, as defined in Section 27
below, is not exercised) or (b) the applicable portion of the Additional
Premises (if the Contraction Option is not fully exercised) in Shell Condition
by the date that is no later than 120 days after the earlier of (i) the
expiration of the Contraction Deadline, as defined in Section 27 below,
without any exercise of the Contraction Option by Tenant, (ii) the
exercise by Tenant of such Contraction Option such that some or all of the
Additional Premises shall constitute part of 


 


7

















 


the Premises after such exercise, or (iii) the
receipt by Landlord of a written waiver of such Contraction Option) (each, a “Projected  Delivery
Date”).  Notwithstanding the
foregoing, Landlord shall not be required to deliver to each component of the
Premises the new VAV boxes (as differentiated from the Certified VAV Boxes (as
defined below), which Certified VAV Boxes shall be delivered as part of the
Shell Condition) until the date that is eight (8) weeks after the date
that Tenant submits to Landlord its design development drawings specifying the
type of new VAV boxes to be delivered to each component of the Premises (which
drawings must be approved by Landlord in accordance with the approval
procedures of this Lease; however, it is also agreed that where VAV boxes exist
at the Premises as of the date hereof (which for purposes of this Lease shall
be referred to as the “Certified VAV Boxes”),
Landlord shall not be required to replace the same but rather to remove the
same from their current locations and store the same in the Premises for future
re-installation by Tenant.  All VAV Boxes
shall be delivered as more particularly provided in Exhibit H.  Failure
to deliver the new VAV boxes in the required time frame (the “VAV Box Deadline”) shall be considered a
failure to meet the Projected Delivery Date only if Tenant’s construction
schedule is delayed as a result of such delay in which case the Delivery Date
for that portion of the Premises shall be retroactively adjusted to account for
the construction delay caused by the delayed VAV Box delivery on a day for day
basis.  A “Delivery Date” shall mean the actual date of delivery by
Landlord of exclusive possession of each of the Initial Premises and the
Additional Premises in broom clean condition, free of all tenants, occupants
and personal property, with the Landlord Work therein Substantially Complete,
and with all Building systems serving the Premises in good working order and
condition to the extent required as part of the Landlord Work.


 


3.02                         The Landlord Work shall be deemed to be “Substantially Complete” on the date that all Landlord Work
has been performed, other than any details of construction, mechanical
adjustment or any other similar matter, the non-completion of which does not
materially interfere with the Initial Alterations in the Premises or Tenant’s
use and occupancy of the Premises or Tenant’s ability to proceed with the
Initial Alterations or to obtain a certificate of occupancy.  All Landlord Work shall be performed in a
good and workmanlike manner, and such performance shall be in compliance with
all Law which is applicable to such performance.  If Landlord is delayed in the performance of
the Landlord Work as a result of the acts or negligent omissions of Tenant, the
Tenant Related Parties (defined in Section 14) or their respective contractors or
vendors unless resulting from an act or omission constituting a Landlord Delay
(as defined in Section 4.09), including, without limitation (i) changes
requested by Tenant to the scope of Landlord’s Work, Tenant’s failure to comply
with any of its obligations under this Lease, or Tenant’s specification of any
materials or equipment with long lead times to the extent such long lead items
are not known by Landlord prior to the execution of this Lease (provided,
however, that Landlord shall promptly notify Tenant of the estimated amount of
delay associated with any such long lead item and Tenant shall have the option
to change its specification such that such delay shall not occur, and, if so,
no Tenant Delay shall be deemed to have occurred as a result of said long lead
time item), (ii) in instances for which this Lease specifies no period in
which Tenant shall act, any failure by Tenant to respond to any reasonable
request for information relating to the Landlord Work or otherwise to cooperate
reasonably with Landlord, within a reasonable time after receiving from
Landlord a written request for such information or cooperation (not to exceed
ten (10) Business Days), unless the applicable provision deems the same to
be approved; and (iii) any interference by Tenant with the performance of
the Landlord Work (each a “Tenant Delay”),
for purposes of determining the applicable Delivery Date, the Landlord Work
shall be deemed to be Substantially Complete on the date that Landlord could
reasonably have been expected to Substantially Complete the Landlord Work
absent any Tenant Delay (provided, however, that Landlord shall retain the
obligation to Substantially Complete the Landlord Work even if Landlord Work
has been deemed Substantially Complete 


 


8

















 


as provided above). 
Notwithstanding the foregoing, no Tenant Delay shall be deemed to have
occurred until Landlord has given Tenant notice of the claimed Tenant Delay and
Tenant shall have failed to cure the condition giving rise to such Tenant Delay
within two (2) Business Days after receipt of said notice.  Notwithstanding anything to the contrary in Section 1.09
above, Landlord’s failure to Substantially Complete the Landlord Work and
deliver any portion of the Premises in the condition required hereunder by the
applicable Projected Delivery Date (described in Section 3.01) shall not
be a default by Landlord or otherwise render Landlord liable for damages except
as provided in Section 3.04 below. 
In addition, Landlord shall also be liable under said Section 3.04,
and only under said Section 3.04, if Tenant is unable to obtain a
certificate of occupancy due to the failure of the existing bathrooms in the
Initial Premises and the Additional Premises as shown on Exhibit A-1, Exhibit A-2, Exhibit A-4 and Exhibit A-5 (the “Existing Bathrooms”) to comply with Law
(even if the failure is triggered by the Initial Alterations).  Notwithstanding the foregoing, if any element
of the Initial Alterations is in violation of Law, Tenant, and not Landlord,
shall be responsible to cure such violation. 
The days by which Tenant’s receipt of a certificate of occupancy is delayed
as a result of such non-compliance are hereinafter referred to as an “Existing Bathroom Landlord Delay”.  Promptly after the determination of the
Commencement Date, Landlord and Tenant shall execute and deliver a commencement
letter in the form attached as Exhibit D (the “Commencement
Letter”).  Tenant’s failure to execute and return the
Commencement Letter, or to provide written objection to the statements
contained in the Commencement Letter, within thirty (30) days after the date of
the Commencement Letter shall be deemed an approval by Tenant of the statements
contained therein.


 


3.03                         Subject to Landlord’s obligation, if any,
to perform Landlord Work and other obligations of Landlord expressly provided
herein, the Premises are accepted by Tenant in “as is” condition and
configuration without any representations or warranties by Landlord.  Except for a one (1) year warranty on
any Landlord Work, by taking possession of the Premises, Tenant agrees that the
Premises are in good order and satisfactory condition.  Except as otherwise provided in this Lease,
Tenant shall not be permitted to take possession of or enter the Premises prior
to the Delivery Date without Landlord’s permission, which Landlord agrees to
use best efforts to accommodate in connection with Tenant preparing for Initial
Alterations.  Following the applicable
Delivery Date, Landlord and Tenant shall be subject to all of the terms and
conditions of this Lease and Tenant shall be permitted to use and occupy the
applicable portion of the Premises for any purpose permitted under this Lease
(that is, the Permitted Use); provided, however, that Tenant shall not be
required to pay Rent for any entry or possession or use, or for any reason
whatsoever, before the applicable Rent Commencement Date (except for (a) the
cost of services requested by Tenant (e.g. after hours HVAC service) at any
time and (b) all utilities for which Tenant is separately metered or
submetered commencing on the earlier of (a) the date on which Tenant
commences business operations at the Premises and (b) the applicable Rent
Commencement Date).


 


3.04                        Late Delivery.


 


(a)           Notwithstanding anything to the contrary
in this Lease, Landlord’s only liability with respect to delay in delivery of
the Initial Premises or the Additional Premises or for an Existing Bathroom
Landlord Delay (as defined in Section 3.02) or a Generator Landlord Delay
(as defined in Section 32.01) shall be that (a) the Rent Commencement
Date (i) for the Initial Premises shall be postponed for the total of two (2) days
for each day after the applicable Projected Delivery Date that the actual
Delivery Date occurs with respect to such portion of the Premises after
deducting from such total the number of days of Tenant Delay, (ii) for the
Additional Premises shall be postponed for the total of two (2) days for
each day after the 


 


9

















 


applicable Projected
Delivery Date that the actual Delivery Date occurs with respect to such portion
of the Premises after deducting from such total the number of days of Tenant
Delay (each, a “Delivery Delay”), (b) the Rent Commencement Date for the
Initial Premises shall be postponed for an additional amount of two (2) days
for each day of Existing Bathroom Landlord Delay, as defined in Section 3.02,
related to the Existing Bathrooms in the Initial Premises, (c) the Rent
Commencement Date for the Additional Premises shall be postponed for an
additional amount of two (2) days for each day of Existing Bathroom
Landlord Delay, as defined in Section 3.02, related to the Existing
Bathrooms in the Additional Premises, and (d) the Rent Commencement Date
for the Initial Premises shall be postponed for an additional amount of two (2) days
for each day of Generator Landlord Delay, as defined in Section 32.01.  The provisions of this subsection 3.04(a) shall
apply even if any Delivery Delay, Generator Landlord Delay, or Existing
Bathroom Landlord Delay was caused by Force Majeure.


 


(b)           Landlord shall indemnify, defend and hold
Tenant harmless against and from all liabilities, obligations, damages,
penalties, claims, actions, costs, charges and expenses, including, without
limitation, reasonable attorneys’ fees and other professional fees (if and to
the extent permitted by Law) (collectively referred to as “Losses”), which may be imposed upon,
incurred by or asserted against Tenant by its existing landlord with respect to
space currently leased by Tenant at Farnsworth Street, Boston, Massachusetts
but only to the extent arising out of, or in connection with, such landlord’s
loss of an executed new lease transaction directly resulting from a holdover by
Tenant at said Farnsworth Street space due to either (i) a Delivery Delay
with respect to the Initial Premises, (ii) a Generator Landlord Delay, as
defined in Section 32.01, or (iii) an Existing Bathroom Landlord
Delay, as defined in Section 3.02, related to the Existing Bathrooms in
the Initial Premises.  Landlord shall
indemnify, defend and hold Tenant harmless against and from all Losses which
may be imposed upon, incurred by or asserted against Tenant by its existing
landlord with respect to space currently leased by Tenant at Summer Street,
Boston, Massachusetts but only to the extent arising out of, or in connection
with, such landlord’s loss of an executed new lease transaction directly
resulting from a holdover by Tenant at such Summer Street space due to either (A) a
Delivery Delay with respect to the Additional Premises or (B) an Existing
Bathroom Landlord Delay, as defined in Section 3.02, related to the
Existing Bathrooms in the Additional Premises. 
Notwithstanding any provision of this Lease to the contrary, with
respect to this subsection 3.04(b) only, any Delivery Delay, Generator
Landlord Delay, or Existing Bathroom Landlord Delay shall not be deemed to have
occurred if such delay was caused by Force Majeure.  Landlord shall have the right to participate
in the defense of such matters and shall have a right of approval over any
settlement, which approval shall not be unreasonably withheld, and Tenant shall
cooperate with Landlord with respect to the defense thereof.  Tenant represents that the expiration date of
its Farnsworth Street lease is April 30, 2010 and of its Summer Street
lease is May 31, 2011.  In all
events, however, Landlord shall use good faith efforts to timely deliver the
Initial Premises, the Additional Premises, and the Generator by the applicable
delivery date, and upon any failure to deliver by such date, Landlord shall
continue to use best efforts to deliver the same as soon as reasonably
practicable thereafter.


 


4.                                      Initial Alterations and Allowance.


 


4.01                         Promptly after the delivery to Tenant of
each portion of the Premises, Tenant shall commence the construction of the
Initial Alterations in the respective component of the Premises and thereafter
shall diligently prosecute the Initial Alterations to completion.  All of the Initial Alterations shall be
considered to be an Alteration and shall be performed in accordance with and
subject to the terms and conditions of Section 10 and this Section 4. 
Unless Tenant and Landlord agree that Landlord will serve as general
contractor or construction 


 


10

















 


manager, Landlord shall not be entitled to any
compensation, overhead charges, review fees or any payments whatsoever, in
connection with the Initial Alterations. 
Notwithstanding any provision herein to the contrary, (i) Tenant
shall have the right, at Tenant’s sole cost and expense, to install
interconnecting stairways between floors of the Premises, subject to Landlord’s
approval of the specifications only, which approval shall not be reasonably
withheld, conditioned or delayed, it being agreed that it shall not be
unreasonable if Landlord withholds its consent to Alterations which materially,
adversely affect the structure or any system of the Building, and in all
events, such Alterations shall be subject to the provisions of Section 10; and (ii) Tenant shall also have
the right to use the existing fire egress stairwell for access and egress
between full floors of the Premises to the extent permitted by Law, and Tenant
shall be permitted, at Tenant’s option, to improve the fire egress stairwell
with carpeting, paint and the installation of light fixtures and card access
readers/entry systems on full floors of the Premises and such other alterations
as (a) are acceptable to Landlord in Landlord’s reasonable discretion and (b) in
compliance with all Law.


 


4.02                         Tenant, following the delivery of each
component of the Premises by Landlord on the applicable Delivery Date, shall
have the right to make Initial Alterations in each component of the
Premises.  Notwithstanding the foregoing,
Tenant and its contractors shall not have the right to perform Initial Alterations
in any portion of the Premises unless and until Tenant has complied with all of
the terms and conditions of Section 10 of this Lease, including, without limitation,
approval by Landlord of the final plans for the Initial Alterations and the
contractors to be retained by Tenant to perform such Initial Alterations.
Tenant shall be responsible for all elements of the design of Tenant’s plans
(including, without limitation, compliance with Law, functionality of design,
the structural integrity of the design, the configuration of the Premises and
the placement of Tenant’s furniture, appliances and equipment), and Landlord’s
approval of Tenant’s plans shall in no event relieve Tenant of the
responsibility for such design. 
Notwithstanding the foregoing, upon written request by Tenant, (a) a
representative of Landlord shall attend construction meetings, (b) Landlord
shall cooperate with Tenant in obtaining building permits, (c) Landlord
shall provide Building and system plans and respond to requests of Tenant’s
architects, and (d) Landlord shall facilitate the efforts of Tenant and
its contractor so as to achieve timely performance of the Initial
Alterations.  Landlord’s approval of the
contractors to perform the Initial Alterations shall not be unreasonably
withheld, conditioned or delayed, and shall comply with the time periods set
forth in Section 10. The parties agree that Landlord’s approval of the
general contractor to perform the Initial Alterations shall not be considered
to be unreasonably withheld or conditioned if any such general contractor (i) does
not have trade references reasonably acceptable to Landlord, (ii) does not
maintain insurance as required pursuant to the terms of this Lease, (iii) does
not have the ability to be bonded for the work in an amount of no less than
125% of the total estimated cost of the Initial Alterations; provided, however,
that the issuance of bonds shall not be required unless an Event of Default (as
defined below) exists, as more particularly set forth in Section 13 below,
(iv) does not provide current financial statements reasonably acceptable
to Landlord, or (v) is not licensed as a contractor in the
state/municipality in which the Premises is located.  Tenant acknowledges the foregoing is not
intended to be an exclusive list of the reasons why Landlord may reasonably
withhold its consent to a general contractor.


 


4.03                         Provided that no Event of Default has
occurred, Landlord agrees to contribute an allowance equal to $65.00 per rentable square foot of the Premises
toward the cost of performing the Initial Alterations in preparation of Tenant’s
occupancy of the Premises and as otherwise applied in accordance with the terms
of this Lease (the “Initial Alterations
Allowance”).  The Initial
Alterations Allowance may only be used for (a) hard costs in connection
with the design and construction of the Initial Alterations, (b) costs of
architectural, 


 


11

















 


design and engineering services related thereto, and (c) costs
of wiring the Premises and the cost of any furniture or fixtures to be used by
Tenant in the Premises; provided, however, that Tenant may not apply more than
$10.00 per rentable square foot of the Initial Alterations Allowance toward the
cost of furniture, fixtures and equipment. 
Tenant may request disbursement of the Initial Alterations Allowance in
whole or in part subject to the requirements below.  Tenant may request reimbursement on a monthly
basis or in such longer increments as Tenant elects.  The Initial Alterations Allowance shall be
paid to Tenant within 30 days following receipt by Landlord of (1) receipted
bills covering all labor and materials expended and used in the Initial
Alterations and for which Tenant is seeking payment; (2) a sworn
contractor’s affidavit from the general contractor and a request to disburse
from Tenant containing an approval by Tenant of the work done to date; (3) waivers
of lien from the contractor for the work which is included in the requisition;
and (4) the certification of Tenant and its architect that the portion of
the Initial Alterations which are the subject of the requisition have been
installed in a good and workmanlike manner substantially in accordance with the
approved plans, and in accordance with all Law which is applicable to such
work.  Within thirty (30) days after
completion, Tenant shall provide as-built plans of the Initial Alterations
and the certification of Tenant and its architect that the Initial Alterations
have been installed in a good and workmanlike manner substantially in accordance
with the approved plans, and in accordance with all Law which is applicable to
such work. The Initial Alterations Allowance shall be disbursed in the amount
reflected on the receipted bills meeting the requirements above.  Notwithstanding anything herein to the
contrary, Landlord shall not be obligated to disburse more than Two Million
Three Hundred Thirty Thousand Fifty-Five and 00/100 ($2,330,055.00) Dollars of the
Initial Alterations Allowance, which amount represents the portion of the
Initial Alterations Allowance applicable to the Initial Premises, until the
Contraction Option (as defined in Section 27) has expired or has been waived by
Tenant in writing or has been exercised by Tenant.  Following Tenant’s exercise or waiver or the
expiration of the Contraction Option pursuant to Section 27, the amount of the Initial Alterations
Allowance applicable to the Additional Premises shall be calculated per the
resulting rentable square footage of the Additional Premises.  Notwithstanding anything herein to the contrary,
Landlord shall not be obligated to disburse any portion of the Initial
Alterations Allowance during the continuance of an Event of Default, and
Landlord’s obligation to disburse shall only resume when and if such Event of
Default is cured.


 


4.04                         Notwithstanding anything to contrary
herein, Landlord shall provide Tenant with an allowance equal to $10.00 per
rentable square foot of the Premises toward Tenant’s IT, data room and
telecommunication expenses (the “IT Allowance”),
provided that Landlord shall have no obligation to disburse more than Three
Hundred Fifty Eight Thousand Four Hundred Seventy and 00/100 ($358,470.00)
Dollars of the IT Allowance, which amount represents the portion of the IT
Allowance applicable to the Initial Premises, until the Contraction Option (as
defined in Section 27)
has expired or has been waived by Tenant in writing or has been exercised by
Tenant.  Following Tenant’s exercise or
waiver of the expiration of the Contraction Option pursuant to Section 27, the amount of the IT Allowance
applicable to the Additional Premises shall be calculated per the resulting
rentable square footage of the Additional Premises.  Notwithstanding anything herein to the
contrary, Landlord shall not be obligated to disburse any portion of the IT
Allowance during the continuance of an Event of Default, and Landlord’s
obligation to disburse shall only resume when and if such Event of Default is
cured.  The IT Allowance shall be
disbursed by Landlord in the manner set forth above.


 


4.05                         [Intentionally deleted]


 


12

















 


4.06                         To the extent not paid by Landlord prior
to the date hereof, Landlord unconditionally agrees to contribute an allowance in an amount not to exceed
$0.10 per rentable square feet of the Premises toward the cost of completing an
initial plan of the Premises (the “Initial
Plan Allowance”).


 


4.07                         Except for the obligation of Landlord to
conduct the Landlord Work and as otherwise specified in this Lease, Tenant
agrees to accept the Premises in its “as-is” condition and configuration, it
being agreed that Landlord shall not be required to perform any work or to
incur any costs in connection with the construction or demolition of any
improvements in the Premises, other than (a) the conduct of the Landlord
Work and (b) the reimbursement of the Initial Alterations Allowance,
Initial Plan Allowance and the IT Allowance (collectively, the “Landlord’s Contribution”) .  In the event that a Law applicable to the
Landlord Work is in effect as of the applicable Delivery Date but such Law
provides a window of time for compliance to take place thereby not requiring
compliance on the Delivery Date but permitting compliance at some later point
during the Term, Landlord will be responsible for such compliance, and for the
cost thereof, by the date required such Law.


 


4.08                         Notwithstanding the foregoing, so long as
Tenant is not in default under this Lease beyond notice and cure periods and
this Lease is in full force and effect, if Landlord defaults in its obligation
to fund any portion(s) of the Landlord’s Contribution when required under
this Lease (a “Landlord’s Contribution
Default”), Tenant may claim a Landlord’s Contribution Default by
written notice to Landlord and to any Mortgagee, as defined in Section 24,
holding a first mortgage on the Building (as to which Mortgagee Landlord has,
by notice to Tenant, provided an address for notices), and if neither Landlord
nor such Mortgagee cures such Landlord’s Contribution Default within thirty
(30) days of Landlord’s receipt of Tenant’s claim of a Landlord’s Contribution
Default and neither Landlord nor such Mortgagee disputes the validity of the
claimed Landlord’s Contribution Default by notice to Tenant within ten (10) days
of Landlord’s receipt of Tenant’s claim of a Landlord’s Contribution Default,
then upon the expiration of such thirty-day period following such notice,
Tenant shall be entitled to fund such amounts whereupon Tenant shall have the
right to offset the amounts so funded against installments of Rent next coming
due hereunder.  Notwithstanding the
foregoing, if Landlord or its Mortgagee disputes any such claim, but does not
dispute the validity of the entire amount claimed, any portions thereof not so
disputed shall not be withheld from any such funding or, shall be subject to
the Tenant’s offset right referenced above. 
In addition to the foregoing, and without regard to the existence (or
non-existence) of a Landlord default under this Section or elsewhere in
the Lease, Tenant shall have the unconditional right to offset against
installments of Rent next coming due, and all out-of-pocket attorney’s fees
incurred by Tenant in connection with Tenant’s obligation to provide estoppel
certificates under the terms and conditions of an SNDA (as defined in Section 24
below) with respect to this Section.


 


4.09                         This Section 4 shall not be deemed
applicable to any additional space added to the Premises at any time or from
time to time, whether by any options under this Lease or otherwise, or to any
portion of the original Premises or any additions to the Premises in the event
of a renewal or extension of the original Term of this Lease, whether by any
options under this Lease or otherwise. 
If Tenant properly exercises its rights under this Lease to add space
outside of the Initial Premises or the Additional Premises, such additional
space shall be delivered in its then “as-is” condition except in the case of an
exercise of a Right of First Refusal if the ROFR Advice refers to a condition
that is not “as is”.


 


4.10                         For the purposes of this Lease, a “Landlord Delay” shall mean any delay in the
progress and/or completion of the Initial Alterations caused by any act or
negligent 


 


13

















 


omission of Landlord or Landlord Related Parties
unless resulting from an act or omission constituting a Tenant Delay,
including, without limitation (i) any failure by Landlord to deliver to
Tenant any draft, revised or final versions of plans to be prepared by or at
the direction of Landlord hereunder or to take any other action or provide
consent or approval required of Landlord under this Lease within the periods
specified in this Lease, unless the applicable provision deems the same to be
approved; (ii) in instances for which this Lease specifies no period in
which Landlord shall act, any failure by Landlord to respond to any reasonable
request for information relating to the Initial Alterations or otherwise to
cooperate reasonably with Tenant, within a reasonable time after receiving from
Tenant a written request for such information or cooperation (not to exceed ten
(10) Business Days), unless the applicable provision deems the same to be
approved; (iii) any breach by Landlord of this Lease; and (iv) any
interference by Landlord with the construction of the Initial Alterations.  Notwithstanding the foregoing, no Landlord
Delay shall be deemed to have occurred until Tenant has given Landlord notice
of the claimed Landlord Delay and Landlord shall have failed to cure the
condition giving rise to such Landlord Delay within two (2) Business Days
after receipt of said notice.


 


In the event that Tenant claims that Landlord has caused a Landlord
Delay, the parties shall continue to perform their obligations hereunder in a
manner so as to avoid any further delay.


 


5.                                      Rent.


 


5.01                         Tenant shall pay Landlord, without any
setoff or deduction, unless expressly set forth in this Lease, all Base Rent
and Additional Rent due for the Term (collectively referred to as “Rent”).  “Additional Rent” means all sums (exclusive of Base Rent)
that Tenant is required to pay Landlord under this Lease.  Tenant shall pay and be liable for all
rental, sales and use taxes (but excluding income taxes), if any, imposed upon
or measured by Rent.  Base Rent and
recurring monthly charges of Additional Rent shall be due and payable in
advance on the first day of each calendar month without further notice or
demand.  All other items of Rent shall be
due and payable by Tenant on or before thirty (30) days after billing by
Landlord.  Rent shall be made payable to
the entity, and sent to the address, Landlord designates and shall be made by
good and sufficient check or by other means acceptable to Landlord.  If Tenant does not pay any Rent when due hereunder,
Landlord may require Tenant to pay Landlord an administration fee in the amount
of $250.00, provided that Tenant shall be entitled to a grace period of up to
five (5) Business Days after the due date for the first two (2) late
payments of Rent in a calendar year.  In
addition, past due Rent shall accrue interest at 10% per annum if not paid
within ten (10) days of the due date hereunder, and Tenant shall reimburse
Landlord for any bank fee charged to Landlord for any checks returned by Tenant’s
bank for any reason.  Landlord’s
acceptance of less than the correct amount of Rent shall be considered a
payment on account of the oldest obligation due from Tenant hereunder, then to
any current Rent then due hereunder, notwithstanding any statement to the
contrary contained on or accompanying any such payment from Tenant.  Rent for any partial month during the Term
shall be prorated.  No endorsement or
statement on a check or letter accompanying payment shall be considered an
accord and satisfaction.  Except as
otherwise expressly provided in this Lease, every covenant in this Lease is
independent of every other covenant in this Lease.


 


5.02                         Tenant shall pay (i) Tenant’s Pro
Rata Share of Expenses and (ii) the Taxes Allocable to the Premises in
accordance with Exhibit B of this Lease.


 


14
















 


6.                                      Compliance with Law; Use.


 


The Premises shall be
used for the Permitted Use and for no other use whatsoever. Subject to Landlord’s
obligations below and elsewhere specified in this Lease (including, without
limitation, Exhibit H) regarding delivery of the Premises, Tenant shall
comply with all statutes, codes, ordinances, orders, rules and regulations
of any municipal or governmental entity whether in effect now or later,
including the Americans with Disabilities Act (collectively, “Law”), regarding the operation of Tenant’s business and the
particular use (as opposed to general office use), condition, configuration and
occupancy of the Premises. In addition, and subject to Landlord obligations
expressly provided in this Lease, Tenant shall, at its sole cost and expense,
promptly comply with any Law that relates to the “Base Building” (defined
below), but only to the extent such obligations are triggered by Tenant’s
particular use of the Premises (as opposed to general office use) or by other
act of Tenant in violation of this Lease. 
Tenant shall, at its sole cost and expense, perform all Alterations or
improvements in the Premises performed or requested by Tenant (not including
Landlord Work) in compliance with all Law.  “Base Building”
shall include the structural portions of the Building, the Existing Bathrooms
and janitorial closets in the internal core of the Building (as shown on Exhibits A-1, A-2, A-4 and A-5) on the
floor or floors on which the Premises are located, the mechanical, electrical
and plumbing systems and equipment located in the internal core of the Building
on the floor or floors on which the Premises are located.  Throughout the Term, subject to Section 14, Landlord shall be responsible for the
maintenance, repair and replacement of all Base Building and Common Areas,
including without limitation, any maintenance, repair or replacement as to
which Landlord receives notice from a governmental authority with jurisdiction
thereover that the same is out of compliance with Law, except to the extent any
non-compliance is triggered by Tenant as a result of its particular use or by
other act of Tenant in violation of this Lease. 
Tenant shall promptly provide Landlord with copies of any notices it
receives regarding an alleged violation of Law. 
Tenant shall not exceed the standard density limit for the Building
which is 1 person per 150 square feet (the “Density
Limit”). Tenant shall comply with the rules and regulations of
the Building attached as Exhibit E, the rules and regulations of the Condominium,
and such other reasonable rules and regulations of uniform applicability
to office tenants adopted by Landlord from time to time (and of which Tenant is
provided prior notice), including rules and regulations for the
performance of Alterations (defined in Section 10.03) (collectively,
the “Rules and Regulations”). 
In the event of a conflict or inconsistency between the Rules and
Regulations and the terms and conditions of this Lease, this Lease shall
control.  Notwithstanding anything to the
contrary herein, Landlord shall be responsible, at its expense, subject to the
provisions of Exhibit B, for (i) delivering
the Landlord Work in compliance with all Law generally existing as of the date
of delivery except as set forth in Section 4.07, and (ii) delivering
and maintaining the Common Areas and Base Building, in compliance with Law
throughout the term of this Lease subject to Tenant’s obligations above
regarding the Base Building.


 


7.                                      Security Deposit.


 


[Intentionally
deleted.]


 


8.                                      Building Services.


 


8.01                         Landlord shall furnish Tenant with the
following services the cost of which shall be included in Expenses: (a) at
all times, hot and cold water for use in the lavatories; (b) at all times,
access and use of the Building’s condenser water system which shall provide
Tenant with capacity of five (5) tons of condenser water on each floor of
the Premises and an additional 


 


15

















 


one hundred twenty (120)
tons of condenser water to support Tenant’s data center floor and Tenant’s
trading floor (all of which may be allocated per floor in the Premises in any
manner that Tenant desires), it being agreed that the costs thereof shall not
be separately charged to Tenant but rather included in Expenses along with all
costs of the services described in this Section 8.01; (c) at all
times, ten (10) watts of electrical load per rentable square foot of the
Premises for general power, lighting and HVAC services in accordance with terms
and conditions of Section 8.02, (d) during Business Service Hours,
HVAC equipment capable of (1) heating a standard office layout floor in
the Building to a range of 68° F to 72° F during the winter when the
temperature outside is no lower than 0° F, and (2) cooling a standard
office layout floor in the Building to a range of 70° F to 74° F during the
summer when the temperature outside is lower than 92° F and between 72° F and
76° F during the summer when the temperature outside is 92° F, so long as
Tenant complies with the Density Limit and designs and implements the Initial
Alterations and any other Alterations in a manner that does not limit the
operations of such equipment; provided that (A) Tenant shall have the
right to receive additional HVAC service during hours other than Building Service
Hours by paying Landlord’s then standard charge for additional HVAC service
(currently $75.00 per hour, as adjusted from time to time) and providing such
prior notice as is reasonably specified by Landlord, and (B) Tenant shall
be permitted to connect supplemental HVAC units to the Building’s condenser
water loop (but only to the extent set forth in (b) above) as part of the
Initial Alterations, subject to the provisions of Section 4 and Section 10,
at no charge to Tenant; (e) standard janitorial service on Business Days,
including those services listed on Exhibit J
attached hereto, in a manner customarily performed within the janitorial
industry in office buildings of similar age, size, class and composition as the
Building in the Boston area, or such other reasonably comparable janitorial
services designated by Landlord from time to time, subject to amendment by
Landlord from time to time; (f) passenger elevator service, except in
cases of emergency situations or required state testing; (g) access to the
loading dock and freight elevators subject to Landlord’s approval as to timing
(which approval shall not be unreasonably withheld) and provided that such use
is scheduled in advance and paid for by Tenant in accordance with Landlord’s
then uniformly administered policies, currently $48.50 per hour (except that
Landlord shall not charge Tenant for use of the loading dock or freight
elevators in connection with the Initial Alterations to both the Initial
Premises and the Additional Premises); (h) access to the Building for
Tenant and its employees 24 hours per day/7 days per week, subject to the terms
of this Lease and such protective services or monitoring systems, if any, as
Landlord may reasonably impose, including, without limitation, sign-in procedures
and/or presentation of identification cards; 
(i) access to building risers and conduits, subject to Landlord’s
approval (which approval shall not be unreasonably withheld), including one (1) redundant
riser to each floor for telephone and data services, provided that the
installation of any equipment required in connection with Tenant’s use of such
services shall be the responsibility and cost of Tenant; (j) access to the
fire egress stairwell; (k) security for the Property, including a 24 hours
on-site manned security desk in the lobby of the Building; (l) removal of
snow and ice from the driveways and walkways of the Property; (m) commingled,
single stream recycling program that allows paper, plastic, glass and metal to
be recycled in any colored containers, which containers are provided for Common
Areas and each desk upon Tenant’s request to Landlord; and (n) such other
services as Landlord reasonably determines are necessary or appropriate for the
Property.  If Landlord, at Tenant’s
request, provides any services which are not Landlord’s express obligation
under this Lease, including, without limitation, any repairs which are Tenant’s
responsibility pursuant to Section 10 below, Tenant shall pay Landlord, or such other
party designated by Landlord, the cost of providing such service plus a
reasonable administrative charge.


 


8.02                         Electricity used by Tenant in the Premises
shall be paid for by Tenant by a separate charge payable by Tenant to Landlord
determined and measured by a separate 


 


16

















 


check-meter.  Each floor of the
Premises shall have one (1) check meter consisting of the existing check
meter for normal/outlet/lighting power previously installed by Landlord.  Also, one additional check meter shall be
installed by Tenant on the 2nd Floor of the Building off collection bus B, all
as part of the Initial Alterations. 
There shall be no administrative fee for the check meters.  Subject to Landlord’s prior written approval
of the plans and specifications therefor, which approval shall not be
unreasonably withheld, conditioned or delayed, Tenant may (i) install,
operate and maintain in the Premises or in any other area of the Building,
electrical equipment, provided that such equipment would not overload the
electrical system beyond its capacity for proper, efficient and safe operation
as determined by Landlord, (ii) furnish cooling or heating to the
Premises, including, without limitation, the use of electric or gas heating
devices (except that in no event may Tenant install any portable heating
devices), and (iii) install, operate and maintain more than its
proportionate share of telephone lines and other telecommunication facilities
at the Building.


 


8.03                         Landlord’s failure to furnish, or any
interruption, diminishment or termination of any such Building services due to
the application of Law, the failure of any equipment, the performance of
maintenance, repairs, improvements or alterations, utility interruptions
(collectively a “Service Failure”) shall not render
Landlord liable to Tenant, constitute a constructive eviction of Tenant, give
rise to an abatement of Rent, nor relieve Tenant from the obligation to fulfill
any covenant or agreement. However, if the Premises, or a material portion of
the Premises, are made untenantable for a period in excess of 3 consecutive
Business Days as a result of a Service Failure covered by Landlord’s Rent
Interruption Insurance (as defined below), then Tenant, as its sole remedy,
shall be entitled to receive an abatement of Rent payable hereunder during the
period beginning on the 4th consecutive Business Day of the Service
Failure and ending on the day the Service Failure has been cured.  If the entire Premises have not been rendered
untenantable by the Service Failure, the amount of abatement shall be equitably
prorated based on the nature and extent of the interference with Tenant’s
business operations.  Landlord shall
provide no less than seven (7) days advance notice of any scheduled
interruption of services relating to repairs, improvements or alterations, and
Landlord shall schedule the same on weekends and after-Building Service Hours
to the extent the same would materially interfere with Tenant’s use of, or
access to, the Premises.


 


9.             Required Removables.


 


All improvements in and to
the Premises, including any Alterations (defined in Section 10.03), but
not including Tenant’s Property shall remain upon the Premises at the end of
the Term without compensation to Tenant, provided that Tenant, at its expense,
shall remove any Cable (defined in Section 10.01 below).  In addition, Landlord, by written notice to
Tenant at the time Landlord consents to such Alteration, may require Tenant, at
Tenant’s expense, to remove any such Alterations that, in Landlord’s reasonable
judgment, are of a nature that would require removal and repair costs that are
materially in excess of the removal and repair costs associated with standard
office improvements (the Cable and such other items collectively are referred
to as “Required Removables”). Notwithstanding
anything to the contrary herein, in no event shall Tenant be required to remove
Landlord Work.  Required Removables may
include, without limitation, internal stairways, raised floors, personal baths
and showers, vaults, rolling file systems and structural alterations and
modifications. The Required Removables shall be removed by Tenant before the
Termination Date.  Tenant shall repair
damage caused by the installation or removal of Required Removables.  If Tenant fails to perform its obligations in
a timely manner, Landlord may perform such work at Tenant’s expense.  Tenant, at the time it requests approval for
a proposed Alteration, including any Initial Alterations, may request in
writing that Landlord advise Tenant whether the Alteration, including any
Initial Alterations, or any 


 


17

















 


portion thereof, is a
Required Removable.  Within ten (10) days
after receipt of Tenant’s request, Landlord shall advise Tenant in writing as
to which portions of the alteration or other improvements are Required
Removables, and such determination shall be binding on Landlord.


 


10.                               Repairs and Alterations.


 


10.01                       Tenant, at its sole cost and expense,
shall perform all maintenance and repairs to the Premises that are not Landlord’s
express responsibility under this Lease, and keep the Premises in good
condition and repair, reasonable wear and tear, damage by fire or other
casualty, damage caused by Landlord or another tenant, and taking by eminent
domain excepted. Tenant’s repair and maintenance obligations include, without
limitation, repairs to: (a) floor covering; (b) interior partitions; (c) doors;
(d) the interior side of demising walls; (e) Alterations (described
in Section 10.03); (f) supplemental air conditioning units, kitchens,
including hot water heaters, plumbing, and similar facilities exclusively
serving Tenant and located entirely within the Premises, whether such items are
installed by Tenant or are currently existing in the Premises (and the Generator
and Related Equipment shall also be governed by Section 32 and the
Dishes/Antennae shall also be governed by Section 33); and (g) electronic,
fiber, phone and data cabling and related equipment  that
is installed by or for the exclusive benefit of Tenant (collectively, “Cable”).  All repairs
and other work performed by Tenant or its contractors, including that involving
Cable, Generator and Related Equipment and Dishes/Antennae, shall be subject to
the terms of Section 10.03 below. 
If Tenant fails to make any repairs to the Premises for more than
fifteen (15) days after notice from Landlord, plus such additional time up to
ninety (90) days as is necessary as long as Tenant diligently pursues any such
repair (although notice shall not be required in an emergency), Landlord may
make the repairs, and, within thirty (30) days after demand, Tenant shall pay
the reasonable cost of the repairs, together with an administrative charge in
an amount equal to 5% of the cost of the repairs.


 


10.02                       Landlord shall keep and maintain in good
repair and working order in compliance with all Law and perform maintenance
upon the: (a) structural elements of the Building; (b) mechanical
(including HVAC), electrical, plumbing and fire/life safety systems serving the
Building in general (excluding any portion of the Initial Alterations or any
other Alterations); (c) Common Areas; (d) roof of the Building; (e) exterior
windows of the Building; and (f) elevators serving the Building.  Landlord shall promptly make repairs for which
Landlord is responsible.  If Landlord
shall default in the performance of any covenant on Landlord’s part to be
performed under this Lease for any reason other than Force Majeure, and fails
to commence to cure the same within thirty (30) days after written notice given
by Tenant or fails to diligently pursue such cure, then Tenant may perform the
same for the account of Landlord, and in the case of emergency situations,
Tenant shall not be required to provide notice and an opportunity to cure.  Any such performance by Tenant shall not
impact Tenant’s right to avail itself of all rights and remedies at Law and in
equity with respect to Landlord’s default aforesaid.


 


10.03                       Tenant shall not make alterations,
repairs, additions or improvements, including without limitation, the Initial
Alterations, or install any Cable (collectively referred to as “Alterations”) without first obtaining the written consent of
Landlord in each instance, which consent shall not be unreasonably withheld,
conditioned or delayed for more than five (5) Business Days, and Landlord
shall provide detailed reasons for withholding approval where applicable.  In no event shall furniture be considered
Alterations; however, movable or demountable partitions that could affect fire
suppression distribution shall be considered Alterations.  However, Landlord’s consent shall not be
required for any Alteration that satisfies all of the following criteria (a “Cosmetic Alteration”): 
(a) is either (i) of a cosmetic nature such 


 


18

















 


as painting, wallpapering, hanging pictures and
installing carpeting or (ii) expected to cost less than $200,000 in any
single instance or (iii) constitutes the installation, repair or removal
of low voltage cabling that is internal to the Premises; (b) is not
visible from either the exterior of the Premises or the exterior of the
Building; (c) will not materially affect the Base Building (defined in Section 6); (d) does not require work to be
performed inside the walls or above the ceiling of the Premises (except with
respect to internal low voltage cabling only as aforesaid), and (e) follows
all Building Rules and Regulations, including but not limited to:
providing adequate notification to building management of the scope and
schedule; the scheduling of freight and loading dock personnel; and the
possibility of performing said work outside of regular building business hours
based on the determination of property management if they so determine that
said work will adversely affect the normal operations of the building including
vendor access and noise.  Cosmetic
Alterations shall be subject to all the other provisions of this Section 10.03
except that Tenant shall not be required to remove Cosmetic Alterations at the
Termination Date unless required pursuant to Section 9 for
telecommunications cabling only.  Prior
to starting work, except in connection with Cosmetic Alterations, Tenant shall
furnish Landlord with plans and specifications (which shall be in CAD format if
reasonably requested by Landlord); except in connection with Cosmetic
Alterations, names of contractors reasonably acceptable to Landlord (provided
that Landlord may designate specific contractors with respect to Base Building
and Cable running between floors of the Building, as may be described more
fully below; required permits and approvals; evidence of contractor’s and
subcontractor’s insurance in amounts reasonably required by Landlord and naming
Landlord and the managing agent for the Building (or any successor(s)) as
additional insureds.  Tenant may
designate a general contractor or construction manager other than Landlord or
Landlord’s designee, which, for non-Cosmetic Alterations shall be subject to
the approval of Landlord, which approval shall not be unreasonably withheld,
conditioned or delayed; provided, however, that Landlord shall have the right
to designate specific contractors with respect to oversight, installation,
repair, connection to, and removal of vertical Cable.  All Cable shall be clearly marked with
adhesive plastic labels (or plastic tags attached to such Cable with wire) to
show Tenant’s name, suite number, and the purpose of such Cable (i) every
6 feet outside the Premises (specifically including, but not limited to, the
electrical room risers and any Common Areas), and (ii) at the termination
point(s) of such Cable.  Material
changes to the plans and specifications must also be submitted to Landlord for
its approval (which shall be granted or withheld as provided herein).  Alterations shall be constructed in a good
and workmanlike manner using materials of a quality reasonably approved by
Landlord, and Tenant shall ensure that no Alteration impairs any Building
system or Landlord’s ability to perform its obligations hereunder.  Except with respect to the Initial
Alterations, Tenant shall reimburse Landlord for any reasonable out of pocket
sums paid by Landlord for third party examination of Tenant’s plans for
non-Cosmetic Alterations.  In addition,
if, at Tenant’s request, Landlord serves as the general contractor or
construction manager with respect to any non-Cosmetic Alterations, Tenant shall
pay Landlord a fee for Landlord’s oversight and coordination of such
non-Cosmetic Alterations equal to an agreed upon percentage (not to exceed 5%)
of the cost of such non-Cosmetic Alterations. 
Upon completion, Tenant shall furnish “as-built” plans (in CAD format,
if requested by Landlord) for non-Cosmetic Alterations, completion affidavits
and full and final waivers of lien. 
Landlord’s approval of an Alteration shall not be deemed a
representation by Landlord that the Alteration complies with Law.


 


11.          Entry by Landlord.


 


Landlord
may enter the Premises to inspect, show (during the last twelve (12) months of
the Term) or clean the Premises or to perform or facilitate the performance of
repairs, alterations or additions to the Premises or any portion of the
Building to the extent permitted hereunder. 



 


19

















 


Except
in emergencies or to provide Building services, Landlord shall provide Tenant
with reasonable prior verbal notice of entry (of no less than twenty-four (24)
hours) and shall use reasonable efforts to minimize any interference with
Tenant’s use of the Premises and shall cooperate with Tenant’s security
requirements, which may include the obligation to accompany any entry by
Landlord permitted under this Lease except in case of emergency.  Entry by Landlord shall not constitute a
constructive eviction or entitle Tenant to an abatement or reduction of Rent.


 


12.                               Assignment and Subletting.


 


12.01                       Except in connection with a Business
Transfer (defined in Section 12.04), Tenant shall not assign, sublease,
transfer or encumber any interest in this Lease or allow any third party to use
any portion of the Premises (collectively or individually, a “Transfer”) without the prior written
consent of Landlord, which consent shall not be unreasonably withheld,
conditioned or delayed for more than ten (10) Business Days if Landlord
does not exercise its recapture rights under Section 12.02.  Notwithstanding the foregoing, Tenant shall be
permitted to host (i.e., permit to use the Premises at no charge, including
providing access to desk space, phones and internet) clients in the Premises so
long as any such arrangement is at no cost to the client and is covered by
Tenant’s liability insurance and does not involve the use of more than 10,000
rentable square feet.  Such hosting shall
not be considered a Transfer as such term is used in this Lease.  Without limitation, it is agreed that
Landlord’s consent shall not be considered unreasonably withheld if (i) the
proposed transferee is a governmental entity, (ii) the proposed transferee
is an occupant of the Building and Landlord has available for lease comparable
space in the Building, or (iii) Landlord or the proposed transferee,
whether or not an occupant of the Building, has submitted a written proposal
regarding the leasing of space at the Building (and in the case of an
unsolicited proposal given by Landlord, only if the same is also signed by such
proposed transferee) within ninety (90) days of Tenant’s request for
consent.  If the entity(ies) which
directly or indirectly controls the voting shares/rights of Tenant (other than
through the ownership of voting securities listed on a recognized securities
exchange) changes at any time, such change of ownership or control shall
constitute a Transfer.  Any Transfer in violation of this Section 12
shall, at Landlord’s option, be deemed an Event of Default by Tenant as described
in Section 19,
and shall be voidable by Landlord.  In no
event shall any Transfer, including a Business Transfer, release or relieve
Tenant from any obligation under this Lease, and Tenant shall remain primarily
liable for the performance of the tenant’s obligations under this Lease, as
amended from time to time.


 


12.02                       Where Landlord’s consent is required
hereunder, Tenant shall provide Landlord with financial statements for the
proposed transferee, a fully executed copy of the proposed business terms of
the assignment, sublease or other Transfer documentation and such other
information as Landlord may reasonably request within five (5) Business
Days of Tenant’s request for consent. Within ten (10) Business Days after
receipt of the required information and documentation, Landlord shall either: (a) consent
to the Transfer by execution of a consent agreement in a form reasonably
designated by Landlord; or (b) reasonably refuse to consent to the
Transfer in writing; or (c) in the event of an assignment of this Lease or
subletting of more than 50% of the Rentable Square Footage of the Premises for
more than 50% of the remaining Term (excluding unexercised options), recapture
the portion of the Premises that Tenant is proposing to transfer.  If Landlord exercises its right to recapture,
this Lease shall automatically be amended (or terminated if the entire Premises
is being assigned or sublet) to delete the applicable portion of the Premises
effective on the proposed effective date of the Transfer, although Landlord may
require Tenant to execute a reasonable amendment or other document reflecting
such reduction or termination.  Tenant
shall pay Landlord a review fee 


 


20

















 


of $1,500.00 for Landlord’s
review of any requested Transfer.  If
Landlord recaptures a portion of the Premises, Landlord shall be responsible
for the costs of demising the recaptured space.


 


12.03                       Tenant shall pay Landlord 50% of all rent
and other consideration which Tenant receives in consideration of the Transfer
that is in excess of the Rent payable to Landlord for the portion of the
Premises and Term covered by the Transfer. 
Tenant shall pay Landlord for Landlord’s share of the excess within
thirty (30) days after Tenant’s receipt of the excess.  In determining the excess due Landlord,
Tenant may deduct from the excess, on a straight-line basis, all reasonable and
customary out-of-pocket expenses directly incurred by Tenant attributable to
the Transfer, including, without limitation, broker’s fees, tenant payments or
allowances, attorneys’ fees and improvement and alterations costs, but
specifically excluding free rent unless the free rent is provided in lieu of an
allowance.  If an Event of Default occurs
at any time, Landlord may require that all sublease payments be made directly
to Landlord until such time that said Event of Default is cured or Landlord
exercises its rights under Section 20 below, in which case Tenant shall
receive a credit against Rent in the amount of Tenant’s share of payments
received by Landlord.


 


12.04                       Tenant may assign this Lease to a
successor to Tenant by merger, consolidation or to a purchaser of substantially
all of Tenant’s assets, or assign this Lease or sublet all or a portion of the
Premises to an Affiliate (defined below), without the consent of Landlord,
provided that all of the following conditions are satisfied (a “Business Transfer”):  (a) an Event of Default is not then
occurring; (b) Tenant has given Landlord written notice at least fifteen
(15) Business Days before such Transfer unless prohibited by Law in which case
notice shall be given as soon as permitted by Law; and (c) if such
Transfer will result from a merger or consolidation of Tenant with another
entity, then the Net Worth Requirement (as defined below) must be
satisfied.  Tenant’s notice to Landlord
shall include information and documentation evidencing the Business Transfer
and showing that each of the above conditions has been satisfied.  If requested by Landlord, Tenant’s successor
or such purchaser shall sign and deliver to Landlord a commercially reasonable
form of assumption agreement.  “Affiliate” shall mean an entity controlled
by, controlling or under common control with Tenant.  The “Net
Worth Requirement” shall be deemed satisfied if, as of the date
immediately following the date of the Transfer, the assignee, subtenant or
entity with which Tenant is to merge or consolidate has a net worth, computed
in accordance with generally accepted accounting principles consistently
applied, at least equal to the lesser of (i) the net worth of Tenant as of
the Lease Execution Date and (ii) the net worth of Tenant as of the day
prior to the Transfer, as evidenced by an financial statements certified by an
officer of the entity given to Landlord at least ten (10) Business Days
prior to the Transfer unless prohibited by Law in which case notice shall be
given as soon as permitted by Law.


 


12.05                       Notwithstanding
anything to the contrary contained in this Section 12, neither Tenant nor
any other person having a right to possess, use, or occupy (for convenience,
collectively referred to in this subsection as “Use”)
the Premises shall enter into any lease, sublease, license, concession or other
agreement for Use of all or any portion of the Premises which provides for
rental or other payment for such Use based, in whole or in part, on the net
income or profits derived by any person that leases, possesses, uses, or
occupies all or any portion of the Premises (other than an amount based on a
fixed percentage or percentages of receipts or sales), and any such purported
lease, sublease, license, concession or other agreement shall be absolutely
void and ineffective as a transfer of any right or interest in the Use of all
or any part of the Premises.


 


21

















 


13.          Liens.


 


Tenant shall not permit
mechanics’ or other liens to be placed upon the Property, Premises or Tenant’s
leasehold interest in connection with any work or service done or purportedly
done by or for the benefit of Tenant or its transferees.  For purposes of this Section a mechanic’s
lien shall not be deemed to exist until a Notice of Contract and a Statement of
Account are filed by a contractor or supplier. 
Tenant shall give Landlord notice at least seven (7) Business Days
prior to the commencement of any work in the Premises to afford Landlord the
opportunity, where applicable, to post and record notices of
non-responsibility.  Tenant, within ten (10) days
of notice from Landlord, shall fully discharge any lien by settlement, by
bonding or by insuring over the lien in the manner prescribed by the applicable
lien Law and, if Tenant fails to do so, an Event of Default shall be deemed to
have occurred and in addition to any other remedies available to Landlord as a
result of such Event of Default, Landlord, at its option, may
bond, insure over or otherwise discharge the lien.  Tenant shall reimburse Landlord for any
amount paid by Landlord, including, without limitation, reasonable attorneys’
fees.  If an Event of Default exists,
Landlord shall have the right to require Tenant to post a performance or
payment bond in connection with any work or service done or purportedly done by
or for the benefit of Tenant.  Tenant acknowledges and agrees that all
such work or service is being performed for the sole benefit of Tenant and not
for the benefit of Landlord.


 


14.          Indemnity and Waiver of Claims.


 


Except to the extent caused by the negligence or
willful misconduct of Landlord or any Landlord Related Parties (defined below),
Tenant shall indemnify, defend and hold Landlord and Landlord Related Parties
harmless against and from all liabilities, obligations, damages, penalties,
claims, actions, costs, charges and expenses, including, without limitation,
reasonable attorneys’ fees and other professional fees (if and to the extent
permitted by Law) (collectively referred to as “Losses”),
which may be imposed upon, incurred by or asserted against Landlord or any of
the Landlord Related Parties by any third party and arising out of or in
connection with any damage or injury occurring in the Premises or any
negligence or willful misconduct (including violations of Law) of Tenant, its
trustees, managers, members, principals, beneficiaries, partners, officers,
directors, employees and agents (the “Tenant Related Parties”)
or any of Tenant’s transferees or contractors. 
Tenant hereby waives all claims against and releases Landlord and its
trustees, managers, members, principals, beneficiaries, partners, officers,
directors, employees, Mortgagees (defined in Section 24) and agents (the “Landlord
Related Parties”) from all claims for any injury to or death of
persons, damage to property or business loss in any manner related to (a) Force
Majeure, (b) acts of parties other than Landlord, (c) the bursting or
leaking of any tank, water closet, drain or other pipe, (d) the inadequacy
or failure of any security or protective services, personnel or equipment, or (e) any
matter not within the reasonable control of Landlord.  The waiver and release with respect to “injury
to or death of persons” shall not apply to causes described in subsections (c) and
(d) above where Landlord is otherwise legally responsible for such
causes.  Except to the extent caused by
the negligence or willful misconduct of Tenant or any Tenant Related Parties
(defined below) (and subject to Section 16 which Section 16 shall
prevail in case of a conflict with this Section 14), Landlord shall
indemnify, defend and hold Tenant and Tenant Related Parties harmless against
and from all Losses (if and to the extent permitted by Law), which may be
imposed upon, incurred by or asserted against Tenant or any of the Tenant
Related Parties by any third party but only to the extent arising out of or in
connection with any negligence or willful misconduct (including violations of
Law) of Landlord and Landlord Related Parties.


 


22
















 


15.                               Tenant’s Insurance.


 


Tenant shall
maintain the following coverages in the following amounts:


 


15.01                       Commercial General Liability Insurance
covering claims of bodily injury, personal injury and property damage arising
out of Tenant’s operations and contractual liabilities, on an occurrence basis,
with minimum primary limits of $1,000,000 each occurrence and $2,000,000 annual
aggregate (and not more than $25,000 self-insured retention) and a minimum
excess/umbrella limit of $2,000,000.


 


15.02                       Property insurance covering (i) all
office furniture, business and trade fixtures, office equipment, free-standing
cabinet work, movable partitions, merchandise and all other items of Tenant’s
property in the Premises installed by, for (not including any Landlord Work),
or at the expense of Tenant (“Tenant’s Property”),
and (ii) any Alterations (not including any Landlord Work) (“Tenant-Insured Improvements”).  Such insurance shall be written on an “all
risks” of direct physical loss or damage basis, for the full replacement cost
value (subject to reasonable deductible amounts) new without deduction for
depreciation of the covered items and in amounts that meet any co-insurance
clauses of the policies of insurance, and shall include coverage for damage or
other loss caused by fire or other peril, including vandalism and malicious
mischief, theft, water damage, including sprinkler leakage, bursting or stoppage of
pipes, and explosion, and providing business interruption coverage for a period
of one year.


 


15.03                       Worker’s Compensation and Employer’s
Liability or other similar insurance to the extent required by Law.


 


15.04                       Form of Policies. 
The minimum limits of insurance required to be carried by Tenant shall
not limit Tenant’s liability.  Such
insurance shall (i) be issued by an insurance company that has an A.M.
Best rating of not less than A-VIII; (ii) be in form and content
reasonably acceptable to Landlord; and (iii) provide that it shall not be
canceled or materially changed without endeavoring to provide 30 days’ prior
notice to Landlord, except that 10 days’ prior notice may be given in the case
of nonpayment of premiums.  Tenant’s
Commercial General Liability Insurance shall (a) name Landlord, Landlord’s
managing agent, EOP Operating Limited Partnership, Blackhawk Parent, LLC, the
150 Federal Street Condominium Association (the “Association”) and any affiliate or mortgagee of Landlord (“Additional Insured Parties”) as additional insureds; and (b) be
primary insurance as to all claims thereunder and provide that any insurance
carried by Landlord is excess and non-contributing with Tenant’s
insurance.  Tenant shall deliver to
Landlord, on or before the Commencement Date and not later than 5 days after
the expiration dates thereof, certificates from Tenant’s insurance company on
the forms currently designated “ACORD 28”
(Evidence of Commercial Property Insurance) and “ACORD 25-S”
(Certificate of Liability Insurance) or the equivalent.  Attached to the ACORD 25-S there shall be an
endorsement naming the Additional Insured Parties as additional insureds which
shall be binding on Tenant’s insurance company.


 


15.05                       Tenant shall maintain such increased
amounts of the insurance required to be carried by Tenant under this Section 15, and such other types and amounts of
insurance covering the Premises and Tenant’s operations therein, as may be
reasonably requested by Landlord in writing at least sixty (60) days in
advance, but not in excess of the amounts and types of insurance then being
required by landlords of buildings comparable to and in the vicinity of the
Building.  Landlord shall maintain (i) Property
insurance covering the Building (including the Landlord Work but excluding all
Alterations), and (ii) rent interruption insurance for up to one (1) year
(“Rent Interruption Insurance”),
and (iii) Commercial General Liability 


 


23

















 


Insurance, on an occurrence basis, with minimum
primary limits at least equal to those required of Tenant above.  Such insurance shall be written on an “all
risks” of direct physical loss or damage basis, for the full replacement cost
value (subject to deductible amounts) without deduction for depreciation of the
covered items and in amounts that meet any co-insurance clauses of the policies
of insurance, and shall include coverage for damage or other loss caused by
fire or other peril, together with such other insurance coverage as Landlord,
in its reasonable judgment, may elect to maintain.


 


16.          Subrogation.


 


Each party waives, and shall
cause its insurance carrier to waive, any right of recovery against the other
for any loss of or damage to property, whether resulting from such party’s
negligence or willful misconduct or otherwise, which loss or damage is (or, if
the insurance required hereunder had been carried, would have been) covered by
insurance.  For purposes of this Section 16,
any deductible with respect to a party’s insurance shall be deemed covered by,
and recoverable by such party under, valid and collectable policies of
insurance.


 


17.                               Casualty Damage.


 


17.01                       Tenant shall keep the Tenant-Insured Improvements
insured against loss or damage caused by any peril covered under fire and all
risk insurance in accordance with Section 15.02 of this Lease.  The proceeds of such Tenant’s insurance shall
be used by Tenant only for the replacement or restoration of such
Tenant-Insured Improvements in a manner to be designed by Tenant at the time,
subject to Landlord’s approval, which approval shall not be unreasonably
withheld, conditioned or delayed, except that such proceeds shall be paid to
Landlord if either (i) Landlord terminates this Lease under this Section 17,
or (ii) Tenant terminates this Lease under this Section 17.  All repairs and replacements of the
Tenant-Insured Improvements shall be made by and at the expense of Tenant,
using the entire proceeds of insurance on the Tenant-Insured Improvements plus
an amount to be paid by Tenant equal to the deductible on Tenant’s insurance
policy plus any proceeds of insurance that would have been available if Tenant
had maintained the insurance required under this Lease (collectively, the “Tenant Restoration Funds”), except that
Tenant may at any time elect not to repair or replace the Tenant-Insured
Improvements, in which event Tenant shall pay over to Landlord (or release any
claim to) the Tenant Restoration Funds, which payment shall not limit or
otherwise affect Tenant’s other obligations under this Lease, including without
limitation, Tenant’s obligation to pay Rent hereunder.


 


17.02                       If, by fire or other casualty to the
Premises or the Common Areas (collectively a “Casualty”),
all or any portion of the Premises becomes untenantable for Tenant’s use and
enjoyment or inaccessible, Landlord, with reasonable promptness (not to exceed
ninety (90) days from the date of the Casualty), shall cause a general
contractor selected by Landlord to provide Landlord with a written estimate of
the amount of time required, using standard working methods, to substantially
complete the repair and restoration of the Premises (which for purposes of this
Section 17
shall be deemed to include all of Tenant’s appurtenant rights provided under
this Lease, including, without limitation, parking, access to generator areas
and roof rights) and any Common Areas necessary to provide access to the
Premises (“Completion Estimate”).  Landlord shall promptly forward a copy of the
Completion Estimate to Tenant.  If the
Completion Estimate indicates that the Premises or any Common Areas necessary
to provide access to the Premises cannot be made tenantable within two hundred
ten (210) days from the date the repair is started (the “Restoration Target Date”), then Tenant
shall have the right to terminate this Lease upon written notice to Landlord
within ten 


 


24

















 


(10) days after Tenant’s receipt of the
Completion Estimate.  In addition,
Landlord, by notice to Tenant within ninety (90) days after the date of the
Casualty, shall have the right to terminate this Lease if:  (1) more than 25% of the Premises have
been damaged such that the same cannot be restored within ninety (90) days of
the commencement of restoration and there is less than eighteen (18) months of
the Term remaining on the date of the Casualty; (2) any Mortgagee requires
that the insurance proceeds be applied to the payment of the mortgage debt; (3) if
the Completion Estimate indicates that the Premises or any Common Areas
necessary to provide access to the Premises cannot be made tenantable within
two hundred ten (210) days from the date the repair is started; or (4) a
material uninsured loss to the Building or Premises occurs provided Landlord
maintained all insurance required hereunder. 
In addition, Tenant, by notice to Landlord within ninety (90) days after
the date of the Casualty, shall have the right to terminate this Lease if more
than 25% of the Premises have been damaged such that the same cannot be
restored within ninety (90) days of the commencement of restoration and there
is less than eighteen (18) months of the Term remaining on the date of the
Casualty.


 


17.03                       If this Lease is not terminated pursuant
to this Section 17, (1) Landlord shall promptly and diligently,
subject to reasonable delays for insurance adjustment or other matters beyond
Landlord’s reasonable control, restore the Premises and Common Areas, and (2) Tenant
shall upon delivery of the Premises by Landlord to Tenant in such restored
condition, commence and proceed promptly and diligently, subject to reasonable
delays for insurance adjustment or other matters beyond Tenant’s reasonable
control, to restore all of the Initial Alterations and Alterations.  The time period for such prompt and diligent
restoration by Tenant shall be referred to herein as the “Tenant Restoration Period”).  Such restoration by Landlord shall be to
substantially the same condition that existed prior to the Casualty, except for
modifications required by Law or any other modifications to the Common Areas
deemed desirable by Landlord to the extent permitted hereunder.  Such restoration by Tenant shall be to
substantially the same condition that existed prior to the Casualty, except for
modifications required by Law or any other modifications to the Initial
Alterations and Alterations deemed desirable by Tenant to the extent approved
by Landlord hereunder.  Landlord shall
not be liable for any inconvenience to Tenant, or injury to Tenant’s business
resulting in any way from the Casualty or the repair thereof.  Provided that no Event of Default has
occurred during any period of time that all or a material portion of the
Premises is rendered untenantable or inaccessible as a result of a Casualty,
the Rent shall abate based on the nature and extent of the interference with
Tenant’s use and enjoyment of the Premises (and access thereto) but only to the
extent not used by Tenant, and such abatement period shall include the Tenant
Restoration Period up to a maximum period of the lesser or (i) nine (9) months
or (ii) such period of time as is necessary to restore the Initial
Alterations and Alterations if Tenant had commenced and proceeded with such
restoration promptly and diligently. 
Notwithstanding the foregoing, if this Lease is not terminated and
Landlord does not restore the Premises to the condition required as aforesaid
by the Restoration Target Date, then Tenant may terminate this Lease by notice
given by the Restoration Target Date whereupon this Lease shall terminate as of
the date which is thirty (30) days after the Restoration Target Date unless
Landlord completes such restoration within said thirty-day time period.


 


18.          Condemnation.


 


Either party may terminate
this Lease if any material part of the Premises is taken or condemned for any
public or quasi-public use under Law, by eminent domain or private purchase in
lieu thereof (a “Taking”).  Provided Landlord terminates all leases
similarly situated in the Building, Landlord shall also have the right to
terminate this Lease if there is a Taking of any portion of the Building or
Property which would have a material adverse effect on Landlord’s 


 


25

















 


ability to profitably
operate the remainder of the Building. 
The terminating party shall provide written notice of termination to the
other party within 45 days after it first receives notice of the Taking.  The termination shall be effective as of the
effective date of any order granting possession to, or vesting legal title in,
the condemning authority.  If this Lease
is not terminated, Base Rent and Tenant’s Pro Rata Share shall be appropriately
adjusted to account for any interference with Tenant’s use and occupancy of the
Premises and all appurtenances. All compensation awarded for a Taking shall be
the property of Landlord.  The right to
receive compensation or proceeds are expressly waived by Tenant, provided,
however, Tenant may file a separate claim for Tenant’s Property and Tenant’s
reasonable relocation expenses (including, without limitation, any increased
occupancy costs to Tenant resulting from Tenant’s relocation), provided the
filing of the claim does not diminish the amount of Landlord’s award.  If only a part of the Premises is subject to
a Taking and this Lease is not terminated, Landlord, with reasonable diligence,
will restore the remaining portion of the Premises as nearly as practicable to
the condition immediately prior to the Taking.


 


19.          Events of Default.


 


Each of the
following occurrences shall be an “Event of Default”:
(a) Tenant’s failure to pay any portion of Rent when due or to bond over
any lien as set forth in Section 13, if the failure continues for five (5) Business
days after written notice to Tenant (“Monetary
Default”); (b) Tenant’s failure (other than a Monetary Default)
to comply with any term, provision, condition or covenant of this Lease, if the
failure is not cured within thirty (30) days after written notice to Tenant
provided, however, if Tenant’s failure to comply cannot reasonably be cured
within thirty (30) days, Tenant shall be allowed additional time (not to exceed
ninety (90) days) as is reasonably necessary to cure the failure so long as
Tenant begins the cure within 30 days and diligently pursues the cure to
completion; (c) Tenant permits a Transfer without Landlord’s required
approval or otherwise in violation of Section 12 of this Lease; (d) Tenant becomes
insolvent, makes a transfer in fraud of creditors, makes an assignment for the
benefit of creditors, admits in writing its inability to pay its debts when due
or forfeits or loses its right to conduct business; (e) the leasehold
estate is taken by process or operation of Law; or (f) Tenant’s failure to
comply with any specific provision of this Lease on three (3) separate
occasions during any twelve (12) month period. 
All notices sent under this Section shall be in satisfaction of,
and not in addition to, notice required by Law.


 


20.                               Remedies.


 


20.01                       Upon an Event of Default, Landlord shall have the
right to pursue any one or more of the following remedies:


 


(a)           Terminate this Lease, in which case Tenant shall
immediately surrender the Premises to Landlord. 
If Tenant fails to surrender the Premises, Landlord, in compliance with
Law, may enter upon and take possession of the Premises and remove Tenant,
Tenant’s Property and any party occupying the Premises. Tenant shall pay
Landlord, on demand, all past due Rent and other losses and damages Landlord
suffers as a result of an Event of Default, including, without limitation, all
Costs of Reletting (defined below) and any deficiency that may arise from
reletting or the failure to relet the Premises. 
“Costs of Reletting” shall include all
reasonable costs and expenses incurred by Landlord in reletting or attempting
to relet the Premises, including, without limitation, legal fees, brokerage
commissions, the cost of commercially reasonable alterations and the value of
other commercially reasonable concessions or allowances granted to a new
tenant.


 


26

















 


(b)           Terminate Tenant’s right to possession of the Premises
and, in compliance with Law, remove Tenant, Tenant’s Property and any parties
occupying the Premises.  After (i) an
Event of Default, (ii) termination of this Lease by Landlord, and (iii) Tenant
vacating the Premises, Landlord shall use diligent efforts to relet all or any
part of the Premises, without notice to Tenant, for such period of time and on
such terms and conditions (which may include concessions, free rent and work
allowances) as Landlord in its absolute discretion shall determine.  Landlord may collect and receive all rents
and other income from the reletting but any amounts received, after deducting
Landlord’s costs, shall mitigate any damages to which Landlord would otherwise
be entitled under this Section 20. 
Tenant shall pay Landlord on demand all past due Rent, all Costs of
Reletting and any deficiency arising from the reletting or failure to relet the
Premises. The re-entry or taking of possession of the Premises shall not be
construed as an election by Landlord to terminate this Lease.


 


20.02                       In lieu of calculating damages under Section 20.01,
Landlord may elect to receive as damages the sum of (a) all Rent accrued
through the date of termination of this Lease or Tenant’s right to possession,
and (b) an amount equal to the total Rent that Tenant would have been
required to pay for the remainder of the Term discounted to present value at
the Prime Rate (defined below) then in effect, minus the then present fair
rental value of the Premises for the remainder of the Term, similarly
discounted, after deducting all anticipated Costs of Reletting.  “Prime Rate”
shall be the per annum interest rate publicly announced as its prime or base
rate by a federally insured bank selected by Landlord in the state in which the
Building is located.


 


20.03                       If Tenant shall default in the
performance of any covenant on Tenant’s part to be performed under this Lease,
after any specified notice and cure periods, Landlord may perform the same for
the account of Tenant, and in the case of emergency situations, Landlord shall
not be required to provide notice and an opportunity to cure.  If Landlord at any time is compelled to pay
or elects to pay any sum of money, or do any act which will require the payment
of any sum of money, by reason of the failure of Tenant to comply with any
provision hereof, or if Landlord is compelled to or does incur any expense,
including reasonable attorneys’ fees, in instituting, prosecuting, and/or
defending any action or proceeding instituted by reason of any Event of Default
of Tenant hereunder, Tenant shall on demand pay to Landlord by way of
reimbursement the sum or sums so paid by Landlord with all actual and necessary
costs and actual damages, plus interest at the Prime Rate.  Tenant shall pay Landlord’s cost and expense,
including reasonable attorneys’ fees, incurred (i) in enforcing or
performing any obligation of Tenant under this Lease or (ii) as a result
of Landlord, without its fault, being made party to any litigation pending by
or against Tenant or any persons claiming through or under Tenant, plus an
administrative charge equal to 5% of such cost. 
The repossession or re-entering of all or any part of the Premises shall
not relieve Tenant of its liabilities and obligations under this Lease.  No right or remedy of Landlord shall be
exclusive of any other right or remedy. Each right and remedy shall be
cumulative and in addition to any other right and remedy now or subsequently
available to Landlord at Law or in equity. 
Tenant shall not be obligated to make any payment to Landlord of any attorney’s
fees incurred by Landlord unless judgment is entered (final, and beyond appeal)
in favor of Landlord in the lawsuit relating to such fees.  Landlord shall pay, upon demand by Tenant,
reasonable attorney’s fees incurred by Tenant in connection with any lawsuit
between Landlord and Tenant where judgment is entered (final, and beyond
appeal) in favor of Tenant.


 


27

















 


21.          Limitation of Liability.


 


NOTWITHSTANDING ANYTHING TO
THE CONTRARY CONTAINED IN THIS LEASE, THE LIABILITY OF LANDLORD (AND OF ANY
SUCCESSOR LANDLORD) SHALL BE LIMITED TO THE LESSER OF (A) THE INTEREST OF
LANDLORD IN THE PROPERTY, CONDOMINIUM AND ALL UNITS, OR (B) THE EQUITY
INTEREST LANDLORD WOULD HAVE IN THE PROPERTY IF THE PROPERTY, CONDOMINIUM AND
ALL UNITS WERE ENCUMBERED BY THIRD PARTY DEBT IN AN AMOUNT EQUAL TO 70% OF THE
VALUE OF THE PROPERTY.  TENANT SHALL LOOK
SOLELY TO LANDLORD’S INTEREST IN THE PROPERTY FOR THE RECOVERY OF ANY JUDGMENT
OR AWARD AGAINST LANDLORD OR ANY LANDLORD RELATED PARTY. NEITHER LANDLORD NOR
ANY LANDLORD RELATED PARTY SHALL BE PERSONALLY LIABLE FOR ANY JUDGMENT OR
DEFICIENCY, AND IN NO EVENT SHALL LANDLORD OR ANY LANDLORD RELATED PARTY OR ANY
MORTGAGEES BE LIABLE TO TENANT (NOR SHALL TENANT OR ANY TENANT RELATED PARTY BE
LIABLE TO LANDLORD EXCEPT AS EXPRESSLY PERMITTED UNDER SECTION 23 BELOW)
FOR ANY LOST PROFIT, DAMAGE TO OR LOSS OF BUSINESS OR ANY FORM OF SPECIAL,
INDIRECT OR CONSEQUENTIAL DAMAGE, INCLUDING WITHOUT LIMITATION, LOST
PROFIT.  BEFORE FILING SUIT FOR AN
ALLEGED DEFAULT BY LANDLORD, TENANT SHALL GIVE LANDLORD (WITH A COPY TO THE
MORTGAGEE(S) WHOM TENANT HAS BEEN NOTIFIED HOLD MORTGAGES (DEFINED IN SECTION 24
BELOW)), NOTICE AND REASONABLE TIME TO CURE THE ALLEGED DEFAULT.


 


22.          Relocation.


 


[Intentionally Deleted.]


 


23.          Holding Over.


 


If Tenant fails to surrender
all or any part of the Premises at the termination of this Lease, occupancy of
the Premises after termination shall be that of a tenancy at sufferance.  Tenant’s occupancy shall be subject to all
the terms and provisions of this Lease, and Tenant shall pay an amount (on a
per month basis without reduction for partial months during the holdover) equal
to 150% of the sum of the Base Rent and Additional Rent due for the period
immediately preceding the holdover.  No
holdover by Tenant or payment by Tenant after the termination of this Lease
shall be construed to extend the Term or prevent Landlord from immediate
recovery of possession of the Premises by summary proceedings or otherwise. If
Landlord is unable to deliver possession of the Premises to a new tenant or to
perform improvements for a new tenant as a result of Tenant’s holdover and
Tenant fails to vacate the Premises within 30 days after notice from Landlord,
Tenant shall be liable for all damages that Landlord suffers from the holdover.


 


24.          Subordination to Mortgages; Estoppel Certificate.


 


Tenant accepts this Lease
subject and subordinate to (A) any mortgage(s), deed(s) of trust, or
ground lease(s) (1) existing as of the Lease Execution Date to the
extent disclosed by Landlord below, or (2) subject to receipt by Tenant of
an SNDA in substantially the form attached hereto as Exhibit I from any future Mortgagee, subsequently arising
upon the Premises, the Building or the Property, and to renewals,
modifications, refinancings and extensions thereof (collectively referred to as
a “Mortgage”) and (B) all other matters of record (including,
without limitation, deeds and land disposition agreements, and any condominium
documents (including, without 


 


28

















 


limitation, any master deed, by-laws, rules and
regulations, and to the extent not inconsistent with the rights of Tenant
hereunder, any subsequent amendments or revisions thereto).  Landlord represents and warrants that it has
provided to Tenant a true and correct copy of its title insurance policy and
that the matters of record referenced therein and all of the Condominium
documents are consistent with the terms and conditions of this Lease, do not
interfere with or materially impact Tenant’s rights or Landlord’s obligations
set forth in this Lease, and do not prohibit or otherwise impact Landlord’s
ability to enter into this Lease or ability to perform all of Landlord’s
obligations hereunder.  Within ten (10) days
of the execution of this Lease, Landlord shall deliver a subordination
non-disturbance agreement in the form attached hereto as Exhibit I (an “SNDA”), executed by any and all parties
having the benefit of each Mortgage existing as of the Lease Execution Date or
as of such future date as the case may be (any such party, a “Mortgagee”), and Tenant agrees to execute the same in
connection with the execution of this Lease and from time to time
thereafter.  As an alternative, a
Mortgagee shall have the right at any time to subordinate its Mortgage to this
Lease.  Subject to receipt of an SDNA,
upon request, Tenant, without charge, shall attorn to any successor to Landlord’s
interest in this Lease.  Landlord and
Tenant shall each, within 10 Business Days after receipt of a written request
from the other, execute and deliver a commercially reasonable estoppel
certificate to those parties as are reasonably requested by the other
(including a Mortgagee or prospective purchaser). Without limitation, such
estoppel certificate may include a certification, to the best of the party’s
knowledge, as to the status of this Lease, the existence of any Event of
Default and the amount of Rent that is due and payable.  Landlord represents and warrants the only
Mortgagee of all of the Condominium Units  existing
as of the date hereof is GS Mortgage Securities Corporation II, Commercial
Pass-Through Certificates, Series 2007-EOP.


 


25.          Notice.


 


All demands, approvals,
consents or notices (collectively referred to as a “notice”)
shall be in writing and delivered by hand or sent by registered, express, or
certified mail, with return receipt requested or with delivery confirmation
requested from the U.S. postal service, or sent by overnight or same day
courier service at the party’s respective Notice Address(es) set forth in Section 1;
provided, however, notices sent by Landlord regarding general Building
operational matters may be sent via e-mail to the e-mail address (or addresses)
provided by Tenant to Landlord for such purpose, but in no event shall Tenant
be considered in default of this Lease with respect to any matter contained in
any such notice of operational matter unless notice is sent pursuant to one of
the other (non-email) approved notice methods. 
In addition, if the Building is closed (whether due to emergency,
governmental order or any other reason), then any notice address at the
Building shall not be deemed a required notice address during such closure,
and, unless Tenant has provided an alternative valid notice address to Landlord
for use during such closure, any notices sent during such closure may be sent
via e-mail or in any other practical manner reasonably designed to ensure
receipt by the intended recipient.  Each
notice shall be deemed to have been received on the earlier to occur of actual delivery
or the date on which delivery is refused, or, if Tenant has vacated the
Premises or any other Notice Address of Tenant without providing a new Notice
Address, 3 days after notice is deposited in the U.S. mail or with a courier
service in the manner described above. 
Either party may, at any time, change its Notice Address (other than to
a post office box address) by giving the other party written notice of the new
address.


 


26.          Surrender of Premises.


 


At
the termination of this Lease or Tenant’s right of possession, Tenant shall
remove Tenant’s 


 


29

















 


Property
from the Premises, and quit and surrender the Premises to Landlord, broom
clean, and in good order, condition and repair as Tenant is required to
maintain the Premises under the terms hereof, ordinary wear and tear, damage by
fire and other casualty and taking by eminent domain excepted.  If Tenant fails to remove any of Tenant’s
Property, or to restore the Premises to the required condition, within five (5) Business
Days after termination of this Lease or Tenant’s right to possession, Landlord,
at Tenant’s sole cost and expense, shall be entitled (but not obligated) to
remove and store Tenant’s Property and/or perform such restoration of the
Premises.  Landlord shall not be
responsible for the value, preservation or safekeeping of Tenant’s
Property.  Tenant shall pay Landlord,
upon demand, the expenses and storage charges incurred.  If Tenant fails to remove Tenant’s Property
from the Premises or storage, within 30 days after notice, Landlord may deem
all or any part of Tenant’s Property to be abandoned and, at Landlord’s option,
title to Tenant’s Property shall vest in Landlord or Landlord may dispose of
Tenant’s Property in any manner Landlord deems appropriate.


 


27.                               Pre-Commencement
Contraction Option.


 


27.01                       Contraction Option. 
Tenant shall have the right to partially terminate this Lease as of the
date of the Contraction Notice, as defined below (the “Contraction Option”) as to one entire floor,
one-half floor, or two entire floors of the Additional Premises (the “Contraction Premises”), so long as (a) the
remaining floors of the Premises are contiguous and (b) the Initial
Premises remains part of the Premises. Such Contraction Option may be exercised
by Tenant only by Tenant delivering written notice of exercise (the “Contraction Notice”) to Landlord on or
before July 1, 2010 (the “Contraction
Deadline”).  In the absence of
a Contraction Notice given on or before the Contraction Deadline, the Contraction
Option and this Section 27 shall be null and void.


 


27.02                       Contraction Agreement.  Should Tenant effectively exercise its Contraction
Option as set forth herein, the terms of this Lease shall automatically
terminate as to the Contraction Premises, and Landlord and Tenant shall execute
a writing memorializing Tenant’s exercise of the Contraction Option removing
the Contraction Premises from the Premises, and the changes in the Base Rent,
rentable square footage of the Premises, Tenant’s Pro Rata Share, the Initial
Alterations Allowance and the IT Allowance, all of which shall be reduced
proportionately.  Notwithstanding the
foregoing, an otherwise valid exercise of the Contraction Option shall be fully
effective whether or not such a writing is executed.  In the case of a partial termination as to
one-half floor, (1) the partial floor included in the Premises shall
consist of approximately one-half of the floor (after deducting from the
useable square footage of the floor such common hallways as are required by
Law) divided approximately as shown on Exhibit O,
and (2) Tenant, at Tenant’s expense, shall install on the floor on which
such half floor is located all demising walls for such portion of the Premises
and all common hallway(s) required by Law due to the multi-tenant nature
of the floor, including without limitation all Building standard construction
of walls, paint, ceilings, lighting, and flooring of such common hallway(s) and
all work necessary to render such portion of the Premises and such hallway(s) in
compliance with Law and shall conduct all such work in accordance with Section 10
and all other provisions of this Lease, and Landlord, at Landlord’s expense,
shall construct the elevator lobby on such floor and shall perform the work
otherwise shown on Exhibit H.


 


28.                               Extension Option.


 


28.01                       Grant of Extension Option; Conditions. 
Tenant shall have the right to extend the Term (the “Extension Option”) for one additional period of five (5) years
commencing on the day following the Initial Term Expiration Date and ending on
the 5th 


 


30

















 


anniversary of the Initial Term Expiration Date (the “Extension Term”), only if both of the following apply
(unless specifically waived in writing by Landlord):


 


(a)           Landlord receives notice of exercise (“Extension Notice”) not less than twelve (12) full calendar
months prior to the Initial Term Expiration Date; and


 


(b)           No Event of Default exists at the time the Tenant
delivers its Extension Notice.


 


28.02                       Expiration of Extension Option. 
If Tenant does not give the Extension Notice by the date set forth in Section 28.01(a),
then this Section 28
shall be null and void.


 


28.03                       Terms Applicable to Premises During Extension Term.


 


(a)           The annual Base Rent rate per rentable square foot for
the Premises during the Extension Term shall equal $53.50 per rentable square
foot.  Base Rent attributable to the Premises shall be payable in monthly
installments in accordance with the terms and conditions of Section 5 of
this Lease.


 


(b)           Tenant shall pay Additional Rent (i.e. Taxes and
Expenses) for the Premises during the Extension Term in accordance with Section 1.06
and Section 5 of this Lease.


 


(c)           Upon commencement of the Extension Term, Landlord
shall provide Tenant with an allowance in the amount of $10.00 per rentable
square foot of the Premises then leased (the “Extension
Allowance”) for the construction of improvements in the
Premises.  The requisition procedure set
forth in Section 4.03 shall apply to the disbursement of the Extension
Allowance.  If as of June 1, 2023,
Landlord has not disbursed the total amount of the Extension Allowance, then
the unused amount of the Extension Allowance shall be applied as a credit
against Base Rent and Additional Rent next due on or after June 1, 2023
monthly until any balance is exhausted.


 


28.04                       Extension Agreement. 
If Tenant is entitled to and properly exercises its Extension Option,
Landlord and Tenant shall execute a writing memorializing Tenant’s exercise of
its Extension Option and the changes in the Base Rent, Term and other terms
solely necessitated by such extension. 
Notwithstanding the foregoing, an otherwise valid exercise of the
Extension Option shall be fully effective whether or not such a writing is
executed.


 


29.                               Expansion Option.


 


29.01                       Grant of Expansion Option; Conditions.  Tenant shall have the option to expand the
Premises to include certain space in accordance with the following terms
(the “Expansion
Option”).  On or before the
date which is the fourth (4th) anniversary
of the Initial Premises Commencement Date, Landlord shall notify Tenant (“Landlord’s Expansion Notice”) of the location of the
expansion space, which shall consist of approximately 10,000 rentable square
feet of separately demised space (or space which shall be separately demised by
Landlord prior to occupancy by Tenant) on a single floor in a location to be
determined by Landlord on either the 15th floor, 18th floor or 19th floor (the “Expansion Space”). Landlord’s notice shall include (i) Landlord’s estimated delivery
date of the Expansion Space, which shall 


 


31

















 


be
a date selected by Landlord that is between the fifth (5th) anniversary
of the Initial Premises Commencement Date and the seventh (7th) anniversary
of the Initial Premises Commencement Date (the “Expansion
Space Commencement Date”) and
(ii) Landlord’s proposed Base Rent therefor (the “Proposed Expansion Base Rent”) and (iii) the Landlord’s proposed Expansion Allowance therefor,
if any (the “Proposed Expansion
Allowance”).  Tenant may exercise its Expansion
Option only if all of the following apply (unless specifically waived in
writing by Landlord):


 


(a)           Tenant is then leasing at least three (3) floors
in the Building;


 


(b)           Landlord receives notice of Tenant’s exercise (“Expansion Exercise Notice”) by the earlier of (a) twelve
(12) full calendar months after Tenant receives Landlord’s Expansion Notice or (b) nine
(9) months prior to the Expansion Space Commencement Date; and


 


(c)           No Event of Default exists at the time the Tenant
delivers its Expansion Exercise Notice.


 


29.02                       Expiration of Expansion Option. 
If Tenant does not give the Expansion Exercise Notice by the date set
forth in Section 29.01(b), then this Section 29
shall be null and void.


 


29.03                       Terms Applicable to Expansion Space.


 


(a)           If Tenant is entitled to and properly exercises its
Expansion Option under this Section 29, then the Expansion Space shall
automatically become part of the Premises on the Expansion Space Commencement
Date, except that if Landlord is delayed in delivering possession of the
Expansion Space due to the holdover or unlawful possession of such space by any
party, Landlord shall use reasonable efforts, including summary process, if
necessary, to obtain and deliver possession of the Expansion Space, and the
term commencement and the rent commencement date for the Expansion Space shall
be postponed until the date Landlord delivers possession of the Expansion Space
to Tenant free from occupancy by any party. 
The rent commencement date for the Expansion Space shall be the same as
the term commencement date for such space, except that there shall be one (1) day
of free rent after the term commencement date for the Expansion Space for each
day of delay in delivery of the Expansion Space beyond the Expansion Space
Commencement Date.  In all events,
however, Landlord shall use good faith efforts to deliver the Expansion Space
by the Expansion Space Commencement Date, and upon any failure to deliver by
such date, Landlord shall continue to use best efforts to deliver the Expansion
Space as soon as reasonably practicable thereafter.


 


(b)           The Base Rent rate per rentable square foot for the
Expansion Space shall equal (i) the Proposed Expansion Base Rent if Tenant
has given or is deemed to have given a Notice of Acceptance of Terms, as
defined below, with its Expansion Exercise Notice or (2) in all other
cases, the Prevailing Market (hereinafter defined) rate as determined as set
forth below.  Base Rent attributable to the Expansion Space
shall be payable in monthly installments in accordance with the terms and
conditions of Section 5 of this Lease.


 


(c)           Tenant’s Pro Rata Share shall be adjusted to reflect
the addition of the Expansion Space.


 


32
















 


(d)                                 Tenant shall pay Additional Rent (i.e.
Taxes and Expenses) for the Expansion Space in accordance with Section 1.06
and Section 5 of this Lease,
except that Base Year for Taxes and Base Year for Expenses shall be equal to
the applicable fiscal or calendar year in which the Expansion Space
Commencement Date Occurs.


 


(e)                                  The term for the Expansion Space shall be
coterminous with the Term for the remainder of the Premises, as the same may be
extended.


 


(f)                                    On or about the Expansion Space
Commencement Date, at Landlord’s expense, Landlord shall deliver the Expansion
Space in “As-Is” condition and shall provide Tenant with an allowance for
tenant improvements (the “Expansion Allowance”)
in an amount equal to either (i) the Proposed Expansion Allowance if a Notice
of Acceptance of Terms, as defined below, has been given or is deemed to have
been given or (ii) in all other instances, the arm’s length fair market
rate per rentable square foot for allowances granted under leases being entered
into between unrelated third parties for space comparable to the Expansion
Space in its then condition in the Building and office buildings comparable to
the Building in the Boston Financial District and for leases with base rents at
the Prevailing Market rate and for leases of space comparable to the Expansion
Space with comparable terms.  The
requisition procedure set forth in Section 4.03 shall apply to the
disbursement of the Expansion Allowance. 
Except as otherwise provided herein, provided that Landlord uses
reasonable efforts to deliver the Expansion Space in the condition required
hereunder on the Expansion Space Commencement Date, Landlord’s failure to
deliver the Expansion Space by the Expansion Space Commencement Date shall not
be a default by Landlord or otherwise render Landlord liable for damages except
as set forth in this Section 29.03.


 


29.04                                                                     Initial Procedure for Determining
Prevailing Market.  Tenant’s Expansion Exercise Notice shall
include either (i) final binding written notice to Landlord of Tenant’s
acceptance of the Base Rent and Expansion Allowance for the Expansion Space
(the “Notice of Acceptance of Terms”), or (ii) written
notice to Landlord of Tenant’s disagreement with Landlord’s determination (the “Notice of Disagreement on Terms”).  If Tenant fails to provide Landlord with
either a Notice of Acceptance of Terms or a Notice of Disagreement on Terms
with Tenant’s Expansion Exercise Notice, Tenant shall be deemed to have given a
Notice of Acceptance of Terms.  If Tenant
provides Landlord with a Notice of Acceptance of Terms (or is deemed to have so
provided), Landlord and Tenant shall enter into the Expansion Amendment (as
defined below) upon the terms and conditions set forth herein.  If Tenant provides Landlord with a Notice of
Disagreement on Terms, Landlord and Tenant shall work together in good faith to
agree upon the Prevailing Market rate and Expansion Allowance for the Expansion
Space, whereupon when Landlord and Tenant have agreed upon the Prevailing
Market rate and Expansion Allowance for the Expansion Space, such agreement
shall be reflected in a written agreement between Landlord and Tenant, whether
in a letter or otherwise, and Landlord and Tenant shall enter into the
Expansion Amendment in accordance with the terms and conditions hereof.  Notwithstanding the foregoing, if Landlord
and Tenant are unable to agree upon the Prevailing Market rate for the
Expansion Space within thirty (30) days after the date Tenant provides Landlord
with the Notice of Disagreement on Terms, Tenant, by written notice to Landlord
(the “Arbitration Notice”) within ten (10) Business
Days after the expiration of such thirty (30) day period, shall have the right
to have the Prevailing Market rate and Expansion Allowance determined in
accordance with the arbitration procedures described in Section 29.05
below.


 


33

















 


29.05                                                                     Arbitration Procedure.


 


(a)                                  If Tenant provides Landlord with a timely
Arbitration Notice, Landlord and Tenant, within five (5) days after the
date of the Arbitration Notice, shall each simultaneously submit to the other,
in a sealed envelope, its good faith estimate of the Prevailing Market rate for
the Expansion Space (collectively referred to as the “Estimates”).  If the higher of such Estimates is not more
than 105% of the lower of such Estimates, then Prevailing Market rate shall be
the average of the two Estimates.  If the
Prevailing Market rate is not resolved by the exchange of Estimates, then,
within seven (7) days after the exchange of Estimates, Landlord and Tenant
shall each select an appraiser to determine which of the two Estimates most
closely reflects the Prevailing Market rate for the Expansion Space.  Each appraiser so selected shall be certified
as an MAI appraiser or as an ASA appraiser and shall have had at least five (5) years
experience within the previous ten (10) years as a real estate appraiser
working in the vicinity of the Property, with working knowledge of current
rental rates and practices.  For purposes
hereof, an “MAI” appraiser means an individual who holds an MAI designation
conferred by, and is an independent member of, the American Institute of Real
Estate Appraisers (or its successor organization, or in the event there is no
successor organization, the organization and designation most similar), and an “ASA”
appraiser means an individual who holds the Senior Member designation conferred
by, and is an independent member of, the American Society of Appraisers (or its
successor organization, or, in the event there is no successor organization,
the organization and designation most similar) in the Real Property discipline.


 


(b)                                 Upon selection, Landlord’s and Tenant’s
appraisers shall work together in good faith to agree upon which of the two
Estimates most closely reflects the Prevailing Market rate for the Expansion
Space.  The Estimate chosen by such
appraisers shall be binding on both Landlord and Tenant as the Base Rent rate
for the Expansion Space.  If either
Landlord or Tenant fails to appoint an appraiser within the seven (7) day
period referred to above, the appraiser appointed by the other party shall be
the sole appraiser for the purposes hereof. 
If the two appraisers cannot agree upon which of the two Estimates most
closely reflects the Prevailing Market within twenty (20) days after their
appointment, then, within ten (10) days after the expiration of such
twenty (20) day period, the two appraisers shall select a third appraiser
meeting the aforementioned criteria.  If
Landlord and Tenant fail to agree upon such third appraiser within such ten (10) day
period, then either party may so notify the President of the Boston Bar
Association (or such organization as may succeed to said Boston Bar
Association) and request him or her to designate a third appraiser meeting the
aforementioned criteria and request that such designation be made within ten (10) days
of such notice.  Once the third appraiser
(i.e. arbitrator) has been selected as provided for above, then, as soon
thereafter as practicable but in any case within fourteen (14) days, the
arbitrator shall make his determination of which of the two Estimates most
closely reflects the Prevailing Market rate and such Estimate shall be binding
on both Landlord and Tenant as the Base Rent rate for the Expansion Space.  If the arbitrator believes that expert advice
would materially assist him, he may retain one or more qualified persons to
provide such expert advice.  The parties
shall share equally in the costs of the third arbitrator and of any experts
retained by the third arbitrator.  Any
fees of any appraiser, counsel or experts engaged directly by Landlord or
Tenant, however, shall be borne by the party retaining such appraiser, counsel
or expert.


 


(c)                                  If the Prevailing Market rate has not
been determined by the Expansion Space Commencement Date, Tenant shall pay Base
Rent upon the terms and conditions in effect based on the annual rent rate per
rentable square footage of the Premises as then in effect until such time as
the Prevailing Market rate has been determined. 
Upon such 


 


34

















 


determination, the Base Rent for the Expansion Space
shall be retroactively adjusted to the commencement of such Term for the
Expansion Space.  If such adjustment
results in an underpayment of Base Rent by Tenant, Tenant shall pay Landlord
the amount of such underpayment within thirty (30) days after the determination
thereof.  If such adjustment results in
an overpayment of Base Rent by Tenant, Landlord shall credit such overpayment
against the next installment of Base Rent due under this Lease and, to the extent necessary, any subsequent
installments, until the entire amount of such overpayment has been credited
against Base Rent.


 


29.06                                                                     Expansion Agreement. 
If Tenant is entitled to and properly exercises its Expansion Option,
Landlord and Tenant shall execute a writing memorializing Tenant’s exercise of
its Expansion Option and the changes in the Base Rent, rentable square footage,
Tenant’s Pro Rata Share and other terms solely necessitated by such
expansion.  Notwithstanding the
foregoing, at the time a Notice of Acceptance of Terms is given (or is deemed
to have been given) or, in the event a Notice of Disagreement on Terms is
given, upon the final determination of the Prevailing Market rate applicable to
the Expansion Space as described herein, an otherwise valid exercise of the
Expansion Option shall be fully effective whether or not such a writing is
executed.


 


29.07                                                                     Definition of Prevailing Market. 
For purposes of this Expansion Option and the Right of First Offer (as
defined in Section 31) , “Prevailing Market” shall mean 100% of the arms length fair
market annual rental rate per rentable square foot as of the Expansion Space
Commencement Date or the ROFO Commencement Date (as defined in Section 31), as applicable, for space
comparable to the Expansion Space or ROFO Space, as applicable, in its then
condition in the Building and office buildings comparable to the Building in
the Boston Financial District under new leases being entered into on or about
the date on which the Prevailing Market is being determined hereunder.  The determination of Prevailing Market shall
take into account any material economic differences between the terms of this
Lease and any comparison lease or amendment, including, without limitation,
tenant concessions, brokerage commissions, free rent, base years and
allowances.  The determination of
Prevailing Market shall also take into consideration any reasonably anticipated
changes in the Prevailing Market rate from the time such Prevailing Market rate
is being determined and the time such Prevailing Market rate will become
effective under this Lease.


 


30.                               Right of First Refusal.


 


30.01                                                                     Grant of Right of First Refusal.                              On or before August 1, 2010 (the “ROFR Period”), Tenant shall have the right
of first refusal (a “Right Of First Refusal”),
upon and subject to the terms of this Section 30,
to lease any full floor or floors, provided that such space (1) is (a) on
the 14th Floor, 15th Floor, 18th Floor, 19th Floor and/or 20th Floor and (b) contiguous to the existing
Premises, except that if such space is contiguous to any of the Additional
Premises and not to the Initial Premises, then such right of first refusal
shall exist only if Tenant has waived its Contraction Option with respect to
such portion of the Additional Premises which is so contiguous (for example, if
(i) Landlord has designated the Additional Premises to be the 15th Floor and the
18th Floor and (ii) Tenant has exercised its
Right of First Refusal with respect to space on the 19th Floor, then
Tenant shall be deemed to have waived its Contraction Option with respect to
the 18th Floor) and (2) is the subject of
negotiation between Landlord and an unrelated third party to lease such space
(a “ROFR Space”).


 


35

















 


30.02                                                                     Notwithstanding anything to the contrary
herein, the following shall not be deemed to be ROFR Spaces:


 


(i)                                     any space to the extent the same
continues to be leased to the then current tenant(s) thereof; and


 


(ii)                                  any Expansion Space, ROFR Space or ROFO
Offering Space (as defined below) as to which Tenant did not timely exercise
(or was not eligible to exercise due to failure to meet one of the
pre-conditions) its Expansion Option, Right of First Refusal or Right of First
Offer if such Expansion Option Space, 
ROFR Space or ROFO Offering Space has been leased to a third party (i) within
a period of nine (9) months after the last date for such exercise by
Tenant (in accordance with the terms of this Lease) or (ii) within the
period during which Tenant continues to fail to meet such pre-conditions, but
only for so long as such space is leased to the third party aforesaid or its
permitted successor or assign for the term, including any extension rights, set
forth in the initial lease (or, if such next tenant is already a tenant of the
Building, in the amendment to such tenant’s lease).


 


(a)                                  Prior to executing a lease with an
unrelated third party for a ROFR Space, Landlord shall give notice to Tenant
(the “ROFR Advice”) identifying
the ROFR Space, together with a copy of the fully-executed letter of intent for
such ROFR Space.  Provided that no Event
of Default exists at the time, Tenant shall have the right to accept the offer
to lease the ROFR Space on all of the terms set forth in the letter of intent
(except that the term of this Lease for the ROFR Space shall be co-terminous
with the Term of this Lease, as the same may be extended) by delivering written
notice of exercise (a “Notice of ROFR
Exercise”) to Landlord within seven (7) days after receipt of
the ROFR Advice.  If Tenant is entitled
to and properly exercises its Right of First Refusal, the ROFR Space shall
automatically become part of the Premises on the commencement date as set forth
in the letter of intent, except that if Landlord is delayed in delivering
possession of the ROFR Space due to the holdover or unlawful possession of such
space by any party, Landlord shall use reasonable efforts, including summary
process, if necessary, to obtain and deliver possession of the ROFR Space, and
the term commencement date and the rent commencement date for the ROFR Space
shall be postponed until the date Landlord delivers possession of the ROFR
Space to Tenant free from occupancy by any party.  The rent commencement date for the ROFR Space
shall be the same as the term commencement date for such space, except that
there shall be one (1) day of free rent after the term commencement date
for the ROFR Space for each day of delay in delivery of the ROFR Space beyond
the commencement date set forth in the letter of intent.  Except as set forth herein, provided that
Landlord uses reasonable efforts to deliver the ROFR Space in the condition set
forth in the letter of intent on the commencement date set forth in the letter
of intent, Landlord’s failure to deliver the ROFR Space by such commencement
date shall not be a default by Landlord or otherwise render Landlord liable for
damages.  In all events, however,
Landlord shall use good faith efforts to deliver the ROFR Space by the
commencement date as set forth in the letter of intent, and upon any failure to
deliver by such date, Landlord shall continue to use best efforts to deliver
the ROFR Space as soon as reasonably practicable thereafter.


 


30.03                                                                     Expiration of Right of First Refusal. 
If Tenant does not give a Notice of ROFR Exercise by the date set forth
in Section 30.02 for any ROFR Space, then Tenant’s Right of First Refusal
with respect to said ROFR Space shall be null and void with respect to that
specific letter of intent; provided, however, that if Landlord does not enter
into a lease of the subject ROFR Space with said third party or an affiliate
thereof within nine (9) months after the Right of First Refusal was
rejected or deemed rejected by Tenant with rent of at least 95% of 


 


36

















 


the Rent and otherwise containing substantially the
same terms and conditions set forth in the ROFR Advice, Tenant’s Right of First
Refusal shall again be deemed applicable for such ROFR Space throughout the
ROFR Period with the same effect as if the original ROFR Advice and letter of
intent had never been given.


 


30.04                                                                     ROFR Agreement. 
If Tenant is entitled to and properly exercises its Right Of First
Refusal, Landlord and Tenant shall execute a writing memorializing Tenant’s
exercise of its Right of First Refusal and the changes in the Base Rent,
rentable square footage, Tenant’s Pro Rata Share and other terms solely
necessitated by such exercise. 
Notwithstanding the foregoing, an otherwise valid exercise of the ROFR
shall be fully effective whether or not such a writing is executed.


 


31.                               Right of First Offer.


 


31.01                                                                     Grant of Right of First Offer Expansion
Option; Conditions.                       Except as specifically otherwise set
forth below, from and after the Initial Premises Commencement Date Tenant shall
have a continuing right of first offer (a “Right
of First Offer”), upon and subject to the terms and provisions of
this Section 31, to lease any
space (whether a full floor or partial floor) which is both (i) contiguous
to the then existing Premises, except that if such space is contiguous to any
of the Additional Premises and not to the Initial Premises, then such Right of
First Offer shall exist only if Tenant has waived its Contraction Option with
respect to such portion of the Additional Premises which is so contiguous (for
example, if (a) Landlord has designated the Additional Premises to be the
15th Floor and the 18th Floor and (b) Tenant has exercised its
Right of First Offer with respect to space on the 19th Floor, then Tenant shall be deemed to have
waived its Contraction Option with respect to the 18th Floor) 
and (ii) on any of the 14th Floor, 15th Floor, 18th Floor, 19th Floor or 20th Floor (each, a “ROFO Offering Space”) and which becomes available for leasing
in the Building.


 


31.02                                                                     Notwithstanding anything to the contrary
herein, the following shall not be deemed to be ROFO Offering Spaces:


 


(i)                                     any Expansion Space, ROFR Space or ROFO
Offering Space as to which Tenant did not timely exercise (or was not eligible
to exercise due to failure to meet one of the pre-conditions) its Expansion
Option, Right of First Refusal or Right of First Offer if such Expansion Option
Space, ROFR Space or ROFO Offering Space has been leased to a third party (a) within
a period of nine (9) months after the last date for such exercise by
Tenant (in accordance with the terms of this Lease) or (b) within the
period during which Tenant continues to fail to meet such pre-conditions, but
only for so long as such space is leased to the third party aforesaid or its
permitted successor or assign for the term, including any extension rights, set
forth in the initial lease (or, if such next tenant is already a tenant of the
Building, in the amendment to such tenant’s lease); and


 


(ii)                                  any space which is not leased as of the
date hereof and which is leased within the ROFR Period, but only for so long as
such space is leased to the next tenant thereof or its permitted assignee or
successor for the term, including without limitation, any extension rights, set
forth in the lease (or, if such next tenant is already a tenant of the
Building, in the amendment to such tenant’s lease) as in effect at the
expiration of such one-year period.  The
foregoing shall in no way impact Tenant’s rights under Section 30 with
respect to the ROFR Space.


 


37

















 


31.03                                                                     At any time after Landlord has determined
that a ROFO Offering Space is expected to be available for lease, prior to
leasing such ROFO Offering Space to any other party, Landlord shall give notice
to Tenant (the “ROFO Advice”)
identifying the ROFO Offering Space and advising Tenant of the expected
availability date (the “ROFO Commencement
Date”), the Base Rent at which Landlord is prepared to lease a ROFO
Offering Space to Tenant, which Base Rent shall reflect the Prevailing Market
(hereinafter defined) rate for such ROFO Offering Space, as reasonably
determined by Landlord (the “Proposed ROFO
Base Rent”), and such other financial terms that Landlord will be
offering in connection with any such lease, including applicable base
years.  Any lease of the ROFO Offering
Space by Tenant shall be upon and subject to the terms and provisions of this
Lease except as otherwise provided herein. 
The ROFO Offering Space shall, upon timely exercise of such Right of
First Offer, hereinafter be referred to as the “Accepted ROFO Premises”. 
Tenant may exercise its Right of First Offer only if all of the
following apply (unless specifically waived in writing by Landlord):


 


(a)                                  Landlord receives notice of exercise (“Notice of ROFO Exercise”) not less than seven (7) days after
Tenant’s receipt of the ROFO Advice;


 


(b)                                 No Event of Default exists at the time
the Tenant delivers its Notice of ROFO Exercise; and


 


(c)                                  Tenant is then leasing at least three (3) floors
in the Building.


 


31.04                                                                     Expiration of Right of First Offer. 
If Tenant does not give a Notice of ROFO Exercise by the date set forth
in Section 31.03 for any ROFO Offering Space, then Tenant’s Right of First
Offer with respect to said ROFO Offering Space shall be null and void with
respect to that particular offer; provided, however, that if Landlord has not
leased such ROFO Offering Space within nine (9) months of the date of the
ROFO Advice with rent of at least 95% of the Proposed ROFO Base Rent and
otherwise containing substantially the same terms and conditions set forth in
the ROFO Advice, Tenant’s Right of First Offer shall once again apply to such
space.


 


31.05                                                                     Terms Applicable to Accepted ROFO
Premises.


 


(a)                                  If Tenant is entitled to and properly
exercises its Right of First Offer under this Section 31, then the
Accepted ROFO Premises shall automatically become part of the Premises on the
ROFO Commencement Date, except that if Landlord is delayed in delivering
possession of the Accepted ROFO Premises due to the holdover or unlawful
possession of such space by any party, Landlord shall use reasonable efforts,
including summary process, if necessary, to obtain and deliver possession of
the Accepted ROFO Premises, and the term commencement date and the rent
commencement date for the Accepted ROFO Premises shall be postponed until the
date Landlord delivers possession of the Accepted ROFO Premises to Tenant free
from occupancy by any party.  The rent
commencement date for the Accepted ROFO Premises shall be the same as the term
commencement date for such space, except that there shall be one (1) day
of free rent after the term commencement date for the Accepted ROFO Premises
for each day of delay in delivery of the Accepted ROFO Premises beyond the ROFO
Commencement Date.  Except as set forth
herein, provided that Landlord uses reasonable efforts to deliver the Accepted
ROFO Premises on the ROFO Commencement Date, Landlord’s failure to deliver the
Accepted ROFO Premises by the ROFO Commencement Date shall not be a default by
Landlord or otherwise render Landlord liable for damages.  In all events, however, Landlord shall use
good faith efforts to deliver the Accepted ROFO Premises by the ROFO
Commencement Date, and upon any failure to deliver by such date, Landlord 


 


38

















 


shall continue to use best efforts to deliver the
Accepted ROFO Premises as soon as reasonably practicable thereafter.


 


(b)                                 The annual Base Rent rate per rentable
square foot for the Accepted ROFO Premises shall equal the Proposed ROFO Base
Rent, unless Tenant gives a Notice of Disagreement on Terms, in which event the
Base Rent for the Accepted ROFO Premises shall be the Prevailing Market rate as
determined below.  Base Rent attributable to the Accepted ROFO
Premises shall be payable in monthly installments in accordance with the terms
and conditions of Section 5 of this Lease. 
The terms of this Lease as to the Accepted ROFO Premises shall be deemed
to reflect all other financial and other terms that Landlord included in the
ROFO Advice.


 


(c)                                  Tenant shall pay Additional Rent (i.e.
Taxes and Expenses) for the Accepted ROFO Premises in accordance with Section 1.06
and Section 5 of this Lease,
except that Base Year for Taxes and Base Year for Expenses shall be as set
forth in the ROFO Advice.


 


(d)                                 The term for the Accepted ROFO Premises
shall be co-terminous with the Lease Term, as the same may be extended.


 


(e)                                  On or about the ROFO Commencement Date,
at Landlord’s expense, Landlord shall deliver the Accepted ROFO Premises in “As-Is”
condition.  Except as set forth herein,
provided that Landlord uses reasonable efforts to deliver the Accepted ROFO
Premises in the condition required hereunder on the ROFO Commencement Date,
Landlord’s failure to deliver the Accepted ROFO Premises by the ROFO
Commencement Date shall not be a default by Landlord or otherwise render
Landlord liable for damages.


 


(f)                                    Notwithstanding any provision of this
Lease to the contrary, if less than two (2) years remain in the Term as of
the date that any ROFO Offering Space is expected to be available for lease by
Tenant as set forth in the ROFO Advice and Tenant’s Extension Option remains
unexercised, the exercise by Tenant of the Right of First Offer shall
constitute an irrevocable exercise of Tenant’s next Extension Option, if any
remain; but if less than two (2) years remain in the Term as of the date
that any ROFO Offering Space is no longer subject to a third party lease due to
the expiration or termination thereof or otherwise and is available for lease
and no Extension Option remains unexercised, Tenant may not exercise its Right
of First Offer and Landlord shall no longer be obligated to provide a ROFO
Advice with respect to any ROFO Offering Space.


 


31.06                                                                     Initial Procedure for Determining
Prevailing Market.  The Base Rent for the ROFO Space shall be the
Prevailing Market rate as determined in accordance with the procedures set
forth above in Section 29 of
this Lease.


 


31.07                                                                     Intentionally omitted.


 


31.08                                                                     ROFO Agreement. 
If Tenant is entitled to and properly exercises its Right Of First
Offer, Landlord and Tenant shall execute a writing memorializing Tenant’s
exercise of its Right of First Offer and the changes in the Base Rent, rentable
square footage, Tenant’s Pro Rata Share and other terms solely necessitated by
such exercise.  Notwithstanding the
foregoing, an otherwise valid exercise of the ROFO shall be fully effective
whether or not such a writing is executed.


 


39

















 


32.                               Generator.


 


32.01                                                                     Landlord acknowledges that Tenant
requires back-up electric generator capacity to support Tenant’s operations at
the Premises.  Landlord shall purchase a
new emergency generator with a capacity and other specifications as shown on Exhibit K (the “Generator”) and with the related equipment
necessary in order to make the Generator operable, including, without
limitation, fuel supply systems, cabling, pumps, mountings, bracing, day tank
for fuel and fuel lines all as more particularly shown on Exhibit K (collectively, the “Other Equipment”) and shall install the
same, all in accordance with the plans and specifications and scope of work
attached hereto as Exhibit K and
in accordance with Law, in locations shown on Exhibit L
or such other locations as is required by the Boston Inspectional Services
Department and any other governmental entity with jurisdiction over the same
(the “Generator Area”)
(collectively, the foregoing is referred to herein as the “Landlord Generator Work”).  Exhibit L
shows the location of the Generator and the location of the fuel tank.  Landlord shall apply for all governmental and
regulatory licenses, permits and approvals required in connection with the
installation of the Generator and the Other Equipment, and upon the issuance of
such licenses, permits and approvals, proceed with diligent efforts to complete
such installation on or before December 27, 2009 (the “Generator Deadline”).  Notwithstanding anything to the contrary in
this Lease, Landlord’s failure to complete the Landlord Generator Work by the
Generator Deadline shall not be a default by Landlord or otherwise render
Landlord liable for damages so long as Landlord furnishes Tenant with back-up
electric generator capacity through a temporary generator (sufficient for
Tenant’s needs, that is, with a capacity of at least 600 kilowatts) pending
completion of the Landlord Generator Work referenced above.  Landlord shall be responsible for all costs
of substituting the Generator for the temporary generator and shall perform
this substitution in a manner reasonably acceptable to Tenant.  Once installed, Tenant shall use commercially
reasonable efforts to maintain and operate the Generator and the Related
Equipment, as defined below, in such a fashion as to minimize the risk of
interruption of operations at the Building (e.g., power surges, facility
shutdowns, etc.) and, at Tenant’s cost and expense, shall test the Generator
and the Related Equipment at least on a quarterly basis and provide Landlord
with a quarterly test report.  Landlord
shall obtain a contractor’s warranty for workmanship for the Landlord’s
Generator Work of one (1) year and a manufacturer’s warranty for the
Generator and Other Equipment of such time as is set forth in Exhibit K, and shall cooperate with
Tenant in the enforcement of all manufacturer’s warranties and all warranties
of the construction company which installs the same.  Landlord’s failure to complete the Landlord
Generator Work on or before the Generator Deadline (a “Generator Landlord Delay”) shall subject
Landlord to the penalty set forth in Section 3.04.


 


32.02                                                                     The installation of any electrical lines
and other equipment in order to connect the Generator and the Other Equipment
to the Premises (the “Connection Equipment”,
and which is more particularly shown on Exhibit K,
shall be conducted by Tenant at Tenant’s sole cost and expense and shall be
performed in compliance with all of the terms and conditions of this Lease and
be subject to the prior written consent of Landlord.  The Connection Equipment and the Other
Equipment shall be collectively referred to herein as the “Related Equipment”.  Landlord hereby consents to the proposed
routing of electrical lines and other specifications as shown on Exhibit M attached hereto.  Such electrical equipment shall be Tenant’s
personal property and shall be maintained and repaired by Tenant as set forth
in, and subject to the provisions of, Section 10.  Upon the expiration of the Term or upon
earlier termination, the Generator and Related Equipment shall remain upon the
Premises, provided that Tenant, at its expense, shall remove the electrical
equipment that is Tenant’s personal property.


 


40

















 


32.03                                                                     Tenant agrees that Tenant will pay for
the actual electricity used by Tenant for the operation of the Generator and
the Related Equipment (which shall be measured in accordance with a check meter
to be installed by Tenant, and Tenant shall obtain and pay for the fuel oil therefor
except that Landlord shall obtain and pay for the initial fill of the tank).


 


32.04                                                                     Tenant shall be responsible for repairing
and replacing the Generator and Related Equipment and shall maintain the same
in good and safe condition, however, Tenant shall have the right to enforce the
warranties set forth above as a method of complying with the foregoing.  Tenant shall promptly and faithfully obey,
observe and comply with all Law in any manner affecting or relating to Tenant’s
repair, replacement, maintenance and operation of the Generator and the Related
Equipment (electrical or other), all at Tenant’s cost; however, Tenant shall
have the right to enforce the warranties set forth above as a method of
complying with the foregoing.  Tenant
shall promptly repair any and all damage to the Generator Area and to any other
part of the Building to the extent caused by or resulting from Tenant’s misuse,
maintenance, repair, or improper operation of the Generator and the Related
Equipment, all at Tenant’s cost.  All
maintenance and repair work performed by Tenant to such equipment shall be
performed only after prior written notice to Landlord with respect to the scope
and scheduling of such work, and in accordance with Landlord’s Rules and
Regulations; provided, however, Tenant shall be permitted to perform
maintenance and repair work on weekends without Landlord approval but only upon
prior written notice of at least two (2) Business Days.  Tenant shall cause (i) the portion of
the Generator Area in which the Generator and the Related Equipment are
located, and/or (ii) any other areas affected by any acts or omissions of
Tenant, its agents, contractors or employees, to be and remain structurally
sound throughout the Term but only to the extent that any structural repair
that is required as the result of Tenant’s failure to comply with this Section 32
or Tenant’s misuse of the Generator.


 


32.05                                                                     Tenant shall have access to the Generator
Area for the purpose of servicing, testing, maintaining, removing, operating,
repairing or replacing the Generator and/or the Related Equipment, which
access, except in cases of emergency, shall be limited to after business hours
on Business Days and during weekends and only after prior written notice to
Landlord with respect to the scope and scheduling of such work.


 


32.06                                                                     As referenced above, Landlord shall
obtain all permits and licenses for the initial installation of the Generator
and the Other Equipment, including, without limitation, the fuel storage
permit.  Tenant shall obtain all permits
and licenses, if any, for the initial installation of the Connection Equipment.


 


32.07                                                                     Tenant may handle, store, use or dispose
of diesel fuel to the extent customary and necessary for the use of the
Generator and the Related Equipment; provided, however, that Tenant shall
always handle, store, use and dispose of any such diesel fuel in a safe and
lawful manner.  Tenant specifically
acknowledges and agrees that the terms and conditions of Section 14
(Indemnity and Waiver of Claims) shall apply with full force and effect to
Tenant’s handling and use of diesel fuel.


 


32.08                                                                     Except for the installation of the
Generator and the Other Equipment, Tenant agrees that Landlord is not required
to provide any services whatsoever to the Generator Area or with respect to the
Generator and the Related Equipment.


 


32.09                                                                     Tenant covenants and agrees that the use
and operation of the Generator and the Related Equipment in the Generator Area
and in any other part of the Building pursuant to the provisions of this Section 32
shall be at the risk of Tenant and neither Landlord nor 


 


41

















 


Landlord’s agents or employees shall be liable for any
damage or injury thereto caused in any manner except the willful misconduct or
negligence of Landlord or its agents or employees.  Except for the cost of purchase and
performance of the Landlord Generator Work, all other costs and expenses,
including, without limitation, the cost of electrical service supply lines to
make operable the Generator and the Related Equipment,  used, erected or installed by Tenant pursuant
to the provisions of this Section 32 or related to or connected with the
use, maintenance, repair and operation of the Generator and the Related
Equipment shall be at the cost and expense of Tenant and without charge, cost
or expense to Landlord.


 


32.10                                                                     Tenant covenants and agrees that Tenant’s
use of the Generator and the Related Equipment shall be conducted so as to not
unreasonably interfere with or affect any equipment, installations, lines or
machinery of the Building or any other tenant of the Building or the rights of
other tenants or occupants of the Building or Landlord or licensees of
Landlord; provided, however, that the foregoing shall not be deemed to limit
Tenant’s right to use the Generator for its intended purpose as a back-up power
source.  Tenant shall not permit any of
its agents, servants, employees, licensees, or invitees to cause unreasonable
interference with or disturbance, annoyance or inconvenience with or to any
person or property now or in the future lawfully in, on or about the
Building.  All operations, maintenance
and repair shall be performed in compliance with all Law and, further, in
accordance with the terms, covenants, conditions and provisions of this
Lease.  Tenant shall have the right to
operate the Generator and the Related Equipment only (i) upon the prior
consent of Landlord (except in case of emergency) or (ii) in conjunction
with maintenance and repairs in accordance with Section 32.04, in each
instance (i) and (ii) so long as in compliance with (a) the
operations manuals thereof and (b) all Law.


 


32.11                                                                     If Tenant exercises its Contraction
Option, then Tenant shall be obligated to reimburse Landlord within thirty (30)
days of exercise of the Contraction Option, an amount equal to (a) the
actual cost incurred by Landlord in connection with the installation of the
Generator and the Related Equipment (collectively, the “Generator Costs”) times (b) a
fraction, the numerator of which is the rentable square footage of the portion
of the Additional Premises not being added to the Premises as a result of the
exercise of the Contraction Option and the denominator of which equals the
total rentable square footage of all of the Initial Premises and the Additional
Premises as if the Contraction Option had not been exercised.  Landlord shall provide Tenant with a detailed
statement of the Generator Costs within forty-five (45) days of completion or
within ten (10) days of Tenant’s written request, whichever is later.


 


32.12                                                                     Notwithstanding the foregoing, so long as
Tenant is not in default under this Lease beyond notice and cure periods and
this Lease is in full force and effect, if Landlord defaults in its obligations
under this Section 32 (a “Landlord’s Generator
Default”), Tenant may claim a Landlord’s Generator Default by
written notice to Landlord and to any Mortgagee, as defined in Section 24,
holding a first mortgage on the Building (as to which Mortgagee Landlord has,
by notice to Tenant, provided an address for notices), and if neither Landlord
nor such Mortgagee agrees in writing to cure and commences to cure such
Landlord’s Generator Default within thirty (30) days of Landlord’s receipt of
Tenant’s claim of a Landlord’s Generator Default, or once commenced and agreed
to in writing, neither Landlord nor such Mortgagee continues to diligently
pursue such cure, and neither Landlord nor such Mortgagee disputes the validity
of the claimed Landlord’s Generator Default by notice to Tenant within ten (10) days
of Landlord’s receipt of Tenant’s claim of a Landlord’s Generator Default, then
upon the expiration of such thirty-day period following such notice, Tenant
shall be entitled to cure such default whereupon Tenant shall have the right to
offset the costs of such cure against installments of Rent next coming due
hereunder.  In addition to the foregoing,
and without regard to the 


 


42

















 


existence (or non-existence) of a Landlord default
under this Section or elsewhere in the Lease, Tenant shall have the
unconditional right to offset against installments of Rent next coming due, and
all out-of-pocket attorney’s fees incurred by Tenant in connection with Tenant’s
obligation to provide estoppel certificates under the terms and conditions of
an SNDA (as defined in Section 24 above) with respect to this Section.


 


33.                               Roof Rights


 


33.01                                                                     Tenant shall have the right, without the
requirement of any additional payments hereunder, as appurtenant to the
Premises, exclusively to use space on the roof of the Building for the purpose
of installing (in accordance with Section 10),
repairing, replacing, servicing, operating and maintaining dishes/antennae or
other communication devices and replacements thereof (collectively, the “Dishes/Antennae”) approved by
Landlord.  In addition, Tenant shall have
access to a conduit with a maximum size of 2 inches running through the
existing telephone room on each floor from the 16th floor to the roof of the Building to
accommodate the cable from Tenant’s server room to the Dishes/Antennae.  The location of the space on the roof to be
used by Tenant shall be the spaces shown on Exhibit C
(the “Roof Space”) or if Exhibit C is blank, then in such
location as is mutually agreeable to the parties.  Landlord reserves the right to relocate the
Roof Space as necessary during the Term so long as such relocations (a) do
not materially disrupt Tenant’s operations or (b) are reasonably
acceptable to Tenant.  If Tenant requests
additional space for Dishes/Antennae and Landlord approves the same, Tenant
shall pay to Landlord the standard market rate being charged by Landlord from
time to time therefor.  Landlord’s
designation shall take into account Tenant’s use of the Dishes/Antennae.  Notwithstanding the foregoing, Tenant’s right
to install the Dishes/Antennae shall be subject to the approval rights of
Landlord (which approval may incorporate the approval of Landlord’s architect
and/or engineer with respect to the plans and specifications of the
Dishes/Antennae, the manner in which the Dishes/Antennae are attached to the
roof of the Building and the manner in which any cables are run to and from the
Dishes/Antennae.  The Dishes/Antennae must be tagged with weatherproof labels showing
manufacturer, model, frequency range, and name of Tenant.  In addition, the cable between the
Dishes/Antennae and Tenant’s suite must be tagged in the telecom closet on each
floor with a label showing Tenant’s name, phone number and suite number.  The precise specifications and a general
description of the Dishes/Antennae along with all documents Landlord reasonably
requires to review the installation of the Dishes/Antennae (the “Plans and Specifications”) shall be
submitted to Landlord for Landlord’s written approval no later than twenty (20)
days before Tenant commences to install the Dishes/Antennae.  Tenant shall be solely responsible for
obtaining the necessary governmental and regulatory approvals and for the cost
of installing, operating, maintaining and removing the Dishes/Antennae.  Tenant shall notify Landlord upon completion
of the installation of the Dishes/Antennae. 
If Landlord determines that the Dishes/Antennae equipment does not
comply with the approved Plans and Specifications or that the Building has been
damaged during installation of the Dishes/Antennae or that the installation was
defective, Landlord shall notify Tenant of any noncompliance or detected
problems and Tenant shall cure the defects within ten (10) days after
receipt of such notice.  If the Tenant
fails to so cure the defects, Tenant shall pay to Landlord upon demand the
reasonable cost, as determined by Landlord, of correcting any defects and
repairing any damage to the Building caused by such installation.  If at any time Landlord, in its reasonable discretion,
deems it necessary to comply with Law, Tenant shall provide and install, at
Tenant’s sole cost and expense, appropriate aesthetic screening, as so
necessary, for the Dishes/Antennae (the “Aesthetic
Screening”).    Wherever
Landlord’s consent is required under this Section 33,
such consent shall not be unreasonably withheld, conditioned or delayed for
more than 3 days.


 


43
















 


33.02                                                                     Landlord agrees that Tenant, upon
reasonable prior written notice to Landlord (except in the event of an
emergency), shall have access to the roof of the Building and the Roof Space
for the purpose of installing, maintaining, repairing, removing, securing,
testing, operating and replacing the Dishes/Antennae, the appurtenances and the
Aesthetic Screening, if any, all of which shall be performed by Tenant or
Tenant’s authorized representative or contractors, which shall be approved by
Landlord, at Tenant’s sole cost and risk. 
It is agreed, however, that only authorized engineers, employees or
properly authorized contractors of Tenant, FCC (defined below) inspectors, or
persons under their direct supervision will be permitted to have access to the
roof of the Building and the Roof Space. 
Tenant further agrees to exercise firm control over the people requiring
access to the roof of the Building and the Roof Space in order to keep to a
minimum the number of people having access to the roof of the Building and the
Roof Space and the frequency of their visits. 
Except in emergencies, Tenant shall provide Landlord with at least
twenty-four (24) hours advance notice prior to accessing the roof of the
Building and Roof Space, and Landlord’s representatives may accompany any party
to the roof.


 


33.03                                                                     It is further understood and agreed that
the installation, maintenance, operation and removal of the Dishes/Antennae,
the appurtenances and the Aesthetic Screening, if any, is not permitted to
damage the Building or the roof thereof. 
Tenant agrees to be responsible for any damage caused to the roof or any
other part of the Building, which may be caused by Tenant or any of its agents
or representatives in the exercise of Tenant’s rights under this Section.


 


33.04                                                                     Tenant agrees to install only equipment
of types and frequencies which will not cause interference to equipment of
Landlord or tenants of the Building.  In
the event Tenant’s equipment causes such interference, Tenant will change the
frequency on which it transmits and/or receives and take any other steps
necessary to eliminate the interference. 
If said interference cannot be eliminated within a reasonable period of
time, in the judgment of Landlord, then Tenant agrees to cease operation of the
Dishes/Antennae until said interference is eliminated.  Landlord agrees to take all reasonable steps
to prevent other tenants from subsequently installing equipment of types and
frequencies which will cause interference to the Dishes/Antennae installed by
Tenant.


 


33.05                                                                     Tenant shall, at its sole cost and
expense, and at its sole risk, install, operate and maintain the
Dishes/Antennae in a good and workmanlike manner, and in compliance with all
Building, electric, communication, and safety codes, ordinances, standards, regulations
and requirements, now in effect or hereafter promulgated, of the Federal
Government, including, without limitation, the Occupational Safety and Health
Administration (“OSHA”), the
Federal Communications Commission (the “FCC”),
the Federal Aviation Administration (“FAA”)
or any successor agency of either the FCC or FAA having jurisdiction over radio
or telecommunications, and of the commonwealth, city and county in which the
Building is located.  Under this Lease,
Landlord and its agents assume no responsibility for the licensing, operation
and/or maintenance of Tenant’s equipment. 
Tenant has the responsibility of carrying out the terms of its FCC
license in all respects.  The
Dishes/Antennae shall be connected to Landlord’s power supply in strict compliance
with all applicable building, electrical, fire and safety codes.   Except as set forth in this Lease, neither
Landlord nor its agents shall be liable to Tenant for any stoppages or
shortages of electrical power furnished to the Dishes/Antennae or the Roof
Space because of any act, omission or requirement of the public utility serving
the Building, or the act or omission of any other tenant, invitee or licensee
or their respective agents, employees or contractors, or for any other cause
beyond the reasonable control of Landlord, and Tenant shall not be entitled to
any rental abatement for any such 


 


44

















 


stoppage or shortage of electrical power.  Neither Landlord nor its agents shall have
any responsibility or liability for the conduct or safety of any of Tenant’s
representatives, repair, maintenance and engineering personnel while in or on
any part of the Building or the Roof Space.


 


33.06                                                                     The Dishes/Antennae, the appurtenances
and the Aesthetic Screening, if any, shall remain the personal property of
Tenant, and shall be removed by Tenant at its own expense at the expiration or
earlier termination of this Lease or Tenant’s right to possession
hereunder.  Tenant shall repair any
damage caused by such removal, including the patching of any holes to match, as
closely as possible, the color surrounding the area where the equipment and
appurtenances were attached.  Tenant
agrees to maintain all of the Tenant’s Dishes/Antennae, appurtenances and
Aesthetic Screening, if any, placed on or about the roof or in any other part
of the Building in proper operating condition and maintain the same in
satisfactory condition as to appearance and safety as Landlord reasonably
requires.  Such maintenance and operation
shall be performed in a manner to avoid any interference with any other tenants
or Landlord.  Tenant agrees that at all
times during the term of this Lease, it will keep the roof of the Building and
the Roof Space free of all trash or waste materials produced by Tenant or
Tenant’s agents, employees or contractors.


 


33.07                                                                     In light of the specialized nature of the
Dishes/Antennae, Tenant shall be permitted to utilize the services of its
choice for installation, operation, removal and repair of the Dishes/Antennae,
the appurtenances and the Aesthetic Screening, if any, subject to the
reasonable approval of Landlord. 
Notwithstanding the foregoing, Tenant must provide Landlord with prior
written notice of any such installation, removal or repair and coordinate such
work with Landlord in order to avoid voiding or otherwise adversely affecting
any warranties granted to Landlord with respect to the roof.  If necessary, Tenant, at its sole cost and
expense, shall retain any contractor having a then existing warranty in effect
on the roof to perform such work (to the extent that it involves the roof), or,
at Tenant’s option, to perform such work in conjunction with Tenant’s
contractor.  In the event the Landlord
contemplates roof repairs that could affect Tenant’s Dishes/Antennae, or which
may result in an interruption of the Tenant’s telecommunication service,
Landlord shall formally notify Tenant at least 60 days in advance (except in
cases of an emergency) prior to the commencement of such contemplated work in
order to allow Tenant to make other arrangements for such service.  Landlord may relocate the Dishes/Antennae to
make emergency roof repairs without notice to Tenant in which event Landlord
shall be responsible for the cost of relocating the Dishes/Antennae unless the
need to make such emergency roof repairs is a result of the acts or omissions
of Tenant, its contractors, or any Tenant Related Parties, in which event
Tenant shall be responsible for the cost of relocating the Dishes/Antennae.


 


33.08                                                                     Tenant shall have the right to contract
with any provider of telecommunication, video, data, cable or related services
(“Communication Services”) so long
as such provider agrees in writing to comply with the terms of this Section 33.  No access fees shall be paid nor shall any
provider charge fees or derive income from any party other than Tenant without
the express written agreement of Landlord. 
Tenant shall not allow its provider to locate any equipment on the roof
of the Building other than in the Roof Space, nor may Tenant allow its provider
to use the Roof Space and/or Dishes/Antennae to provide Communication Services
to an unaffiliated tenant, occupant or licensee (which shall not include a
permitted assignee or sublessee of the Premises) or another building, or to
facilitate the provision of Communication Services on behalf of another
Communication Services provider to an unaffiliated tenant, occupant or licensee
of the Building or any other building, unless Tenant’s 


 


45

















 


service provider agrees to enter into a license
agreement acceptable to Landlord to service other portions of the Building.


 


33.09                                                                     Landlord and Tenant specifically
acknowledge and agree that the terms and conditions of Section 15 (Tenant’s Insurance) and Section 16 (Subrogation) shall apply with full force and
effect to the Roof Space and any other portions of the roof accessed or
utilized by Tenant, its representatives, agents, employees or contractors.


 


33.10                                                                     Upon termination of this Lease for an Event
of Default, Landlord shall be permitted to remove the Dishes/Antennae, the
appurtenances and the Aesthetic Screening, if any, and restore the Building and
the Roof Space to the condition that existed prior to the installation of the
Dishes/Antennae, the appurtenances and the Aesthetic Screening, if any.  If, pursuant to this Section, Landlord
removes the Dishes/Antennae, the appurtenances and the Aesthetic Screening, if
any, as a result of such a termination, Tenant shall be liable for all
reasonable costs and expenses Landlord incurs in removing the Dishes/Antennae,
the appurtenances and the Aesthetic Screening, if any, and repairing any damage
to the Building, the roof of the Building and the Roof Space caused by the
installation, operation or maintenance of the Dishes/Antennae, the
appurtenances, and the Aesthetic Screening, if any.


 


34.                               Parking.


 


34.01                                                                     During the Term of this Lease and any
extension thereof, Tenant (i) shall be entitled to the non-exclusive use
of up to one (1) parking space per 2,000 rentable square feet of the
Premises (which amount Tenant shall have the option to determine by notice to
Landlord within thirty (30) days of the Initial Premises Commencement Date as
to the Initial Premises and within thirty (30) days of the Additional Premises
Commencement Date as to the Additional Premises) (and for any Expansion Space,
Accepted ROFO Premises and ROFR Space as to which Tenant exercises its option
to lease, within thirty (30) days of the respective Commencement Date with
respect thereto) in the Building’s parking facilities existing as of the Lease
Execution Date (the “Parking Facility”),
it being agreed that if Tenant makes no election, it shall be deemed to have
elected its full parking allotment for the applicable portion of the Premises,
subject to the following terms and conditions:


 


(a)                                  After its initial allotment for each
portion of the Premises, upon ninety (90) days’ advance notice, Tenant may
elect to reduce from time to time its allotment of parking spaces to a lower
number whereupon the monthly parking charges shall be proportionately reduced,
in which case Landlord may lease such spaces to others; however, Tenant may
from time to time elect to increase its allotment up to the maximum number set
forth in Section 34.01 upon ninety (90) days’ advance notice to Landlord
whereupon the monthly parking charges shall be proportionately increased.


 


(b)                                 Tenant shall pay to Landlord, or Landlord’s
designated parking operator, the Building’s prevailing monthly parking charges,
without deduction or offset, on the first day of each month during the Term of
this Lease.  Landlord will notify Tenant
upon not less than 30 days’ notice of any increases in the monthly parking
charges prior to billing Tenant any increases. 
No deductions from the monthly charge shall be made for days on which
the Parking Facility is not used by Tenant.


 


(c)                                  Tenant shall at all times abide by and
shall cause each of Tenant’s employees, agents, customers, visitors, invitees,
licensees, contractors, assignees and subtenants (collectively, “Tenant’s Parties”) to abide by any rules and
regulations (“Rules”) for 


 


46

















 


use of the Parking Facility that Landlord or Landlord’s
parking operator reasonably establishes from time to time and of which Tenant
is provided notice, and otherwise agrees to use the Parking Facility in a safe
and lawful manner.  Landlord reserves the
right to adopt, modify and enforce the Rules governing the use of the
Parking Facility from time to time including any key-card, sticker or other
identification or entrance system. 
Landlord may refuse to permit any person who violates such Rules to
park in the Parking Facility, and any violation of the Rules shall subject
the car to removal from the Parking Facility.


 


(d)                                 Unless specified to the contrary above,
the parking spaces hereunder shall be provided on a non-designated “first-come,
first-served” basis at such times as the Parking Facility is operating on a
self-park basis, and shall be valet-assisted on a “first-come, first-served”
basis at such times as the Parking Facility is operating on a valet-assisted
basis. Landlord reserves the right to assign specific spaces, and to reserve
spaces for visitors, small cars, disabled persons or for other tenants or guests,
and Tenant shall not park and shall not allow Tenant’s Parties to park in any
such assigned or reserved spaces.  Tenant
may validate visitor parking by such method as Landlord may approve, at the
validation rate from time to time generally applicable to visitor parking.  Tenant acknowledges that the Parking Facility
may be temporarily closed entirely from time to time for no longer than seven (7) consecutive
days (or partially closed from time to time) in order to make repairs or
perform maintenance services, or to alter, modify, re-stripe or renovate the
Parking Facility, or if required by casualty, strike, condemnation, act of God,
governmental law or requirement or other reason beyond the operator’s
reasonable control.  In the event that
the Parking Facility is closed for the foregoing reasons and (i) such
closure prevents Tenant from parking in the Parking Facility for two (2) Business
Days and (ii) no alternative parking is provided within 1,000 feet of the
Building, then Landlord shall provide Tenant with a credit for each space which
is so unavailable for the number of days Tenant has been unable to park at the
Parking Facility.


 


(e)                                  Tenant acknowledges that except to the
extent caused by the negligence or willful misconduct of Landlord and its agents,
employees and contractors, to the fullest extent permitted by Law, Landlord
shall have no liability for any damage to property or other items located in
the parking areas of the Project (including without limitation, any loss or
damage to tenant’s automobile or the contents thereof due to theft, vandalism
or accident), nor for any personal injuries or death arising out of the use of
the Parking Facility by Tenant or any Tenant’s Parties.  The limitation on Landlord’s liability under
the preceding sentence shall not apply however to personal injuries or death
and loss or damage arising directly from Landlord’s (including its agents,
employees and contractors) negligence or willful misconduct.  Without limiting the foregoing, if Landlord
arranges for the parking areas to be operated by an independent contractor not
affiliated with Landlord, Tenant acknowledges that Landlord shall have no
liability for claims arising through acts or omissions of such independent
contractor.  Tenant agrees to look first
to its insurance carrier for payment of any property losses sustained in
connection with any use of the Parking Facility.


 


(f)                                    Tenant’s right to park as described in
this Section 34 is exclusive to Tenant and Tenant’s permitted assignees
and subtenants pursuant to Section 12  of
this Lease and shall not pass to any other assignee or sublessee without the
express written consent of Landlord. 
Such consent is at the reasonable discretion of the Landlord.


 


(g)                                 In the event any surcharge or regulatory
fee is at any time imposed by any governmental authority with reference to
parking, Tenant shall (commencing after two (2) weeks’ notice to Tenant)
pay, per parking space, such surcharge or regulatory fee to Landlord in advance
on the first day of each calendar month concurrently with the month installment
of rent 


 


47

















 


due under this Lease. 
Landlord will enforce any surcharge or fee in an equitable manner
amongst the Building tenants.


 


34.02                                                                     If Tenant violates any of the terms and
conditions of this Section 34, the Landlord or operator of the Parking
Facility, if any, shall have the right to remove from the Parking Facility any
vehicles hereunder which shall have been involved or shall have been owned or
driven by parties involved in causing such violation, without liability
therefor whatsoever, but otherwise in accordance with all Law which is
applicable to such removal.


 


35.                               Signage.


 


Tenant shall have
the right, during the Term of this Lease, to use up to Tenant’s Pro Rata Share
of the Building directory to list the name of Tenant, subtenants or assignees
permitted to occupy the Premises pursuant to Section 12, and up to twenty
(20) names of partners and employees of any of the foregoing.  Any modification to the initial listings
shall be at Tenant’s cost and expense. 
Tenant shall also have the right to install and maintain, at Tenant’s
cost, company identification in each of the elevator lobbies of each floor of
the Premises and directional signage on partial floors.


 


36.                               Miscellaneous.


 


36.01                                                                     This Lease shall be interpreted and
enforced in accordance with the Law of the state or commonwealth in which the
Building is located and Landlord and Tenant hereby irrevocably consent to the
jurisdiction and proper venue of such state or commonwealth.  If any term or provision of this Lease shall
to any extent be void or unenforceable, the remainder of this Lease shall not
be affected. If there is more than one Tenant or if Tenant is comprised of more
than one party or entity, the obligations imposed upon Tenant shall be joint
and several obligations of all the parties and entities, and requests or
demands from any one person or entity comprising Tenant shall be deemed to have
been made by all such persons or entities. 
Notices to any one person or entity shall be deemed to have been given
to all persons and entities.  Each party
represents and warrants to the other, and agrees, that each individual
executing this Lease on its behalf is authorized to do so on its behalf and
that the entity(ies) or individual(s) constituting Tenant or Landlord, as
applicable, or which may own or control Tenant or Landlord, as applicable, or
which may be owned or controlled by Tenant or Landlord, as applicable, are not
and at no time will be (i) in violation of any Law relating to terrorism
or money laundering, or (ii) among the individuals or entities identified
on any list compiled pursuant to Executive Order 13224 for the purpose of
identifying suspected terrorists or on the most current list published by the
U.S. Treasury Department Office of Foreign Assets Control at its official
website, http://www.treas.gov/ofac/tllsdn.pdf or any replacement website or
other replacement official publication of such list.


 


36.02                                                                     If Landlord retains an attorney or institutes
legal proceedings due to Tenant’s failure to pay Rent when due, then Tenant
shall be required to pay Additional Rent in an amount equal to the reasonable
attorneys’ fees and costs actually incurred by Landlord in connection
therewith.  Notwithstanding the
foregoing, in any action or proceeding between Landlord and Tenant, including
any appellate or alternative dispute resolution proceeding, the prevailing
party shall be entitled to recover from the non-prevailing party all of its
costs and expenses in connection therewith, including, but not limited to,
reasonable attorneys’ fees actually incurred. 
Landlord and Tenant hereby waive any right to trial by jury in any
proceeding based upon a breach of this Lease. 
No failure by either party to declare a default immediately upon its
occurrence, nor any delay by either party in taking action for a default, nor
Landlord’s 


 


48

















 


acceptance of Rent with knowledge of a default by
Tenant, shall constitute a waiver of the default, nor shall it constitute an
estoppel.


 


36.03                                                                     Whenever a period of time is prescribed
for the taking of an action by Landlord or Tenant (other than the payment of
the Security Deposit or Rent), the period of time for the performance of such action
shall be extended by the number of days that the performance is actually
delayed due to strikes, acts of God, shortages of labor or materials, war,
terrorist acts, pandemics, civil disturbances and other causes beyond the
reasonable control of the performing party (“Force
Majeure”), including without limitation, as set forth in Section 3.04,
provided that the foregoing shall not apply to extend the time periods in Section 8.03
or Section 17 or in connection with any occurrence that would otherwise be
considered a Landlord Delay.


 


36.04                                                                     Landlord shall have the right to transfer
and assign, in whole or in part, all of its rights and obligations under this
Lease and in the Building and Property. 
Upon transfer, Landlord shall be released from any further obligations
hereunder and Tenant agrees to look solely to the successor in interest of
Landlord for the performance of such obligations, provided that any successor
pursuant to a voluntary, third party transfer (but not as part of an
involuntary transfer resulting from a foreclosure or deed in lieu thereof)
shall have assumed Landlord’s obligations under this Lease.


 


36.05                                                                     Landlord has delivered a copy of this
Lease to Tenant for Tenant’s review only and the delivery of it does not
constitute an offer to Tenant or an option. Landlord and Tenant each represent
to the other that it has dealt directly with and only with the Broker
(described in Section 1.10) as a broker, agent or finder in connection
with this Lease.  Tenant shall indemnify
and hold Landlord and the Landlord Related Parties harmless from all claims of
any other brokers, agents or finders claiming to have represented Tenant in
connection with this Lease. Landlord shall indemnify and hold Tenant and the
Tenant Related Parties harmless from all claims of any brokers, agents or
finders claiming to have represented Landlord in connection with this
Lease.  Equity Office Properties
Management Corp., or such other entity affiliated with Equity Office Properties
Management Corp. that is involved in the negotiation of this Lease (each
referred to as “EOPMC”), represents only the
Landlord in this transaction.  Any
assistance rendered by any agent or employee of EOPMC in connection with this
Lease or any subsequent amendment or modification or any other document related
hereto has been or will be made as an accommodation to Tenant solely in
furtherance of consummating the transaction on behalf of Landlord, and not as
agent for Tenant. Landlord shall be responsible for any commission due to the
Broker but only if and when (a) this Lease is fully executed and (b) such
amount is otherwise due under any written agreement between Landlord and the
Broker.


 


36.06                                                                     Time is of the essence with respect to
Tenant’s exercise of any expansion, renewal or extension rights granted to
Tenant. The expiration of the Term, whether by lapse of time, termination or
otherwise, shall not relieve either party of any obligations which accrued
prior to or which may continue to accrue after the expiration or termination of
this Lease.


 


36.07                                                                     Tenant may peacefully have, hold and
enjoy the Premises, subject to the terms of this Lease, provided Tenant pays
the Rent and fully performs all of its covenants and agreements.  This covenant shall be binding upon Landlord
and its successors only during its or their respective periods of ownership of
the Building.


 


36.08                                                                     This Lease does not grant any rights to
light or air over or about the Building. 
Landlord excepts and reserves exclusively to itself any and all rights
not specifically 


 


49

















 


granted to Tenant under this Lease.   Landlord reserves the right to make changes
to the Property, Building and Common Areas as Landlord deems appropriate so
long as the same does not prevent access to the Premises, materially adversely
affect the Premises, or modify Common Areas in a manner which is not common in
reasonably comparable buildings in the Financial District of Boston.  This
Lease constitutes the entire agreement between the parties and supersedes all
prior agreements and understandings related to the Premises, including all
lease proposals, letters of intent and other documents.  Neither party is relying upon any warranty,
statement or representation not contained in this Lease.  This Lease may be modified only by a written
agreement signed by an authorized representative of Landlord and Tenant.


 


36.09                                                                     Submission of this Lease by Landlord is
not an offer to enter into this Lease but rather is a solicitation for such an
offer by Tenant.  Neither party shall be
bound by this Lease until Landlord and Tenant have executed the same and a
fully executed counterpart of this Lease has been delivered to Landlord and
Tenant.  .


 


36.10                                                                     If Landlord is advised by its counsel at
any time that any part of the payments by Tenant to Landlord under this Lease
may be characterized as unrelated business income under the United States
Internal Revenue Code and its regulations, then Tenant shall enter into any
amendment proposed by Landlord to avoid such income, so long as the amendment
does not require Tenant to make more payments or accept fewer services from
Landlord, than this Lease provides or adversely affect Tenant in any way.


 


36.11                                                                     This Lease may be executed in
counterparts and shall constitute an agreement binding on all parties
notwithstanding that all parties are not signatories to the original or the
same counterpart provided that all parties are furnished a copy or copies
thereof reflecting the signature of all parties.  Transmission of a facsimile or by email of a
pdf copy of the signed counterpart of this Lease shall be deemed the equivalent
of the delivery of the original, and any party so delivering a facsimile or pdf
copy of the signed counterpart of this Lease by email transmission shall in all
events deliver to the other party an original signature promptly upon request.


 


50

















 


Landlord and Tenant have executed this Lease under
seal in two or more counterparts as of the day and year first above written.


 


	
   

  	
  LANDLORD:

  
	
   

  	
   

  
	
   

  	
  MA-100
  HIGH STREET, L.L.C., a Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  TENANT:

  
	
   

  	
   

  	
   

  
	
   

  	
  INVESTMENT
  TECHNOLOGY GROUP, INC., a Delaware corporation

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  



 


51

















 


EXHIBIT A-1


 


OUTLINE
AND LOCATION OF THE 16th FLOOR


 


This Exhibit is attached to and made a part of
the Office Lease Agreement (the “Lease”)
by and between MA-100 HIGH STREET, L.L.C., a Delaware
limited liability company (“Landlord”) and INVESTMENT TECHNOLOGY GROUP, INC., a Delaware
corporation  (“Tenant”) for space in the Building located at 150 Federal
Street, Boston, Massachusetts 02110, which address is expected to be changed to
100 High Street, Boston, Massachusetts 02110 after the execution of this
Lease.  Capitalized terms used but not
defined herein shall have the meanings given in this Lease.


 


A-1-1

















 


EXHIBIT A-2


 


OUTLINE
AND LOCATION OF THE 17TH FLOOR


 


This Exhibit is attached to and made a part of
the Office Lease Agreement (the “Lease”)
by and between MA-100 HIGH STREET, L.L.C., a Delaware
limited liability company (“Landlord”) and INVESTMENT TECHNOLOGY GROUP, INC., a Delaware corporation  (“Tenant”) for
space in the Building located at 150 Federal Street, Boston, Massachusetts
02110, which address is expected to be changed to 100 High Street, Boston,
Massachusetts 02110 after the execution of this Lease.  Capitalized terms used but not defined herein
shall have the meanings given in this Lease.


 


A-2-1
















 


EXHIBIT
A-3


 


OUTLINE AND LOCATION OF THE DATA CENTER


 


This Exhibit is
attached to and made a part of the Office Lease Agreement (the “Lease”) by and between MA-100 HIGH
STREET, L.L.C., a Delaware limited liability company (“Landlord”) and INVESTMENT
TECHNOLOGY GROUP, INC., a Delaware corporation  (“Tenant”) for space in the Building located at 150 Federal
Street, Boston, Massachusetts 02110, which address is expected to be changed to
100 High Street, Boston, Massachusetts 02110 after the execution of this Lease.  Capitalized terms used but not defined herein
shall have the meanings given in this Lease.


 


A-3-1

















 


EXHIBIT
A-4


 


OUTLINE AND LOCATION OF THE 15TH AND 18TH FLOORS


 


This Exhibit is
attached to and made a part of the Office Lease Agreement (the “Lease”) by and between MA-100 HIGH
STREET, L.L.C., a Delaware limited liability company (“Landlord”) and INVESTMENT
TECHNOLOGY GROUP, INC., a Delaware corporation  (“Tenant”) for space in the Building located at 150 Federal
Street, Boston, Massachusetts 02110, which address is expected to be changed to
100 High Street, Boston, Massachusetts 02110 after the execution of this
Lease.  Capitalized terms used but not
defined herein shall have the meanings given in this Lease.


 


A-4-1

















 


EXHIBIT
A-5


 


OUTLINE AND LOCATION OF THE 18TH AND 19TH FLOORS


 


This Exhibit is
attached to and made a part of the Office Lease Agreement (the “Lease”) by and between MA-100 HIGH
STREET, L.L.C., a Delaware limited liability company (“Landlord”) and INVESTMENT
TECHNOLOGY GROUP, INC., a Delaware corporation  (“Tenant”) for space in the Building located at 150 Federal
Street, Boston, Massachusetts 02110, which address is expected to be changed to
100 High Street, Boston, Massachusetts 02110 after the execution of this
Lease.  Capitalized terms used but not
defined herein shall have the meanings given in this Lease.


 


A-5-1

















 


EXHIBIT
A-6


 


TENANT’S PROPOSED ALTERATION LAYOUT ON 16TH FLOOR


 


This Exhibit is
attached to and made a part of the Office Lease Agreement (the “Lease”) by and between MA-100 HIGH
STREET, L.L.C., a Delaware limited liability company (“Landlord”) and INVESTMENT
TECHNOLOGY GROUP, INC., a Delaware corporation  (“Tenant”) for space in the Building located at 150 Federal
Street, Boston, Massachusetts 02110, which address is expected to be changed to
100 High Street, Boston, Massachusetts 02110 after the execution of this
Lease.  Capitalized terms used but not
defined herein shall have the meanings given in this Lease.


 


A-6-1

















 


EXHIBIT B


 


EXPENSES AND TAXES


 


This Exhibit is
attached to and made a part of the Office Lease Agreement (the “Lease”) by and between MA-100 HIGH
STREET, L.L.C., a Delaware limited liability company (“Landlord”) and INVESTMENT
TECHNOLOGY GROUP, INC., a Delaware corporation  (“Tenant”) for space in the Building located at 150 Federal
Street, Boston, Massachusetts 02110, which address is expected to be changed to
100 High Street, Boston, Massachusetts 02110 after the execution of this
Lease.  Capitalized terms used but not
defined herein shall have the meanings given in this Lease.


 


1.                                      Payments.


 


1.01 Commencing on the
applicable Rent Commencement Date, Tenant shall pay (i) Tenant’s Pro Rata
Share of the amount, if any, by which Expenses (defined below) for each
calendar year during the Term but after the Rent Commencement Date exceed
Expenses for the Base Year (the “Expense Excess”)
and (ii) the amount, if any, by which Taxes Allocable to the Premises
(defined below) for each Fiscal Year during the Term but after the Rent
Commencement Date exceed Taxes Allocable to the Premises for the Base Year (the
“Tax Excess”).  If Expenses or Taxes Allocable to the
Premises in any calendar year or Fiscal Year (as applicable) decrease below the
amount of Expenses or Taxes Allocable to the Premises for the Base Year (as
applicable), Tenant’s Pro Rata Share of Expenses or the Taxes Allocable to the
Premises, as the case may be, for that calendar year or Fiscal Year shall be
$0.  Landlord shall provide Tenant with a
good faith estimate of the Expense Excess and of the Tax Excess for each
calendar year or Fiscal Year during the Term. 
On or before the first day of each month, Tenant shall pay to Landlord a
monthly installment equal to one-twelfth of Tenant’s Pro Rata Share of Landlord’s
estimate of the Expense Excess plus one-twelfth of Landlord’s estimate of the
Tax Excess.  If Landlord determines that
its good faith estimate of the Expense Excess or of the Tax Excess was
incorrect by a material amount, Landlord may provide Tenant with a revised
estimate.  After its receipt of a revised
estimate, Tenant’s monthly payments shall be based upon the revised estimate
(provided, Tenant shall be entitled to at least 30 days notice of any revision
in order to reflect the change in payment amount internally).  If Landlord does not provide Tenant with an
estimate of the Expense Excess or the Tax Excess by the first day of a calendar
year or Fiscal Year, as the case may be, Tenant shall continue to pay monthly
installments based on the previous year’s estimate(s) until Landlord
provides Tenant with the new estimate. 
Upon delivery of the new estimate, an adjustment shall be made for any
month for which Tenant paid monthly installments based on the previous year’s
estimate.  Any overpayment shall be
refunded to Tenant within 30 days or credited against the next due future
installment(s) of Additional Rent.


 


1.02 As soon as is
practical following the end of each calendar year or Fiscal Year and, in all
events, shall provide the same within twelve (12) months from the end of such
calendar year or Fiscal Year, it being agreed that Landlord shall use
commercially reasonable efforts to do so within six (6) months from the
end of such calendar year or Fiscal Year, as the case may be, Landlord shall
furnish Tenant with a reasonably detailed statement of the actual Expenses and
Expense Excess and the actual Taxes Allocable to the Premises and Tax Excess
for the prior calendar year or Fiscal Year, as the case may be.  If the estimated Expense Excess or estimated
Tax Excess for the prior calendar year or Fiscal Year, as the case may be, is more



 


B-1

















 


than the actual
Expense Excess or actual Tax Excess for the prior calendar year or Fiscal Year,
as the case may be, Landlord shall either provide Tenant with a refund or apply
any overpayment by Tenant against Additional Rent due or next becoming due,
provided if the Term expires before the determination of the overpayment,
Landlord shall refund any overpayment to Tenant after first deducting the
amount of Rent due.  If the estimated
Expense Excess or estimated Tax Excess for the prior calendar year or Fiscal
Year, as the case may be, is less than the actual Expense Excess or actual Tax
Excess, for such prior calendar year or Fiscal Year, as the case may be, Tenant
shall pay Landlord, within 30 days after its receipt of the statement of
Expenses or Taxes Allocable to the Premises, any underpayment for the prior
calendar year or Fiscal Year, as the case may be.


 


1.03  For any partial calendar year as to Expenses
or Fiscal Year as to Taxes Allocable to the Premises after the Rent Commencement
Date within the Term, Tenant’s Pro Rata Share of any Expense Excess or the Tax
Excess shall be pro rated on the basis of a 365-day year by computing Tenant’s
Pro Rata Share of such amount of Expenses or the amount of Taxes Allocable to
the Premises, as the case may be, for the entire year and then pro rating such
amount for the number of days the Term was in effect during said year.


 


2.  Expenses.


 


2.01  “Expenses” means
all costs and expenses incurred in each calendar year in a manner consistently
applied in connection with operating, maintaining, repairing, and managing the
Building and the Property.  Expenses
include, without limitation: (a)  all labor
and labor related costs, including wages, salaries, bonuses, taxes, insurance,
uniforms, training, retirement plans, pension plans and other employee benefits;
(b) management fees in an amount not to exceed 3% of the gross revenues
from the Building and the Property with the stipulation that the management fee
percentage in each subsequent year shall not be greater than the management fee
percentage established for the Base Year; (c) the cost of equipping,
staffing and operating an on-site and/or off-site management office for the
Building, provided if the management office services one or more other buildings
or properties, the shared costs and expenses of equipping, staffing and
operating such management office(s) shall be equitably prorated and
apportioned between the Building and the other buildings or properties; (d) accounting
costs; (e) the cost of services; (f) rental and purchase cost of
parts, supplies, tools and equipment; (g) insurance premiums and
deductibles; (h) electricity, gas and other utility costs; (i) Common
Area Charges (as defined below) to the extent such charges cover costs that are
otherwise included in this Section 2.01; and (j) the amortized cost
of capital improvements (as distinguished from replacement parts or components
installed in the ordinary course of business) which are:  (1) performed to reduce current or
future Expenses; or (2) required to comply with any Law that is enacted,
or first interpreted by a governmental authority or court to apply to the
Property, after the Lease Execution Date. 
Subject to the foregoing limitation, the cost of capital improvements
shall be amortized on a yearly basis to the extent of the actual savings
generated by this capital expenditure and the cost of capital improvements
required by Law as aforesaid shall be amortized over the useful life of the
capital improvement as reasonably determined by the Landlord.  The amortized cost of capital improvements
may, at Landlord’s option, include actual interest at the rate that Landlord is
required to pay to finance the cost of the capital improvement.  If Landlord incurs Expenses for the Building
or Property together with one or more other buildings or properties, whether
pursuant to a reciprocal easement agreement, common area agreement or
otherwise, the shared costs and expenses shall be equitably prorated and
apportioned between the Building and Property and the other buildings or
properties.


 


B-2

















 


2.02  Common Area
Charges.  Whereas the Building
is part of the 150 Federal Street Condominium (the “Condominium”) created by Master Deed dated September 30,
1988 and recorded with the Suffolk County Registry of Deeds (the “Registry”) in Book 15066, Page 201
(the “Master Deed”), Common
Charges (and Special Common Charges benefitting the Units of which the Premises
are a part) as such terms are defined in the By-Laws of the Association dated September 30,
1988 and recorded with the Registry in Book 15067, Page 1, as the same may
be amended from time to time (the “By-Laws”).


 


2.03  Expenses shall not include: the cost of
capital improvements (except as set forth above); depreciation; principal
payments of mortgage and other non-operating debts of Landlord; the cost of
repairs or other work to the extent Landlord is reimbursed by insurance or
condemnation proceeds; costs in connection with leasing space in the Building,
including brokerage commissions; lease concessions, rental abatements and
construction allowances granted to specific tenants; costs incurred in
connection with the sale, financing or refinancing of the Building; fines,
interest and penalties incurred due to the late payment of Taxes or Expenses;
organizational expenses associated with the creation and operation of the
entity which constitutes Landlord; any penalties or damages that Landlord pays
to Tenant under this Lease or to other tenants in the Building under their
respective leases;


 


wages, salaries, fees, and fringe benefits (“Labor Costs”) paid to executive personnel or officers or
partners or other corporate personnel of Landlord, except that if such
individuals provide services directly related
to the operation, maintenance or ownership of the Building  (as opposed to services relating to the general
overhead of Landlord) which, if provided directly by a property manager
or its general support staff, would normally be chargeable as an operating
expense of a comparable office Building,
then an appropriate pro rata share of the Labor Costs of such individuals that
is reflective of the extent to which such individuals are providing such
services to the Building may be included in Expenses;


 


leasehold
improvements, alterations and decorations which are made in connection with the
preparation of any portion of the Property for occupancy by a new tenant;


 


costs incurred in
connection with the making of repairs or replacements which are the obligation
of another tenant or occupant of the Property;


 


advertising,
marketing, promotional, and public relations fees, commissions or expenditures;


 


costs (including,
without limitation, attorneys’ fees and disbursements) incurred in connection
with any judgment, settlement or arbitration award resulting from any tort
liability;


 


rent or other
charges payable under any ground or underlying lease;


 


costs of any item
which are reimbursed to Landlord by other tenants or third parties or which are
properly chargeable or attributable to a particular tenant or particular
tenants;


 


any utility or
other service used or consumed in the premises leased or leasable to any tenant
or occupant, including, without limitation, gas, electricity, water, and sewer,
if Tenant’s use or consumption of such utility or other services is separately
metered or sub-metered at the Premises or Tenant is charged a separate amount
therefor;


 


costs incurred in
connection with Landlord’s preparation, negotiation, dispute resolution and/or
enforcement of leases, including court costs and attorneys’ fees and
disbursements in connection with any summary proceeding to dispossess any
tenant or incurred in connection with disputes with prospective tenants,
employees, consultants, management agents, leasing agents, purchasers or
mortgagees;


 


costs of any
expansions of the Property or the Building;


 


B-3

















 


costs of repairs,
restoration or replacements occasioned by fire or other casualty or caused by
the exercise of the right of eminent domain, whether or not insurance proceeds
or condemnation award proceeds are recovered or adequate for such purposes;


 


cost to make
improvements, alterations and additions to the Property which are required in
order to render the same in compliance with laws, rules, orders regulations
and/or directives existing as of the Lease Execution Date;


 


amounts paid to
subsidiaries or affiliates of Landlord for goods and/or services rendered to
the Property to the extent such amounts exceed the fair market costs for
delivery of such services were they not provided by such related parties;


 


the cost of
installing, operating and maintaining any specialty facility (including, but
not limited to parking facilities) or commercial concession operated by
Landlord;


 


compensation paid to employees or other persons in connection with
commercial concessions operated by Landlord;


 


costs related to maintaining Landlord’s existence, either as a
corporation, partnership, or other entity (by example these costs shall
include, but not be limited to tax return preparation, filing costs, legal
costs);


 


costs of audited financial statements if
these are required by an agreement between Landlord and another party, which
shall include , but not be limited to a lender, partner or ground lessor;


 


costs related to events for the Building
tenants including, but not limited to parties, holiday gifts and tenants
welcoming gifts;


 


costs arising from Landlord’s charitable or
political contributions;


 


costs for reserves of any kind;


 


costs associated with the Parking Facility;
and


 


other than ordinary or routine cleanup or maintenance costs, costs
incurred in connection with any environmental monitoring, compliance, testing
and remediation, including, but not limited to, clean-up, response action or
remediation on, in, under or about the Property and/or the Building, including
but not limited to costs and expenses associated with the defense,
administration, settlement, monitoring or management thereof and the cost of
replacing and retrofitting the HVAC system to comply with Law enacted prior to
the date hereof that regulate or prohibit the use or release of
chlorofluorocarbons (CFCs) or hydrochlorofluorocarbons (HCFCs).


 


2.03  If at any time during a calendar year the
Building is not at least 100% occupied or Landlord is not supplying services to
at least 100% of the total Rentable Square Footage of the Building, Expenses
which vary based on the level of occupancy shall be determined as if the
Building had been 100% occupied and Landlord had been supplying services to
100% of the Rentable Square Footage of the Building during that calendar
year.  Expenses for the Base Year shall
also be determined in such manner. The extrapolation of Expenses under this Section shall
be performed in accordance with the methodology specified by the Building
Owners and Managers Association.


 


B-4

















 


3.  Taxes.


 


3.01  “Taxes
Allocable to the Premises” shall mean the sum of (i) to the
extent the Premises include all of the rentable floor area of any one or more
Unit(s), the Taxes (as defined below) relating to such Unit(s); plus (ii) to
the extent the Premises include less than all of the rentable floor area in any
one or more Unit(s), a proportionate share of the Taxes relating to each such
Unit, determined by multiplying the Taxes relating to such Unit by a fraction,
the numerator of which is the rentable floor area of that portion of the
Premises situated within such Unit and the denominator of which is the total
rentable floor area of such Unit; plus (iii) any increase in real estate
taxes on the Building (or the Unit, as the case may be) which result from any
alteration, addition or improvement to the Premises performed by or for Tenant,
excluding any increase in real estate taxes on the Building (or the Unit, as
the case may be) which result from any alteration, addition or improvement
performed by or for another tenant located in the Building.  Tenant acknowledges that Landlord is
currently investigating the merits of collapsing the existing condominium
structure of the Building.  In the event
Landlord elects to collapse the existing condominium structure of the Building,
Tenant agrees to work with Landlord in good faith to agree upon the terms and
conditions of an amendment to this Lease that would revise the manner in which
Taxes Allocable to the Premises would be calculated.  Specifically, such amendment would revise the
current method of calculation so that, on a going forward basis, Tenant would
pay for its Pro Rata Share of the total Taxes for the entire Building (as
opposed to Landlord’s Units). 
Notwithstanding Tenant’s agreement to work with Landlord in good faith
as set forth above, it is understood and agreed that Tenant shall be under no
obligation to enter in an amendment that (in Tenant’s good faith judgment)
would require Tenant to pay more taxes than it would otherwise be required to
pay had Tenant not entered into the amendment and had Landlord not collapsed
the condominium structure of the Building.


 


3.02  “Taxes” shall
mean:  (a) all real property taxes
and other assessments on the Building and/or Property, including, but not
limited to, gross receipts taxes, assessments for special improvement districts
and building improvement districts, governmental charges, fees and assessments
for police, fire, traffic mitigation or other governmental service of purported
benefit to the Property, taxes and assessments levied in substitution or
supplementation in whole or in part of any such taxes and assessments and the
Property’s share of any real estate taxes and assessments under any reciprocal
easement agreement, common area agreement or similar agreement as to the
Property; (b) all personal property taxes for property that is owned by
Landlord and used in connection with the operation, maintenance and repair of
the Property; and (c) all reasonable costs and fees incurred in connection
with seeking reductions in any tax liabilities described in (a) and (b),
including, without limitation, any costs incurred by Landlord for compliance,
review and appeal of tax liabilities which reasonable costs and fees may
include contingency fees.  Without
limitation, Taxes shall not include any income, capital levy, transfer, capital
stock, gift, estate or inheritance tax or penalties or interest for the late
payment of Taxes.  The amount of special
assessments included in Taxes shall be limited to the amount of the installment
(plus any interest, other than penalty interest, payable thereon) of such
special tax or special assessment required to be paid during the Fiscal Year in
respect of which such Taxes are being determined. If a change in Taxes is
obtained for any year of the Term during which Tenant paid any Tax Excess, then
Taxes Allocable to the Premises for that year will be retroactively adjusted
and Landlord shall provide Tenant with a credit, if any, based on the
adjustment.  Likewise, if a change is
obtained for Taxes Allocable to the Premises for the Base Year, Taxes Allocable
to the Premises for the Base Year shall be restated and the Tax Excess for all
subsequent years shall be recomputed. 
Tenant shall pay Landlord the amount of any such increase in the Tax
Excess within 30 days after Tenant’s receipt of a statement from Landlord which
shall include a copy of all bills for Taxes with respect to such Fiscal Year.


 


B-5

















 


4.  Audit Rights.  Within one hundred twenty (120) days after
receiving Landlord’s detailed statement of Expenses and/or Taxes (or, with
respect to the Base Year Expenses or Taxes, within one hundred twenty (120)
days after receiving Landlord’s initial detailed statement of Expenses or Taxes
for the Base Year) (each such period is referred to as the “Review Notice Period”), Tenant may give
Landlord written notice (“Review Notice”)
that Tenant intends to review Landlord’s records of the Expenses for the
calendar year and/or Taxes for the Fiscal Year (or Base Year, as applicable) to
which the statement applies, and within 60 days after sending the Review Notice
to Landlord (such period is referred to as the “Request for Information Period”), Tenant shall send Landlord a
written request identifying, with a reasonable degree of specificity, the
information that Tenant desires to review (the “Request for Information”). 
Within a reasonable time after Landlord’s receipt of a timely Request
for Information and executed Audit Confidentiality Agreement (referenced
below), Landlord shall forward to Tenant, or make available for inspection on
site at such location in a major U.S. city, such records (or copies thereof)
for the applicable calendar year (or Base Year, as applicable) that are
reasonably necessary for Tenant or Tenant’s agent to conduct its review of the
information appropriately identified in the Request for Information.  Within 90 days after any particular records
are made available to Tenant (such period is referred to as the “Objection Period”), Tenant shall have the
right to give Landlord written notice (an “Objection Notice”)
stating in reasonable detail any objection to Landlord’s statement of Expenses
or Taxes for that year which relates to the records that have been made
available to Tenant.  If Tenant provides
Landlord with a timely Objection Notice, Landlord and Tenant shall work together
in good faith to resolve any issues raised in Tenant’s Objection Notice.  If Landlord and Tenant determine that
Expenses or Taxes for the applicable year are less than reported (or if Tenant’s
Pro Rata Share of Expenses or the Taxes Allocable to the Premises has been
incorrectly determined), Landlord shall provide Tenant with a credit against
the next installment of Rent in the amount of the overpayment by Tenant
(continuing monthly until Tenant has been credited the full amount of the
overpayment).  Likewise, if Landlord and
Tenant determine that Expenses or Taxes for the applicable year are greater
than reported, Tenant shall pay Landlord the amount of any underpayment within
30 days.  If Tenant fails to give
Landlord an Objection Notice with respect to any records that have been made
available to Tenant prior to expiration of the Objection Period applicable to
the records which have been provided to Tenant, Tenant shall be deemed to have
approved Landlord’s statement of Expenses with respect to the matters reflected
in such records and shall be barred from raising any claims regarding the
Expenses relating to such records for that year.  If Tenant fails to provide Landlord with a
Review Notice prior to expiration of the Review Notice Period or fails to
provide Landlord with a Request for Information prior to the expiration of the
Request for Information Period described above, Tenant shall be deemed to have
approved Landlord’s statement of Expenses and shall be barred from raising any
claims regarding the Expenses for that year. 
In the event Landlord’s calculation of the Expenses or Taxes for any
year (or Tenant’s Pro Rata Share of Expenses or the Taxes Allocable to the
Premises) is overstated in excess of five percent (5%), Landlord shall also
reimburse Tenant for all reasonable costs in its review of the supporting
documentation, including accountants’ and attorneys’ fees.  Tenant shall have no right whatsoever to
dispute by judicial proceeding or otherwise the accuracy of any statement,
unless Tenant provides written notice to Landlord within the time period set
forth above disputing the compilation of cost as prepared by Landlord and
Landlord and Tenant are unable to resolve such dispute within sixty (60) days
of such notice, in which event either party may refer the claim to an
independent accounting firm (the “IAC”)
reasonably acceptable to both Landlord and Tenant on terms that are mutually
agreeable.  The decision of the IAC shall
be conclusive and binding on both parties including the allocation of costs to
be reimbursed by the parties as decided by the IAC.  Should Landlord and Tenant be unable to agree
on an IAC and the terms of engagement of same within thirty (30) days of the
initial presentation to Landlord, then either party may so notify the 


 


B-6

















 


President of the Boston
Bar Association (or such organization as may succeed to said Boston Bar
Association) and request him or her to designate an IAC and request that such
designation be made within ten (10) days of such notice.


 


If Tenant retains an
agent to review Landlord’s records, the agent must be with a CPA firm licensed
to do business in the state or commonwealth where the Property is located.  Subject to reimbursement to the extent noted
above, Tenant shall initially be solely responsible for all costs, expenses and
fees incurred for the audit, which fees cannot be based in whole or in part on
a contingency basis.  The records and
related information obtained by Tenant shall be treated as confidential, and
applicable only to the Building, by Tenant and its auditors, consultants and
other parties reviewing such records on behalf of Tenant (collectively, “Tenant’s Auditors”), and, prior to making
any records available to Tenant or Tenant’s Auditors, Landlord may require
Tenant and Tenant’s Auditors to each execute a reasonable confidentiality
agreement (“Audit Confidentiality Agreement”)
in accordance with the foregoing.  In no
event shall Tenant be permitted to examine Landlord’s records or to dispute any
statement of Expenses unless Tenant has paid and continues to pay all Rent when
due.


 


B-7
















 


EXHIBIT C


 


OUTLINE AND LOCATION OF THE ROOF SPACE


 


This Exhibit is
attached to and made a part of the Office Lease Agreement (the “Lease”) by and between MA-100 HIGH
STREET, L.L.C., a Delaware limited liability company (“Landlord”) and INVESTMENT
TECHNOLOGY GROUP, INC., a Delaware corporation  (“Tenant”) for space in the Building located at 150 Federal
Street, Boston, Massachusetts 02110, which address is expected to be changed to
100 High Street, Boston, Massachusetts 02110 after the execution of this Lease.  Capitalized terms used but not defined herein
shall have the meanings given in this Lease.


 


[To the extent a
plan is not attached, the same will be attached after the execution of this
Lease upon the mutual agreement of the parties.]


 


C-1

















 


EXHIBIT D


 


COMMENCEMENT LETTER


 


(EXAMPLE)


 


	
  Date

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Tenant

  	
   

  	
   

  
	
  Address

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  



 


Re:                               Commencement Letter with respect to that
certain Lease dated as of
                    ,
20      , by and between MA-100 HIGH
STREET, L.L.C., a Delaware limited liability company, as Landlord,
and                                                                     ,
as Tenant, for                 
rentable square feet on the
                
floor of the Building located at 100 High Street, Boston, Massachusetts 02110.


 


Lease Id:


Business Unit Number:


 


Dear                                        
  :


 


In accordance with the
terms and conditions of the above referenced Lease, Tenant accepts possession
of the Premises and acknowledges:


 


1.                                       The Commencement Date of the Lease is                                                 ;


 


2.                                       The Termination Date of the Lease is                                                         .


 


Please acknowledge the
foregoing and your acceptance of possession by signing all 3 counterparts of
this Commencement Letter in the space provided and returning 2 fully executed
counterparts to my attention.  Tenant’s
failure to execute and return this letter, or to provide written objection to
the statements contained in this letter, within 30 days after the date of this
letter shall be deemed an approval by Tenant of the statements contained
herein.


 


	
  Sincerely,

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Authorized Signatory

  	
   

  



 


Acknowledged and
Accepted:


 


	
   

  	
  Tenant:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
  Date:

  	
   

  	
   

  



 


D-1

















 


EXHIBIT E


 


BUILDING RULES AND REGULATIONS


 


This Exhibit is
attached to and made a part of the Office Lease Agreement (the “Lease”) by and between MA-100 HIGH
STREET, L.L.C., a Delaware limited liability company (“Landlord”) and INVESTMENT
TECHNOLOGY GROUP, INC., a Delaware corporation  (“Tenant”) for space in the Building located at 150 Federal
Street, Boston, Massachusetts 02110, which address is expected to be changed to
100 High Street, Boston, Massachusetts 02110 after the execution of this
Lease.  Capitalized terms used but not
defined herein shall have the meanings given in this Lease.


 


The following rules and
regulations shall apply, where applicable, to the Premises, the Building, the parking
facilities (if any), the Property and the appurtenances.  In the event of a conflict between the
following rules and regulations and the remainder of the terms of the
Lease, the remainder of the terms of the Lease shall control.


 


1.                                       Sidewalks, doorways, vestibules, halls,
stairways and other similar areas shall not be obstructed by Tenant or used by
Tenant for any purpose other than ingress and egress to and from the
Premises.  No rubbish, litter, trash, or
material shall be placed, emptied, or thrown in those areas.  At no time shall Tenant permit Tenant’s
employees to loiter in Common Areas or elsewhere about the Building or
Property.


 


2.                                       Plumbing fixtures and appliances shall be
used only for the purposes for which designed and no sweepings, rubbish, rags
or other unsuitable material shall be thrown or placed in the fixtures or
appliances.


 


3.                                       No signs, advertisements or notices shall
be painted or affixed to windows, doors or other parts of the Building, except
those of such color, size, style and in such places as are first approved in
writing by Landlord.  All tenant
identification and suite numbers at the entrance to the Premises shall be
installed by Landlord, at Tenant’s cost and expense, using the standard
graphics for the Building.


 


4.                                       Landlord, at its expense, shall provide
and maintain in the first floor (main lobby) of the Building an alphabetical
directory board or other directory device listing tenants (including the
signage required under Section 35 of this Lease) and no other directory
shall be permitted unless previously consented to by Landlord in writing.


 


5.                                       Tenant shall not place any lock(s) on
any door in the Premises or Building without Landlord’s prior written consent,
which consent shall not be unreasonably withheld, and Landlord shall have the
right at all times to retain and use keys or other access codes or devices to
all locks within and into the Premises, provided any entry into the Premises
shall be strictly in accordance with the terms of this Lease.  A reasonable number of keys to the locks on
the entry doors in the Premises shall be furnished by Landlord to Tenant at
Tenant’s cost and Tenant shall not make any duplicate keys.  All keys shall be returned to Landlord at the
expiration or early termination of the Lease. Tenant shall have the right to
install a key card access system in the Premises so long as (1) access key
cards are provided to Landlord and (2) such system is compatible with
Landlord’s Building security system.


 


E-1

















 


6.                                       All contractors, contractor’s
representatives and installation technicians performing work in the Building
shall be subject to Landlord’s prior approval, which approval shall not be
unreasonably withheld, conditioned or delayed and shall be required to comply
with Landlord’s standard rules, regulations, policies and procedures, which may
be revised from time to time.


 


7.                                       Movement in or out of the Building of
furniture or office equipment, or dispatch or receipt by Tenant of merchandise
or materials requiring the use of elevators, stairways, lobby areas or loading
dock areas, shall be performed in a manner and restricted to hours reasonably
designated by Landlord, which are currently 6:00 p.m. to 7:00 a.m. on
Business Days.  Tenant shall obtain Landlord’s
prior approval by providing a detailed listing of the activity, including the
names of any contractors, vendors or delivery companies, which approval shall
not be unreasonably withheld, conditioned or delayed.  Tenant shall assume all risk for damage,
injury or loss in connection with the activity subject to the terms of this
Lease.


 


8.                                       Landlord shall have the right to approve
the weight, size, or location of heavy equipment or articles in and about the
Premises, which approval shall not be unreasonably withheld, conditioned or
delayed; provided that approval by Landlord shall not relieve Tenant from
liability for any damage in connection with such heavy equipment or articles in
accordance with the terms of this Lease.


 


9.                                       Corridor doors, when not in use, shall be
kept closed.


 


10.                                 Tenant shall not:  (a) make or permit any improper,
objectionable or unpleasant noises or odors in the Building, or otherwise
interfere in any way with other tenants or persons having business with them; (b) solicit
business or distribute or cause to be distributed, in any portion of the
Building, handbills, promotional materials or other advertising; or (c) conduct
or permit other activities in the Building that might, in Landlord’s sole
opinion, constitute a nuisance.


 


11.                                 No animals, except those assisting
handicapped persons, shall be brought into the Building or kept in or about the
Premises.


 


12.                                 No inflammable, explosive or dangerous
fluids or substances shall be used or kept by Tenant in the Premises, Building
or about the Property, except for those substances as are typically found in
similar premises used for general office purposes and are being used by Tenant
in a safe manner and in accordance with all Law which is applicable to the use
of such substances.  Tenant shall not,
without Landlord’s prior written consent, use, store, install, spill, remove,
release or dispose of, within or about the Premises or any other portion of the
Property, any asbestos-containing materials or any solid, liquid or gaseous
material now or subsequently considered toxic or hazardous under the provisions
of 42 U.S.C. Section 9601 et seq., M.G.L. c. 21C, M.G.L. c. 21E or any
other applicable environmental Law which may now or later be in effect, except
for those substances as are typically found in a similar premises used for
general office purposes and are being used by Tenant in a safe manner in
compliance with all Law.  Tenant shall
comply with all Law pertaining to and governing the use of these materials by
Tenant and shall remain solely liable for the costs of abatement and removal.


 


13.                                 Tenant shall not use or occupy the
Premises in any manner or for any purpose which might injure the reputation or
impair the present or future value of the Premises or the Building. Tenant
shall not use, or permit any part of the Premises to be used for lodging,
sleeping or for any illegal purpose.


 


E-2

















 


14.                                 Tenant shall not knowingly take any
action which would violate Landlord’s labor contracts or which would cause a
work stoppage, picketing, labor disruption or dispute or interfere with
Landlord’s or any other tenant’s or occupant’s business or with the rights and
privileges of any person lawfully in the Building (“Labor
Disruption”) and shall cease such action immediately upon knowledge
thereof.  Tenant shall take the actions
necessary to resolve the Labor Disruption, and shall have pickets removed and,
at the request of Landlord, immediately terminate any work in the Premises that
gave rise to the Labor Disruption, until Landlord gives its written consent for
the work to resume.  Tenant shall have no
claim for damages against Landlord or any of the Landlord Related Parties nor
shall the Commencement Date of the Term be extended as a result of the above
actions.


 


15.                                 [Intentionally deleted.]


 


16.                                 Tenant shall not operate or permit to be
operated a coin or token operated vending machine or similar device (including,
without limitation, telephones, lockers, toilets, scales, amusement devices and
machines for sale of beverages, foods, candy, cigarettes and other goods),
except for machines for the exclusive use of Tenant’s employees and invitees.


 


17.                                 Bicycles and other vehicles are not
permitted inside the Building or on the walkways outside the Building, except
in areas designated by Landlord. 
Landlord shall maintain a bicycle storage area on the Property at all
times during the Term, which area may be relocated from time to time.


 


18.                                 Landlord may from time to time adopt
systems and procedures for the security and safety of the Building and
Property, their occupants, entry, use and contents.  Tenant, its agents, employees, contractors,
guests and invitees shall comply with Landlord’s systems and procedures.


 


19.                                 Landlord shall have the right to prohibit
the use of the name of the Building in a manner that in Landlord’s sole opinion
may impair the reputation of the Building or its desirability.  Upon written notice from Landlord, Tenant
shall refrain from and discontinue such publicity immediately.


 


20.                                 Neither Tenant nor its agents, employees,
contractors, guests or invitees shall smoke inside or on the walkways outside
the Building.


 


21.                                 Subject to Tenant’s approval, which shall
not be unreasonably withheld, Landlord shall have the right to change standard
window coverings for the Premises and to establish rules to assure that
the Building presents a uniform exterior appearance.  It shall be unreasonable for Tenant to
withhold its approval for a change that affects substantially all of the
Building.  Any such change shall be at
Landlord’s sole cost and expense.  Tenant
shall ensure, to the extent reasonably practicable, that window coverings are
closed on windows in the Premises while they are exposed to the direct rays of
the sun.


 


22.                                 Deliveries to and from the Premises shall
be made only at the times in the areas and through the entrances and exits
reasonably designated by Landlord. 
Tenant shall not make deliveries to or from the Premises in a manner
that might interfere with the use by any other tenant of its premises or of the
Common Areas, any pedestrian use, or any use which is inconsistent with good
business practice.


 


E-3

















 


23.                                 The work of cleaning personnel shall not
be hindered by Tenant after 5:30 P.M., and cleaning work may be done at
any time when the offices are vacant. Windows, doors and fixtures may be
cleaned at any time.  Tenant shall
provide adequate waste and rubbish receptacles to prevent unreasonable hardship
to the cleaning service.


 


E-4

















 


EXHIBIT F


 


ADDITIONAL PROVISIONS


 


[Intentionally
Deleted.]


 


F-1

















 


EXHIBIT G


 


FORM OF NOTICE OF LEASE


 


This Exhibit is
attached to and made a part of the Office Lease Agreement (the “Lease”) by and between MA-100 HIGH
STREET, L.L.C., a Delaware limited liability company (“Landlord”) and INVESTMENT
TECHNOLOGY GROUP, INC., a Delaware corporation  (“Tenant”) for space in the Building located at 150 Federal
Street, Boston, Massachusetts 02110, which address is expected to be changed to
100 High Street, Boston, Massachusetts 02110 after the execution of this
Lease.  Capitalized terms used but not
defined herein shall have the meanings given in this Lease.


 


NOTICE OF LEASE


 


Notice is hereby given
pursuant to Massachusetts General Laws, Chapter 183, Section 4 of the
following lease:


 


	
  1.                                     Landlord:

  	
   

  	
  MA-100 HIGH STREET, L.L.C., a Delaware limited
  liability company

  
	
   

  	
   

  	
   

  
	
  2.                                     Tenant:

  	
   

  	
  [insert name of tenant as shown in lease]

  
	
   

  	
   

  	
   

  
	
  3.                                     Date of Lease:

  	
   

  	
                                ,
          .

  
	
   

  	
   

  	
   

  
	
  4.                                     Premises:

  	
   

  	
  [describe premises as described in lease, e.g.,”
                
  rentable square feet of space as more particularly described in the Lease on
  the            floor of the
  building known as and numbered 100 High Street, Boston, Massachusetts, and
  more particularly described on Exhibit A
  attached hereto”].

  
	
   

  	
   

  	
   

  
	
  5.                                     [Initial] Lease Term:

  	
   

  	
  [insert lease term without extensions; if there are
  no extensions, delete “Initial”].

  
	
   

  	
   

  	
   

  
	
  6.                                     Extension Rights:

  	
   

  	
  [insert extension options, e.g., “Two
  (2) options to extend the term for five (5) years each, on the
  terms and conditions provided for by the Lease.”  If there are no extension rights, delete
  #6].

  
	
   

  	
   

  	
   

  
	
  7.                                     Expansion Rights

  	
   

  	
  Tenant has certain rights to lease additional
  portions of the Building on floors between
           and
          , all upon and subject to
  certain terms and conditions contained in the Lease.

  



 


The foregoing is a
summary of certain terms of the Lease for purposes of giving notice thereof,
and shall not be deemed to modify or amend the terms of the Lease.


 


[For Landlord’s
title, see deed of
                                        
to Landlord dated
                      ,
         recorded with
the                          
Registry of Deeds in Book         , Page       ].


 


G-1

















 


This Notice is executed
under seal this        day of
                                      ,
              .


 


	
   

  	
  LANDLORD: [insert name of
  landlord]

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TENANT: [insert name of tenant]

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


G-2
















 


THE COMMONWEALTH OF
MASSACHUSETTS


 


                          ,
ss.


 


On this        day of
                      
20      , before me, the undersigned notary
public, personally appeared
                                          ,
proved to me through satisfactory evidence of identification, which was o photographic identification with signature issued by
a federal or state governmental agency, o
oath or affirmation of a credible witness, o
personal knowledge of the undersigned, to be the person whose name is signed on
the preceding or attached document(s), and acknowledged to me that (he)(she)
signed it voluntarily for its stated purpose. (as partner for
            partnership)
(as          of
                corporation),
(as          of
         limited liability company),
(as attorney in fact
for                              ).


 


Notary Public:                                                                       



 


My Commission Expires:                                                      


 


THE COMMONWEALTH OF MASSACHUSETTS


 


                          ,
ss.


 


On this        day of
                      
20      , before me, the undersigned notary
public, personally appeared
                      ,
proved to me through satisfactory evidence of identification, which was o photographic identification with signature issued by
a federal or state governmental agency, o
oath or affirmation of a credible witness, o
personal knowledge of the undersigned, to be the person whose name is signed on
the preceding or attached document(s), and acknowledged to me that (he)(she)
signed it voluntarily for its stated purpose. (as partner for
            partnership)
(as          of
                corporation),
(as          of
         limited liability company),
(as attorney in fact
for                              ).


 


Notary Public:                                                                       



 


My Commission Expires:                                                      


 


G-3

















 


EXHIBIT A


 


DESCRIPTION OF THE
PREMISES


 


G-4

















 


EXHIBIT H


 


DEFINITION OF SHELL CONDITION


 


This Exhibit is
attached to and made a part of the Office Lease Agreement (the “Lease”) by and between MA-100 HIGH
STREET, L.L.C., a Delaware limited liability company (“Landlord”) and INVESTMENT
TECHNOLOGY GROUP, INC., a Delaware corporation  (“Tenant”) for space in the Building located at 150 Federal
Street, Boston, Massachusetts 02110, which address is expected to be changed to
100 High Street, Boston, Massachusetts 02110 after the execution of this
Lease.  Capitalized terms used but not
defined herein shall have the meanings given in this Lease.


 


DEFINITION
OF SHELL CONDITION


 


Landlord, at its sole expense, will deliver
the premises in “Shell Condition”.  The
following outline shall define the “Shell Condition”, to be completed and paid
by the Landlord prior to delivering the premises to Tenant’s contractor for
construction:


 


·                  Deliver to the
premises “Certified” or new VAV boxes at a ratio of one VAV box per 1,000  square feet of rentable area, duct work (high &
medium pressure).  All VAV Boxes shall
include controls, dampers, motors & heat coils for perimeter boxes.


·                  Install
building standard blinds throughout the premises.


·                  Remove all existing floor coverings,
including all carpeting, carpet pads, stone, wood and VCT tile.


·                  Floors shall be delivered leveled, clean
swept and free of all architectural finishes including, but not limited to,
nails, glue, carpet and other adhesives, floor tile, metal stud track, etc. and
ready for carpet.


·                  Seal all
penetrations in the core walls.  Seal all
floor penetrations and patch in accordance with existing code requirements.


·                  Remove all existing partitions.


·                  Remove all existing tenant doors, frames and
hardware units.


·                  Remove all millwork.


·                  Remove all existing ceilings and ceiling
suspension systems.


·                  Remove all existing tenant telephone and data
cables, conduits, junction boxes, panels and backboards.


·                  Remove all existing office lighting fixtures,
emergency light fixtures, exit lights and switches.


·                  Remove all existing tenant
telephone and data cables located overhead and under the floor cable systems,
conduit, junction boxes, panels and backboards.


·                  Remove all existing
electrical, telephone and data outlets in partitions scheduled for demolition.


·                  Install sprinkler heads and
branch lines.


·                  Install fire alarm system
and devices to meet all local, state and American Disabilities Act (ADA)
requirements.  Base building systems
(including, without limitation, the Base Building electrical riser closets),
Common Areas, and all Existing Bathrooms, as defined in Section 3.02 of
this Lease to be delivered in a condition which does not constitute an Existing
Bathroom Landlord Delay, as defined in Section 3.02 of this Lease, it
being acknowledged that Landlord shall have the right to apply for variances in
which case compliance with such variance shall be sufficient but any delay
associated with Landlord’s pursuit of the variance 


 


H-1

















 


shall
be considered an Existing Bathroom Landlord Delay if the same prevents Tenant
from obtaining a certificate of occupancy for the Premises; however, if
Landlord’s pursuit of such variance delays Tenant’s Initial Alterations, such
delay shall constitute a Landlord Delay as per Section 4.10 of this Lease.


·                  Provide for Tenant
distribution 480v HVAC panel(s), 277v lighting panel(s), 120v power panel(s) and
a 45 — 75KVA K rated transformer.


·                  Electrical service of 10
watts per square foot ready for Tenant’s electrical contractor to begin
distribution.


·                  Exterior walls will be
insulated, dry walled, taped and ready for paint.


·                  Columns framed, dry walled
and ready for paint.


·                  All hazardous materials
removed, Landlord to provide documentation regarding any hazardous materials.


·                  Ancillary spaces
such as mechanical room, electrical room, janitor closet and telecommunications
room will be provided by the Landlord and shall be in compliance with current
Law even if the need for compliance arises solely because of Tenant’s
construction of the Initial Alterations; however, if any element of the Initial
Alterations is in violation of Law, Tenant, and not Landlord, shall be
responsible to cure such violation.


·                  Plumbing riser
installed to Tenant premises.


 


DEFINITION
OF SHELL CONDITION


 


Landlord, at its expense, will deliver the premises in “Shell Condition”.  The following outline shall define the “Shell
Condition”, to be completed and paid by the Landlord (i.e., those items marked “X”
in Landlord column) prior to delivering the premises to Tenant’s contractor for
construction (it being acknowledged that the following line items may be
satisfied by as is condition if such items are in place as of the Lease Execution
Date):


 


	
  Architectural/Construction

  	
   

  	
  Landlord

  	
   

  	
  Tenant

  	
   

  
	
  Concrete Floor (leveled) in Tenant Area (1/4” every
  12’ non contiguous)

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  Concrete Floors in Mech/Elec/Tel/Jan

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  Gypsum Board partitions (taped & spackled)
  and ready for paint

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  ·                  Perimeter (including columns &
  soffits)

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  ·                  Columns (interior) sheet rocked (taped
  and spackled)

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  ·                  Core

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  ·                  Common Corridors (Note: although not
  specifically listed, Tenant shall be responsible for all work in common
  corridors if Contraction results in a partial floor as per Section 27 of
  this Lease.)

  	
   

  	
   

  	
   

  	
  X

  	
   

  
	
  ·                  Tenant Demising Partitions

  	
   

  	
   

  	
   

  	
  X

  	
   

  
	
  Toilet Rooms (all finishes)

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  MEP Rooms (all finishes)

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  Exit Stairs (all finishes to building standards)

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  Janitor Closets (all finishes)

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  Elevator Lobby Finishes, Multi-Tenant Floors

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  Elevator Lobby Finishes, Single-Tenant Floors 

  	
   

  	
   

  	
   

  	
  X

  	
   

  
	
  Exterior Windows and Sills

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  Exterior Building Standard Blinds

  	
   

  	
  X

  	
   

  	
   

  	
   

  



 


H-2

















 


	
  Painting/Wall covering

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Tenant Area

  	
   

  	
   

  	
   

  	
  X

  	
   

  
	
  Ceiling System (grid & tile except where
  noted)

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  * Toilet Rooms

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  * Tenant Area

  	
   

  	
   

  	
   

  	
  X

  	
   

  
	
  * MEP Rooms

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  * Janitors Closets

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  * Elevator Lobby-Multi-Tenant Floors

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  * Elevator Lobby-Single-Tenant Floors

  	
   

  	
   

  	
   

  	
  X

  	
   

  
	
  * Grid, Common Areas

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  * ACT, Tenant Areas

  	
   

  	
   

  	
   

  	
  X

  	
   

  
	
  Floor Covering w/ Base

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  * Tenant Area

  	
   

  	
   

  	
   

  	
  X

  	
   

  
	
  * Tenant floor leveled and ready for flooring

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  * Elevator Lobby – Multi-Tenant Floors

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  * Elevator Lobby – Single-Tenant Floors

  	
   

  	
   

  	
   

  	
  X

  	
   

  
	
  *Window Coverings, Blinds

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  Doors & Hardware

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  * Core

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  * Tenant Area

  	
   

  	
   

  	
   

  	
  X

  	
   

  
	
  Mullion Adapters

  	
   

  	
   

  	
   

  	
  X

  	
   

  
	
  ADA Code Requirements

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  * Site

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  * Building Entries

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  * Main Lobby

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  * Elevators 

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  * Exit Stairs

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  * Toilet Rooms in Core (but only to the extent
  preventing certificate of occupancy from being issued)

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  * Tenant Area

  	
   

  	
   

  	
   

  	
  X

  	
   

  
	
  Interior Signage

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  * Building Directories

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  * Core Areas

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  * One (1) Building Standard Suite Entry
  per Tenant

  	
   

  	
  N/A

  	
   

  	
   

  	
   

  
	
  ELECTRICAL

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Incoming Service – 10 Watts per RSF demand load
  including HVAC requirements 

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  Switchgear (to be shared proportionately for
  multi-tenant floors)

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  Buss Duct Riser (200 amps per floor) (to be shared
  proportionately for multi-tenant floors)

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  Distribution to Closets (1 closet per floor)

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  * Low Voltage Panels

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  * High Voltage Panels

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  * Transformer (1 per closet)

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  Emergency Lighting

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  * Core Area

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  * Tenant Area

  	
   

  	
   

  	
   

  	
  X

  	
   

  
	
  Light Fixtures

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  * Core Area

  	
   

  	
  X

  	
   

  	
   

  	
   

  



 


H-3

















 


	
  * Tenant Area

  	
   

  	
   

  	
   

  	
  X

  	
   

  
	
  * Elevator Lobby-Multi-Tenant Floors

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  * Elevator Lobby-Single-Tenant Floors

  	
   

  	
   

  	
   

  	
  X

  	
   

  
	
  * Main Lobbies

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  Convenience Outlets

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  * Core Area 

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  * Tenant Area

  	
   

  	
   

  	
   

  	
  X

  	
   

  
	
  Life Safety System

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  * Core Area

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  * Tenant Area

  	
   

  	
   

  	
   

  	
  X

  	
   

  
	
  * Panel Contacts (Location and capacity to be agreed
  upon)

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  * Telephone/Data Core Drills in Core Closets

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  Voice/Data Distribution

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  * Incoming Service

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  * Vertical Backbone

  	
   

  	
   

  	
   

  	
  X

  	
   

  
	
  * Horizontal Distribution

  	
   

  	
   

  	
   

  	
  X

  	
   

  
	
  * Grounding System (connection by Tenant)

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  * Outlets

  	
   

  	
   

  	
   

  	
  X

  	
   

  
	
  * Telephone Switch

  	
   

  	
   

  	
   

  	
  X

  	
   

  
	
  * UPS System

  	
   

  	
   

  	
   

  	
  X

  	
   

  
	
  * Automatic Transfer Switch (for UPS)

  	
   

  	
   

  	
   

  	
  X

  	
   

  
	
  * Emergency Generator (per code-Life Safety System
  only)

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  MECHANICAL

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Base System (up to VAV box)

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  * Certified or new VAV Boxes delivered to the
  premises ready for installation with Thermostats/Control wiring provided but
  not installed or balanced (1 per 1,000 RSF), including energy management
  control panel.

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  Exhaust/Ventilation

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  * MEP Rooms

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  * Toilet Rooms

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  * Elevator Rooms

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  Medium Pressure Trunk Duct

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  Low Pressure Trunk Duct

  	
   

  	
   

  	
   

  	
  X

  	
   

  
	
  Duct Run outs

  	
   

  	
   

  	
   

  	
  X

  	
   

  
	
  Diffusers (perimeter slot and interior)

  	
   

  	
   

  	
   

  	
  X

  	
   

  
	
  Supplemental A/C Units

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Supplemental A/C Piping (valved and caped
  connection)

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  Supplemental A/C piping distribution by tenant

  	
   

  	
   

  	
   

  	
  X

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  FIRE PROTECTION

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Standpipes

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  Distribution to Main Loop

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  * Valved Connections

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  * Flow & Tamper Switches

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  * Fire Hose Cabinet finished and complete with hoses
  and extinguisher.

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  Branches, Drops and Heads (per code)

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  * Core

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  * Tenant Area (code minimum, 1 per 225 rsf)

  	
   

  	
  X

  	
   

  	
   

  	
   

  



 


H-4

















 


	
  * Additional or Relocated Heads per Tenant Plan

  	
   

  	
   

  	
   

  	
  X

  	
   

  
	
  * Main Lobby

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  * Elevator Lobby – Multi-Tenant Floors

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  * Elevator Lobby – Single-Tenant Floors

  	
   

  	
   

  	
   

  	
  X

  	
   

  
	
  Extinguisher Cabinets/Extinguishers

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  * Tenant Area

  	
   

  	
   

  	
   

  	
  X

  	
   

  
	
  Local Fire Alarm

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  * For Tenant Tie-In, Every Floor

  	
   

  	
   

  	
   

  	
  X

  	
   

  
	
  Fire Phones (per code)

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  * Fire Control Room

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  * Elevator

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  * Stairways

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  Annunciator Panels (per code/specifications)

  	
   

  	
  X

  	
   

  	
   

  	
   

  



 


	
   

  	
   

  	
  Landlord

  	
   

  	
  Tenant

  	
   

  
	
  PLUMBING

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Wet Columns

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  Core Fixtures

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  Electric Water Coolers

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  Janitors Sink

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  Pantries (typical floor)

  	
   

  	
   

  	
   

  	
  X

  	
   

  



 


	
   

  	
   

  	
  Landlord

  	
   

  	
  Tenant

  	
   

  
	
  SECURITY

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Card readers (including power & conduit) to
  building main lobby only

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  * Garage

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  * Building Entries

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  * Typical Floors-Suite Entry

  	
   

  	
   

  	
   

  	
  X

  	
   

  
	
  * Elevators – All elevators to have card readers.

  	
   

  	
  X

  	
   

  	
   

  	
   

  



 


H-5
















 


EXHIBIT I


 


FORM OF
SNDA


 


SUBORDINATION, 

NON-DISTURBANCE AND ATTORNMENT AGREEMENT


 


THIS AGREEMENT made as of
this       th day of July, 2009, between the Lender (defined below) and Investment Technology Group, Inc., a
Delaware corporation,  having an address
at 380 Madison Avenue, New York, New York 10017 (hereinafter called “Tenant”).


 


RECITALS:


 


WHEREAS, by a Lease
Agreement dated as of July       , 2009 (the
“Lease”), between MA-100 High Street, L.L.C.,  a Delaware limited liability company
(hereinafter called “Landlord”), as landlord, and Tenant, as tenant,
Landlord leased to Tenant certain premises located at 150 Federal Street,
Boston, Massachusetts 02110, which address is expected to be changed to 100
High Street, Boston, Massachusetts 02110 after execution of this Agreement (the
“Premises”) on the property known as “150 Federal Street,” and described
in Schedule “A”, annexed hereto and made a part hereof (the “Property”);
and


 


WHEREAS, Goldman Sachs
Commercial Mortgage Capital, L.P., Bank of America, N.A., Bear Stearns
Commercial Mortgage Inc., German American Capital Corporation, Morgan Stanley
Mortgage Capital Inc., Column Financial, Inc., Citigroup Global Markets
Realty Corp., and Wachovia Bank, National Association (collectively, as
original lender and predecessor-in-interest to Lender, “Original Lender”),
has made a loan to Landlord, which loan is secured by, among other things, a
mortgage or deed of trust encumbering the Property, recorded in Official Record
Book 41453, Page 301, of the Public Records of Suffolk County,
Massachusetts (which mortgage or deed of trust, and all amendments, renewals,
increases, modifications, replacements, substitutions, extensions, spreaders
and consolidations thereof and all re-advances thereunder and additions thereto,
is referred to as the “Security Instrument”); and


 


WHEREAS, Original Lender
assigned all of its right, title and interest in and to the Security Instrument
to Wells Fargo Bank, N.A., as Trustee for the Registered Holders of GS Mortgage
Securities Corporation II, Commercial Mortgage Pass-Through Certificates, Series 2007-EOP
(together with its successors and assigns, “Lender”) pursuant to
assignment recorded in Official Record Book 42184, Page 27 of the Public
Records of Suffolk County, Massachusetts; and


 


WHEREAS, Lender, Landlord
and Tenant desire to confirm their understanding and agreement with respect to
the Lease and the Security Instrument.


 


NOW, THEREFORE, in
consideration of the mutual covenants and agreements herein contained, Lender
and Tenant hereby agree and covenant as follows:


 


1.                                       Subject to the
terms and conditions of this Agreement, the Lease, and all of the terms,
covenants, provisions and conditions thereof (including, without limitation,
any right of first refusal, right of first offer, option or any similar right
with respect to the sale or purchase of the Property, or any portion thereof)
is, shall be, and shall at all times remain and continue to be, subject and
subordinate in all respects to the lien of the Security Instrument and to all
advances and re-advances made thereunder and all sums secured thereby.  This provision shall be self-operative.


 


2.                                       So long as (i) Tenant
is not in default (following the giving of any required notice and the
expiration of any cure period given in the Lease to Tenant to cure such
default) in the payment of rent or additional rent or in the performance or
observance of any of the other terms, covenants, provisions or conditions of
the Lease on Tenant’s part to be performed or observed, (ii) Tenant is not
in default under this Agreement, and (iii) the Lease 


 


I-1

















 


is in full force and effect:
(a) Tenant’s possession of the Premises and Tenant’s rights and privileges
under the Lease, or any extensions or renewals thereof which may be effected in
accordance with any option therefor which is contained in the Lease, shall not
be diminished or interfered with by Lender, and Tenant’s occupancy of the
Premises shall not be disturbed by Lender for any reason whatsoever during the
term of the Lease or any such extensions or renewals thereof, and (b) Lender
will not join Tenant as a party defendant in any action or proceeding to
foreclose the Security Instrument or to enforce any rights or remedies of
Lender under the Security Instrument which would cut off, destroy,
terminate or extinguish the Lease or Tenant’s interest and estate under the
Lease (except to the extent required so that Tenant’s right to receive or
set off any monies or obligations owed or to be performed by any of Lender’s
predecessors-in-interest shall not be enforceable thereafter against Lender or
any of Lender’s successors-in-interest). 
Notwithstanding the foregoing provisions of this paragraph, if it would
be procedurally disadvantageous for Lender not to name or join Tenant as a
party in a foreclosure proceeding with respect to the Security Instrument,
Lender may so name or join Tenant so long as such action will not in any way
diminish or otherwise affect the rights and privileges granted to, or inuring
to the benefit of, Tenant under this Agreement.


 


3.                                       (A)                              After notice is
given by Lender that the Security Instrument is in default and that the rentals
under the Lease should be paid to Lender, Tenant will pay to Lender, or pay in
accordance with the directions of Lender, all rentals and other monies due and
to become due to Landlord under the Lease or otherwise in respect of the
Premises.  Such payments shall be made
regardless of any right of set-off, counterclaim or other defense which Tenant
may have against Landlord, whether as the tenant under the Lease or otherwise,
except that Tenant shall be permitted to exercise (i) its rent abatement
rights as set forth in Sections 1.05, 3.01, 3.04, 4.10, 8.03, 17.03, 18, 29.03,
30.02, 31.05 and 32.01 of the Lease, (ii) its self-help rights as set
forth in Section 10.02 of the Lease, and (iii) Tenant’s self-help
rights with right of setoff as expressly provided in Sections 4.08 and 32.12 of
the Lease; provided, however that, Tenant’s self-help rights with right of
setoff as expressly provided in Sections 4.08 and 32.12 shall be effective
against Lender only if Tenant provides Lender with the written notice required
under Sections 4.08 and 32.12 of the Lease (the “4.08 and 32.12 Notice”),
and additionally provided that Tenant delivers to Lender a written estoppel
certificate signed by Tenant which is delivered to Lender (i) at any time
during the period from November 1, 2010 through December 31, 2010
(the “First Estoppel Period”) and (ii) at any time during the period from November 1,
2011 through December 31, 2011 (the “Second Estoppel Period”).  Each written estoppel certificate shall
consist solely of Tenant’s written confirmation, as of the date of such
estoppel certificate, (i) whether Landlord is then in default under Section 4.08
and/or Section 32.12 of the Lease, and (ii) of the amount of Landlord’s
Contribution that has been properly funded in accordance with the terms of the
Lease and the amount
of Landlord’s Contribution that is remaining to be funded (each, an “Estoppel” and collectively,
the “Estoppels”).  Tenant shall be deemed
to have waived its rights of self-help and offset under Section 4.08 with
respect to any portion of Landlord’s Contribution that the Estoppel confirms
has been funded aforesaid.  With respect
to any particular default by Landlord under said Section 4.08 and/or Section 32.12,
Tenant’s failure to deliver the 4.08 or 32.12 Notice shall result in Lender’s
not being subject to Tenant’s self-help and offset rights under Sections 4.08
and 32.12 of the Lease with respect to that particular default.  Tenant’s failure to deliver the Estoppels
shall result in Lender’s not being subject to Tenant’s self-help and offset
rights under Sections 4.08 and 32.12 of the Lease.   Landlord hereby consents to such action by
Tenant and agrees that Tenant shall have the right to rely on any such notice
from Lender without incurring any obligation or liability to Landlord, and
Tenant is hereby instructed to disregard any notice to the contrary received
from Landlord or any third party.


 


(B)                                In addition, if
Lender (or its nominee or designee) shall succeed to the rights of Landlord
under the Lease through possession or foreclosure action, delivery of a deed,
or otherwise, or another person purchases the Property or the portion thereof
containing the Premises upon or following foreclosure of the Security
Instrument or in connection with any bankruptcy case commenced by or against
Landlord, then, at the request of Lender (or its nominee or designee) or such
purchaser (Lender, its nominees and designees, and such purchaser, and their
respective successors and assigns, each being a “Successor-Landlord”),
Tenant shall attorn to and recognize Successor-Landlord as Tenant’s landlord
under the Lease, and shall promptly execute and deliver any instrument that
Successor-Landlord may reasonably request to evidence such attornment.  Upon such attornment, the Lease shall
continue in full force and effect as, or as if it were, a direct lease between
Successor-Landlord and Tenant upon all terms, conditions and covenants as are
set forth in the Lease.  If the Lease
shall have terminated by operation of law or otherwise as a result of or in
connection with a bankruptcy case commenced by or against Landlord or a
foreclosure action or proceeding or delivery of a deed in lieu, upon request of
either party, each of Successor-Landlord and Tenant shall promptly execute and
deliver a direct lease with Successor-Landlord, which direct lease


 


I-2

















 


shall be on substantially
the same terms and conditions as the Lease (subject, however, to the provisions
of clauses (i)-(v) of this paragraph 3(B)), and shall be effective as of
the day the Lease shall have terminated as aforesaid.  Notwithstanding the continuation of the
Lease, the attornment of Tenant thereunder or the execution of a direct lease
between Successor-Landlord and Tenant as aforesaid, Successor-Landlord shall
not:


 


(i)                                     be liable for any previous act or
omission of Landlord under the Lease, except to the extent that (A) such
act or omission continues after the date that the Successor-Landlord succeeds
to Landlord’s interest in the Property and Lender (or Successor-Landlord to the extent Tenant has been notified in
writing of the existence of such Successor-Landlord and Tenant has been
provided with a notice address for such Successor-Landlord) has been
provided with notice of such act or omission pursuant to the requirements of Section 5(A) hereof,
and (B) such act or omission of Landlord is of a nature that
Successor-Landlord can cure by performing a service or making a repair (it
being acknowledged that notwithstanding the foregoing, under no circumstances
shall Successor-Landlord have any obligations to perform any construction or alteration
obligations under Section 4 of the Lease nor shall Successor-Landlord have
any obligations to pay any tenant allowance monies under Section 4 of the
Lease; provided, however, that the foregoing shall not impact Tenant’s right to
exercise (1) its rent abatement
rights as set forth in Sections 1.05, 3.01, 3.04, 4.10, 8.03, 17.03, 18, 29.03,
30.02, 31.05 and 32.01 of the Lease, (2) its self-help rights as set forth
in Section 10.02 of the Lease, and (3) Tenant’s self-help rights with
right of setoff as expressly provided in Sections 4.08 and 32.12 of the Lease,  provided further, however that, Tenant’s
self-help rights with right of setoff as expressly provided in Sections 4.08
and 32.12 shall be effective against Successor-Landlord only if Tenant provides
Lender (or Successor-Landlord, to the extent Tenant has been notified in
writing of the existence of such Successor-Landlord and Tenant has been
provided with a notice address for such Successor-Landlord) with the 4.08 and
32.12 Notice, and additionally provided that Tenant delivers to Lender (or
Successor-Landlord, to the extent Tenant has been notified in writing of the
existence of such Successor-Landlord and Tenant has been provided with a notice
address for such Successor-Landlord) the Estoppels as required under Section 3
(A) above.  Tenant shall be deemed
to have waived its rights of self-help and offset under Section 4.08 with
respect to any portion of Landlord’s Contribution that the Estoppel confirms
has been funded aforesaid.  With respect
to any particular default by Landlord under said Section 4.08 and/or Section 32.12,
Tenant’s failure to deliver the 4.08 or 32.12 Notice shall result in
Successor-Landlord’s not being subject to Tenant’s self-help and offset rights
under Sections 4.08 and 32.12 of the Lease with respect to that particular
default.  Tenant’s failure to deliver the
Estoppels shall result in Successor-Landlord’s not being subject to Tenant’s
self-help and offset rights under Sections 4.08 and 32.12 of the Lease) (notwithstanding
anything contained herein, in no event shall Successor-Landlord have any
obligations to pay any tenant allowance monies under the Lease or perform any
of the prior Landlord’s construction or alteration obligations under Section 4
of the Lease);


 


(ii)                                  be subject to
any off-set, defense or counterclaim which shall have theretofore accrued to
Tenant against Landlord, except for (i) Tenant’s rent abatement rights as
set forth in Sections 1.05, 3.01, 3.04, 4.10, 8.03, 17.03, 18, 29.03, 30.02,
31.05 and 32.01 of the Lease, (ii) Tenant’s self-help rights as set forth
in Section 10.02 of the Lease, and (iii) Tenant’s self-help rights
with right of setoff as expressly provided in Sections 4.08 and 32.12 of the
Lease, provided, however that,
Tenant’s self-help rights with right of setoff as expressly provided in
Sections 4.08 and 32.12 shall be effective against Successor-Landlord only if
Tenant provides Lender (or Successor-Landlord, to the extent Tenant has been
notified in writing of the existence of such Successor-Landlord and Tenant has
been provided with a notice address for such Successor-Landlord) with the 4.08
and 32.12 Notice, and additionally provided that Tenant delivers to Lender (or
Successor-Landlord, to the extent Tenant has been notified in writing of the
existence of such Successor-Landlord and Tenant has been provided with a notice
address for such Successor-Landlord) the Estoppels as required under Section 3
(A) above.  Tenant shall be deemed
to have waived its rights of self-help and offset under Section 4.08 with
respect to any portion of Landlord’s Contribution that the Estoppel confirms
has been funded aforesaid.  With respect
to any particular default by Landlord under said Section 4.08 and/or Section 32.12,
Tenant’s failure to deliver the 4.08 or 32.12 Notice shall result in
Successor-Landlord’s not being subject to Tenant’s self-help and offset rights
under Sections 4.08 and 32.12 of the Lease with respect to that particular
default.  Tenant’s failure to deliver the
Estoppels shall result in Successor-Landlord’s not being subject to Tenant’s
self-help and offset rights under Sections 4.08 and 32.12 of the Lease) (notwithstanding anything contained herein,
in no event shall Successor-Landlord have any obligations to pay any tenant
allowance monies under the Lease or perform any of the prior Landlord’s
construction or alteration obligations under Section 4 of the Lease);


 


I-3

















 


(iii)                               be bound by any
modification of the Lease (other than the exercise by Tenant of an existing
right or option of Tenant expressly contemplated under the terms of the Lease
which occurs strictly in accordance with the terms of the Lease), or by any
previous prepayment of rent or additional rent made more than one (1) month
prior to the date same was due which Tenant might have paid to Landlord, unless
such modification or prepayment shall have been expressly approved in writing
by Lender;


 


(iv)                              be liable for
any security deposited under the Lease unless such security has been physically
delivered to Lender or Successor-Landlord; and


 


(v)                                 be liable or
obligated to comply with or fulfill any of the obligations of Landlord under
the Lease or any agreement relating thereto with respect to the construction
of, or payment for, improvements on or above the Premises (or any portion
thereof), leasehold improvements, tenant work letters and/or similar items.


 


4.                                       Except as
expressly contemplated by the terms of the Lease, Tenant agrees that, without
the prior written consent of Lender, it shall not (a) amend, modify,
terminate or cancel the Lease or any extensions or renewals thereof, (b) tender
a surrender of the Lease, (c) make a prepayment of any rent or additional
rent more than one (1) month in advance of the due date thereof, or (d) subordinate
or permit the subordination of the Lease to any lien subordinate to the
Security Instrument.  Any such purported
action without such consent shall be void as against the holder of the Security
Instrument.


 


5.                                       (A)                              In addition to
any other notices that Tenant is required to provide under the Lease and/or
under this Agreement, Tenant shall promptly notify Lender of any default by
Landlord under the Lease and of any act or omission of Landlord which would
give Tenant the right to cancel or terminate the Lease or to claim a partial or
total eviction.


 


(B)                                In the event of
a default by Landlord under the Lease which would give Tenant the right,
immediately or after the lapse of a period of time, to cancel or terminate the
Lease or to claim a partial or total eviction, or in the event of any other act
or omission of Landlord which would give Tenant the right to cancel or
terminate the Lease, Tenant shall not exercise such right (i) until Tenant
has given written notice of such default, act or omission to Lender, and (ii) unless
Lender has failed, within sixty (60) days after Lender receives such notice, to
cure or remedy the default, act or omission or, if such default, act or
omission shall be one which is not reasonably capable of being remedied by
Lender within such sixty (60) day period, until a reasonable period for
remedying such default, act or omission shall have elapsed following the giving
of such notice and following the time when Lender shall have become entitled
under the Security Instrument to remedy the same (which reasonable period shall
in no event be less than the period to which Landlord would be entitled under
the Lease or otherwise, after similar notice, to effect such remedy), provided
that Lender shall with due diligence give Tenant written notice of its
intention to, and shall commence and continue to, remedy such default, act or
omission.  If Lender cannot reasonably
remedy a default, act or omission of Landlord until after Lender obtains
possession of the Premises, Tenant may not terminate or cancel the Lease or
claim a partial or total eviction by reason of such default, act or omission
until the expiration of a reasonable period necessary for the remedy after
Lender secures possession of the Premises. 
To the extent Lender incurs any expenses or other costs in curing or
remedying such default, act or omission, including, without limitation,
attorneys’ fees and disbursements, Lender shall be subrogated to Tenant’s
rights against Landlord.


 


(C)                                Notwithstanding
the foregoing, Lender shall have no obligation hereunder to remedy such
default, act or omission.


 


6.                                       To the extent
that the Lease shall entitle Tenant to notice of the existence of any mortgage
and the identity of any mortgagee or any ground lessor, this Agreement shall
constitute such notice to Tenant with respect to the Security Instrument and
Lender.


 


7.                                       Intentionally
Deleted.


 


8.                                       Except as
otherwise provided herein, in the event that a Successor-Landlord shall acquire
title to the Property or the portion thereof containing the Premises,
Successor-Landlord shall have no obligation, nor incur any liability, beyond
Successor-Landlord’s then interest, if any, in the Property, and Tenant shall
look exclusively to 


 


I-4

















 


such interest, if any, of
Successor-Landlord in the Property for the payment and discharge of any
obligations imposed upon Successor-Landlord hereunder or under the Lease, and
Successor-Landlord is hereby released or relieved of any other liability
hereunder and under the Lease.  Tenant
agrees that, with respect to any money judgment which may be obtained or
secured by Tenant against Successor-Landlord, Tenant shall look solely to the
estate or interest owned by Successor-Landlord in the Property, and Tenant will
not collect or attempt to collect any such judgment out of any other assets of
Successor-Landlord.


 


9.                                       Intentionally
Deleted.


 


10.                                 If the Lease
provides that Tenant is entitled to expansion space, Successor-Landlord shall
have no obligation, nor any liability, for failure to provide such expansion
space if a prior landlord (including, without limitation, Landlord), by reason
of a lease or leases entered into by such prior landlord with other tenants of
the Property, has precluded the availability of such expansion space.


 


11.                                 Except as
specifically provided in this Agreement, Lender shall not, by virtue of this
Agreement, the Security Instrument or any other instrument to which Lender may
be a party, be or become subject to any liability or obligation to Tenant under
the Lease or otherwise.


 


12.                                 (A)                              Tenant
acknowledges and agrees that this Agreement satisfies and complies in all
respects with the provisions of Section 24 of the Lease, and that this
Agreement supersedes (but only to the extent inconsistent with) the provisions
of such Article and any other provision of the Lease relating to the
priority or subordination of the Lease and the interests or estates created
thereby to the Security Instrument.


 


(B)                                Tenant agrees
to enter into a subordination, non-disturbance and attornment agreement with
any lender which shall succeed Lender as lender with respect to the Property,
or any portion thereof, provided that such agreement is substantially similar
to this Agreement.  Tenant does herewith
irrevocably appoint and constitute Lender as its true and lawful
attorney-in-fact in its name, place and stead to execute such subordination,
non-disturbance and attornment agreement, without any obligation on the part of
Lender to do so.  This power, being
coupled with an interest, shall be irrevocable as long as the Indebtedness
secured by the Security Instrument remains unpaid.  Lender agrees not to exercise its rights
under the preceding two sentences if Tenant promptly enters into the subordination,
non-disturbance and attornment agreement as required pursuant to the first
sentence of this subparagraph (B).


 


13.                                 (A)                              Any default
notice required or permitted to be given by Tenant to Landlord shall be
simultaneously given also to Lender, and any right to Tenant dependent upon
notice shall take effect only after notice is so given.  Performance by Lender shall satisfy any
conditions of the Lease requiring performance by Landlord, and Lender shall
have a reasonable time to complete such performance as provided in Paragraph 5
hereof.


 


(B)                                All notices or
other communications required or permitted to be given to Tenant or to Lender
pursuant to the provisions of this Agreement shall be in writing and shall be
deemed given only if mailed by United States registered mail, postage prepaid,
or if sent by nationally recognized overnight delivery service (such as Federal
Express or United States Postal Service Express Mail), addressed as follows:


 


	
  to Tenant, at the
  following address:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Investment Technology
  Group, Inc.

  
	
   

  	
   

  	
  Attn: General Counsel

  
	
   

  	
   

  	
  380 Madison Avenue

  
	
   

  	
   

  	
  New York, New York 10017

  
	
   

  	
   

  	
   

  
	
  With a copy of any notices
  to Tenant to:

  	
   

  	
  Investment Technology
  Group, Inc.

  
	
   

  	
   

  	
  Attn: Facilities Manager

  
	
   

  	
   

  	
  44 Farnsworth Street

  
	
   

  	
   

  	
  Boston, MA 02210

  



 


I-5

















 


	
  to Lender, at the
  following address:

  	
   

  	
  Wells Fargo Bank, N.A., as
  Trustee

  
	
   

  	
   

  	
  for the Registered Holders
  of GS Mortgage

  
	
   

  	
   

  	
  Securities Corporation II,
  Commercial Mortgage

  
	
   

  	
   

  	
  Pass-Through Certificates,
  Series 2007-EOP

  
	
   

  	
   

  	
  c/o Bank of America, N.A.

  
	
   

  	
   

  	
  Capital Markets Servicing
  Group

  
	
   

  	
   

  	
  900 West Trade Street,
  Suite 650

  
	
   

  	
   

  	
  Charlotte, North Carolina
  28255

  



 


or to such other address or
number as such party may hereafter designate by notice delivered in accordance
herewith.  All such notices shall be
deemed given three (3) business days after delivery to the United States
Post office registry clerk if given by registered mail, or on the next business
day after delivery to an overnight delivery courier.


 


14.                                 This Agreement
may be modified only by an agreement in writing signed by the parties hereto,
or their respective successors-in-interest. 
This Agreement shall inure to the benefit of, and be binding upon, the
parties hereto, and their respective successors and assigns.  The term “Lender” shall mean the then holder
of the Security Instrument.  The term “Landlord”
shall mean the then holder of the landlord’s interest in the Lease.  The term “person” shall mean an individual,
joint venture, corporation, partnership, trust, limited liability company,
unincorporated association or other entity. 
All references herein to the Lease shall mean the Lease as modified by
this Agreement, and to any amendments or modifications to the Lease which are
consented to in writing by Lender or otherwise expressly permitted
hereunder.  Any inconsistency between the
Lease and the provisions of this Agreement shall be resolved, to the extent of
such inconsistency, in favor of this Agreement.


 


15.                                 Tenant hereby
represents to Lender as follows:


 


(a)                                  The Lease is in full force and effect,
and has not been further amended.


 


(b)                                 There has been
no assignment of the Lease or subletting of any portion of the premises demised
under the Lease.


 


(c)                                  There are no
oral or written agreements or understandings between Landlord and Tenant
relating to the premises demised under the Lease or the Lease transaction
except as set forth in the Lease.


 


(d)                                 The execution
of the Lease was duly authorized and the Lease is in full force and effect, and
to the best of Tenant’s knowledge there exists no default (beyond any
applicable grace period) on the part of either Tenant or Landlord under the
Lease.


 


(e)                                  There has not
been filed by or against Tenant, nor to the best of the knowledge and belief of
Tenant is there threatened against Tenant, any petition under the bankruptcy
laws of the United States.


 


16.                                 Whenever, from
time to time, reasonably requested by Lender (but not more than three (3) times
during any calendar year), Tenant shall execute and deliver to or at the
direction of Lender, and without charge to Lender, one or more written
certifications, in the form required by Section 24 of the Lease.


 


17.                                 BOTH TENANT AND
LENDER HEREBY IRREVOCABLY WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT.


 


18.                                 This Agreement
shall be governed by and construed in accordance with the laws of the State in
which the Property is located.


 


[The remainder of this page is left intentionally blank.]


 


I-6

















 


IN WITNESS WHEREOF, the
parties hereto have duly executed this Agreement as of the day and year first
above written.


 


	
   

  	
  LENDER:

  
	
   

  	
   

  
	
   

  	
  WELLS FARGO BANK, N.A., AS
  TRUSTEE FOR THE REGISTERED HOLDERS OF GS MORTGAGE SECURITIES CORPORATION II, COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-EOP 

  
	
   

  	
   

  
	
   

  	
  By: Bank of America, N.A.,
  as Servicer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  TENANT

  
	
   

  	
   

  
	
   

  	
  INVESTMENT TECHNOLOGY
  GROUP, INC.,

  
	
   

  	
  a Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


 


AGREED
AND CONSENTED TO:


 


LANDLORD:


 


MA-100
HIGH STREET, L.L.C., a Delaware


limited
liability company


 


	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  



 


I-7

















 


	
  STATE OF

  	
   

  	
  )

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ) ss.

  
	
   

  	
   

  	
   

  
	
  COUNTY OF

  	
   

  	
  )

  



 


 


On the
         day of
                        in
the year 2009 before me, the undersigned, a notary public in and for said
state, personally appeared
                                                      ,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual whose name is subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
capacity, and that by his/her/their signature on the instrument, the
individual, or the person upon behalf of which the individual acted, executed
the instrument.


 


 


	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Notary Public

  
	
   

  	
   

  	
   

  
	
  [Notary Seal]

  	
   

  	
  My commission expires:

  



 


 


	
  STATE OF

  	
   

  	
  )

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ) ss.

  
	
   

  	
   

  	
   

  
	
  COUNTY OF

  	
   

  	
  )

  



 


 


On the
         day of
                        in
the year 2009 before me, the undersigned, a notary public in and for said
state, personally appeared
                                                      ,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual whose name is subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
capacity, and that by his/her/their signature on the instrument, the
individual, or the person upon behalf of which the individual acted, executed
the instrument.


 


 


	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Notary Public

  
	
   

  	
   

  	
   

  
	
  [Notary Seal]

  	
   

  	
  My commission expires:

  



 


I-8

















 


	
  STATE OF

  	
   

  	
  )

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ) ss.

  
	
   

  	
   

  	
   

  
	
  COUNTY OF

  	
   

  	
  )

  



 


 


On the
         day of
                        in
the year 2009 before me, the undersigned, a notary public in and for said
state, personally appeared
                                                      ,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual whose name is subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
capacity, and that by his/her/their signature on the instrument, the
individual, or the person upon behalf of which the individual acted, executed
the instrument.


 


 


	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Notary Public

  
	
   

  	
   

  	
   

  
	
  [Notary Seal]

  	
   

  	
  My commission expires:

  



 


I-9

















 


SCHEDULE
A


 


Legal
Description of Property


 


I-10
















 


EXHIBIT J


 


JANITORIAL CLEANING SPECIFICATIONS


 


This Exhibit is
attached to and made a part of the Office Lease Agreement (the “Lease”) by and between MA-100 HIGH
STREET, L.L.C., a Delaware limited liability company (“Landlord”) and INVESTMENT
TECHNOLOGY GROUP, INC., a Delaware corporation  (“Tenant”) for space in the Building located at 150 Federal
Street, Boston, Massachusetts 02110, which address is expected to be changed to
100 High Street, Boston, Massachusetts 02110 after the execution of this Lease.
Capitalized terms used but not defined herein shall have the meanings given in
this Lease.


 


OFFICE AREAS (All Floors)


 


Empty all waste receptacles.  Clean, and reline when needed.  Remove material to designated areas.


 


Vacuum all carpeted main traffic and use areas,
including conference rooms, reception areas, interior stairwells, hallways and
corridors with the exception of individual offices. Spot vacuum/clean all
others areas as needed.


 


Wash and sanitize all drinking fountains.


 


Damp mop spillage in uncarpeted office areas.


 


Spot clean carpets to remove light spillage. Report
large spills and stains to supervisor.


 


Assure all designated locked doors are closed after
area has been cleaned.


 


Activate all alarm systems as instructed by occupant
(if applicable).


 


Arrange chairs at desk and conference room tables and
turn off lights upon exiting.


 


Clean conference room tables and remove any remaining
food items.


 


Clean and sweep all lunchroom/eating areas.  Wash and wipe tables and counter tops and
clean sinks.


 


Remove scuff marks on floor as needed.


 


Vacuum all carpeted areas completely, private offices
and cubicle interiors, desk knee area spaces and under waste containers.


 


Dust and wipe clean with damp or treated cloth all
office furniture, files, and cubicle partition tops, (DO NOT MOVE PAPERS).


 


Remove all finger marks and smudges from all vertical
surfaces, including doors, door frames, around light switches, private entrance
glass, and partitions.


 


Damp wipe and polish all glass furniture tops.


 


J-1

















 


Damp mop hard surfaced floors and/or uncarpeted
surface floors.


 


Sweep uncarpeted floors employing dust control
techniques with exception of lunchroom


 


Dust and wipe clean chair bases and arms, telephones,
cubicle shelves, window sills, relite ledges and all other horizontal surfaces
as needed to maintain clean appearance.


 


Edge vacuum all carpeted areas, as needed.


 


RESTROOMS EXISTING IN
THE CORE OF THE BUILDING AS OF THE DATE OF THIS LEASE


 


Clean and sanitize all mirrors, brightwork,
countertops and enameled surfaces.


 


Wash and disinfect all basins, urinals, bowls
(cleaning underside of rim) and fixtures using scouring powder to remove
stains.


 


Wash both sides of all toilet seats with soap and/or
disinfectant.


 


Clean flushometers, piping, toilet seat hinges, and
other metal.


 


Empty, clean, and damp wipe all waste receptacles.


 


Sweep, wet mop, and sanitize entire floor, including
around toilet seats and under urinals.


 


Damp wipe all walls, partitions, doors, and outside
surfaces of all dispensers, as needed.


 


Fill toilet paper, soap, towels, and sanitary napkin
dispensers (if applicable).


 


Wash and disinfect all showers including shower walls,
floors, brightwork and doors (if applicable).


 


Replace trash liner.


 


Flush water through P-trap to ensure elimination of
odor.


 


Machine scrub floors.


 


COMMON AREA LOBBY,
ELEVATOR, CORRIDOR, INTERIOR STAIRWAYS (EXCLUDING EMERGENCY EXIT STAIRWAYS) AND
ENTRANCE AREAS


 


Sweep and spot mop all stone, vinyl or composition
lobby floors.


 


Vacuum and spot clean all carpeted floor and mats.


 


Dust and polish all brightwork, including mirrors and
elevator call buttons.


 


Dust and polish all metal surfaces in elevators,
including tracks, and elevator doors.


 


Vacuum and spot clean all carpet in elevators.


 


Clean and polish all trash receptacles


 


J-2

















 


Dust all fire extinguisher cabinets and/or units.


 


Spot clean all doors.


 


All furniture should be cleaned as necessary
(including directories)


 


Wash, disinfect and dry polish water coolers (if
applicable).


 


Clean glass entrance doors, adjacent glass panels and
tracks (i.e. relites) (if applicable).


 


Spot sweep and/or spot vacuum all interior stairways
(excluding emergency exit stairways) and landings (if applicable).


 


Maintain lobby floor as recommended by manufacturer.


 


Wet mop all stone, vinyl or composition lobby floors


 


Sweep and/or vacuum all interior stairways (excluding
emergency exit stairways) and landings (if applicable).


 


Clean the exterior of all exterior Building windows at
least two times each year and the interior of all exterior Building windows at
least one time each year.


 


JANITORIAL ITEMS/AREAS
RELATING TO BUILDING GENERALLY


 


Keep janitorial rooms in a clean, neat and orderly
condition.


 


Maintain all janitorial carts and equipment in safe
and clean condition.


 


GENERAL BUILDING FITNESS
CENTER (If applicable)


 


Vacuum all exposed carpeted floors.


 


Spot clean all mirrors and walls.


 


Spray and disinfect fitness center equipment nightly.


 


Edge vacuum all carpeted areas, as needed.


 


Dust all ledges, as needed


 


Clean mirrors completely.


 


Stock supplies and towels.


 


GENERAL BUILDING LOCKER
ROOMS (If applicable)


 


Perform building restroom cleaning specifications to
restroom and locker room areas.


 


Clean and disinfect showers completely, including
walls, doors, floors, and floor drains.


 


J-3

















 


LOADING DOCK, VAN
PARKING AREAS, GENERAL BUILDING TRASH AREAS


 


Empty and reline all waste receptacles.


 


Sweep ramps, loading bays and parking areas for trash
and cigarette butts.


 


GENERAL BUILDING COMMON
AREA SERVICES


 


Spot clean and restock, as needed, all janitorial
service closets.


 


Vacuum all garage lobbies and elevator carpets


 


RECYCLING


 


Office Areas:  Remove recycling material when container is
full.


 


General Common Areas:
Pick up and compact all recycle trash, including boxes in accordance with
tenants recycle specifications.


 


J-4

















 


EXHIBIT K


 


PLANS AND SPECIFICATIONS FOR GENERATOR AND SCOPE
OF WORK


 


This Exhibit is
attached to and made a part of the Office Lease Agreement (the “Lease”) by and between MA-100 HIGH
STREET, L.L.C., a Delaware limited liability company (“Landlord”) and INVESTMENT
TECHNOLOGY GROUP, INC., a Delaware corporation  (“Tenant”) for space in the Building located at 150 Federal
Street, Boston, Massachusetts 02110, which address is expected to be changed to
100 High Street, Boston, Massachusetts 02110 after the execution of this
Lease.  Capitalized terms used but not
defined herein shall have the meanings given in this Lease.


 


K-1

















 


EXHIBIT L


 


OUTLINE
AND LOCATION OF GENERATOR AREA AND FUEL TANK AREA


 


This Exhibit is
attached to and made a part of the Office Lease Agreement (the “Lease”) by and between MA-100 HIGH
STREET, L.L.C., a Delaware limited liability company (“Landlord”) and INVESTMENT
TECHNOLOGY GROUP, INC., a Delaware corporation  (“Tenant”) for space in the Building located at 150 Federal
Street, Boston, Massachusetts 02110, which address is expected to be changed to
100 High Street, Boston, Massachusetts 02110 after the execution of this
Lease.  Capitalized terms used but not
defined herein shall have the meanings given in this Lease.


 


L-1

















 


EXHIBIT
M


 


PROPOSED
ELECTRICAL ROUTING OF ELECTRICAL LINES FOR GENERATOR


 


This Exhibit is
attached to and made a part of the Office Lease Agreement (the “Lease”) by and between MA-100 HIGH
STREET, L.L.C., a Delaware limited liability company (“Landlord”) and INVESTMENT
TECHNOLOGY GROUP, INC., a Delaware corporation  (“Tenant”) for space in the Building located at 150 Federal
Street, Boston, Massachusetts 02110, which address is expected to be changed to
100 High Street, Boston, Massachusetts 02110 after the execution of this
Lease.  Capitalized terms used but not
defined herein shall have the meanings given in this Lease.


 


M-1

















 


EXHIBIT N


 


RENTABLE SQUARE FOOTAGE OF FLOORS 14 THROUGH 20


 


This Exhibit is
attached to and made a part of the Office Lease Agreement (the “Lease”) by and between MA-100 HIGH
STREET, L.L.C., a Delaware limited liability company (“Landlord”) and INVESTMENT
TECHNOLOGY GROUP, INC., a Delaware corporation  (“Tenant”) for space in the Building located at 150 Federal
Street, Boston, Massachusetts 02110, which address is expected to be changed to
100 High Street, Boston, Massachusetts 02110 after the execution of this
Lease.  Capitalized terms used but not
defined herein shall have the meanings given in this Lease.


 


	
  Floor 14:

  	
  18,116 rentable square feet

  
	
  Floor 15:

  	
  18,229 rentable square feet

  
	
  Floor 16:

  	
  18,229 rentable square feet

  
	
  Floor 17:

  	
  17,618 rentable square feet

  
	
  Floor 18:

  	
  18,531 rentable square feet

  
	
  Floor 19:

  	
  18,698 rentable square feet

  
	
  Floor 20:

  	
  18,699 rentable square feet

  
	
   

  	
   

  
	
  Total:

  	
  128,120 rentable square feet

  



 


N-1

















 


EXHIBIT
O


 


OUTLINE AND APPROXIMATE LOCATION OF DEMISING
WALL FOR A PARTIAL FLOOR CONTRACTION


 


This Exhibit is
attached to and made a part of the Office Lease Agreement (the “Lease”) by and between MA-100 HIGH
STREET, L.L.C., a Delaware limited liability company (“Landlord”) and INVESTMENT
TECHNOLOGY GROUP, INC., a Delaware corporation  (“Tenant”) for space in the Building located at 150 Federal
Street, Boston, Massachusetts 02110, which address is expected to be changed to
100 High Street, Boston, Massachusetts 02110 after the execution of this
Lease.  Capitalized terms used but not
defined herein shall have the meanings given in this Lease.


 


O-1