**Exhibit 10.1**

 

**JOHN HANCOCK TOWER**

200Clarendon Street

Boston,Massachusetts

(the“Building”)

 

NINTHAMENDMENT TO LEASE

ExecutionDate: Dated as of January 1, 2005

 
| LANDLORD:   |   | 100 & 200  Clarendon, LLC, successor in interest to John Hancock Life Insurance Company                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    |
|-------------|--------|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|        |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                |   |   |
| TENANT:     |   | Investors Bank &  Trust Company, a Massachusetts trust company                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             |
|        |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                |   |   |
| OFFICE      |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                |   |   |
| PREMISES:   |   | An area containing 354,936  rentable square feet (as outlined below) on Floors [/*/ CONFIDENTIAL  TREATMENT REQUESTED] of the Building, as shown on Exhibit A to the Lease,  Exhibit A-2 to the First Amendment to Lease, Exhibit A-2 to the  Second Amendment to Lease, Exhibit A-3 to the Third Amendment to Lease  (Revised and Corrected), Exhibit A-2 to the Fourth Amendment to Lease,  Exhibit A-6 to the Sixth Amendment to Lease, Exhibit A-8 to the  Seventh Amendment to Lease and Exhibit A-9 to the Eighth Amendment to  Lease |
|        |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                |   |   |
|        |   | Floor  [/*/ CONFIDENTIAL TREATMENT REQUESTED]: 45,243 rentable square feet                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     |
|        |   | Floor  [/*/ CONFIDENTIAL TREATMENT REQUESTED]: 45,345 rentable square feet                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     |
|        |   | Floor  [/*/ CONFIDENTIAL TREATMENT REQUESTED]: 45,345 rentable square feet                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     |
|        |   | Floor  [/*/ CONFIDENTIAL TREATMENT REQUESTED]: 27,419 rentable square feet                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     |
|        |   | Floor  [/*/ CONFIDENTIAL TREATMENT REQUESTED]: 27,312 rentable square feet                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     |
|        |   | Floor  [/*/ CONFIDENTIAL TREATMENT REQUESTED]: 27,415 rentable square feet                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     |
|        |   | Floor  [/*/ CONFIDENTIAL TREATMENT REQUESTED]: 27,416 rentable square feet                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     |
|        |   | Floor  [/*/ CONFIDENTIAL TREATMENT REQUESTED]: 27,413 rentable square feet                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     |
|        |   | Floor  [/*/ CONFIDENTIAL TREATMENT REQUESTED]: 26,958 rentable square feet                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     |
|        |   | Floor  [/*/ CONFIDENTIAL TREATMENT REQUESTED]: 26,958 rentable square feet                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     |
|        |   | Floor  [/*/ CONFIDENTIAL TREATMENT REQUESTED]: 28.112 rentable square feet                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     |
|        |   | Total                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                               |   | 354,936  rentable square feet |
|        |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                |   |   |
| DATA CLOSET |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                |   |   |
| PREMISES:   |   | Floor  [/*/ CONFIDENTIAL TREATMENT REQUESTED]: 107 rentable square feet (“Data  Closet Premises”)                                                                                                                                                                                                                                                                                                                                                                                                                                                                    |
|             |        |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     |  |  |  |  |

 

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[/*/ CONFIDENTIALTREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICHCONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEENFILED WITH THE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THESECURITIES EXCHANGE ACT OF 1934, AS AMENDED.

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| LEASE  |   | DATE OF     |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    |
|--------|--------|-------------|--------|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
| DATA   |   | LEASE:      |   | November 13, 1995                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  |
|   |   |        |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    |
|   |   | TERMINATION |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    |
|   |   | DATE:       |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    |
|   |   |        |   | Floors [/*/ CONFIDENTIAL  TREATMENT REQUESTED] (“Area A”): June 30, 2011  Floors [/*/ CONFIDENTIAL TREATMENT REQUESTED] (“Area B”):  September 30, 2007  Floor [/*/ CONFIDENTIAL TREATMENT REQUESTED] (“Area C”):  November 30, 2010  Area A, Area B and Area C shall sometimes hereinafter be collectively  referred to as the “Premises.”                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                       |
|   |   |        |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    |
|   |   | PREVIOUS    |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    |
|   |   | LEASE       |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    |
|   |   | AMENDMENTS: |   | Letter Agreement dated  November 13, 1995  First Amendment dated February 24, 1997  Second Amendment dated June 19, 1997  Letter from Landlord to Tenant dated June 19, 1997  re: RFO on Floors [/*/ CONFIDENTIAL TREATMENT REQUESTED]  Letter from Tenant to Landlord dated July 14, 1997  (informing Landlord that Tenant is not interested in RFO on [/*/ CONFIDENTIAL  TREATMENT REQUESTED])

Third Amendment dated  December 1, 1997  (Revised and Corrected)  Fourth Amendment dated August 17, 1998  Amendment to Letter Agreement dated October 15, 1999  Fifth Amendment dated March 14, 2000  Sixth Amendment dated September 19, 2000  Seventh Amendment dated December 3, 2000  Eighth Amendment dated April 19, 2001  Letter from John Hancock to Tenant dated April 11, 2002  re: RFO on Floors [/*/ CONFIDENTIAL TREATMENT REQUESTED]  (Tenant has signed on April 19, 2002 stating Investors Bank is not interested  at this time) |
|   |   |        |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    |
|   |   | EXTENDED    |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    |
|   |   | TERMINATION |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    |
|   |   | DATE:       |   | December 31, 2014                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  |

 

WHEREAS, Tenant desires toextend the Term of the lease for an additional term;

 

WHEREAS, Landlord is willingto extend the Term of the lease upon the terms and conditions hereinafter setforth;

 

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[/*/ CONFIDENTIALTREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICHCONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEENFILED WITH THE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THESECURITIES EXCHANGE ACT OF 1934, AS AMENDED.

 

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NOW THEREFORE, the partieshereby agree that the above-referenced lease, as previously amended (the “Lease”),is hereby further amended as follows:

 

1.            REMEASUREMENT OF PREMISES

 

A.            The parties hereby acknowledge that, as provided inParagraph 3 of the Sixth Amendment to Lease, the Premises have been remeasuredby Visnick & Caulfield, using the Modified BOMA Standard andtherefore, notwithstanding anything to the contrary in the Lease contained,effective as of January 1, 2005, the Premises shall be deemed to contain354,936 rentable square feet of Office Premises and 107 rentable square feet ofData Closet Premises, as set forth above.

 

B.            The parties hereby acknowledge that, as provided inParagraph 3 of the Sixth Amendment to Lease, the Building has been remeasuredby Visnick & Caulfield using the Modified BOMA Standard and therefore,notwithstanding anything to the contrary in the Lease contained, effective asof January 1, 2005, Tenant’s Proportionate Share shall be deemed to be20.419% (based on 354,936 rentable square feet of Office Premises plus 107 rentablesquare feet of Data Closet Premises divided by 1,738,779 [the rentable squarefootage of the Building]).

 

2.             EXTENSION OF TERM

 

The Term of the Lease ishereby extended for an additional term (“Additional Term”) commencing as of: (i) July 1,2011, for Area A; (ii) October 1, 2007, for Area B; (iii) December 1,2010, for Area C; and (iv) October 1, 2007, for the Data ClosetPremises, and terminating in each such case (i.e., for the entire Premises) asof December 31, 2014 (“Extended Termination Date”). Said Additional Termshall be upon all of the same terms and conditions of the Lease in effectimmediately preceding the commencement of such Additional Term (including,without limitation, Tenant’s obligation to pay for electricity pursuant to Section 5.01(b) ofthe Lease), except as set forth herein.

 

3.             REVISED BASE RENT, TAX BASE ANDOPERATING COSTS IN THE BASE YEAR

 

A.            In consideration of Tenant agreeing to an early extensionof the Term of the Lease, commencing as of January 1, 2005, and continuingthrough the Extended Termination Date, the Base Rent for the Office Premisesshall be [/*/ CONFIDENTIAL TREATMENT REQUESTED]. Since Tenant haspreviously paid Base Rent and additional rent for the months of January andFebruary 2005 at the rates in effect before the adjustments effected bythis Amendment, Tenant has overpaid rent for such months in the aggregateamount of $ [/*/ CONFIDENTIAL TREATMENT REQUESTED]. Tenant shall recoversuch overpayment

 

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[/*/ CONFIDENTIALTREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICHCONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEENFILED WITH THE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THESECURITIES EXCHANGE ACT OF 1934, AS AMENDED.

 

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by crediting such amountagainst the installment of Base Rent payable on March 1, 2005.Notwithstanding the foregoing, Tenant shall have no obligation to pay Base Rentin respect of the Office Premises and Data Closet Premises for the periodcommencing as of  [/*/ CONFIDENTIALTREATMENT REQUESTED] and ending  [/*/ CONFIDENTIALTREATMENT REQUESTED].

 

B.            Commencing as of January 1,2005, and continuing through the Extended Termination Date, the Tax Base shallbe the Taxes paid in the calendar year ending December 31,  [/*/ CONFIDENTIAL TREATMENT REQUESTED](i.e., 50% of the Taxes payable for fiscal year  [/*/ CONFIDENTIAL TREATMENT REQUESTED]plus 50% of the Taxes payable for fiscal year [/*/ CONFIDENTIAL TREATMENTREQUESTED]).

 

C.            Commencing as of January 1,2005 and continuing through the Extended Termination Date, Operating Costs inthe Base Year shall be the Operating Costs incurred in the calendar year endingDecember 31,  [/*/ CONFIDENTIALTREATMENT REQUESTED].

 

D.            Commencing as of January 1,2005 and continuing through the Extended Termination Date, the Base Rent inrespect of the Data Closet Premises shall be [/*/ CONFIDENTIAL TREATMENTREQUESTED].

 

E.             In the event that any of theprovisions of the Lease is inconsistent with this Amendment or the state offacts contemplated hereby, the provisions of this Amendment shall control.

 

4.             LANDLORD’S CONTRIBUTION

 

A.            Landlord shall contribute an aggregate amount of  [/*/ CONFIDENTIAL TREATMENT REQUESTED] (“Landlord’sContribution”) towards the cost of leasehold improvements to be installed byTenant in the Premises (“Tenant’s Work”) and/or, at Tenant’s election, as acredit against Tenant’s obligation to pay Base Rent under the Lease. From andafter the mutual execution and delivery of this Amendment, Tenant may elect toapply the Landlord’s Contribution toward any installment of Base Rent fallingdue under the Lease by giving Landlord written notice of such election notlater than five (5) days before the due date of such installment. Tenantmay make such election with respect to multiple installments by a single notice.If Tenant elects to apply the Landlord’s Contribution, or any portion thereof,towards the cost of Tenant’s Work, the following provisions of this Paragraph 3shall apply.

 

B.            Tenant’s Work, if any, shall be performed in accordancewith the Lease including, without limitation, Sections 4.01 and 6.05 thereof.Provided that no Event of Default exists at the time that Tenant requests anyrequisition on account of Landlord’s Contribution, Landlord shall pay the costof the work shown on each requisition (as hereinafter defined) submitted byTenant to Landlord within thirty (30) days of submission thereof by Tenant toLandlord. For the purposes hereof, a “requisition” shall

 

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[/*/ CONFIDENTIALTREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICHCONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEENFILED WITH THE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THESECURITIES EXCHANGE ACT OF 1934, AS AMENDED.

 

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mean written documentationshowing in reasonable detail the costs of the improvements then installed byTenant in the Premises. Each requisition shall be accompanied by evidencereasonably satisfactory to Landlord that all work covered by previous requisitionshas been fully paid by Tenant. Tenant shall submit requisition(s) no more oftenthan monthly.

 

C.            Notwithstanding anything to the contrary hereincontained:

 

(i)            Landlord shall have no obligation to advance funds onaccount of Landlord’s Contribution with respect to payment of the cost ofTenant’s Work unless and until Landlord has received the requisition inquestion, together with certifications from Tenant’s architect, certifying thatthe work shown on the requisition has been performed in accordance withapplicable law and in accordance with Tenant’s approved plans, if applicable.

 

(ii)           Landlord shall have no obligation to pay Landlord’sContribution in respect of any requisition submitted after [/*/ CONFIDENTIALTREATMENT REQUESTED]. Any portion of Landlord’s Contribution that has not beenrequisitioned as aforesaid by [/*/ CONFIDENTIAL TREATMENT REQUESTED],shall be applied against the next installment(s) of Base Rent due under theLease until the Landlord’s Contribution has been exhausted. Nothing containedherein shall affect Tenant’s right to apply the Landlord’s Contribution towardany installment of Base Rent falling due before [/*/ CONFIDENTIALTREATMENT REQUESTED].

 

D.            Except for Landlord’s Contribution, Tenant shall bear allother costs of Tenant’s Work. Landlord shall have no liability orresponsibility for any claim, injury or damage alleged to have been caused bythe particular materials, whether building standard or non-building standard,selected by Tenant in connection with Tenant’s Work.

 

5.             CONDITION OF PREMISES

 

The parties herebyacknowledge that Tenant is in occupancy of the Premises and, notwithstandinganything to the contrary herein or in the Lease contained, Tenant shall takethe Premises “as-is”, in the condition in which the Premises are in as of January 1,2005, without any obligation on the part of Landlord to prepare or constructthe Premises for Tenant’s occupancy or to perform any work whatsoever in orabout the Premises and without any warranty or representation by Landlord as tothe condition of the Premises, except as may otherwise be expressly provided inthis Amendment. Notwithstanding the foregoing, Landlord agrees that thePremises and, to the extent applicable, the Building shall comply with the BaseBuilding Conditions set forth in Exhibit B attached hereto. To the extentthat any work is required to make the Premises or the Building, as the case maybe, comply with such requirements, the cost of such work shall be allocated asotherwise provided in the Lease (e.g., if the cost of such work wouldconstitute Operating Costs under the Lease, then a portion of the same shall bereimbursed to Landlord as additional rent if and to the extent otherwiserequired under the Lease).

 

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[/*/ CONFIDENTIALTREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICHCONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEENFILED WITH THE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THESECURITIES EXCHANGE ACT OF 1934, AS AMENDED.

 

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6.             ADDITIONAL RENT FOR OPERATING COSTS AND TAXES

 

Effective as of January 1,2005, Section 3.02 of the Lease is hereby deleted in its entirety and thefollowing is substituted in its place:

 

Section 3.02    ESCALATION:

 

**A.            Definitions.** As used in this Section 3.02, the wordsand terms which follow mean and include the following:

 

(a)           “Operating Year” shall mean acalendar year in which occurs any part of the term of this Lease.

 

(b)           “Operating Costs in the Base Year”shall be the amount as stated in Paragraph 2 of the Ninth Amendment to Lease.

 

(c)           “Tenant’s Proportionate Share” shall be the figure asstated in Paragraph 1B of the Ninth Amendment to Lease. (The phrase “Tenant’sPercentage” shall be substituted with the phrase “Tenant’s Proportionate Share”).

 

(d)           “Taxes” shall mean the real estate taxes and other taxes,levies and assessments imposed upon the Building and the land on which itstands and upon any personal property of Landlord used in the operation thereof,or Landlord’s interest in the Building or such personal property; charges, feesand assessments for transit, housing, police, fire or other governmentalservices or purported benefits to the Building; service or user payments inlieu of taxes; and any and all other taxes, levies, betterments, assessmentsand charges arising from the ownership, leasing, operating, use or occupancy ofthe Building or based upon rentals derived therefrom, which are or shall beimposed by National, State, Municipal or other authorities, provided that anybetterment or other assessments payable in installments shall be payable overthe longest period of time available under applicable law, and only theinstallments (including any interest thereon required by law) payable duringthe Term shall constitute Taxes hereunder. As of the Execution Date, “Taxes”shall not include any transfer, franchise, estate or inheritance, rental,income or profit tax, capital levy or excise, provided, however, that any ofthe same and any other tax, excise, fee, levy, charge or assessment, howeverdescribed, that may in the future be levied or assessed as a substitute for oran addition to, in whole or in part, any tax, levy or assessment which wouldotherwise constitute “Taxes,” whether or not now customary or in thecontemplation of the parties on the Execution Date of this Ninth Amendment toLease, shall constitute “Taxes,” but only to the extent calculated as if theBuilding and the land upon which it stands is the only real estate owned by Landlord.“Taxes” shall also include reasonable and customary third party expenses of taxabatement or other proceedings contesting assessments or levies.

 

(e)           “Tax Base” shall be the amount stated in Paragraph 3B ofthe Ninth Amendment to Lease and shall apply to a Tax Period of twelve (12)months. The

 

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Tax Base shall be reducedpro rata if and to the extent that the Tax Period contains fewer than twelve(12) months.

 

(f)            “Tax Period” shall be any calendar year in respect ofwhich Taxes are due and payable to the appropriate governmental taxingauthority, any portion of which period occurs during the term of this Lease,the first such Period being the calendar year ending December 31, [/*/CONFIDENTIAL TREATMENT REQUESTED].

 

(g) “Operating Costs”:

 

(1)           Definition of Operating Costs. “OperatingCosts” shall mean all costs incurred and expenditures of whatever nature madeby Landlord in the operation and management, for repair and replacements,cleaning and maintenance of the Building and grounds including, withoutlimitation, vehicular and pedestrian passageways related to the Building (butexcluding those areas, if any, outside the Building and for which operatingexpenses are chargeable to non-office (i.e., commercial) tenants), relatedequipment, facilities and appurtenances, elevators, cooling and heatingequipment. In the event that Landlord or Landlord’s managers or agents performservices for the benefit of the Building off-site which would otherwise be performedon-site (e.g., accounting), the cost of such services shall be reasonablyallocated among the properties benefiting from such service and shall beincluded in Operating Costs. Operating Costs shall include, without limitation,those categories of “Specifically Included Operating Costs,” as set forthbelow, but shall not include “Excluded Costs,” as hereinafter defined. IfLandlord incurs Operating Costs for the Building together with one or moreother buildings or properties, the shared costs and expenses shall be equitablyprorated and apportioned between the Building and such other buildings orproperties.

 

(2)           Definition of Excluded Costs. “ExcludedCosts” shall be defined as mortgage charges, brokerage commissions, salaries ofexecutives and owners not directly employed in the management/operation of theBuilding, the cost of work done by Landlord for a particular tenant for whichLandlord has the right to be reimbursed by such Tenant, and, subject toSubparagraph (3) below, such portion of expenditures as are not properlychargeable against income. Excluded Costs shall also mean the following:

 

A.            overhead and profit paid to Landlordor its subsidiaries or affiliates for services to the extent that the sameexceed the cost of such services rendered by other first-class unaffiliatedparties on a competitive basis.

 

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[/*/ CONFIDENTIALTREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICHCONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEENFILED WITH THE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THESECURITIES EXCHANGE ACT OF 1934, AS AMENDED.

 

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B.            management fees in excess of thelevel of fair market management fees for comparable properties (and in no eventgreater than three percent (3%) of gross rental collections per year).

 

C.            leasehold improvements, alterationsand decorations done for tenants of the Building, and services performed forany tenant (including Tenant) of the Building, whether at the expense ofLandlord or such tenant, to the extent that such work or services are in excessof the work or services which Landlord is required to furnish to Tenant underthis Lease.

 

D.            costs incurred in connection withthe making of repairs which are the obligation of another tenant of theBuilding.

 

E.             advertising and promotional expenditures, and charitableand political contributions.

 

F.             financing and refinancing costs inrespect of any mortgage placed upon the Property, including points and commissionsin connection therewith.

 

G.            interest or penalties for late payment by Landlord.

 

H.            costs (including, withoutlimitation, attorney’s fees and disbursements) incurred in connection with any judgment,settlement or arbitration award resulting from any tort liability.

 

I.              costs incurred by Landlord as aresult of Landlord’s breach of this Lease or any other lease with a tenant ofthe Property.

 

J.             the initial cost of equipment usedin the operation, repair and maintenance of the Building, or the rental costsof such equipment.

 

K.            Wages, salaries, or othercompensation paid to any executives, or other employees above the grade ofgeneral manager and any compensation paid to any Building employee to theextent that the same is not fairly allocable to the work or service provided bysuch employee to the Property.

 

L.             costs relating to any retail,residential, garage or storage space (i.e., other than storage space utilizedin connection with the operation of the Building) in the Building.

 

M.           Taxes and any estate, succession,inheritance, profit, use, occupancy, gross receipts, rental, capital gains, andtransfer taxes imposed upon Landlord.

 

N.            leasing and brokerage commissionsand similar fees.

 

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O.            the cost of installing, operatingand maintaining any specialty service such as an observatory, broadcastingfacilities, child care center, cafeteria, conference center, luncheon club,athletic or recreational club.

 

P.             the cost of repairs or replacementsincurred by reason of fire or other casualty or caused by the exercise of theright of eminent domain whether or not insurance proceeds or a condemnationaward are recovered or adequate for such purposes; provided, however, that,notwithstanding the foregoing, amounts paid from time to time by Landlord as adeductible under a property insurance policy with respect to any casualty atthe Building shall be included in Operating Costs.

 

Q.            lease payments for rented equipment,the cost of which equipment would constitute a capital expenditure if theequipment were purchased, except to the extent that the Annual Charge-Off ofsuch Capital expenditure is includible in Operating Costs pursuant toSubparagraph (3) below.

 

R.            any rent, additional rent or othercharge under any lease or sublease to or assumed by Landlord.

 

S.             costs of any items which arereimbursable to Landlord by other tenants (other than as a reimbursement ofOperating Costs), insurance or condemnation proceeds or third parties.

 

T             debt service under any mortgage onthe Property and rent payable under any ground or underlying lease.

 

U             costs attributable to the presenceof Hazardous Materials in the Building.

 

V.            depreciation, amortization (exceptas otherwise expressly provided herein) and other non-cash charges.

 

W.          any bad debt loss, rent loss or reserves for bad debts orrent loss.

 

X.            the cost of acquiring, leasing, installing, or restoringworks of art.

 

Y.            any expenses which are not paid orincurred in respect of the Building or Land but rather in respect of other realproperty owned by landlord, provided that with respect to any expensesattributable in part to the Building or Land and in part to other real propertyowned by Landlord (including, without limitation, salaries, fringe benefits andother compensation of Landlord’s personnel who provide services to both theBuilding and other properties), Operating Costs shall include only such portionthereof as are apportioned by Landlord to the Building or Land on a fair andequitable basis;

 

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Z.            fines or penalties resulting fromthe violation by Landlord of any applicable legal laws and requirements;

 

AA.        expenses of relocating or moving any tenant(s) of theBuilding;

 

BB.          costs incurred with respect to a saleor transfer of all or any portion of the Building or any interest therein or inany person of whatever tier owning an interest therein.

 

CC.          costs incurred in connection with theacquisition or sale of air rights, transferable development rights, easementsor other real property interests;

 

DD.         any insurance costs to the extent thesame are in excess of those that are customary for like-type first-class officebuildings located in Boston, MA;

 

EE.          all costs of Landlord’s generalcorporate and general administrative and overhead expenses;

 

FF.          the cost of temporary exhibitionslocated at or within the Building.

 

(3)           Capital Expenditures.

 

(i)            Replacements. If, during theterm of this Lease, Landlord shall replace or install any capital items or makeany capital expenditures (collectively called “capital expenditures”) (x) whichhave the effect of reducing Operating Costs below the costs that would havebeen incurred absent such items or expenditures, or (y) to comply with legalrequirements first enacted or promulgated and in effect, or first becomingapplicable to the Building, after the Execution Date, the total amount of suchcosts shall not be includible in Operating Costs for the Operating Year inwhich they were made, but there shall nevertheless be included in suchOperating Costs and in Operating Costs for each succeeding Operating Year theamount, if any, by which the Annual Charge-Off (determined as hereinafterprovided) of such capital expenditure (less insurance proceeds, if any,collected by Landlord by reason of damage to, or destruction of the capitalitem being replaced) exceeds the annual Charge-Off of the capital expenditurefor the item being replaced.

 

(ii)           Annual Charge-Off. “AnnualCharge-Off” shall be defined as the annual amount of principal and interestpayments which would be required to repay a loan (“Capital Loan”) in equalmonthly installments over the Useful Life, as hereinafter defined, of thecapital item in question on a direct reduction basis at an

 

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annual interest rate equalto the Capital Interest Rate, as hereinafter defined, where the initialprincipal balance is the cost of the capital item in question. Notwithstandingthe foregoing, if Landlord reasonably concludes on the basis of engineeringestimates that a particular capital expenditure will effect savings in Buildingoperating expenses including, without limitation, energy-related costs, andthat such projected savings will, on an annual basis (“Projected Annual Savings”),exceed the Annual Charge-Off of such capital expenditure computed as aforesaid,then and in such events, the Annual Charge-Off shall be increased to an amountequal to the Projected Annual Savings; and in such circumstances, the increasedAnnual Charge-Off (in the amount of the Projected Annual Savings) shall be madefor such period of time as it would take to fully amortize the cost of thecapital item in question, together with interest thereon at the CapitalInterest Rate as aforesaid, in equal monthly payments, each in the amount ofone-twelfth (l/12th) of the Projected Annual Savings, with such payments beingapplied first to interest and the balance to principal.

 

(iii)          Useful Life.“Useful Life” shall be reasonably determined by Landlord in accordance withgenerally accepted accounting principles and practices in effect at the time ofacquisition of the capital item.

 

(iv)          Capital Interest Rate. “CapitalInterest Rate” shall be defined as the lesser of (A) the rate thatLandlord would reasonably be required to pay to finance the cost of the capitalitem or, if the capital item is acquired through third-party financing, thenthe actual (including fluctuating) rate paid by Landlord in financing theacquisition of such capital item, or (B) the interest rate then chargedfor long term mortgages by institutional lenders on like properties within thegeneral locality in which the Building is located.

 

(4)           Specifically Included Categories ofOperating Costs. Operating Costs shall include, but not be limited to, thefollowing:

 

Taxes(other than real estate taxes): Sales, Federal Social Security, Unemploymentand Old Age Taxes and contributions and State Unemployment taxes andcontributions accruing to and paid by the Landlord on account of all employeesof Landlord and/or Landlord’s managing agent, who are employed in, about or onaccount of the Building, except that taxes levied upon the net income of theLandlord and

 

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taxes withheld fromemployees, and “Taxes” as defined in Section 3.02(d) shall not beincluded herein.

 

Water:All charges and rates connected with water supplied to the Building and relatedsewer use charges.

 

Heatand Air Conditioning: All charges connected with heat and air conditioningsupplied to the Building, except to the extent reimbursed to Landlord forservices provided on an overtime basis.

 

Wages:Wages and cost of all employee benefits of all employees of the Landlord and/orLandlord’s managing agent who are employed in, about or on account of theBuilding.

 

Cleaning:The cost of labor and material for cleaning the Building, surrounding areawaysand windows in the Building.

 

ElevatorMaintenance: All expenses for or on account of the upkeep and maintenance ofall elevators in the Building.

 

Electricity:The cost of all electric current for the operation of any machine, appliance ordevice used for the operation of the premises and the Building, including thecost of electric current for the elevators, lights, air conditioning andheating, but not including electric current which is paid for directly to theutility by the user/tenant in the Building. (If and so long as Tenant is billeddirectly by the electric utility for its own consumption as determined by itsseparate meter, then Operating Costs shall include only Building and publicarea electric current consumption and not any demised premises electric currentconsumption. Wherever separate metering is unlawful, prohibited by utilitycompany regulation or tariff or is otherwise impracticable, relevantconsumption figures for the purposes of this Section 3.02 shall bedetermined by fair and reasonable allocations and engineering estimates made byLandlord. Furthermore, if and to the extent that theOperating-Costs-in-the-Base-Year figure shall include any componentrepresenting the cost to the Landlord of electric current supplied to anytenant’s premises under so-called “rent-inclusion” lease arrangements, then ifsuch cost is eliminated from Operating Costs in an Operating Year in accordancewith the foregoing provisions, the figure for Operating Costs in the Base Yearfor the purposes of this Section 3.02 shall likewise be reduced by theamount for such cost component.)

 

Insurance,etc.: Fire, casualty, liability, rent loss and such other insurance as may fromtime to time be required by lending institutions on first-class officebuildings in the City or Town wherein the Building is located and all otherexpenses customarily incurred in connection with the

 

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operationand maintenance of first-class office buildings in the City or Town wherein theBuilding is located including, without limitation, insurance deductible amountsand rental costs associated with the Building’s management office. From time totime at the request of Tenant, but not more frequently than annually, Landlordshall deliver to Tenant certificates evidencing the insurance maintained byLandlord the cost of which is included in Operating Costs.

 

ESFA:Costs incurred by Landlord with respect to the Building under the Declarationof Easements and Shared Facilities Agreement dated as of March 13, 2003,recorded with the Suffolk County Registry of Deeds in Book 30857, Page 290and filed with the Suffolk County Registry District of the Land Court asDocument No. 652358 (“ESFA”)

 

(5)           Gross-Up Provision.Notwithstanding the foregoing, in determining the amount of Operating Costs forany calendar year or portion thereof falling within the term (including theBase Year), Operating Costs for such period shall be adjusted to equal theamount Operating Costs would have been for such period had occupancy of theBuilding been at the Adjustment Percentage throughout such period. As usedherein, the term “Adjustment Percentage” shall be a percentage equal to thehigher of (i) ninety-five percent (95%), and (ii) the actual averagepercentage of occupancy of the Building during the Operating Year. Theextrapolation of Operating Costs under this paragraph shall be performed byappropriately adjusting the cost of those components of Operating Costs thatare impacted by changes in the occupancy of the Building.

 

**B.            Tax Excess.** If in any Tax Period the Taxes exceed theTax Base, Tenant shall pay to Landlord Tenant’s Proportionate Share of suchexcess, such amount being hereinafter referred to as “Tax Excess”. If Taxes inany Tax Period decrease below the Tax Base, Tax Excess for that Tax Periodshall be $0. Tax Excess shall be due when billed by Landlord. In implementationand not in limitation of the foregoing, Tenant shall remit to Landlord pro ratamonthly installments on account of projected Tax Excess, reasonably calculatedby Landlord on the basis of the most recent Tax data or budget available. Ifthe total of such monthly remittances on account of any Tax Period is greaterthan the actual Tax Excess for such Tax Period, Tenant may credit thedifference against the next installment of rental or other charges due toLandlord hereunder, or refund such amount to Tenant if the Term of the Leasehas expired. If the total of such remittances is less than the actual TaxExcess for such Tax Period, Tenant shall pay the difference to Landlord withinthirty (30) days after receipt of Landlord’s bill therefor. Such obligation toreconcile the payment of Taxes for any Tax Period at the end of the term shallsurvive the expiration of the Term.

 

Appropriatecredit against Tax Excess shall be given for any refund obtained by reason of areduction in any Taxes by the Assessors or the administrative, judicial orother governmental agency responsible therefor. The original computations, aswell as

 

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reimbursementor payments of additional charges, if any, or allowances, if any, under theprovisions of this Section 3.02 shall be based on the original assessedvaluations with adjustments to be made at a later date when the tax refund, ifany, shall be paid to Landlord by the taxing authorities. Reasonable andcustomary third party expenditures for legal fees and other expenses incurredin obtaining the tax refund may be charged against the tax refund before theadjustments are made for the Tax Period, if and to the extent such expenditureswere not originally included in the Taxes paid by Tenant for such Tax Period.

 

**C.            Operating Expense Excess.** If the Operating Costs in any Operating Yearexceed the Operating Costs in the Base Year, Tenant shall pay to LandlordTenant’s Proportionate Share of such excess, such amount being hereinafterreferred to as “Operating Expense Excess.” If Operating Costs in any OperatingYear decrease below Operating Costs in the Base Year, Operating Expense Excessfor that Operating Year shall be $0. Operating Expense Excess shall be due whenbilled by Landlord. In implementation and not in limitation of the foregoing,Tenant shall remit to Landlord pro rata monthly installments on account ofprojected Operating Expense Excess, calculated by Landlord on the basis of themost recent Operating Costs data or budget available. No later than one hundredtwenty (120) days after the end of the first calendar year and of eachsucceeding calendar year during the Lease Term or fraction thereof at the endof the term, Landlord shall render Tenant a statement in reasonable detail andaccording to generally accepted accounting practices certified by an officer ofLandlord, showing for the preceding calendar year or fraction thereof, as thecase may be, the Operating Costs. Said statement to be rendered to Tenant alsoshall show for the preceding year or fraction thereof, as the case may be, theamounts already paid by Tenant on account of Operating Cost Excess and theamount of Operating Cost Excess remaining due from, or overpaid by, Tenant forthe year or other period covered by the statement. If the total of such monthlyremittances on account of any Operating Year is greater than the actualOperating Expense Excess for such Operating Year, Tenant may credit thedifference against the next installment of rent or other charges due toLandlord hereunder, or refund such amount to Tenant if the Term of the Leasehas expired. If the total of such remittances is less than actual OperatingExpense Excess for such Operating Year, Tenant shall pay the difference toLandlord within thirty (30) days after receipt of Landlord’s bill therefor.Such obligation to reconcile the payment of Operating Costs for any OperatingYear at the end of the term shall survive the expiration of the Term.

 

**D.            Part Years.** If the Commencement Date or the TerminationDate occurs in the middle of an Operating Year or Tax Period, Tenant shall beliable for only that portion of the Operating Expense Excess or Tax Excess, asthe case may be, in respect of such Operating Year or Tax Period represented bya fraction the numerator of which is the number of days of the herein termwhich falls within the Operating Year or Tax Period and the denominator ofwhich is three hundred sixty-five (365), or the number of days in said TaxPeriod, as the case may be.

 

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E.**             Effectof Taking.** Inthe event of any taking of the Building or the land upon which it stands undercircumstances whereby this Lease shall not terminate under the provisions of Section 7.06then, for the purposes of determining Tax Excess, there shall be substitutedfor the Tax Base originally provided for herein a fraction of such Tax Base,the numerator of which fraction shall be the Taxes for the first Tax Periodsubsequent to the condemnation or taking which takes into account such condemnationor taking, and the denominator of which shall be the Taxes for the last TaxPeriod prior to the condemnation or taking, which did not take into accountsuch condemnation or taking. Tenant’s Proportionate Share shall be adjustedappropriately to reflect the proportion of the premises and/or the Buildingremaining after such taking.

 

F.**             Disputes,etc.**

 

Subjectto the provisions of this paragraph, Tenant shall have the right, at Tenant’scost and expense, to examine all documentation and calculations prepared in thedetermination of Operating Cost Excess:

 

1.             Such documentation and calculationshall be made available to Tenant at the offices where Landlord keeps suchrecords during normal business hours within thirty (30) days after Landlordreceives a written request from Tenant to make such examination.

 

2.             Any request for examination inrespect of any calendar year may be made no more than one (1) year afterLandlord advises Tenant of the actual amount of Operating Costs in respect ofsuch calendar year and provides to Tenant the year-end statement required underParagraph C of this Section 3.02, provided however, if such examinationresults in a determination that Tenant was overcharged with respect to acalendar year, then Tenant shall have the right to review Landlord’s books asto the erroneous items for the two calendar years immediately prior to thecalendar year in question; provided, however, that in no event shall Tenanthave the right to make such an examination more than once with respect to anycalendar year.

 

3.             If, after the examination by Tenantof Landlord’s books and records pursuant to this Section 3.02 with respectto any Operating Year, it is finally determined that: (i) Tenant has madean overpayment on account of Operating Costs, Landlord shall credit suchoverpayment against the next installment(s) of Annual Fixed Rent thereafterpayable by Tenant, except that if such overpayment is determined after thetermination or expiration of the term of this Lease, Landlord shall promptlyrefund to Tenant the amount of such overpayment less any amounts then due fromTenant to Landlord, or (ii) Tenant has made an underpayment on account ofOperating Expenses Allocable to the Premises, Tenant shall, within thirty (30)days of such determination, pay such underpayment to

 

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Landlord. Nothing containedherein shall affect the right of Landlord to contest the findings of any suchexamination.

 

4.             Such examination may not be made by any examiner ofTenant that is being paid by Tenant on a contingent fee basis.

 

5.             As a condition to performing anysuch examination, Tenant and its examiners shall be required to execute anddeliver to Landlord an agreement, in form reasonably acceptable to Landlord andTenant, agreeing to keep confidential any information which it discovers aboutLandlord or the Building in connection with such examination.

 

Anyobligations under this Section 3.02 which shall not have been paid at theexpiration or sooner termination of the term of this Lease shall survive suchexpiration and shall be paid when and as the amount of same shall be determinedto be due.

 

G.**            Miscellaneous.** In addition, (i) the following phraseshall be added after the word “Rent” wherever it appears in Section 8.03of the Lease and at the end of the first (1st) sentence of Section 10.02of the Lease: “including, without limitation, any amount of Operating ExpenseExcess and Tax Excess”.

 

7.             EXTENSION OPTIONS

 

Tenant shall continue tohave two (2) five (5) year Extension Options in respect of allPremises, pursuant to Section 2.05 of the Lease, as amended by Paragraph11 of the Eighth Amendment to Lease, except that said Section 2.05 shallbe modified as follows:

 

(i) thephrase “one (1) year prior to the Initial Term Expiration Date” appearingin line 8 of Section 2.05(a) of the Lease is hereby deleted and thephrase “eighteen (18) months prior to the Extended Termination Date” is herebysubstituted in its place;

 

(ii) the phrase “one (1) year”appearing in line 10 of said Section 2.05(a) is hereby deleted andthe phrase “eighteen (18) months” is hereby substituted in its place;

 

(iii) the phrase “onehundred (100%) percent” in Section 2.05(c) of the Lease is herebydeleted and the phrase “ninety-five (95%) percent” is hereby substituted in itsplace;

 

(iv) the phrase “(i.e.,space containing at least 100,000 rentable square feet of floor area)” shall beinserted after the phrase “comparable square footage” appearing in the secondparagraph of Section 2.05(c);

 

(v) clause (ii) ofSection 2.05(c) is hereby deleted and the following is substituted inits place: “(ii) the rental shall reflect the then condition of thePremises and all

 

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residual value of anyimprovements to the Premises, other than any improvements, alterations orfinishes in the Premises paid for by Tenant that are above the level offirst-class business offices in the Building and other first class buildings inBoston.

 

(vi) the phrase “twelve(12) months” appearing in line 14 of the third paragraph of Section 2.05(d) ofthe Lease is hereby deleted and the phrase “eighteen (18) months” is herebysubstituted in its place; and

 

(vii) Section 2.05(e) ishereby deleted in its entirety and the following is hereby substituted in itsplace:

 

“(e) ConditionsPrecedent to Exercise. Notwithstanding any contrary provision of this Section 2.05or any other provision of this Lease, any Extension Option and any exercise byTenant of any Extension Option shall be void and of no effect unless on theFirst Extension Exercise Date or the Second Extension Exercise Date, asapplicable, and on the First Extension Term Commencement Date and the SecondExtension term Commencement Date, as applicable, (i) this Lease is in fullforce and effect (ii) no Event of Default on the part of Tenant hasoccurred and is continuing under this Lease, and (iii) Tenant shall nothave sublet in the aggregate more than thirty-three percent (33%) of therentable floor area of the Premises to any entity or entities other than aTenant Affiliate (as defined in Section 6.04(f)); provided, however, thatLandlord reserves the right to waive in writing the provisions of this subsection 2.05(e).”

 

In implementation of theforegoing, Paragraph 11 of the Eighth Amendment is hereby deleted and is of nofurther force or effect.

 

8.             TENANT’S EXPANSION OPTION

 

Onthe conditions (which conditions Landlord may waive, at its election, bywritten notice to Tenant at any time) that Tenant is not in default of itscovenants and obligations under the Lease beyond applicable notice and cureperiods, and that Tenant shall not have sublet in the aggregate more thanthirty-three percent (33%) of the rentable floor area of the Premises to anyentity or entities other than a Tenant Affiliate, Tenant shall have the optionto lease the entirety of the [/*/ CONFIDENTIAL TREATMENT REQUESTED] floor ofthe Building (“Expansion Area”). The Expansion Area contains approximately28,511 rentable square feet, and is substantially as shown on Exhibit Aattached hereto. The expansion option contained herein completely supercedesall previously existing expansion options of Tenant under the Lease.

 

A.            Exercise of Rights to Expansion Area

 

Tenant may exercise itsoption to lease the Expansion Area by giving written notice thereof (“ExerciseNotice”) to Landlord on or before April 1, 2007. If

 

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[/*/ CONFIDENTIALTREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICHCONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEENFILED WITH THE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THESECURITIES EXCHANGE ACT OF 1934, AS AMENDED.

 

 

 

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Tenantfails timely to give such notice, Tenant shall have no further right to leasethe Expansion Area, time being of the essence of this Paragraph 8. Upon thetimely giving of such notice, Landlord shall lease and demise to Tenant, andTenant shall hire and take from Landlord, the Expansion Area, without the needfor further act or deed by either party, for the term and upon all of the sameterms and conditions of this Lease, except as hereinafter set forth.

 

B.            Lease Provisions Applying to Expansion Area

 

The leasing to Tenant of theExpansion Area shall be upon all the same terms and conditions of the Leaseexcept as follows:

 

(1)           Term Commencement Date

 

The Term Commencement Datein respect of the Expansion Area (the “Expansion Commencement Date”), shall bethe later of: (i) April 1, 2008, and (ii) the date that thethen-current occupant vacates the Expansion Area. While Tenant’s right toexercise its option to lease the Expansion Area remains outstanding, Landlordwill not enter into any lease with any entity other than Tenant or a TenantAffiliate that will permit such entity to occupy all or any portion of theExpansion Area after March 31, 2008. Landlord agrees to use commerciallyreasonable efforts to deliver the Expansion Area to Tenant on or before April 1,2008, which efforts shall include, if necessary, the commencement andprosecution of a summary process action to recover possession of such space. IfLandlord fails to deliver possession of the Expansion Area to Tenant on orbefore April 1, 2008, then, as Tenant’s remedy therefor, Tenant shallreceive a credit against Base Rent due hereunder in an amount equal to theexcess of (a) the base rent payable by the then-current occupant of theExpansion Area as increased pursuant to the holdover provisions of suchoccupant’s lease with respect to the Expansion Area over (b) the Base Rentdetermined under Paragraph (2) below with respect to the Expansion Area.Such credit shall be calculated on a perdiem basis for each daythat elapses after April 1, 2008, and before the earlier to occur of (x)the Expansion Commencement Date and (y) June 1, 2008. In addition to theforegoing, if the Expansion Commencement Date has not occurred on or before June 1,2008, then Tenant shall receive a credit against Base Rent payable hereunder inthe amount of the perdiem Base Rent determined under Paragraph (2) belowwith respect to the Expansion Area for each day that elapses after June 1,2008, and before the occurrence of the Expansion Commencement Date.Notwithstanding the foregoing, if the perdiem credit that tenantwould receive for the period from April 1, 2008 through June 1, 2008exceeds the perdiem credit that Tenant would receive after June 1,2008, then, in lieu of the credit set forth above applicable after June 1,2008, Tenant shall continue to receive, if the Expansion Commencement Date hasnot occurred on or before June 1, 2008, the previously applicable rentcredit.

 

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(2)           Base Rent

 

The Base Rent payable inrespect of the Expansion Area shall be 100% of the Fair Rental Value, asdefined in Section 2.05(c) of the Lease, as amended, of the ExpansionArea as of the Expansion Commencement Date, taking into consideration an amountof Base Operating Costs and Base Taxes for the Expansion Area equal to theamount of Operating Costs and Taxes payable under the Lease for 2008, as wellas any improvement allowances, landlord’s work and other inducements. To assistTenant in determining whether to exercise the Expansion Option, upon a writtenrequest given by Tenant to Landlord not earlier than January 1, 2007,Landlord shall give written notice to Tenant, within thirty (30) days afterTenant’s request, of Landlord’s determination of the Fair Rental Value of theExpansion Area as of the Expansion Commencement Date.

 

(3)           Condition of Expansion Area

 

Exceptas may be otherwise agreed to by the parties, the Expansion Area shall bedelivered by Landlord and accepted by Tenant “as-is”, in its then (i.e. as ofthe Expansion Commencement Date), state of construction, finish and decoration,without any obligation on the part of Landlord to prepare or construct theExpansion Area for Tenant’s occupancy. In implementation of the foregoing,Landlord shall have no obligation under Section 2.03 of the Lease inrespect of such Expansion Area.

 

C.            Notwithstanding the fact that Tenant’sexercise of the above-described expansion option shall be self-executing, asaforesaid, the parties hereby agree to execute a lease amendment reflecting theaddition of the Expansion Area promptly after the determination of the BaseRent for the Expansion Area. The execution of such lease amendment shall not bedeemed to waive any of the conditions to Tenant’s exercise of the hereinexpansion options, unless otherwise specifically provided in such leaseamendment.

 

9.             RIGHT OF FIRST OPPORTUNITY

 

A.           Tenant shall continue to have theRight of First Opportunity pursuant to Section 2.07 of the Lease, exceptthat the phrase “Floors [/*/ CONFIDENTIAL TREATMENT REQUESTED]” in the firstparagraph of Section 2.07(a) of the Lease is deleted and the phrase “Floor[/*/ CONFIDENTIAL TREATMENT REQUESTED]” is substituted in its place.

 

B.            The following is hereby added to theend of the first paragraph of Section 2.07(a) of the Lease:

 

“Notwithstandinganything herein to the contrary, (a) Tenant’s Right of First Opportunitywith respect to Floors [/*/ CONFIDENTIAL TREATMENT REQUESTED] is subject andsubordinate to the rights of occupants contained in existing leases (as of thedate of the Ninth Amendment to Lease) including any extensions or renewalsthereof made pursuant to any options (including, without limitation, any rightsof first offer or similar rights) contained in such leases at

 

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[/*/ CONFIDENTIALTREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIALTREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THECOMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACTOF 1934, AS AMENDED.

 

 

 

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suchtime, except to the extent such existing leases are expressly subject andsubordinate t o the rights of Tenant under this Lease, which existing rightsare listed on Exhibit F attached hereto; and (b) Tenant’s Right ofFirst Opportunity with respect to Floors [/*/ CONFIDENTIAL TREATMENT REQUESTED]is subject and subordinate to (i) any expansion options and/or rights offirst offer with respect to such space under leases existing as of the date ofthe Ninth Amendment to Lease and (ii) the rights of the named tenantscontained in the existing leases (as of the date of the Ninth Amendment toLease) of such space as such leases may be extended or renewed by such namedtenants, whether or not any such extension or renewal is pursuant to an optioncontained in such lease (i.e., Landlord shall have the right to extend thetenancy of the named tenant under a lease on Floors [/*/ CONFIDENTIAL TREATMENTREQUESTED], even if the same is not made pursuant to an option contained in theapplicable lease, without giving Tenant a Right of First Opportunity hereunder,provided that any successor to such named tenant under such lease may onlyextend the occupancy in such space pursuant to an option contained in suchlease that is enforceable by such successor).”

 

C.            The following is hereby added to theend of the second Paragraph of Section 2.07(a) of the Lease:

 

“Notwithstanding theforegoing or anything contained in Landlord’s notice, the term of any lease ofany First Opportunity Space entered into under this Section 2.07 shall becoterminous with the Term of this Lease, including the Extension Options.”

 

D.            Section 2.07(b) of the Lease is hereby deletedin its entirety and the following is substituted in its place:

 

“(b)         Conditions Precedent to Exercise. Notwithstanding anycontrary provision of this Section 2.07 or any other provision of thisLease, any Right of First Opportunity and any exercise by Tenant of any Rightof First Opportunity shall be void and of no effect unless on the date Tenantnotifies Landlord that it is exercising the Right of First Opportunity (the “FirstOpportunity Exercise Date”) and on the commencement date of the lease agreementfor such First Opportunity Space (the “First Opportunity Commencement Date”) (i) thisLease is in full force and effect, (ii) no Event of Default on the part ofTenant has occurred and is continuing under this Lease, (iii) Tenant shallnot have sublet in the aggregate more than thirty three percent (33%) of therentable floor area of the Premises to any entity or entities other than aTenant Affiliate, (iv) Tenant shall not have assigned this Lease to anyentity other than a Tenant Affiliate, and (v) not less than twenty-four(24) months remain in the Term of this Lease (provided, however, that if lessthan twenty-four (24) months remain in the Term but Tenant has available anyExtension Option, Tenant may, simultaneously with giving Landlord the noticecontemplated by Section 2.07(a), exercise Tenant’s next availableExtension Option so as to satisfy the condition set forth in this clause (v));provided, however, that Landlord reserves the right to waive in writing theprovisions of this Section 2.07(b).”

 

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[/*/ CONFIDENTIALTREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICHCONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEENFILED WITH THE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THESECURITIES EXCHANGE ACT OF 1934, AS AMENDED.

 

 

 

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10.          TENANT’S GENERATOR

 

A.            Tenant, subject to Landlord’s review and approval ofTenant’s plans therefor, which approval shall not be unreasonably withheldconditioned or delayed, shall have the right to install up to two (2) supplementalgenerators with a power output not to exceed, in the aggregate, 2,000 kilowattsand a fuel storage system with a capacity not to exceed a 48-hour fuel supply(collectively, the “Generators”) to provide emergency additional electricalcapacity to the Premises during the Term. The installation of the Generator andall appurtenant cables and other installations shall be at Tenant’s soleexpense, but subject to Landlord’s Contribution if elected by Tenant asprovided herein. The Generators shall be placed at a location on the Propertydesignated by Landlord and approved by Tenant, which approval shall not beunreasonably withheld (the “Generator Area”). If the Generator Area is locatedin an indoor location, Landlord shall, at Landlord’s cost, separately demisethe location of the Generator Area and deliver the Generator Area to Tenant instorage room shell condition, including electric supply for lighting only tosuch space. In any event, Tenant shall have the right to install, at itsexpense, electrical service to the Generator Area, whether the same is in anindoor location or an outdoor location. If the Generator Area is located in anoutdoor location, the Generator Area shall be delivered to Tenant in “as-is”condition, without any obligation on the part of Landlord to prepare orconstruct the Generator Area for Tenant’s use. Notwithstanding the foregoing,Tenant’s right to install the Generators shall be subject to Landlord’sreasonable approval of the manner in which the Generators are installed, themanner in which any fuel storage and fuel pipe is installed, the manner inwhich any ventilation and exhaust systems are installed, the manner in whichany cables are run to and from the Generators to the Premises and the measuresthat will be taken to eliminate any vibrations or sound disturbances from theoperation of the Generators, including, without limitation, any necessary 2hour rated fire enclosures or sound insulation. Landlord hereby agrees that itwill provide reasonable means of access to run cables between the Generatorsand the Premises, whether through an air shaft, chase or other conduit or acombination thereof. In the event that it is technologically feasible toutilize the existing conveyor chase to run cables to connect the Premises tothe Generators, and if Landlord shall refuse to permit use of such chase, anyadditional cost reasonably incurred by Tenant to utilize an alternative meansof running such cable shall be reimbursed by Landlord to Tenant promptly afterwritten notice from Tenant accompanied by copies of invoices evidencing suchcost. Landlord shall have the right to require an enclosure reasonablyacceptable to Landlord and Tenant to hide or disguise the existence of theGenerators and to minimize any adverse effect that the installation and/oroperation of the Generators may have on the appearance of the Building andProperty. Tenant shall be solely responsible for obtaining at its expense allnecessary governmental and regulatory approvals and permits and for the cost ofinstalling, operating, maintaining and removing the Generators. Tenant shallnot install or operate the Generators until Tenant has obtained and submittedto Landlord copies of all required governmental permits, licenses andauthorizations necessary for the installation and operation of the Generators.In addition to, and without limiting Tenant’s obligations under the Lease,Tenant shall comply with all applicable environmental and fire prevention Laws

 

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pertaining to Tenant’s useof the Generator Area. Tenant shall also be responsible for the cost of allutilities consumed in the operation of the Generators.

 

B.            Tenant shall be responsible for assuring that theinstallation, maintenance, operation and removal of the Generators shall in noway damage any portion of the Building or Property. To the maximum extentpermitted by Law, the Generators and all appurtenances in the Generator Areashall be at the sole risk of Tenant, and, subject to Section 7.05,Landlord shall have no liability to Tenant if the Generators or any appurtenancesinstallations are damaged, except as a result of gross the negligence orwillful misconduct of Landlord or any Landlord Related Parties. Subject to Section 7.05,Tenant agrees to be responsible for any damage caused to the Building orProperty in connection with the installation, maintenance, operation or removalof the Generators and, in accordance with the terms of Section 7.04 of theLease, to indemnify, defend and hold Landlord and the Landlord Related Partiesharmless from all liabilities, obligations, damages, penalties, claims, costs,charges and expenses, including, without limitation, reasonable architects’ andattorneys’ fees (if and to the extent permitted by Law), which may be imposedupon, incurred by, or asserted against Landlord or any of the Landlord RelatedParties in connection with the installation, maintenance, operation or removalof the Generators, including, without limitation, any environmental andhazardous materials claims. In addition to, and without limiting Tenant’s obligationsunder the Lease, Tenant covenants and agrees that the installation and use ofthe Generators and appurtenances shall not adversely affect the insurancecoverage for the Building. If for any reason, the installation or use of theGenerators, the Tank and/or the appurtenances shall result in an increase inthe amount of the premiums for such coverage, then Tenant shall be liable forthe full amount of any such increase.

 

C.            Tenant shall be responsible for the installation,operation, cleanliness, maintenance and removal of the Generators and theappurtenances, all of which shall remain the personal property of Tenant, andshall be removed by Tenant at its own expense at the expiration or earliertermination of the Lease. Tenant shall repair any damage caused by suchremoval, including the patching of any holes to match, as closely as possible,the color surrounding the area where the Generators and appurtenances wereattached. Such maintenance and operation shall be performed in a manner toavoid any unreasonable interference with any other tenants or Landlord. Tenantshall take the Generator Area “as is” in the condition in which the GeneratorArea is in as of the Commencement Date, without any obligation on the part ofLandlord to prepare or construct the Generator Area for Tenant’s use oroccupancy, other than to deliver any interior Generator Area in Storage Room ShellCondition. Without limiting the foregoing, Landlord makes no warranties orrepresentations to Tenant as to the suitability of the Generator Area for theinstallation and operation of the Generator. Tenant shall have no right to makeany changes, alterations, additions, decorations or other improvements to theGenerator Area without Landlord’s prior written consent, which shall not be unreasonablywithheld, conditioned or delayed. Tenant agrees to maintain the Generators,including without limitation, any enclosure installed around the Generators ingood condition and repair. Tenant shall be responsible for performing anymaintenance and

 

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improvements to anyenclosure surrounding the Generator so as to keep such enclosure in goodcondition.

 

D.            Tenant, subject to the rules and regulations enactedby Landlord and to Landlord’s reasonable security requirements, shall haveaccess to the Generators and their surrounding area at all times for thepurpose of installing, repairing, maintaining and removing said Generators.

 

E.             Tenant shall only test theGenerators before or after Normal Business Hours and at a time mutually agreedto in writing by Landlord and Tenant in advance. Tenant shall be permitted touse the Generator Area solely for the maintenance and operation of theGenerators, and the Generators and Generator Area are solely for the benefit ofTenant. All electricity generated by the Generators shall be solely supplied tothe Premises.

 

F.             Except for electric service forlighting in the event that the Generator Area is located in an indoor location,Landlord shall no obligation to provide any services, including, withoutlimitation, electric current, to the Generator Area. Tenant shall have no rightto sublet the Generator Area or to assign its interest hereunder except inconnection with an assignment of the Lease.

 

G.            Landlord may from time to time electto relocate the Generator Area and the Generators to another location on theProperty. Landlord shall give Tenant written notice of any relocation not lessthan ninety (90) days before commencing any such relocation work. Any such relocationshall be performed at Landlord’s sole expense in accordance with plans andspecifications prepared by Landlord and approved by Tenant in writing, whichapproval shall not be unreasonably withheld. In connection with any suchrelocation, Landlord shall insure that Tenant has access to a back-up powersupply equivalent to that provided by the Generators at all times during suchrelocation.

 

11.          PARKING

 

A.           The parties hereby acknowledge that,pursuant to Section 2.08 of the Lease, as amended by Paragraph 6 of theFirst Amendment to Lease, Paragraph 6 of the Second Amendment to Lease,Paragraph 6 of the Fourth Amendment to Lease, Paragraph 10 of the SixthAmendment to Lease, Paragraph 9 of the Seventh Amendment to Lease and Paragraph8 of the Eighth Amendment to Lease, Landlord will make available to Tenantfifty-seven (57) automobile monthly parking permits for use in The Garage at100 Clarendon Street (“Unreserved Parking Permits”). Said use of the UnreservedParking Permits shall be upon all of the same terms and conditions as set forthin said Section 2.08 of the Lease, as amended. Nothing contained hereinshall require Tenant to utilize all fifty seven (57) Unreserved Parking Permitsat any time.

 

B.           In addition, Landlord shall usereasonable efforts to make available to Tenant up to six (6) automobilemonthly parking permits (“Reserved Parking Permits”) in

 

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the reserved parking area (“ReservedParking Area”) located at the entrance to The Garage at 100 Clarendon Street.Said use of the Reserved Parking Permits shall be upon all of the same termsand conditions as set forth in said Section 2.08 of the Lease, as amended.Tenant shall pay for said Reserved Parking Permits, as additional rent, at theprevailing rate for reserved parking permits in The Garage at 100 ClarendonStreet, as such rate may be increased, from time to time. The parties herebyacknowledge that, as of the date of the Execution Date of this Ninth Amendmentto Lease, another tenant in the Building has the exclusive right to theReserved Parking Area. Landlord will use reasonable efforts to cause suchtenant to relinquish up to six (6) spaces in the Reserved Parking Area, so asto make the same available for Tenant’s use.

 

C.            Any reference to the Hancock Garage in the Lease ishereby deleted and the phrase “The Garage at 100 Clarendon Street”  is substituted in its place.

 

12.           BROKERAGE

 

Tenant and Landlord eachwarrant to the other that it has had no dealings with any broker or agent inconnection with this Ninth Amendment to Lease other than CBRE/Lynch Murphy WalshAdvisors and Meredith & Grew, Inc. (the “Brokers”), and each covenants todefend (with counsel reasonably approved by the other party), hold harmless andindemnify the other party from and against any and all costs, expense orliability for any compensation, commission and charges claimed by an broker oragent except the Brokers, arising out of the warranting party’s dealings inconnection with this Ninth Amendment to Lease or the negotiation thereof.Landlord shall pay the commissions due to the Brokers pursuant to the terms ofa separate agreement.

 

13.           NOTICES

 

For all purposes of theLease, the notice address for Landlord is as follows:

 

100 & 200 Clarendon LLCc/o Beacon Capital Partners LLCOne Federal StreetBoston, Massachusetts 02110

 

with a copy to:

 

Beacon Capital PartnersManagement LLC200 Clarendon StreetBoston, Massachusetts 02116Attention: General Manager

 

The notice address forTenant shall be at the Premises, to the attention of Andrew Joseph, with a copyto Edward Sargavakian, at the same address,

 

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and a copy to:

 

GoodwinProcter LLPExchange Place

53State Street, Boston, MA 02109Attention: Andrew C. Sucoff, Esq.

 

14.           LANDLORD DEFAULT

 

Landlord shall not be deemedto be in default of its obligations under the Lease unless Tenant has givenLandlord written notice of such default, and Landlord has failed to cure saiddefault within thirty (30) days after Landlord receives such notice or suchlonger period of time as Landlord may reasonably require to cure such default,provided that Landlord commences such cure within such 30 day period andthereafter continuously and diligently prosecutes such cure to completion.

 

15.           DELETED LEASE PROVISIONS

 

Sections 1.02(h), 1.02(w),2.03, 2.06, 8.01(c), and the last three sentences of Section 6.04(f) of theLease, Paragraph 5 of the First Amendment to Lease, Paragraph 5 of the SecondAmendment to Lease, Paragraph 4 of the Revised and Corrected Third Amendment toLease, Paragraph 5 of the Fourth Amendment to Lease, the entirety of the FifthAmendment to Lease, Paragraphs 8 and 11 through 17 of the Sixth Amendment toLease, Paragraphs 7 and 12 of the Seventh Amendment to Lease and Paragraphs 6and 11 of the Eighth Amendment to Lease are hereby deleted and are of nofurther force or effect.

 

16.           SUBORDINATION

 

The following is added tothe end of Section 6.09 of the Lease:

 

“Notwithstanding anything tothe contrary in this Section 6.09 contained, as to any future mortgages, groundleases, and/or underlying lease or deeds of trust, the herein providedsubordination and attornment shall be effective only if the mortgagee, groundlessor or trustee therein, as the case may be, agrees, by a written instrumentin recordable form and in the customary form of such mortgagee, ground lessor,or trustee (in the form attached hereto as Exhibit D that, as long as Tenantshall not be in terminable default of the obligations on its part to be keptand performed under the terms of this Lease, this Lease will not be affectedand Tenant’s possession hereunder will not be disturbed by any default in, termination,and/or foreclosure of, such mortgage, ground lease, and/or underlying lease ordeed of trust, as the case may be.”

 

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17.           EXTRA SERVICES

 

Section 5.02(a) of the Leaseis deleted and the following is substituted in its place:

 

“(a) Heating, ventilation,air conditioning or extra service provided by Landlord to Tenant (i) duringhours other than Extended Business Hours, (ii) on days other than BusinessDays, said heating, ventilation and air conditioning or extra service to befurnished solely upon the prior written request of Tenant given with suchadvance notice as Landlord may reasonably require at a reasonable charge not inexcess of Landlord’s actual cost to provide such service. The parties herebyacknowledge that, as of the Execution Date of this Ninth Amendment to Lease,the overtime charge based on Landlord’s actual costs for HVAC is [/*/ CONFIDENTIALTREATMENT REQUESTED] per hour, as such charge may be increased by Landlord,from time to time.”

 

18.           DEFINITION OF COMPLEX

 

Section 5.01(c)(2) is herebydeleted and the following is substituted in its place:

 

“The “Complex” shall meanand include only the following buildings located in Boston and numbered as: 200Berkeley, 197 Clarendon Street and 200 Clarendon Street.”

 

19.           HANCOCK MARKS

 

Tenant shall not use anyHancock Marks, as hereinafter defined, in a manner, in conjunction with, or ina recognizable relationship to any persons, entities, materials or Media, ashereinafter defined, that are Objectionable, as hereinafter defined. Tenantacknowledges and agrees that any right, benefit or protection available to theLandlord hereunder with respect to use of the name “John Hancock Tower” shallalso be deemed to accrue to the benefit of, and may be exercised directly by,John Hancock Life Insurance Company or any of its Affiliates, as hereinafterdefined.

 

For the purposes of thisParagraph 19, the following terms shall have the following definitions:

 

“Affiliates” means, withrespect to any person or entity, any corporation, partnership or other businessentity which controls or is controlled by, or is under common control with suchperson or entity, as applicable. For the purpose of this definition, the word “control”(including, with correlative meanings, “controlled by” and “under commoncontrol with”) as used with respect to any corporation, partnership or otherbusiness entity, shall mean the possession of the power to direct or cause thedirection of the management and policies of such corporation, partnership orother business entity, whether through the ownership of voting securities,interests, contract or otherwise.

 

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[/*/ CONFIDENTIALTREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICHCONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEENFILED WITH THE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THESECURITIES EXCHANGE ACT OF 1934, AS AMENDED.

 

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“HancockMarks” means, collectively, the Name and Signature, and such other logos,service marks, trademarks, domain names (including johnhancocktower.com,johnhancocktower.net, and johnhancocktower.org), and copyrights, whetherregistered or unregistered, proprietary to John Hancock Life Insurance Companywith respect to the Building (including, without limitation, the marksregistered with the USPTO under Registration Nos. 1287236, 1502565 and 1494582)or with respect to which Landlord provides Tenant with notice, and allLikenesses.

 

“Likeness”means a photograph, replica, sketch, drawing, image or any other visual or twodimensional or three dimensional representation of the Building, whichphotograph, replica, sketch, drawing, image or other representation does notinclude or display the Name, Plain Name, Signature, or any such other logos,service marks, trademarks, and copyrights, whether registered or unregistered,proprietary to John Hancock Life Insurance Company with respect to theBuilding.

 

“Medium”(or “Media”) means any communications or storage medium, regardless of methodof storage, compilation or memorialization, if any, including withoutlimitation, physical storage or representation, electronic storage, graphical(including designs and drawings) or photographic representation, or writings.

 

“Name” means “John HancockTower”.

 

“Objectionable”means any activity or material that: (a) is libelous or defamatory,disparaging, pornographic, sexually explicit, unlawful or plagiarized; (b) areasonable person would consider harassing, abusive, threatening, harmful,vulgar, profane, obscene, excessively violent, racially, ethnically orotherwise objectionable or offensive in any way; (c) constitutes a breach ofany person’s privacy or publicity rights, a misrepresentation of facts, hate speechor an infringement of any third party’s intellectual property rights of anykind, including without limitation, copyright, patent, trademark, industrialdesign, trade secret, confidentiality or moral rights; (d) violates orencourages others to violate any applicable law; or (e) would have a materialadverse effect (1) on the reputation or business of Landlord or John HancockLife Insurance Company or (2) on the reputation of the Building or (3) on thegoodwill associated with the Marks or (f) would be materially detrimental tothe marketing or leasing of the Building.

 

“Signature”means the script logo associated with the name “John Hancock,” as registeredwith the USPTO under Registration No. 0557033.

 

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The Signature, as depictedin the drawing on file with the USPTO, consists of a substantial facsimile ofthe signature of John Hancock (1737-1793), patriot of the American Revolution,as said signature appears on the Declaration of Independence.

 

“USPTO” means the UnitedStates Patent and Trademark Office.

 

20.           MISCELLANEOUS AMENDMENTS

 

A.            The second paragraph of Section 2.01 (b) of the Lease isdeleted in its entirety and the following is substituted in its place:

 

“During the Term, Tenantshall have the right to use, in common with other tenants, the food services,private dining rooms and meeting rooms, conference center, fitness center andother amenities from time to time located within or made available to occupantsof the John Hancock Property Complex (as defined in Section 5.01(c)(2)), butonly if and to the extent such amenities are made available by Landlord for useby any other tenant of the John Hancock Property Complex. Tenant’s right to usesuch amenities shall be on such terms, during such time periods and subject tosuch rules and regulations as are determined by Landlord and uniformly appliedto such other tenant.”

 

B.            Section 5.01(a) of the Lease is hereby amended bydeleting from the second paragraph of Subsection (v) thereof the followingphrase: “, for so long as the Building is owned by John Hancock or a JohnHancock Affiliate”.

 

C.            Section 5.06 of the Lease is deleted in its entirety andthe following is substituted in its place:

 

“5.06    Exclusions. so long as (i) no Event of Default onthe part of Tenant has occurred and is continuing under this Lease, (ii) Tenantshall not have sublet in the aggregate more than thirty-three percent (33%) ofthe rentable floor area of the Premises to any entity or entities other than aTenant Affiliate and (iii) Tenant shall not have assigned this Lease to anyentity other than a Tenant Affiliate, Landlord shall not enter into a lease ofspace for premises located on Floors [/*/ CONFIDENTIAL TREATMENTREQUESTED] of the Building with any of the Excluded Companies (defined below)or any subsidiary that is wholly owned and controlled by any of the ExcludedCompanies and that is engaged in the financial services or mutual fundindustry, which lease permits the subject premises to be used for any of the followingservices: securities custody, fund accounting, transfer agency, securitieslending, mutual fund administration or foreign exchange. The “ExcludedCompanies” are: [/*/ CONFIDENTIAL TREATMENT REQUESTED]. The foregoingprovision is not intended

 

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[/*/ CONFIDENTIALTREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICHCONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEENFILED WITH THE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THESECURITIES EXCHANGE ACT OF 1934, AS AMENDED.

 

28

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to, nor shall it be enforcedto, restrict any bank from conducting its banking operations on such floors ofthe Building.

 

D.            Section 10.20 of the Lease is hereby amended by insertingthe following at the end thereof:

 

“The requirements of thisSection 10.20 shall not apply during such periods, if any, that Tenant’sfinancial information is publicly available.”

 

E.             Landlord agrees that arepresentative of Landlord will meet with a representative of Tenant annuallyupon the request of Tenant to discuss Tenant’s space requirements and theupcoming availability of vacant space in the Building.

 

F.            Section 6.07 of the Lease is hereby amended by insertingthe following language at the end thereof:

 

Prior to entering thePremises for any reason, except in case of emergency, Landlord and anyemployees, agents, contractors or representatives of Landlord (collectively, a “LandlordAgent”) shall secure appropriate authorization (an “Authorization”) fromTenant, which may be in the form of a badge or other identification. Tenantshall act promptly upon any request for an Authorization, which Authorizationshall not be unreasonably withheld. The Authorization will permit the LandlordAgent access to certain specific areas within the Premises where services areto be performed by Landlord Agent for the benefit of Tenant and at thedirection of Tenant or where Landlord requires access in order to perform itsobligations under this Lease. With respect to any Landlord Agent who performsservices on a regular basis, such as premises cleaning personnel, theAuthorization issued to such Landlord Agent shall permit access on a regularbasis consistent with the schedule of services to be performed by such LandlordAgent. Except in case of emergency, Landlord Agent shall only access thosecertain areas where Tenant has specifically permitted access and only when andto the extent necessary to perform the Services. Landlord will not, and willuse reasonable efforts to cause Landlord Agents not to, at any time, reveal toany person, association or company, any of the trade secrets or confidentialinformation concerning Tenant, research and development activities of Tenant,marketing plans and strategies of Tenant, or business or finances of Tenant, sofar as they have come or may come to the knowledge of Landlord or LandlordAgent (except for information that (i) becomes generally available to thepublic other than as a result of a disclosure by Landlord or any LandlordAgent, or (ii) was available to Landlord on a non-confidential basis prior toits disclosure to Landlord by Tenant or its representatives), and Landlord andLandlord Agent shall not use or attempt to use any such information in anymanner which may injure or cause loss or may be calculated to injure or causeloss whether directly or indirectly to Tenant. Notwithstanding the foregoing,Landlord may disclose such financial information as may be provided by Tenantto Landlord to actual or

 

29

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prospective lenders orpurchasers of the Property and/or actual or prospective investors in Landlordor any of its affiliates and to Landlord’s consultants, attorneys, andaccountants, so long as any person or entity to whom Landlord discloses suchinformation agrees to keep such information confidential. In addition, Landlordand any Landlord Agent may disclose any information (a) to the extent requiredby any law, regulation, or order of any public authority or court, and (b) inconnection with any litigation between Landlord and Tenant under the Lease.Further, Landlord shall not make, use or permit to be used any notes,memoranda, drawings, specifications, programs, data or other materials of anynature relating to any matter within the scope of the business of Tenant orconcerning any of its dealings or affairs, otherwise than for the benefit ofTenant and during the performance of any Tenant requested or contracted serviceunder this Lease.

 

21.           As hereby amended, the Lease is ratified, confirmed andapproved in all respects.

 

EXECUTED under seal as ofthe date first above written.

 
| LANDLORD:                    | TENANT:                                                                                       |
|------------------------------|-----------------------------------------------------------------------------------------------|
| 100 & 200 CLARENDON  LLC | INVESTORS BANK & TRUST                                                                    |
|                         | COMPANY                                                                                       |
|                         |                                                                                          |
|                         |                                                                                          |
| By:                          | /s/ Philip  J. Brannigan, Jr.                                                            |   | By: |   |   |
| Name:                        | Philip  J. Brannigan, Jr.                                                                     |   | Name: |   |   |
| Title:                       |              Vice  President |   | Title: |   |   |
|                         | Hereunto Duly Authorized                                                                      |   | Hereunto Duly Authorized |
|                              |                                                                                               |  |  |  |  |  |  |  |  |

 

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prospective lenders orpurchasers of the Property and/or actual or prospective investors in Landlordor any of its affiliates and to Landlord’s consultants, attorneys, andaccountants, so long as any person or entity to whom Landlord discloses suchinformation agrees to keep such information confidential. In addition, Landlordand any Landlord Agent may disclose any information (a) to the extent requiredby any law, regulation, or order of any public authority or court, and (b) inconnection with any litigation between Landlord and Tenant under the Lease.Further, Landlord shall not make, use or permit to be used any notes,memoranda, drawings, specifications, programs, data or other materials of anynature relating to any matter within the scope of the business of Tenant orconcerning any of its dealings or affairs, otherwise than for the benefit ofTenant and during the performance of any Tenant requested or contracted serviceunder this Lease.

 

21.            As hereby amended, the Lease is ratified, confirmed andapproved in all respects.

 

EXECUTED under seal as ofthe date first above written.

 
|                         | [SEAL]                     |
|------------------------------|----------------------------|
|                         |                       |
| LANDLORD:                    | TENANT:                    |
| 100 & 200 CLARENDON  LLC | INVESTORS BANK & TRUST |
|                         | COMPANY                    |
|                         |                       |
|                         |                       |
| By:                          |                       |   | By: | /s/ Kevin J. Sheehan |   |
| Name:                        |                       |   | Name: | KEVIN J. SHEEHAN |   |
| Title:                       |                       |   | Title: | CEO |   |
|                         | Hereunto Duly Authorized   |   | Hereunto Duly Authorized |
|                              |                            |  |  |  |  |  |  |  |  |

 

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EXHIBITA

EXPANSIONAREA

 

 

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EXHIBITB

 

BASEBUILDING CONDITIONS

 

1.0           Building Shell & Service Core

 

Landlord shall deliver totenant the following items, which collectively comprise and are hereby definedas the “Base Building.” All items shall be completed in accordance withapplicable Building Codes, laws, and regulations, including without limitationthe Americans with Disabilities Building Act (ADA).

 

(a)     Thebuilding shell and exterior, including perimeter window frames, seals,mullions, and glazing in good condition, with Building Standard windowcoverings in place and in good condition;

 

(b)     Thecore area, including necessary mechanical, electrical, sprinkler, plumbing,life-safety, heating, ventilation, air conditioning and structural systems aresufficiently connected for tenant’s secondary distribution system;

 

(c)     BuildingStandard doors at stairwells, toilet rooms, and core service rooms, installedwith required hardware;

 

(d)     Publicstairwells and required paths of egress as required for the occupied Premises;

 

(e)     Finishedand secured electrical, mechanical, telephone, and janitorial rooms “servicerooms”) to the extent located on the floor and as indicated on the Base Buildingplans;

 

(f)     Coreservice electrical rooms include all required feeders, transformers, panels,breakers and associated equipment as required to provide electrical service of6.0 watts/SF of connected load consisting of 2 watts/SF for lighting (277 volt)and (4.0) watts/SF convenience (120 volt) service; metering as required bylandlord shall be installed at landlord’s cost;

 

(g)     Coreservice telephone rooms are secured and installed with plywood backboards,interior lighting and electrical outlets;

 

(h)     Men’sand women’s toilet rooms, including plumbing fixtures, hot and cold runningwater, ceramic tile floors and wall surfaces, accessories and dividers, andceilings and lighting;

 

B-1

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(i)     Passengerand freight elevators, including finished interior cabs and lobbies completewith finished doors, frames, hardware, magnetic hold-open devices, calllanterns and buttons, fire department connections, and placards as required byCode and consistent with Building Standards;

 

(j)     Groundfloor lobby with first class security;

 

(k)     Parkingfacilities with updated lighting, painting, signage, equipment, and otheramenities;

 

(1)     Exteriorplazas and landscaping; 

 

(m)     Loadingdock; 

 

(n)     Exitsignage as required by Code;

 

(o)     Concretefloors, smooth and level and adequate for the installation of Tenant’sfinishes;

 

(p)     Mainmechanical system, provided for tenant installed distribution system;

 

(q)     Primaryfire sprinkler system consisting of main piping and associated control valves,mains, laterals, and uprights with sprinkler heads and secondary distributionas required by Code;

 

(r)     Aprimary fire/life safety annunciation system “backbone” sufficient for Tenant’ssecondary distribution as required by Code;

 

(s)     Accessto condenser water, for Tenant’s supplemental cooling systems, is available upto a capacity of 10 tons per floor (which capacity tenant may elect toallocated to a central location); 

 

(t)     Fireextinguishers in all core fire extinguisher cabinets.

 

2.0           Hazardous Materials Criteria

 

Landlord agrees to makeavailable a copy of a third party Phase I report on the Building regardingasbestos and other hazardous materials.

 

2.0           HVAC Design and Performance

 

The HVAC system shall be ofsufficient capacity to maintain an average inside

 

B-2

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temperature of 75 degreesduring summer with outdoors temperature of 91 degrees F.D.B. and 73 degreesF.W.B. and 72 degrees during winter with outside temperature of 9 degreesF.D.B. and in accordance with an occupancy of 130 square feet of Rentable Areaper person (average per floor) and a demand load of 6 watts per square foot.These temperatures are subject to the conditions and requirements of State andFederal Energy Regulating bodies for non-residential buildings, including theany state Energy Conservation Standards.

 

B-3

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EXHIBITC

 

[/*/ CONFIDENTIAL TREATMENT REQUESTED]

 

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[/*/ CONFIDENTIALTREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICHCONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEENFILED WITH THE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIESEXCHANGE ACT OF 1934, AS AMENDED.

 

C-1

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[/*/ CONFIDENTIALTREATMENT REQUESTED]

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[/*/ CONFIDENTIALTREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICHCONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEENFILED WITH THE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THESECURITIES EXCHANGE ACT OF 1934, AS AMENDED.

 

C-2

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EXHIBITD

 

FORMOF SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT

AGREEMENT

 

 
|   |     |   |
|--------|----------|--------|
|   | (Lender) |   |

 

 

-and-

 

 
|   |     |   |
|--------|----------|--------|
|   | (Tenant) |   |

 

 

SUBORDINATION,NON-DISTURBANCE

ANDATTORNMENT AGREEMENT

 
| Dated:                                                                                                |
|-------------------------------------------------------------------------------------------------------|
|                                                                                                  |
| Location:                                                                                             |
|                                                                                                  |
| Section:  Block: Lot:  County:                                                                        |
|                                                                                                  |
|                                                                                                  |
| PREPARED BY AND UPON  RECORDATION RETURN TO:                                                          |
|                                                                                                  |
| Messrs. Cadwalader,  Wickersham & Taft LLP  100 Maiden Lane  New York, New York 10038  Attention: |
|                                                                                                  |
| File No.:  Title No.                                                                                  |

 

D-1

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**SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT**

 

THIS SUBORDINATION, NON-DISTURBANCEAND ATTORNMENT AGREEMENT (this “Agreement”) is made as of the       dayof                   ,20     by and between [LENDER], having an address at[LENDER’S ADDRESS] (“Lender”), and                                                             ,having an address at                                                                                                (“Tenant”).

 

RECITALS:

 

A.            Lender has made a loan in the approximate amount of $          toLandlord (defined below), which Loan is given pursuant to the terms andconditions of that certain Loan Agreement dated             ,20     , between Lender and Landlord (the “LoanAgreement”).  The Loan is evidencedby a certain Promissory Note dated                  ,20      , given by Landlord to Lender (the “Note”)and secured by a certain [Mortgage][Deed of Trust] and Security Agreement dated                 ,20    , given by Landlord to Lender (the “Mortgage”),which encumbers the fee estate of Landlord in certain premises described in ExhibitA attached hereto (the “Property”);

 

B.            Tenant occupies a portion of the Property under andpursuant to the provisions of a certain lease dated                   ,between                        ,as landlord (“Landlord”) and Tenant, as tenant (the “Lease”): and

 

C.            Tenant has agreed to subordinate the Lease to theMortgage and to the lien thereof and Lender has agreed to grant non-disturbanceto Tenant under the Lease on the terms and conditions here in after set forth.

 

AGREEMENT:

 

For good and valuable consideration,Tenant and Lender agree as follows:

 

1.             Subordination.  Tenant agrees that the Leaseand all of the terms, covenants and provisions thereof and all rights, remediesand options of Tenant thereunder are and shall at all times continue to be subjectand subordinate in all respects to the Mortgage and to the lien thereof and allterms, covenants and conditions set forth in the Mortgage and the LoanAgreement including without limitation all renewals, increases, modifications, spreaders,consolidations, replacements and extensions thereof and to all sums secured therebywith the same force and effect as if the Mortgage and Loan Agreement had been executed,delivered and (in the case of the Mortgage) recorded prior to the execution and

delivery of the Lease.

 

2              Non-Disturbance.  Lenderagrees that if any action or proceeding is commenced by Lender for theforeclosure of the Mortgage or the sale of the Property, Tenant shall not benamed as a party therein unless such joinder shall be required by law,provided, however, such joinder shall not result in the termination of theLease or disturb the Tenant’s possession or use of the premises demisedthereunder, and the sale of the

 

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Property in any such actionor proceeding and the exercise by Lender of any of its other rights under theNote, the Mortgage and the Loan Agreement shall be made subject to all rightsof Tenant under the Lease, provided that at the time of the commencement of anysuch action or proceeding or at the time of any such sale or exercise of anysuch other rights (a) the term of the Lease shall have commenced pursuant tothe provisions thereof, (b) the Lease shall be in full force and effect and (c)Tenant shall not be in default under any of the terms, covenants or conditionsof the Lease or of this Agreement on Tenant’s part to be observed or performedbeyond the expiration of any applicable notice or grace periods.

 

E.     Attornment. Lender and Tenant agreethat upon the conveyance of the Property by reason of the foreclosure of theMortgage or the acceptance of a deed or assignment in lieu of foreclosure or otherwise,the Lease shall not be terminated or affected thereby (at the option of thetransferee of the Property (the “Transferee”) if the conditions setforth in Section 2 above have not been met at the time of such transfer)but shall continue in full force and effect as a direct lease between theTransferee and Tenant upon all of the terms, covenants and conditions set forthin the Lease and in that event, Tenant agrees to attorn to the Transferee andthe Transferee shall accept such attornment, provided, however, that theTransferee shall not be (a) liable (i) for Landlord’s failure to perform any ofits obligations under the Lease which have accrued prior to the date on whichthe Transferee shall become the owner of the Property, or (ii) for any act oromission of Landlord, whether prior to or after such foreclosure or sale, (b)required to make any repairs to the Property or to the premises demised underthe Lease required as a result of fire, or other casualty or by reason ofcondemnation unless the Transferee shall be obligated under the Lease to makesuch repairs, (c) subject to any offsets, defenses, abatements or counterclaimswhich shall have accrued to Tenant against Landlord prior to the date uponwhich the Transferee shall become the owner of the Property, (d) liable for thereturn of rental security deposits, if any, paid by Tenant to Landlord inaccordance with the Lease unless such sums are actually received by theTransferee, (e) bound by any payment of rents, additional rents or other sumswhich Tenant may have paid more than one (1) month in advance to any priorLandlord unless (i) such sums are actually received by the Transferee or (ii)such prepayment shall have been expressly approved of by the Transferee, (f)bound to make any payment to Tenant which was required under the Lease, or otherwise,to be made prior to the time the Transferee succeeded to Landlord’s interest,(g) bound by any agreement amending, modifying or terminating the Lease madewithout the Lender’s prior written consent prior to the time the Transfereesucceeded to Landlord’s interest.

 

F.     Notice to Tenant. After notice isgiven to Tenant by Lender that the Landlord is in default under the Note andthe Mortgage and that the rentals under the Lease should be paid to Lenderpursuant to the terms of the assignment of leases and rents executed anddelivered by Landlord to Lender in connection therewith, Tenant shallthereafter pay to Lender or as directed by the Lender, all rentals and allother monies due or to become due to Landlord under the Lease and Landlordhereby expressly authorizes

 

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Tenant to make such paymentsto Lender and hereby releases and discharges Tenant from any liability toLandlord on account of any such payments.

 

G.    Lender’s Consent. Tenant shall not,without obtaining the prior written consent of Lender, (a) enter into anyagreement amending, modifying or terminating the Lease, (b) prepay any of therents, additional rents or other sums due under the Lease for more than one (1)month in advance of the due dates thereof, (c) voluntarily surrender thepremises demised under the Lease or terminate the Lease without cause orshorten the term thereof; and any such amendment, modification, termination,prepayment, or voluntary surrender, without Lender’s prior consent, shall notbe binding upon Lender.

 

H.    Lender to Receive Notices. Tenantshall provide Lender with copies of all written notices sent to Landlordpursuant to the Lease simultaneously with the transmission of such notices tothe Landlord. Tenant shall notify Lender of any default by Landlord under theLease which would entitle Tenant to cancel the Lease or to an abatement of therents, additional rents or other sums payable thereunder, and agrees that,notwithstanding any provisions of the Lease to the contrary, no notice ofcancellation thereof or of such an abatement shall be effective unless Lendershall have received notice of default giving rise to such cancellation orabatement and shall have failed within sixty (60) days after receipt of suchnotice to cure such default, or if such default cannot be cured within sixty (60)days, shall have failed within sixty (60) days after receipt of such notice tocommence and thereafter diligently pursue any action necessary to cure suchdefault.

 

I.      Notices. All notices or other writtencommunications hereunder shall be deemed to have been properly given (i) upondelivery, if delivered in person or by facsimile transmission with receiptacknowledged by the recipient thereof and confirmed by telephone by sender,(ii) one (1) Business Day (hereinafter defined) after having been deposited forovernight delivery with any reputable overnight courier service, or (iii) three(3) Business Days after having been deposited in any post office or maildepository regularly maintained by the U.S. Postal Service and sent byregistered or certified mail, postage prepaid, return receipt requested,addressed as follows:

 

If to Tenant:

 
|   |          |   |
|--------|---------------|--------|
|   |          |   |
|   | Attention:    |   |   |
|   | Facsimile No. |   |   |
|        |               |        |  |  |

 

Ifto Lender: [Lender’s Notice]

 

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With a copy to:    Cadwalader, Wickersham & Taft LLP

100 Maiden Lane

New York, New York 10038Attention:Facsimile No. (212) 504-6666

 

oraddressed as such party may from time to time designate by written notice tothe other parties. For purposes of this Section, the term “Business Day” shallmean a day on which commercial banks are not authorized or required by law toclose in New York, New York.

Either party by notice tothe other may designate additional or different addresses for subsequentnotices or communications.

 

J.     Joint and Several Liability. IfTenant consists of more than one person, the obligations and liabilities ofeach such person hereunder shall be joint and several.  This Agreement shall be binding upon andinure to the benefit of Lender and Tenant and their respective successors andassigns.

 

K.    Definitions. The term “Lender” asused herein shall include the successors and assigns of Lender and any person,party or entity which shall become the owner of the Property by reason of aforeclosure of the Mortgage or the acceptance of a deed or assignment in lieuof foreclosure or otherwise. The term “Landlord” as used herein shall mean andinclude the present landlord under the Lease and such landlord’s predecessorsand successors in interest under the Lease, but shall not mean or include Lender.The term “Property” as used herein shall mean the Property, the improvementsnow or hereafter located thereon and the estates therein encumbered by theMortgage.

 

L.     No Oral Modifications. ThisAgreement may not be modified in any manner or terminated except by aninstrument in writing executed by the parties hereto.

 

M.   Governing Law. This Agreement shall bedeemed to be a contract entered into pursuant to the laws of the State wherethe Property is located and shall in all respects be governed, construed,applied and enforced in accordance with the laws of the State where theProperty is located.

 

N.    Inapplicable Provisions. If any term,covenant or condition of this Agreement is held to be invalid, illegal orunenforceable in any respect, this Agreement shall be construed without suchprovision.

 

O.    Duplicate Originals; Counterparts.This Agreement may be executed in any number of duplicate originals and eachduplicate original shall be deemed to be an original.  This Agreement may be executed in severalcounterparts, each of which counterparts shall be deemed an original instrumentand all of which together shall constitute a single Agreement. The failure ofany party hereto to execute this Agreement, or any counterpart hereof, shallnot relieve the other signatories from their obligations hereunder.

 

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P.     Number and Gender. Whenever thecontext may require, any pronouns used herein shall include the correspondingmasculine, feminine or neuter forms, and the singular form of nouns andpronouns shall include the plural and vice versa.

 

Q.    Transfer of Loan. Lender may sell,transfer and deliver the Note and assign the Mortgage, this Agreement and theother documents executed in connection therewith to one or more investors inthe secondary mortgage market (“Investors”). In connection with suchsale, Lender may retain or assign responsibility for servicing the loan,including the Note, the Mortgage, this Agreement and the other documentsexecuted in connection therewith, or may delegate some or all of suchresponsibility and/or obligations to a servicer including, but not limited to,any subservicer or master servicer, on behalf of the Investors. All referencesto Lender herein shall refer to and include any such servicer to the extentapplicable.

 

R.    Further Acts. Tenant will, at thesole cost of Lender, do, execute, acknowledge and deliver all and every suchfurther acts and assurances as Lender shall, from time to time, require, forthe better assuring and confirming unto Lender the property and rights herebyintended now or hereafter so to be, or for carrying out the intention orfacilitating the performance of the terms of this Agreement or for filing,registering or recording this Agreement, or for complying with all applicablelaws.

 

S.     Limitations on Lender’s Liability.Tenant acknowledges that Lender is obligated only to Landlord to make the Loanupon the terms and subject to the conditions set forth in the Loan Agreement.In no event shall Lender or any purchaser of the Property at foreclosure saleor any grantee of the Property named in a deed-in-lieu of foreclosure, nor anyheir, legal representative, successor, or assignee of Lender or any suchpurchaser or grantee (collectively the Lender, such purchaser, grantee, heir,legal representative, successor or assignee, the “Subsequent Landlord”)have any personal liability for the obligations of Landlord under the Lease andshould the Subsequent Landlord succeed to the interests of the Landlord underthe Lease, Tenant shall look only to the estate and property of any suchSubsequent Landlord in the Property for the satisfaction of Tenant’s remediesfor the collection of a judgment (or other judicial process) requiring thepayment of money in the event of any default by any Subsequent Landlord aslandlord under the Lease, and no other property or assets of any SubsequentLandlord shall be subject to levy, execution or other enforcement procedure forthe satisfaction of Tenant’s remedies under or with respect to the Lease;provided, however, that the Tenant may exercise any other right or remedyprovided thereby or by law in the event of any failure by Subsequent Landlordto perform any such material obligation.

 

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IN WITNESS WHEREOF, Lenderand Tenant have duly executed this Agreement as of the date first abovewritten.

 
|                                   | LENDER:  |
|----------------------------------------|----------|
|                                   |     |
|                                   |     |
|                                   | [Lender] |
|                                   |     |
|                                   |     |
|                                   | By:      |   |   |
|                                   | Name:    |
|                                   | Title:   |
|                                   |     |
|                                   |     |
|                                   | TENANT:  |
|                                   |     |
|                                   |     |
|                                   |     |   |
|                                   | a        |   |   |
|                                   |     |
|                                   |     |
|                                   | By:      |   |   |
|                                   | Name:    |
|                                   | Title:   |
|                                   |     |
| The undersigned accepts  and agrees to |     |
| the provisions of Section  4 hereof:   |     |
|                                   |     |
| LANDLORD:                              |     |
|                                   | , a      |   |
|                                   |     |   |
|                                   |     |
| By:                                    |     |   |   |
| Name:                                  |     |
| Title:                                 |     |
|                                        |          |  |  |  |  |  |  |  |  |  |

 

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**ACKNOWLEDGMENTS**

 

[INSERTSTATE SPECIFIC ACKNOWLEDGMENT]

 

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**EXHIBIT A**

 

**LEGAL DESCRIPTION**

 

A-1

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