**Exhibit 10.1**

 

**SECOND AMENDMENTTO AMENDED AND RESTATEDSTANDARD FORM COMMERCIAL LEASE**

 

THIS SECONDAMENDMENT TO AMENDED AND RESTATED STANDARD FORM COMMERCIAL LEASE (this “Amendment”)is made as of September 30, 2004, by and between OMV ASSOCIATES LIMITED PARTNERSHIP,a Massachusetts limited partnership with an address at c/o Capital PropertiesManagement, Inc., 31 Saint James Avenue, Boston, Massachusetts 02116 (“Lessor”),and THE FIRST MARBLEHEAD CORPORATION, a Delaware corporation with an address atPrudential Tower, 800 Boylston Street - 34th Floor, Boston,Massachusetts 02199-8157, Attn: Chief Operating Officer (“Lessee”).

 

**RECITALS:**

 

A.                                   Lessor and Lessee entered into that certain Amended andRestated Standard Form Commercial Lease (the “Original Lease”) dated as ofFebruary 13, 2004, whereby Lessor leased to Lessee certain office space locatedat 31 St. James Avenue, Boston, Massachusetts (the “Building”).

 

B.                                     Lessor and Lessee entered into that certain FirstAmendment to Lease (the “First Amendment”) dated as of May 21, 2004, wherebyLessor leased to Lessee certain storage space located in the Building.

 

C.                                     Pursuantto that certain Tenancy at Will Agreement dated April 19, 2004 (the “TAWAgreement”), Lessor leased to Lessee certain additional space located in theBuilding (the “TAW Space”) on a month-to-month basis.

 

D.                                    Lessor and Lessee desire to amend further the OriginalLease in certain respects, including to increase the size of the premisesleased by Lessor to Lessee pursuant to the Original Lease.

 

NOW THEREFORE, in consideration of themutual covenants, conditions and agreements herein contained and intending tobe legally bound, the parties hereto agree that:

 

1.                                       Defined Terms.

 

A.                                   For the purposes of this Amendment, the term “Lease”shall mean the Original Lease, as amended by the First Amendment and thisAmendment.

 

B.                                     Terms not otherwise defined in this Amendment shallhave the same meanings as are set forth in the Lease.

 

2.                                       Premises;Rentable Area.  A. The exhibitattached to the Original Lease as “Exhibit A” is hereby deleted in itsentirety, and the exhibit attached hereto as “Exhibit A” is hereby inserted inits stead.  The term “Premises RentableArea” set forth in Section 1.A of the Original Lease is hereby deleted in itsentirety, and the following is inserted in its stead:

 

PremisesRentable Area:  Agreed to be: (i) 45,500rentable square feet located on the sixth floor of the Building as moreparticularly identified on Exhibit A (“Space A”); (ii) 45,500 rentable squarefeet located on the fourth floor of the Building as more particularlyidentified on Exhibit A (“Space B”); (iii) 7,272 rentable square feet locatedon the fifth floor of the Building as more particularly identified on Exhibit A(“Space C”); and (iv) 25,265 rentable square feet located on the fifth floor ofthe Building as more particularly identified on Exhibit A (“Space D”).

 

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The total rentable area in theBuilding leased to LESSEE pursuant to this Lease, all as more particularlyidentified on Exhibit A, is agreed to be 123,537 rentable square feet (the “Premises”).

 

B.                                     The first sentence of Section 2 of the Original Leaseis hereby deleted in its entirety, and the following is inserted in its stead:

 

A portionof the Building consisting of approximately 123,537 SQUARE FEET OF RENTABLEAREA ON THE FOURTH, FIFTH AND SIXTH FLOORS OF THE BUILDING AND COMMONLY KNOWNAS SUITES 401, 500, 550 & 601, as more particularly identified on the planattached hereto as Exhibit A, together with the right to use in common, withothers entitled thereto, the Common Areas.

 

3.                                       Basic Rent.The term “Basic Rent” set forth in Section 1.A of the Original Lease is herebydeleted in its entirety, and the following is inserted in its stead:

 

BasicRent (as the same may be adjusted and/or abated in accordance with the termsand conditions of this Lease):

 

Subject to Section 4, commencing as ofthe Commencement Date and continuing to April 30, 2009:

 
| **Space**      | ** ** | **Basic Rent Rate per  Rentable Square Foot** | ** ** | **Annual Basic Rent** | ** **   | **Monthly  Installments** | ** ** |
|----------------|------------|-----------------------------------------------|------------|-----------------------|--------------|---------------------------|------------|
| ** **     | ** ** | ** **                                    | ** ** | ** **            | ** **   | ** **                | ** ** |
| Space A        |       | $                                             | 29.50      | / rsf                 | $            | 1,342,250.00              |       | $ | 111,854.17 |   |
| Space B        |       | $                                             | 29.50      | / rsf                 | $            | 1,342,250.00              |       | $ | 111,854.17 |   |
| Space C        |       | $                                             | 20.00      | / rsf                 | $            | 145,440.00                |       | $ | 12,120.00 |   |
| Space D        |       | $                                             | 29.50      | / rsf                 | $            | 745,317.50                |       | $ | 62,109.79 |   |
| Total Premises |       | —                                        |       | $                     | 3,575,257.50 |                      | $          | 297,938.13 |   |

 

Commencingon May 1, 2009, and continuing to April 30, 2014:

 
| **Space**      | ** ** | **Basic  Rent Rate per  Rentable Square Foot** | ** ** | **Annual  Basic Rent** | ** **   | **Monthly  Installments** | ** ** |
|----------------|------------|------------------------------------------------|------------|------------------------|--------------|---------------------------|------------|
|           |       |                                           |       |                   |         |                      |       |
| Space A        |       | $                                              | 34.50      | / rsf             | $            | 1,569,750.00              |       | $ | 130,812.50 |   |
| Space B        |       | $                                              | 34.50      | / rsf             | $            | 1,569,750.00              |       | $ | 130,812.50 |   |
| Space C        |       | $                                              | 34.50      | / rsf             | $            | 250,884.00                |       | $ | 20,907.00 |   |
| Space D        |       | $                                              | 34.50      | / rsf             | $            | 871,642.50                |       | $ | 72,636.88 |   |
| Total Premises |       | —                                         |       | $                      | 4,262,026.50 |                      | $          | 355,168.88 |   |

 

The clause, “, and Basic Rent attributable to Space Dshall commence on October 1, 2004” is hereby inserted at the end of Section 4of the Original Lease.

 

4.                                       Permitted Uses.  The term “Permitted Uses” set forthin Section 1.A of the Original Lease is hereby deleted in its entirety, and thefollowing is inserted in its stead:

 

Permitted Uses: General Office, callcenter, data center and related uses.

 

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5.                                       Escalation Factor. The term “Escalation Factor” set forth in Section LA of the Original Leaseis hereby deleted in its entirety, and the following is inserted in its stead:

 

EscalationFactor: 27.71%, as computed in accordance with the Escalation FactorComputation. To the extent the size of the Premises changes pursuant to thisLease, the Escalation Factor shall be adjusted accordingly.

 

6.                                       Electricity Cost. The following sentence is hereby inserted at the end of the definition ofthe term “Electricity Cost” set forth in Section 1.A of the Original Lease:

 

Lessee shall pay for all electricityusage associated with electrical outlets, lighting and ordinary office equipmentin Space D directly to the local provider for the Building. Lessor representsto Lessee that there is a separate, direct meter that measures electricity onlyfor Space D.

 

7.                                       Initial Term.The term “Initial Term” set forth in Section LA of the Original Lease is herebydeleted in its entirety, and the following is inserted in its stead:

 

Initial Term:

 

Space A,B and C: Ten (10) years and one (1) month commencing on the Commencement Dateand expiring on April 30, 2014.

 

SpaceD:  Nine (9) years and seven (7) monthscommencing on October 1, 2004 and expiring on April 30, 2014.

 

8.                                       Assignment and Subleasing.

 

A.                                   Section 13.C of the Original Lease is hereby amended bydeleting the number “30,000” in line 2 and inserting in its stead the number “35,000.”

 

B.                                     Section 13.13 of the Original Lease is hereby amendedby deleting the number “10,000” in line 5 and inserting in its stead the number“25,000” upon the condition that Lessor shall be entitled to receive its share(as determined pursuant to Section 13.A) of any rents or other considerationreceived by Lessee from The Education Resources Institute, Inc. (commonly knownas TERI) that is in excess of the rents payable by Lessor hereunder for thespace so sublet (anything to the contrary in the last sentence of Section 13.1)of the Original Sublease notwithstanding).

 

9.                                       Subordination.                 Simultaneouslywith the execution of this Amendment, Lessor and Lessee have executed thatcertain Subordination, Non-Disturbance and Attornment Agreement of even dateherewith between LaSalle Bank National Association, as Trustee for theCertificate Holders of LB-UBS Commercial Mortgage Trust 2000-C5, CommercialMortgage Pass-Through Certificates, Series 2000-C5 (the “Lender”) and Lessee(the “SNDA”), the form of which has been previously approved by Lender, Lesseeand Lessor. Lessor agrees to promptly deliver the SNDA to Lender for itsexecution. Upon Lender’s execution of the SNDA, and the delivery of the fullyexecuted SNDA to Lessee, the condition pertaining to delivery of the SNDA setforth in Section 14 of the Original Lease shall be deemed satisfied.

 

10.                                 Condition and Area. The work letter attached hereto as Exhibit B (Space D) is hereby insertedat the end of Exhibit B of the Original Lease. The description of Lessor’s SpaceD Work attached hereto as Exhibit H (Space D) is hereby inserted at the end ofExhibit H of the Original Lease. The following paragraphs are hereby insertedat the end of Section 26 of the Original Lease:

 

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C.                                     Subject to Lessor’s substantial completion of Lessor’swork set forth on Exhibit H (Space D) attached hereto, which Lessor shallcomplete as soon as reasonably possible, Space D is being delivered strictly inits “As Is” condition, and Lessee acknowledges that it has inspected Space Dand found Space D to be satisfactory, subject only to Lessor’s substantialcompletion of the work described on Exhibit H (Space D).  Lessee shall construct the improvements toSpace D in accordance with Exhibit B (Space D) attached hereto.

 

D.                                    Notwithstanding anything to contrary contained in theOriginal Lease, Lessor shall only be obligated to perform the improvements toSpace D that are identified on Exhibit H (Space D).

 

11.                                 Option to Extend. Sections 35.A and 35.B of the Original Lease are hereby deleted in theirentirety, and the following is hereby inserted in their stead:

 

A.                                   Provided that at the time of such exercise (i) therethen exists no Default of Lessee beyond applicable notice and cure periods, and(ii) this Lease is then in full force and effect, Lessee shall have the rightand option to extend the Initial Term for two (2) successive periods of five(5) years each (each, an “Extended Term”). The first Extended Term shallcommence on the day immediately succeeding the expiration date of the InitialTerm, and shall end on the day immediately preceding the fifth anniversary ofthe first day of such Extended Term, and the second Extended Term shallcommence on the day immediately succeeding the expiration date of the firstExtended Term, and shall end on the day immediately preceding the fifthanniversary of the first day of such second Extended Term. LESSEE shallexercise such options to extend by giving written notice to LESSOR of itsdesire to do so not later than twelve (12) months prior to the expiration dateof the Initial Term or the first Extended Term, as the case may be. Providedthe conditions of clauses (i) and (ii) of this Section shall have beensatisfied, the giving of such notice by LESSEE shall automatically extend theTerm for the particular Extended Term, and no instrument of renewal need beexecuted. In the event that LESSEE fails to give such notice to LESSOR, thisLease shall automatically expire at the end of the Initial Term or the firstExtended Term, as the case may be, and LESSEE shall have no further option toextend the Term. It is agreed that time is of the essence with respect to thegiving of such notice. The Extended Terms shall be on all the terms andconditions of this Lease, except that (I) the option to extend the Term as setforth in this Section shall be deleted (except that the option to exercise thesecond Extended Term shall continue to be effective in accordance with thisSection during the first Extended Term), (II) the Basic Rent for the ExtendedTerms shall be at 95% of fair market value as designated by LESSOR by writtennotice to LESSEE within sixty (60) days after receipt of notice from LESSEE,and (III) Base Operating Expenses and Base Taxes shall be calendar year 2014and fiscal year 2015, respectively, for the first Extended Term, and calendaryear 2019 and fiscal year 2020, respectively, for the second Extended Term. IfLESSEE disagrees with such designation of fair market value (the “Designation”),LESSEE shall by written notice, advise LESSOR of such disagreement withinfifteen (15) business days after LESSEE’S receipt of the Designation, timebeing of the essence; otherwise LESSEE shall conclusively be deemed to haveagreed to such Designation.

 

B.                                     “Intentionally Omitted”.

 

12.                                 Expansion Option. The term “Expansion Space” set forth in Section 1.13 of the Original Leaseis hereby deleted in its entirety. Section 36 of the Original Lease is herebydeleted in its entirety, and the term “Intentionally Omitted” is herebyinserted in its stead. Lessee acknowledges and agrees that

 

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Lessee maintains no further expansion options inconnection with the Original Lease other than as set forth in this Amendment orin Section 37 of the Original Lease, as amended hereby.

 

13.                                 Right of First Offer and Expansion Option. Section 37.A of the Original Lease is hereby amendedby (i) deleting the words “Expansion Space” from lines 7 and 8, and insertingin their stead the words “Put Space (as defined in Section 39)” and (ii)deleting the number “30,000” in line 10 and inserting in its stead the number “35,000.”The following is hereby inserted at the end of Section 37 of the OriginalLease:

 

D.                                    Notwithstandinganything to the contrary contained in this Original Lease, Lessee may notlease, nor deliver any notice of any intent to lease, any portion of the FirstOffer Space located on the second floor of the Building during the periodcommencing on August 1, 2004 and expiring on January 31, 2005.

 

14.                                 Lessee Space C Termination Right: Put Suites. Section 39 of the Original Lease is hereby deleted inits entirety, and the following is hereby inserted in its stead:

 

If any ofthe six suites located on the fifth floor of the Building as identified onExhibit C attached hereto and referred to on Exhibit A as “Space E”(collectively, the “Put Suites”) become available for lease at any time duringthe Term, then provided that at the time any such Put Suite becomes availablefor lease, (i) there then exists no Default of Lessee beyond applicable noticeand cure periods, and (ii) the Lease, as amended hereby, is then in full forceand effect, Lessee shall lease such Put Suite upon the terms and conditionsapplicable to Spaces A and B as are contained in this Lease (including, withoutlimitation, the same Basic Rent rate per rentable square foot as is applicableto Spaces A and B), except that (a) Lessor shall not be obligated to performany work or improvements to the Put Suite or to provide any allowance or otherfinancial contribution other than, in the event of a five (5) year term, $37.00per rentable square foot in the Put Suite, and in the event of a term in excessof seven (7) years, $40.00 per rentable square foot in the Put Suite, (b) theBase Operating Expenses with respect to a Put Suite shall be the OperatingExpenses for the calendar year in which Lessee commences to occupy such PutSuite for the conduct of its business, (c) the Base Taxes with respect to a PutSuite shall be the actual real estate taxes assessed against the Property forthe tax year in which Lessee commences to occupy such Put Suite for the conductof its business, and (d) the Escalation Factor for a Put Suite shall bedetermined by dividing the rentable area of such Put Suite by the Building’srentable area (445,765 square feet). Lessee shall, within twenty (20) BusinessDays after delivery of notice by Lessor of the availability of such Put Suite,execute an amendment to this Lease on a form provided by Lessor adding the PutSuite to the Premises and otherwise reflecting the terms of this Section. BasicRent attributable to any Put Suite shall be payable commencing as of theearlier of the ninetieth day after Lessor delivers possession of such Put Suiteto Lessee or the date that Lessee first occupies such Put Suite for the conductof its business.

 

15.                                 Tenancy at Will Space. Lessee shall remain in occupancy of the TAW Space andcontinue to pay rent as set forth in the TAW Agreement through and includingDecember 15, 2004, after which date, Lessee shall vacate and the surrender theTAW Space in accordance with the TAW Agreement.

 

16.                                 Additions & Alterations. All of the provisions of Section 12 of the OriginalLease shall apply to the construction, installation or performance of anyalterations or additions to the Premises after the completion of the initialrenovations to Space D other than those that are set forth in the fourthsentence thereof.

 

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17.                                 Brokerage Commissions. Lessee warrants and represents that Lessee has dealtwith no broker other than Codman Company (“Codman”) in connection with theconsummation of this Amendment, and, in the event of any brokerage claimsagainst Lessor predicated upon prior dealings with Lessee, then Lessee agreesto defend the same and indemnify Lessor against any such claim.  Lessor agrees to pay Codman a commissionpursuant to a separate agreement between Lessor and Codman, and to defend andindemnify Lessee against any claim by Codman relating to said commission.

 

18.                                 Ratification, Binding Effect. Except as hereby amended, the Lease and all covenants,agreements, terms and conditions thereof shall continue in full force andeffect, subject to the terms and provisions thereof and hereof, and is ratifiedand confirmed by the parties hereto.  ThisAmendment (i) shall be governed, construed, and enforced under the laws of theCommonwealth of Massachusetts, (ii) contains the entire understanding of theparties with respect to the provisions of the Lease amended hereby, (iii) maynot be modified except by a writing signed by both parties and (iv) and shallbe binding upon and inure to the benefit of Lessor, Lessee and their respectivesuccessors and permitted assigns.

 

19.                                 Conflict. Inthe event of any conflict between the terms of the Lease and the terms of thisAmendment, the terms of this Amendment shall control.

 

20.                                 Recitals.  The recitals to this Amendment and the factsset forth therein and each writing referred to herein as being annexed heretoas an exhibit or otherwise designated herein as an exhibit hereto are herebyincorporated herein by reference.

 

21.                                 Counterparts.  This Amendment may be executed in any numberof counterparts, each of which shall be deemed to be an original agreement andall of which when taken together shall be deemed to be one and the sameagreement.

 

22.                                 Miscellaneous.Lessor hereby advises Lessee that Lessor recalibrates the HVAC system servicingthe Building and tests the airflow thereof after Lessor, or any person orentity with Lessor’s consent, alters or repairs said system. Lessor agrees todeliver to Lessee the results of such airflow tests within a reasonable periodof time after the completion thereof (or within fifteen (15) business daysafter receipt of a request from Tenant for the most recent copy of suchresults, unless Lessee has previously received a copy of same).

 

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IN WITNESS WHEREOF, the parties havehereunder set their hands and seal as of the date first written above.

 
| **LESSEE:**                  | **LESSOR:**          |
|------------------------------|----------------------|
|                         |                 |
| FIRST MARBLEHEAD CORPORATION | OMV ASSOCIATES       |   |
|                         | LIMITED PARTNERSHIP  |
|                         |
|                         |
| By:                          | /s/ Andrew J. Hawley |   |
| Name:                        | Andrew J. Hawley     |   | By: | Park Square Corporation |
| Title:                       | President, FMER      |   | Its General Partner |
|                         |
|                         | By:                  | /s/ Richard D. Cohen |   |
|                         | Richard D. Cohen     |
|                         | Its President        |
|                              |                      |  |  |  |  |  |  |  |  |

 

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EXHIBIT A

Premises

 

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|                                         |     |   |
|-----------------------------------------|----------|--------|
| EXHIBIT A – SPACE ‘A’    |
| SUITE 601 – 45,500  RENTABLE SQ FT |
| 6TH FLOOR, 31 ST. JAMES  AVE.           |
| NOT TO SCALE                            | 8/6/2004 |
|                                    |

 

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|                                         |     |   |
|-----------------------------------------|----------|--------|
| EXHIBIT A – SPACE ‘B’    |
| SUITE 401 – 45,500  RENTABLE SQ FT |
| 4TH FLOOR, 31 ST. JAMES  AVE.           |
| NOT TO SCALE                            | 8/6/2004 |
|                                    |

 

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|                                        |     |   |
|----------------------------------------|----------|--------|
| EXHIBIT A – SPACE ‘C’   |
| SUITE 550 – 7,272  RENTABLE SQ FT |
| 5TH FLOOR, 31 ST. JAMES  AVE.          |
| NOT TO SCALE                           | 8/6/2004 |
|                                   |

 

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|                                         |      |   |
|-----------------------------------------|-----------|--------|
| EXHIBIT A – SPACE ‘D’    |
| SUITE 500 – 25,265  RENTABLE SQ FT |
| 5TH FLOOR, 31 ST. JAMES  AVE.           |
| NOT TO SCALE                            | 8/11/2004 |
|                                    |

 

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|                                      |      |   |
|--------------------------------------|-----------|--------|
| EXHIBIT A – SPACE ‘E’ |
| SUITE 510, 520, 530,  560, 565, 570  |
| 5TH FLOOR, 31 ST. JAMES  AVE.        |
| NOT TO SCALE                         | 8/10/2004 |
|                                 |

 

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EXHIBIT B(Space D)

 

WorkLetter

 

In consideration of the mutual covenants containedherein and in the Lease, LESSOR and LESSEE agree as follows:

 

1.                                       Plans and Specifications.

 

(i)                                     LESSEEshall submit to LESSOR the plans and specifications (the “D Plans”) for theleasehold improvement work to be completed in Space D by LESSEE (the “D Work”).The D Plans shall include the following types of plans and specifications: (1)architectural; (2) structural; (3) mechanical; (4) plumbing; and (5)electrical. LESSEE shall deliver two (2) sets of any progress set or portion ofthe D Plans submitted to LESSOR for its approval.

 

(ii)                                  LESSOR shall have five (5) Business Days followingreceipt of any progress set or other portion of the D Plans to approve ordisapprove such progress set or portion of the D Plans; LESSOR agrees not tounreasonably withhold or condition its approval thereof. Failure by LESSOR torespond within said five-(5) Business Day period shall be deemed approval ofsuch progress set or portion of the D Plans. If such progress set or portion ofthe D Plans is disapproved, then LESSOR shall inform LESSEE of the reasons forsuch disapproval, after which LESSEE shall have five (5) Business Days tosubmit revisions to LESSOR. LESSEE shall not unreasonably refuse to satisfy anyreasonable objection of LESSOR to the D Plans or any portion thereof. Withrespect to any resubmitted progress set or portion of the D Plans, LESSOR shallhave five (5) Business Days following receipt of said resubmitted plans toapprove or disapprove the same, and LESSOR agrees not to unreasonably withholdor condition its approval thereof. Failure by LESSOR to respond with saidfive-(5) Business Day period shall be deemed approval of such resubmittedplans. If such resubmitted plans are disapproved, then LESSOR shall informLESSEE of the reasons for such disapproval, after which LESSEE shall have three(3) Business Days to submit revisions to LESSOR. In the event the revisions tothe resubmitted plans are disapproved, the provisions of the immediately three(3) preceding sentences shall apply and shall continue until said plans andspecifications are approved by LESSOR. The D Plans, when approved by LESSOR,shall be initialed by both parties and attached to this Lease as ExhibitB-D-1.

 

(iii)                               Within fifteen (15) Business Days following the approval of the D Plans byLESSOR and LESSEE, LESSEE shall submit to LESSOR a construction schedule andbudget for the D Work.

 

(iv)                              Once the D Plans are initialed by both parties, there shall be no materialchanges to the D Plans without notice to LESSOR. Any change in the D Plans thataffects the Building Systems or the exterior or structural elements of theBuilding shall be deemed material and shall not be made without obtaining theprior written consent of LESSOR, which consent shall not be unreasonablywithheld or conditioned. Any requests for LESSOR’S consent shall be accompaniedby such information as LESSOR may reasonably require to evaluate such requests.No material change to the D Plans shall substitute material or workmanship oflesser quality than is stipulated in the D Plans, unless otherwise approved byLESSOR. LESSOR shall have five (5) Business Days following receipt of requestedchanges to the D Plans to approve or disapprove such changes. Failure by LESSORto respond within said five-(5) Business Day period shall be deemed approval ofthe changes. If the changes are disapproved, then LESSOR shall inform LESSEE ofthe reasons for such disapproval, after which LESSEE shall have five (5)Business Days to either (i) submit revisions to LESSOR or (ii) withdraw itsrequest for LESSOR’S consent to such change. If LESSEE elects to submitrevisions to LESSOR, LESSEE shall not unreasonably refuse to satisfy anyreasonable objection of LESSOR to such changes to the D Plans. LESSOR shallhave five (5) Business Days following receipt of said revisions to approve ordisapprove

 

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the same, and LESSOR agrees not to unreasonablywithhold or condition its approval thereof. Failure by LESSOR to respond withsaid five (5) Business Day period shall be deemed approval of such revisions.If such revisions are disapproved, then LESSOR shall inform LESSEE of thereasons for such disapproval, after which LESSEE shall have three (3) BusinessDays to submit revised revisions to LESSOR. In the event the revised revisionsare disapproved, the provisions of the immediately three (3) precedingsentences shall apply and shall continue until said revisions are approved byLESSOR.

 

(v)                                 For purposes of the D Work, LESSEE’S architect shall beFuller Associates Inc. (the “Architect”), and LESSEE’S general contractor shallbe Shawmut Design and Construction (the “General Contractor”). LESSEE shall notchange the Architect or the General Contractor for the D Work without LESSOR’Sconsent, which consent shall not be unreasonably withheld, delayed orconditioned. After the D Plans are initialed by both parties, LESSOR mayrequest a copy of the contract with the Architect and a copy of the contractwith the General Contractor, and LESSEE agrees to submit said copies to LESSOR.In addition, upon LESSOR’S request, LESSEE shall provide conditionalassignments (contingent upon LESSEE’S default under this Lease) to LESSOR ofLESSEE’S interest in all contracts or agreements with the Architect and theGeneral Contractor containing such terms and conditions as are reasonablysatisfactory to LESSOR and LESSEE.

 

(vi)                              LESSOR’s review of the D Plans shall be for its sole purpose and shall notimply LESSOR’s warranty of the same, nor obligate LESSOR to review the same forquality, design, compliance with building codes or any other applicable law, orany other matters, nor imply that in LESSOR’s opinion, the D Work may beconstructed within the D Work budget. Accordingly, notwithstanding that the DPlans are reviewed and approved by LESSOR or its space planner, architect,engineers and consultants, and notwithstanding any advice or assistance whichmay be rendered to LESSEE, the Architect or the General Contractor by LESSOR orLESSOR’s space planner, architect, engineers and consultants, LESSOR shall beneither the guarantor of, nor have any liability whatsoever in connectiontherewith, and shall not be responsible for any omissions or errors containedin the D Plans.

 

2.                                     Delivery of Premises; Commencement of Construction andSubstantial Completion.

 

(i)                                     LESSORshall complete LESSOR’S work described on Exhibit H (Space D) (except for theportion thereof which is designated on Exhibit H (Space D) to be completedduring the construction of the D Work or which, in accordance with generallyaccepted construction practices, can be completed during the construction ofthe D Work without causing any delay in the completion of the D Work), andLESSOR shall deliver to LESSEE Space D ready for LESSEE’S construction of the DWork on or prior to October 15, 2004 (the “D Delivery Date”). LESSEE agrees todo a walk through of Space D on or prior to October 13, 2004, it beingunderstood that LESSOR believes that it completed all of the work it isrequired to perform (other than the work described on Exhibit H (Space D) to becompleted during the construction of the D Work) prior to October 1, 2004. If,as a result of matters within the reasonable control of LESSOR and not as a resultof Force Majeure or any LESSEE action or inaction, LESSOR is unable to deliverpossession to LESSEE of any portion of Space D on or prior to the D DeliveryDate, then the lease of Space D shall not be void or voidable, and LESSOR shallhave no liability for loss or damage resulting therefrom; provided, however, ifsuch delays exceed 180 days, then either LESSOR or LESSEE upon notice to theother may terminate this Lease as to Space D only without liability to theother party.

 

(ii)                                  LESSEE may have access to Space D after the D DeliveryDate and prior to taking occupancy for the conduct of its business for thepurpose of inspecting Space D and for preparing for and then constructing the DWork. All of the terms, covenants, conditions and provisions of the Lease shallapply to such early access, with the exception of the obligation to pay BasicRent as to Space D.

 

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Additionally, such early access to Space D by LESSEEand its agents, contractors and employees is further conditioned upon suchother reasonable requirements as LESSOR may prescribe, including the following:

 

(a)                                  Prior to commencing the D Work, LESSEE shall give toLESSOR (1) copies of all licenses and permits required in connection with theperformance of the D Work, (2) the certificates of insurance required under theterms of the Lease, (3) a construction schedule for the performance of the DWork, which schedule may be revised from time to time during the course of saidconstruction, and (4) a list of all subcontractors and suppliers.

 

(b)                                 Such early access shall be subject to reasonablescheduling requirements established by LESSOR and such other reasonable rulesand regulations as may be prescribed by LESSOR, including the rules andregulations attached to the Original Lease as Exhibit E.

 

(c)                                  In performing the D Work, LESSEE’S contractors,subcontractors and suppliers shall work in harmony, and not interfere, withLESSOR, the contractors hired by LESSOR or the other tenants in the Building.If at any time LESSEE or LESSEE’S contractors, subcontractors or suppliersshall cause or threaten to cause such disharmony, LESSOR may withdraw itspermission for early access upon twenty-four (24) hours’ prior written noticeto LESSEE.

 

(d)                                 In performing the D Work, if LESSEE discovers evidenceof asbestos, leadbased paint or other hazardous materials that requireabatement or remediation management, then LESSEE shall immediately notifyLESSOR of such discovery. LESSOR shall thereafter shall adopt an appropriateabatement or remediation program that complies with all applicable federal,state and local laws and regulations, and, except as provided herein, LESSORshall be promptly reimbursed for all costs and expenses incurred by LESSOR andits agents and contractors in connection with such abatement or remediationprogram; provided, however, LESSOR shall not be reimbursed for such costs andexpenses to the extent the same are incurred in connection with theconstruction of the D Work.

 

(e)                                  LESSOR shall not be liable for any injury, loss ordamage which may occur to any of the D Work or other installations made inSpace D or to property placed therein prior to LESSEE taking occupancy of Spaceto conduct its business, the same being at LESSEE’S sole risk and liability.LESSEE shall be liable to LESSOR for any damage to Space D or to any portion ofthe LESSOR’S work caused by LESSEE or any of LESSEE’S employees, agents,contractors, workers or suppliers. In the event the performance of the work byLESSEE, its agents, employees or contractors causes extra costs to LESSOR orrequires the use of elevators during hours other than 8:00 a.m. to 4:30 p.m. onMonday through Friday (except holidays), LESSEE shall reimburse LESSOR for theentire extra cost and the cost incurred by LESSOR for the engineers oroperators under applicable union regulations or contracts; provided, however,if other contractors are using the elevators after hours as well, such costsshall be allocated among the parties using the elevators.

 

(iii)                               **LESSEE**shallconstruct the D Work in accordance with the D Plans and all applicable zoning,building, health, safety, environmental and other governmental regulations andshall pursue

 

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construction of the D Work in a good and workerlikemanner diligently to completion, and shall not substantially cease constructionfor any period in excess of ten (10) consecutive Business Days except for (i)any cause attributable to Force Majeure or (ii) any cause for which LESSEE hasobtained LESSOR’S consent, which consent shall not be unreasonably withheld ordelayed.

 

(iv)                              If LESSOR shall give LESSEE notice of a material defect in the D Work or ofa material departure from the D Plans not approved by LESSOR, then LESSEEshall, within twenty (20) days after receipt of such notice, take all necessarysteps to cure such material defect or material departure from the D Plans, orif such steps cannot be completed within such time, then LESSEE shall commencesuch steps within such twenty (20)-day period and continue diligently tocomplete them until completion.

 

(v)                                 LESSEE shall use its best efforts to substantiallycomplete the D Work as soon as reasonably possible. The D Work shall be deemedsubstantially completed upon:

 

(1)                                  Issuance of a certificate of occupancy by theappropriate local authority for the D Work which permits lawful occupancy ofSpace D by LESSEE (the “Space D CO”);

 

(2)                                  Receipt by LESSOR of Application and Certificate forPayment, AIA Document G702, executed by the Architect and the GeneralContractor, and notarized, stating that (A) the D Work has been substantiallycompleted in accordance with the D Plans and stating those respects in whichthe D Work remains incomplete, (B) the D Work has been satisfactorilyintegrated into, and is otherwise compatible with, the Building and theBuilding Systems so that LESSOR may fulfill its obligations to LESSEE pursuantto the terms and provisions of this Lease, (C) all utilities and like serviceshave been connected and are operational and (D) Space D is ready for occupancy;

 

(3)                                  Delivery to LESSOR of lien waivers from the GeneralContractor reasonably satisfactory to LESSOR stating that no claim against theBuilding remains unsatisfied; and of a certification of the General Contractorthat it has obtained final lien waivers from each subcontractor and supplier supplyingmaterials or services to Space D;

 

(4)                                  Completion of an inspection of the D Work by LESSORconfirming (A) substantial completion of the D Work in accordance with the DPlans, and (B) satisfactory integration and compatibility of the D Work intoand with the Building and the Building Systems so that LESSOR may fulfill itsobligations to LESSEE pursuant to the terms and provisions of this Lease; and

 

(5)                                  Within thirty (30) days after the D Work is deemedsubstantially complete, delivery to LESSOR of two sets of final “as built”versions of the D Plans.

 

(vi)                              LESSEE shall cause all warranties and guarantees, ifany, with respect to the D Work to name or be for the benefit of both LESSEEand LESSOR, as their respective interests may appear.

 

3.                                     Improvement Advances.

 

Except asotherwise set forth in this paragraph, LESSEE hereby covenants with LESSOR thatLESSEE shall promptly and fully pay for all costs and expenses incurred inconnection with the D Work. LESSOR shall contribute to a portion of the cost ofthe D Work in an amount not to exceed $1,010,600.00 (the “Space D Allowance”).If the cost of the D Work exceeds the Space D Allowance, then LESSEE shall beresponsible for and pay such excess. Subject to the conditions containedherein, portions of the Space D Allowance may be advanced to LESSEE as the DWork is completed in accordance with the schedule and budget to be attachedhereto as Exhibit B-D-2 (each, a “D Improvement Advance”). LESSOR shallnot be required to make more than one D Improvement Advance in any one

 

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calendar month, and the D Improvement Advances shall befor the amounts set forth in the D Request for Advance (as hereinafterdefined); provided, however, if LESSOR determines that some or all of the workdescribed in the D Request for Advance has not been completed in accordancewith the D Plans and this work letter, then LESSOR may withhold from suchpayment an amount equal to the reasonable value of such unacceptable work. Theproceeds of the D Improvement Advance shall be applied solely and exclusivelytowards the construction of the D Work in accordance with the D Plans. The DImprovement Advances are intended to be disbursed in accordance with the budgetand construction schedule to be approved hereafter by the parties and to be attachedhereto and made a part hereof as Exhibit B-D-2. To request an DImprovement Advance, LESSEE shall submit to LESSOR, on a form reasonablyrequired by LESSOR, the amount requested (the “D Request for Advance”),together with a certificate from the Architect certifying the percentage of theD Work completed and certificates of payment covering all D Work which havebeen made as of the date of the payment of the D Improvement Advance advancedfor the previous month and such other information as may be reasonably requiredby LESSOR. All such certificates shall be in form and substance reasonablysatisfactory to LESSOR, and LESSOR and LESSOR’S representatives shall bepermitted from time to time to inspect Space D and LESSEE’S books and recordswith respect to the D Work during normal business hours and on reasonablenotice. All D Requests for Advance shall be subject to LESSOR’S confirmation ofthe satisfactory completion of the D Work in accordance with the D Plans-todate. Each D Request for Advance shall be submitted by written notice to LESSORnot less than 30 Business Days prior to the date. LESSEE desires receipt of therequested D Improvement Advance. LESSOR shall have no obligation to make any DImprovement Advance, if any material event of default by LESSEE under thisLease has occurred and has not yet been cured.

 

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EXHIBIT C

 

PutSuites

 

•                      Suite 570: Gov’t of Puerto Rico-1,996 SF-LED 6/30/2005

•                      Suite 565: Media Link-1,665 SF-LED 6/30/2005

•                      Suite 560: Marcus-1,201 SF-LED 2/28/2006

•                      Suite 530: Nextel-3,364 SF-LED 11/30/2006

•                      Suite 520: Yankee Group-2,989 SF-LED 6/30/2007

•                      Suite 510: Inlingua-1,748 SF-LED 5/31/2009

 

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EXHIBIT H(SPACE D)

LESSOR’SSPACE D WORK

 

DEMO & REMOVE & ABATE

 

Demo and remove all lights and associated wiring.

Demo and remove all telephone and data cabling.

Demo and remove all Exit signs & associated cablingand emergency batteries.

Demo and remove approximately 1,000 square feet ofraised VCT in two (2) locations.

 

Remove ceiling hangers and keep existing anchors.

Remove ceiling suspenders and keep existing anchors.

 

Abate two (2) wet columns within thirty (30) daysfollowing LESSEE’S identification of location provided all required permits arereceived within ten (10) Business Days following LESSEE’ S identification oflocation and provided further that LESSEE agrees to the scheduling of the work.

 

SAVE

 

Existing split air system with condenser on the roof- “as-is”condition.

Fire alarm system with cable, smoke detectors and pullstations.

Existing perimeter radiator covers.

Existing soffit at perimeter.

 

REPAIR, REPLACE, REROUTE, INSTALL

 

Fire-stop all penetrations at building core per code,including large penetrations where pipes enter the core.

Repair or replace all mildew or torn pipe insulation.

Repair existing fan coils that are inoperative ormalfunctioning.

(LESSEE shall be responsible for cleaning, filterchanges, balancing and system check at end of construction).

Repair or replace approximately 10 perimeter radiatorenclosures, with building standard particleboard, located between column bays.

(The painting or laminate of the repaired or replacedenclosures are LESSEE’S responsibility.)

Repair or replace approximately 6 interior columns thathave been opened by Landlord*

 

REMAINING BUILT-OUT AREA

 

Remove all carpet and VCT in remaining built-out lobbyand conference area.

Remove all ceiling tiles, lights and ceilingelectrical.

Remove all drywall, not identified below, and millwork.

Remove all corkboard down to the studs.

Save all electrical plugs in the reception andconference area. Save conference rooms, one closet, reception area, glass doors.

 

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HVAC SYSTEM

 

The components of the HVAC system servicing Space Dshall be fully operational and otherwise in good condition and repair, and,upon completion of the D Work, Landlord shall recalibrate the HVAC system forthe Building to ensure adequate air flow to Space D and to the other portionsof the Premises.

 

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* LESSOR expects to work directly with LESSEE’S selected contractor,through a change order, since this work should be done towards the end of theproject. We can mark these repair items on a drawing as we get closer tocommencing work.

 

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