**Exhibit 10.35**

 

 

COPLEY PLACE

BOSTON, MASSACHUSETTS

OFFICE LEASE

 

to

 

INVESTORS BANK & TRUST COMPANY

 

 

FROM THE OFFICE OF:

 

Goulston & Storrs, P.C.

400 Atlantic Avenue

Boston, Massachusetts 02110-3333

 

----

 

 

OFFICE LEASE

COPLEY PLACE

BOSTON, MASSACHUSETTS

 

TABLE OF CONTENTS

 
|   |                                | **PAGE**                                          |
|--------|-------------------------------------|---------------------------------------------------|
| 1.     | BASIC DATA                          | 1                                                 |
|   |                                |                                              |
| 2.     | HABENDUM;  TERM                     | 4                                                 |
|   |                                |                                              |
| 3.     | POSSESSION                          | 4                                                 |
|   |                                |                                              |
| 4.     | BASE RENT                           | 6                                                 |
|   |                                |                                              |
| 5.     | ADDITIONAL  RENT                    | 7                                                 |
|   | A.                                  | Definitions                                       | 7 |
|   |                                | Base Year                                         | 7 |
|   |                                | Base Year  Operating Expenses                     | 7 |
|   |                                | Calendar  Year                                    | 7 |
|   |                                | Tenant’s  Proportionate Share                | 7 |
|   |                                | Taxes                                             | 8 |
|   |                                | Operating  Expenses                               | 8 |
|   | B.                                  | Expense  Adjustment                               | 13 |
|   | C.                                  | Adjustment  for Services Not Rendered by Landlord | 14 |
|   |                                |                                              |
| 6.     | USE OF  PREMISES                    | 15                                                |
|   |                                |                                              |
| 7.     | CONDITION OF  PREMISES              | 15                                                |
|   |                                |                                              |
| 8      | SERVICES                            | 16                                                |
|   | A.                                  | List of  Services                                 | 16 |
|   | B.                                  | Billing for  Electricity                          | 18 |
|   | C.                                  | Interruption  of Services                         | 18 |
|   | D.                                  | Charges for  Services                             | 19 |
|   | E.                                  | Energy  Conservation                              | 20 |
|   |                                |                                              |
| 9.     | REPAIRS;  HAZARDOUS MATERIALS       | 20                                                |
|   |                                |                                              |
| 10.    | ADDITIONS  AND ALTERATIONS          | 22                                                |
|   |                                |                                              |
| 11.    | COVENANT  AGAINST LIENS             | 27                                                |
|   |                                |                                              |
| 12.    | INSURANCE                           | 27                                                |
|   | A.                                  | Waiver of  Subrogation                            | 27 |
|   | B.                                  | Coverage                                          | 28 |
|   | C.                                  | Avoid Action  Increasing Rates                    | 29 |
|   |                                |                                              |
| 13.    | FIRE OR  CASUALTY                   | 29                                                |
|   |                                |                                              |
| 14.    | WAIVER OF  CLAIMS - INDEMNIFICATION | 35                                                |

 

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| 15.    | NONWAIVER                              | 36                                    |
|--------|----------------------------------------|---------------------------------------|
|   |                                   |                                  |
| 16.    | CONDEMNATION                           | 36                                    |
|   |                                   |                                  |
| 17.    | ASSIGNMENT  AND SUBLETTING             | 37                                    |
|   |                                   |                                  |
| 18.    | SURRENDER OF  POSSESSION               | 39                                    |
|   |                                   |                                  |
| 19.    | HOLDING OVER                           | 40                                    |
|   |                                   |                                  |
| 20.    | ESTOPPEL  CERTIFICATE                  | 41                                    |
|   |                                   |                                  |
| 21.    | SUBORDINATION                          | 42                                    |
|   |                                   |                                  |
| 22.    | CERTAIN  RIGHTS RESERVED BY LANDLORD   | 44                                    |
|   |                                   |                                  |
| 23.    | RULES AND  REGULATIONS            | 46                                    |
|   |                                   |                                  |
| 24.    | LANDLORD’S  REMEDIES              | 47                                    |
|   |                                   |                                  |
| 25.    | EXPENSES OF  ENFORCEMENT               | 51                                    |
|   |                                   |                                  |
| 26.    | COVENANT OF QUIET  ENJOYMENT           | 51                                    |
|   |                                   |                                  |
| 27.    | INTENTIONALLY  OMITTED                 | 51                                    |
|   |                                   |                                  |
| 28.    | REAL ESTATE  BROKER                    | 51                                    |
|   |                                   |                                  |
| 29.    | UNDERLYING  LEASES                     | 52                                    |
|   |                                   |                                  |
| 30.    | NOTICE TO  MORTGAGEE AND GROUND LESSOR | 53                                    |
|   |                                   |                                  |
| 31.    | ASSIGNMENT  OF RENTS                   | 53                                    |
|   |                                   |                                  |
| 32.    | PERSONAL PROPERTY  TAXES               | 55                                    |
|   |                                   |                                  |
| 33.    | MISCELLANEOUS                          | 55                                    |
|   | A.                                     | Rights  Cumulative                    | 55 |
|   | B.                                     | Interest                              | 55 |
|   | C.                                     | Terms                                 | 55 |
|   | D.                                     | Binding  Effect                       | 55 |
|   | E.                                     | Lease  Contains All Terms             | 56 |
|   | F.                                     | Delivery for  Examination             | 56 |
|   | G.                                     | No Air  Rights                        | 56 |
|   | H.                                     | Kitchen  Equipment                    | 56 |
|   | I.                                     | Intentionally  Omitted                | 56 |
|   | J.                                     | Transfer of  Landlord’s Interest | 56 |
|   | K.                                     | Landlord’s  Title                | 57 |
|   | L.                                     | Prohibition  Against Recording        | 57 |
|   | M.                                     | Captions                              | 57 |
|   | N.                                     | Covenants  and Conditions             | 57 |
|   | O.                                     | Only  Landlord/Tenant Relationship    | 57 |
|   | P.                                     | Application  of Payments              | 58 |

 

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|   | Q.                                       | Definition of Landlord     | 58     |
|--------|------------------------------------------|----------------------------|--------|
|   | R.                                       | Time of Essence            | 58     |
|   | S.                                       | Governing Law              | 58     |
|   | T.                                       | Partial Invalidity         | 58     |
|   | U.                                       | Size of Premises           | 58     |
|   |                                     |                       |
| 34.    | NOTICES                                  | 58                         |
|   |                                     |                       |
| 35.    | LIMITATION ON LANDLORD’S  LIABILITY | 60                         |
|   |                                     |                       |
| 36.    | LANDLORD’S DESIGNATED  AGENT        | 60                         |
|   |                                     |                       |
| 37.    | PARKING                                  | 61                         |
|   |                                     |                       |
| 38.    | SIGNAGE                                  | 61                         |
|   |                                     |                       |
| 39.    | CONSTRUCTION ALLOWANCE                   | 61                         |
|   |                                     |                       |
| 40.    | EXTENSION OPTION                         | 62                         |
|   |                                     |                       |
| 41.    | EXPANSION OPTION; RIGHT OF  FIRST OFFER  | 64                         |
|   |                                     |                       |
| 42.    | SATELLITE DISH; GENERATOR                | 71                         |
|   |                                     |                       |
| 43.    | COMPETITIVE USES                         | 72                         |
|   |                                     |                       |
|   | Exhibit A-1                         | Plan of Area A             |   |
|   | Exhibit A-2                         | Plan of Area B             |   |
|   | Exhibit B                           | Work Letter                |   |
|   | Exhibit C                           | Rules and Regulations |   |
|   | Exhibit D                           | Cleaning Specifications    |   |
|   | Exhibit E                           | Expansion Space            |   |
|        |                                          |                            |        |  |

 

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OFFICE LEASE

 

COPLEY PLACE

 

BOSTON, MASSACHUSETTS

 

THIS INSTRUMENT is an Agreement of Lease in which the Landlord and theTenant are the parties hereinafter named, and which relates to space in theOffice Section of Copley Place (hereinafter referred to as the “OfficeSection”) located at 100 Huntington Avenue, Boston, Suffolk County,Massachusetts (the project known as Copley Place, including without limitationthe hotel portions thereof, plazas, pedestrian bridges, service areas and allother common areas, together with all present and future easements, additions,improvements, air rights and other rights appurtenant thereto, is hereinafterreferred to as the “Property”), subject to the covenants, terms, provisions andconditions of this Lease. The “Office Section” means that portion of thebuilding (the “Building”) located at the aforesaid address consisting of seven (7) levelsof office area containing approximately 845,000 square feet of rentable floorarea. The Building also contains retail shopping, restaurant, parking and otherfacilities, which are not included within the Office Section. The Building doesnot, however, include the hotel or residential portions of the Property or thepedestrian bridges.

 

In consideration thereof, Landlord and Tenant covenant and agree asfollows:

 

1.             BASICDATA.

 

The following sets forth basic data and, where appropriate, constitutesdefinitions of the terms hereinafter listed.

 

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| Date:                                |   | August 2, 1999                                                         |
|--------------------------------------|--------|-----------------------------------------------------------------------------|
|                                 |   |                                                                        |
| Landlord:                            |   | COPLEY PLACE ASSOCIATES, LLC,                                               |
|                                 |   | a Delaware limited liability company                                        |
|                                 |   |                                                                        |
| Present Mailing Address of Landlord: |   | c/o Overseas Management, Inc.                                          |
|                                 |   | Two Copley Place, Suite 100                                            |
|                                 |   | Boston, Massachusetts 02116-6502                                            |
|                                 |   |                                                                        |
| Tenant:                              |   | INVESTORS BANK & TRUST COMPANY,                                    |
|                                 |   | a Massachusetts trust company                                               |
|                                 |   |                                                                        |
| Present Mailing Address of Tenant:   |   | John Hancock Tower                                                          |
|                                 |   | 200 Clarendon Street                                                        |
|                                 |   | Boston, Massachusetts 02116                                                 |
|                                 |   |                                                                        |
| Area A Commencement Date:            |   | Subject to Paragraph 3 hereof, January 1, 2000.                        |
|                                 |   |                                                                        |
| Area B Commencement Date:            |   | Subject to Paragraph 3 hereof, January 1, 2000.                        |
|                                 |   |                                                                        |
| Area A Rent                          |   | Ninety (90) days after the Commencement Date:                               |
|                                 |   | Area A Commencement Date.                                                   |
|                                 |   |                                                                        |
| Area B Rent                          |   | Ninety (90) days after the Commencement Date:                               |
|                                 |   | Area B Commencement Date.                                                   |
|                                 |   |                                                                        |
| Termination Date:                    |   | October 30, 2007, unless sooner terminated as provided in this  Lease. |
|                                 |   |                                                                        |
| Base Rent:                           |   | Replaced per 2nd Amendment                                                  |

 

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| Base Year:                         |   | Replaced in 2nd Amendment  |
|------------------------------------|--------|----------------------------|
|                               |   |                       |
| Base Year Operating Expenses:      |   | Replaced in 2nd Amendment  |
|                               |   |                       |
| Tenant’s Proportionate Share: |   | Replaced per 2nd Amendment |
|                               |   |                       |
| Use:                               |   | General  office purposes.  |
|                               |   |                       |
| Premises:                          |   | Replaced per 2nd Amendment |

 

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| Common Areas:                           |   | Those portions of the Property not leased to any tenant, but for the  benefit of the Property and its tenants, such as landscaped areas, malls,  pedestrian walkways, escalators, elevators, stairwells and bridges,  restrooms, service areas and the like. |
|-----------------------------------------|--------|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|                                    |   |                                                                                                                                                                                                                                                         |
| Guarantor of Tenant’s Obligations: |   | None.                                                                                                                                                                                                                                                        |
|                                    |   |                                                                                                                                                                                                                                                         |
| Security Deposit:                       |   | None.                                                                                                                                                                                                                                                        |
|                                    |   |                                                                                                                                                                                                                                                         |
| Broker:                                 |   | CB Richard Ellis-N.E. Partners, L.P. doing business in Massachusetts  as CB Richard Ellis-N.E. Partners Limited Partnership and Insignia/ESG,  Incorporated.                                                                                                 |

 

2.             HABENDUM;TERM.

 

To have and to hold the Premises for the term commencing on the Area ACommencement Date and ending on the Termination Date, and the right to use theCommon Areas during such term in common with others entitled thereto. The Termof this Lease (hereinafter referred to as the “Term”) shall commence on theArea A Commencement Date specified in Paragraph 1 hereof and end on theTermination Date, specified in Paragraph 1 hereof unless sooner terminated asprovided herein.

 

3.             POSSESSION.

 

A.            In the event Landlordis unable to deliver possession of Area A on the date originally designated asthe Area A Commencement Date or of Area B on the date originally designated asthe Area B Commencement Date on the applicable commencement date by reason ofthe holding over or retention of possession by any tenant or occupant, or forany other reason, this Lease shall nevertheless continue in force and effect,but the Area A Commencement Date and/or the Area B Commencement Date, as thecase may be, shall be correspondingly deferred until Landlord can so deliver

 

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Area A and/or Area B. Theobligation of Tenant to begin paying Rent for Area A shall commence on the AreaA Rent Commencement Date and for Area B shall be on the Area B RentCommencement Date. In the event Area A or Area B will not be delivered in thecondition required hereunder on the date initially designated as the Area ACommencement Date or the Area B Commencement Date, respectively, Landlord shallgive Tenant at least five (5) business days’ advance written notice of thedate on which Landlord expects the deferred Area A Commencement Date and/orArea B Commencement Date will occur. In the event the Area A Commencement Datehas not occurred by January 15, 2000, Landlord shall pay to Tenant fiftypercent (50%) of any holdover rent paid by the current tenant with respect tothe period January 16, 2000 through the day immediately preceding the AreaA Commencement Date, in excess of the Base Rent and Additional Rent payable atthe rate paid in the final month of the Term then expired; and in the event theArea A Commencement Date has not occurred by February 15, 2000, Tenantmay, by notice to the Landlord given no later than February 20, 2000,terminate this Lease and in such event all obligations of the Landlord to theTenant and the Tenant to the Landlord with respect to this Lease shall be of nofurther force or effect. Furthermore, in the event the Area B Commencement Datehas not occurred by January 15, 2000, Landlord shall pay to Tenant fiftypercent (50%) of any holdover rent paid by the current tenant with respect tothe period January 16, 2000 through the day immediately preceding the AreaB Commencement Date, in excess of the Base Rent and Additional Rent payable atthe rate paid in the final month of the Term then expired; and in the event theArea B Commencement Date has not occurred by February 15, 2000, Tenantmay, by notice to the Landlord given no later than February 20, 2000,terminate this Lease as to Area B and in such event, the Base Rent shall notincrease by reason of the addition of Area B and Tenant’s proportionate shareof Operating Expenses shall not increase by reason of the addition of Area B,and all obligations of the Landlord to the Tenant and the Tenant to theLandlord with respect to Area B shall be of no further force or effect.

 

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B.            If the current leaseof the Tenant of Area A and/or Area B terminates prior to the Commencement Dateoriginally designated herein for such Area, Tenant shall have the right toenter the Premises or any part thereof prior to the applicableCommencement Date (which Tenant may not do without prior written notice toLandlord and providing Landlord with evidence of insurance as requiredhereunder as if the Commencement Date had occurred), such entry shall be atTenant’s sole risk and without interference to any work then being performed inthe Building by Landlord or other tenants or occupants, and all of thecovenants and conditions of this Lease shall be binding upon the parties heretowith respect to such whole or part of the Premises, except the Base Rentand any other charges shall not commence until the dates provided above.

 

C.            The occurrence of anyof the events described in this Paragraph 3 shall not accelerate or defer theTermination Date.

 

4.             BASERENT.

 

Tenant shall pay to Landlord or Landlord’s agent without notice ordemand at the present mailing address of Landlord, or at such other place asLandlord may from time to time designate in writing, in coin or currency which,at the time of payment, is legal tender for private or public debts in theUnited States of America, the Base Rent specified in Paragraph 1 hereof in theequal monthly installments specified in Paragraph 1 hereof in advance on orbefore the first day of each and every month during the Term, without anyabatement (except as specifically provided herein), counterclaim, set-off ordeduction whatsoever. If the Term for Area A and/or Area B commences other thanon the first day of a month or ends other than on the last day of the month,the Base Rent for such month shall be prorated. The prorated Base Rent for theportion of the month in which the Term commences shall be paid on the first dayof the first full month during the Term.

 

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5.             ADDITIONALRENT.

 

In addition to paying the Base Rent specified in Paragraph 4 hereof,Tenant shall pay as “Additional Rent” the amounts determined pursuant toSub-Paragraphs B and C of this Paragraph 5. The Base Rent and the AdditionalRent are sometimes herein collectively referred to as the “Rent”. All amountsdue under this Paragraph as Additional Rent shall be payable for the sameperiods and in the same manner, time and place as the Base Rent, without anyabatement (except as specifically provided herein), counterclaim, set-off ordeduction whatsoever. Without limitation on other obligations of Tenant whichshall survive the expiration of the Term, the obligations of Tenant to pay theAdditional Rent provided for in this Paragraph 5 shall survive the expirationof the Term for a period of two years. For any partial Calendar Year, Tenant shallbe obligated to pay only a pro rata share of the Additional Rent, based on thenumber of days of the Term falling within such Calendar Year.

 

A.            Definitions. Asused in this Paragraph 5, the terms:

 

(i)            “BaseYear” shall mean the calendar year specified in Paragraph 1 hereof.

 

(ii)           “BaseYear Operating Expenses” shall mean the sum specified in Paragraph 1 hereof.

 

(iii)          “CalendarYear” shall mean each calendar year in which any part of the Term falls,through and including the year in which the Term expires.

 

(iv)          ‘Tenant’sProportionate Share” shall mean the percentage specified in Paragraph 1 hereof,being the percentage calculated by dividing the rentable area contained in thePremises from time to time by 802,750 (being 95% of the

 

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rentablesquare foot area of the Office Section), rentable area to be determined byLandlord on a uniform basis for the tenants of the Office Section.

 

(v)           “Taxes” shall mean all real estate taxes and assessments, special orotherwise, levied or assessed upon or with respect to the Building or any part thereofand Common Areas which Landlord determines in its sole judgment to be for thebenefit of the Building and ad valorem taxes for any personal property ofLandlord used in connection therewith. Landlord’s determination of which CommonAreas benefit the Building shall not be revised adversely to Tenant forpurposes of determining Taxes included in Operating Expenses. Should theCommonwealth of Massachusetts, or any political subdivision thereof, or anyother governmental authority having jurisdiction over the Building, (a) imposea tax, assessment, charge or fee, which Landlord shall be required to pay, byway of substitution for or as a supplement to such real estate taxes and advalorem personal property taxes, or (b) impose an income or franchise taxor a tax on rents in substitution for or as a supplement to a tax leviedagainst the Building or any part thereof and/or the personal property usedin connection with the Building or any part thereof, all such taxes,assessments, fees or charges (hereinafter defined as “in lieu of taxes”) shallbe deemed to constitute Taxes hereunder. Taxes shall also include, in the yearpaid, all reasonable fees and costs incurred by Landlord in seeking to obtain areduction of, or a limit on the increase in, any Taxes, regardless of whetherany reduction or limitation is obtained. Except as hereinabove provided withregard to “in lieu of taxes”. Taxes shall not include any inheritance, estate,succession, transfer, gift, franchise, net income or capital stock tax.

 

(vi)          “Operating Expenses” shall mean (a) Taxes and (b) all expenses,costs and disbursements of every kind and nature, paid or incurred by Landlordin operating, owning, managing, leasing, repairing and maintaining the Office Section, the Building, the Propertyand their appurtenances as such Taxes,

 

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expenses,costs and disbursements are allocated to the Office Section by theLandlord in its reasonable judgment (which allocation shall remain consistentfor the Base Year and each Calendar Year of the Term) or as the same areincurred directly in the operation of Office Section, including but withoutlimitation: premiums for fire, casualty, liability and such other insurance asLandlord may from time to time maintain; security expenses; compensationand all fringe benefits, workmen’s compensation insurance premiums and payrolltaxes paid by Landlord to, for or with respect to all persons engaged inoperating, maintaining, or cleaning; steam, water, sewer, electric, gas,telephone, and other utility charges not billed directly to tenants by Landlordor the utility; expenses incurred in connection with the central plantfurnishing heating, ventilating and air conditioning to the Office Section (andto the Building and the Property where and to the extent such expenses of theBuilding and the Property are otherwise allocable to the Office Section), whichexpenses may include a reasonable fee paid to the operator of such centralplant; costs of lighting, ventilating, (including maintaining and repairingventilating fans and fan rooms); making routine repairs to and maintenance ofunderground roadways (and the access ramps servicing such roadways) andrailroad platforms and railroad rights of way (including track); costs ofrepairing and maintaining fire protection systems relating to the undergroundroadways, access ramps, railroad platforms and railroad rights of way to theextent the same are required of Landlord by separate agreement running with theProperty and binding the Property whether currently in effect or arising fromobligations and commitments currently in effect; costs of building and cleaningsupplies and equipment (including rental); cost of maintenance, cleaning andrepairs; cost of snow plowing or removal, or both, and care of interior andexterior landscaping; payments to independent contractors under contracts forcleaning, operating, management, maintenance and repair (which payments may beto affiliates of Landlord provided such are at competitive rates); all otherexpenses paid in connection with cleaning, operating, management, maintenanceand repair of, or are otherwise allocable to, the Office Section; costs

 

9

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ofany Qualified Capital Improvements (as hereinafter defined) as reasonablyamortized by Landlord, with interest on the unamortized amount at the rate ofthe greater of (i) 12% per annum or (ii) 2% per annum above the baserate of interest charged from time to time by The First National Bank of Boston(but in no event at a rate which is more than the highest lawful rate allowablein The Commonwealth of Massachusetts), to the extent the cost of the particularcapital improvement exceeds the amount of insurance proceeds, if any, receivedby Landlord on account of damage to the particular Qualified CapitalImprovement. As used in this Lease, “Qualified Capital Improvement” shall meana capital improvement or replacement of such capital improvement which isintended to reduce or stabilize Operating Expenses in any Calendar Year belowor at the Operating Expense which would have been incurred in the absence ofsuch capital improvement. The term “capital improvement” does not includeexpenses for equipment of a capital nature incurred in connection withoperation, repair and maintenance of the Building if such equipment is not a part ofthe Building structure or systems and, instead, is used to maintain or repairBuilding structure or systems. Operating Expenses shall not, however, includethe following:

 

a.             Costs of alterations of any tenant’s premisesfor a particular tenant;

 

b.             Principal or interest payments on loanssecured by mortgages or trust deeds on the Building and/or on the Property;

 

c.             That portion of any costs incurred inconnection with the making of repairs or replacements which are the lease obligationof another tenant or occupant of the Property;

 

d.             Advertising, marketing, promotional, publicrelations or brokerage fees, commissions or expenditures;

 

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e.             Financingand refinancing costs in respect of any mortgage or security interest placedupon the Property or any portion thereof, including payments of principal, interest, finance or other charges,and any points and commissions in connection therewith;

 

f.              Interestor penalties for any late orfailed payments by Landlord under any contract or agreement (but any suchinterest or penalties resulting from Tenant’s failure to pay when and as dueTenant’s share of Operating Expenses shall be the direct responsibility ofTenant and shall be Additional Rent due within ten (10) days of Landlord’sbilling Tenant therefor);

 

g.             Rentor other charges payable under any ground or underlying lease;

 

h.             Costsof electrical or other utilities services furnished directly to any premises orother tenants of the Property where such utility is separately metered to the premises or such tenantpays a separate charge therefor;

 

i.              Costsincurred in connection with Landlord’s preparation, negotiation, disputeresolution and/or enforcement of leases, including court costs and attorneys’ fees and disbursements inconnection with any summary proceeding to dispossess any tenant, or incurred inconnection with disputes with prospective tenants, employees, consultants,management agents, leasing agents, purchasers or mortgagees or arising frommatters which are excluded from Operating Expenses;

 

j.              Costsof any additions to orexpansions of the Property;

 

k.             Thecost of environmentalmonitoring, compliance, testing and remediation performed in, on, about andaround the Property;

 

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1.             Depreciation;

 

m.            Costsor expenses for items to theextent theretofore reimbursed to Landlord by insurance proceeds;

 

n.             Costsof repairs, restoration or replacements occasioned by fire or other casualty orcaused by the exercise of the right of eminent domain, whether or not insuranceproceeds or condemnation award proceeds are recovered or adequate for suchpurposes except that the deductible amount under insurance coverage shall beincluded in Operating Expenses;

 

o.             Anamount equal to all amounts received by Landlord (i) through proceeds ofinsurance to the extent the proceeds are compensation for expenses which previouslywere included in Operating Expenses hereunder, or (ii) as rebates or creditstoward costs and expenses previously included in Operating Expenses hereunder;and

 

p.             Costs(including, without limitation, attorneys’ fees and disbursements) incurred inconnection with any judgment, settlement or arbitration award resulting from anytort liability; and

 

r.              Costsof capital improvements or replacements except to the extent specifically to beincluded under this Section 5A(vi).

 

If less than 95% of the Office Section’srentable area shall have been occupied by tenant(s) at any time during anyCalendar Year, components of Operating Expenses which vary with the level ofoccupancy shall be determined for such Calendar Year to be an amount equal tothe like expense which would normally be expected to be incurred (taking intoaccount periods during which

 

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occupancy exceeded 95% during such Calendar Year) had such occupancybeen 95% throughout such Calendar Year.

 

B.            Expense Adjustment.Replaced per 2ndamendment. The Expense Adjustment Amount with respect to each Calendar Yearshall be paid in monthly installments, in an amount estimated from time to timeby Landlord in good faith and communicated by written notice to Tenant, whichestimate may be revised to reflect, without limitation, increases in Taxesduring any period. Landlord shall cause to be kept books and records showingOperating Expenses in accordance with an appropriate system of accounts andaccounting practices consistently maintained. Within twelve (12) months afterthe close of each Calendar Year, Landlord shall cause the amount of the ExpenseAdjustment Amount for such Calendar Year to be computed based on OperatingExpenses for such Calendar Year and Landlord shall deliver to Tenant astatement of such amount and Tenant shall pay any deficiency to Landlord asshown by such statement within thirty (30) days after receipt of suchstatement. If the total of the estimated monthly installments paid by Tenantduring any Calendar Year exceed the actual Expense Adjustment Amount due fromTenant for such Calendar Year, such amount shall be refunded by Landlord withinthirty (30) days of the delivery of the statement to Tenant, provided Tenant isnot then in monetary default hereunder or in other than monetary default beyondapplicable periods of notice and cure. Tenant shall have the right to auditLandlord’s books and records relating to Operating Expenses incurred during theTerm provided such audit shall be conducted by professional auditors; may occurnot more often than once in a year; shall be conducted within twelve months(plus any period for which Landlord defers the audit as provided in thissentence) of receipt of a statement of Operating Expense Adjustment for theCalendar Year being audited; shall be conducted during regular business hoursof Landlord on not less than fifteen (15) business days’ notice and may bedeferred by Landlord by notice given at least ten (10) business days before thedate

 

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proposed by Tenant, for upto three (3) months to a date convenient to Landlord. In the event theresults of such audit disclose an overcharge of Tenant, Landlord shall promptlyrefund the amount of such overcharge to Tenant. In addition, if as a result ofsuch audit, Operating Expenses are found to be overstated by more than tenpercent (10%), Landlord shall pay to Tenant, Tenant’s reasonable cost ofconducting such audit. Delay in computation of the Expense Adjustment Amount orfailure to deliver a statement of such amount shall not be deemed a defaulthereunder or a waiver of Landlord’s right to collect the Expense AdjustmentAmount. In computing the Expense Adjustment Amount, the following provisionsrelating to Taxes shall be applicable: The amount of any refund of Taxes receivedby Landlord shall be credited against Taxes for the Calendar Year in which suchrefund is received; provided, however, that in the event Landlord receives arefund of Taxes after the Termination Date (as the same may be acceleratedor extended as provided elsewhere in this Lease) which refund relates to aCalendar Year during the Term hereof, the amount of such refund fairlyallocable to Tenant shall be refunded to Tenant by Landlord within ninety (90)days of Landlord’s receipt of same (net of Tenant’s allocated share of the costof obtaining such refund and the cost, if any, of making such refund); andfurther provided that if Tenant expands into space formerly occupied by othertenants, which expansion space becomes subject to this Lease, Tenant shall notbe entitled to any refund or credit with respect to such expansion space inconnection with a refund or abatement of Taxes for periods prior to Tenant’soccupancy of such expansion space. All references to Taxes “for” a particularCalendar Year shall be deemed to refer to Taxes due and payable during suchCalendar Year without regard to when such Taxes are assessed or levied.

 

C.            Adjustment For Services Not Rendered byLandlord. Tenantacknowledges that if after the Base Year Landlord is not furnishing any particular work or service the cost of which wasincluded in Base Year Operating Expenses and if performed by Landlord would beincluded in Operating Expenses, to any tenant who has undertaken to perform suchwork or service in lieu of the performance thereof by Landlord, OperatingExpenses shall be deemed for the purpose of determining the

 

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ExpenseAdjustment Amount to be increased by an amount equal to the additionalOperating Expenses which would reasonably have been incurred during such periodby Landlord if it had at its own expense furnished such work or service to suchtenant.

 

6.             USEOF PREMISES.

 

Tenant shall use and occupy the Premises in accordance with law; andsolely as an office and for no other purpose or purposes.

 

7.             CONDITIONOF PREMISES.

 

The Premises are demised to Tenant and Tenant accepts the same “as-is”and all work necessary to prepare the Premises for Tenant’s occupancy shall beperformed at Tenant’s sole cost and expense, in accordance with the applicableprovisions of this Lease. Notwithstanding the foregoing, (i) Landlordagrees that all systems serving the Premises shall be in good and operationalcondition on the applicable Commencement Date, (ii) the Premises will bedelivered in compliance with all applicable code requirements, laws,regulations and ordinances applicable to the delivery of unfinished, undemolishedspace except as to compliance with ADA bathroom and fire requirementswhich are Tenant’s responsibility in full floor usage and except for thewallboard adjacent to the atrium area of the Building which is not incompliance with the fire code; provided, however, that the reasonable cost ofbringing the wallboard to code shall be reimbursed by Landlord (separate fromand outside of the Landlord Base Allowance) to Tenant promptly after Tenantsubmits its bill for such work to Landlord together with reasonable evidence ofthe completion thereof, and (iii) the Landlord represents, warrants andcovenants that the Common Areas and portions of the Property which are notleased or leaseable will at all times on and after the Area A Commencement Dateas to Area A and the Area B Commencement Date as to Area B be in compliancewith all code requirements, laws, regulations and ordinances including withoutlimitation ADA, OSHA and the Clean Air Act which must be complied with forgeneral office uses so as to assure

 

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Tenant uninterrupted use ofthe Premises without the imposition of fees or penalties or incurrence ofliability by reason of such noncompliance. In no event shall Landlord beobligated to cause compliance of the Premises with ADA requirements notedabove. No promise of Landlord to alter, remodel or improve the Premises, theOffice Section or the Building and no representation by Landlord or itsagents respecting the condition of the Premises, the Office Section or theBuilding have been made to Tenant or relied upon by Tenant other than as may becontained in this Lease or in any written amendment hereto signed by Landlordand Tenant. Tenant shall have the right, upon reasonable notice and duringhours as will minimally interfere with the business of the current occupant ofArea B (and consistent with reasonable security policies of the currentoccupant), to cause the Landlord to arrange with the current occupant of Area Bfor access to Area B prior to the Area B Commencement Date to permit cablingwithin Area B so as to coordinate cabling work with the installation of cablingin Area A. All costs of such cabling shall be the responsibility of Tenantunder the Work Letter.

 

8.             SERVICES.

 

A.            List of Services.

 

Landlordshall provide the following services, the costs of which are included withinOperating Expenses, on all days during the Term except Sundays and holidays(but for purposes hereof, “holidays” shall not include days on which the NewYork Stock Exchange is operating), unless otherwise stated, and subject to allgovernmental rules, regulations and guidelines applicable thereto:

 

(i)            Heating and air conditioning in the Premisesduring the normal heating and air-conditioning seasons, from Monday throughFriday, during the period from 8 a.m. to 6 p.m. and on Saturdayduring the period from 8 a.m. to 1 p.m. in accordance with thefollowing standards: In all areas of the Premises, an indoor temperature of 70°to 74°F dry bulb and 30% relative humidity on a year

 

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round basis regardless of outdoor temperature with fresh air of notless than 0.25 cubic feet per minute for each square foot of useable area inthe Premises provided Tenant does not exceed a heat load of six (6) wattsper rentable square foot and an occupancy level of not more than one person foreach 125 rentable square feet in the Premises, but subject to Tenant’s failureto properly design its heating and air-conditioning system distribution withinthe Premises. Tenant will pay for all heating and air-conditioning requestedand furnished prior to or following such hours at rates to be established fromtime to time by Landlord. Currently, after-hours HVAC is available at a rate of$45.00 per hour per floor. Requests for any additional services shall be inwriting and delivered to Landlord not later than 2 p.m. of the previousday.

 

(ii)           Adequateelectrical wiring and facilities for standard building lighting fixturesprovided by Landlord and for Tenant’s incidental uses (it being understood that Tenant is to bear thecost of replacement of all lamps, tubes, ballasts and starters for lightingfixtures in the Premises); provided that (a) the connected electrical loadfor lighting and incidental use equipment does not exceed an average of threewatts per square foot of the Premises; (b) the electricity so furnished forincidental uses will be at a nominal 120 volts and no electrical circuit for the supply of such incidental usewill have a current capacity exceeding 20 amperes; and (c) suchelectricity will be used only for equipment and accessories normal to office usage.If Tenant’s requirements for electricity for lighting and incidental uses arein excess of those set forth in the preceding sentence, Landlord reserves theright to require Tenant to install the conduit, wiring and other equipmentnecessary to supply electricity for such excess incidental use requirements atTenant’s expense.

 

(iii)          Citywater from the regular Building outlets for drinking, lavatory and toiletpurposes.

 

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(iv)          Janitorialservices as delineated in Exhibit D attached hereto.

 

(v)           Windowwashing of the inside and outside of windows in the Building’s perimeter wallsas may be situated in the Premises as delineated in Exhibit Dattached hereto.

 

(vi)          Non-exclusiveautomatic passenger elevator service at all times.

 

(vii)         Non-exclusivefreight elevator service subject to scheduling by Landlord. Landlord will schedulereasonable use of the freight elevator for Tenant’s move into and out of thePremises, which use shall provide Tenant with sufficient periods ofuninterrupted use to permit its reasonably orderly construction and move intothe Premises, subject to reasonable limitations and interruptions for use byother tenants.

 

B.            Billing forElectricity.

 

Landlord shall submeter Tenant’s use of all electrical service to thePremises (other than the electrical service necessary for Landlord to fulfillits obligation to provide heating and air conditioning as provided in Paragraph8A(i) hereof) or shall determine such usage through an intellimeter orsimilar device. Tenant shall pay Landlord as further Additional Rent, inmonthly installments at the time prescribed for monthly installments, the costof such electrical usage. Tenant’s obligation for electricity usage by Tenantduring the Term shall survive the termination of this Lease and/or Tenant’sright to occupancy of all or any part of the Premises.

 

C.            Interruption ofServices.

 

Tenant agrees that except as provided in this Subparagraph C, Landlordshall not be liable in damages, by abatement of Rent or otherwise, for failureto furnish or delay in

 

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furnishing any service, orfor any diminution in the quality or quantity thereof, when such failure ordelay or diminution is occasioned, in whole or in part, by repairs, renewals,or improvements, by any strike, lockout or other labor trouble, by inability tosecure electricity, gas, water, or other fuel at the Building after reasonableeffort so to do, by any accident or casualty whatsoever, by act or default ofTenant or other parties, or by any other cause beyond Landlord’s reasonablecontrol; and such failures or delays or diminution shall never be deemed toconstitute an eviction or disturbance of Tenant’s use and possession of thePremises or relieve Tenant from paying Rent or performing any of itsobligations under this Lease. Notwithstanding anything in this Lease to thecontrary, if as a result of a cessation limited to utilities or interruption ofutilities or access which Landlord is required to provide hereunder for anyother reason other than (i) reasons arising as a result of negligence,willful misconduct on the part of Tenant or any of Tenant’s contractors,agents or employees or breach of this Lease by Tenant, (ii) reasonsarising out of Tenant’s use and occupancy of the Premises, (iii) any otherreason within the reasonable control of Tenant, Tenant is unable to use all ora portion of the Premises for its business purposes for a period of seven (7) consecutivedays, the Base Rent and Additional Rent relating to periods subsequent to suchseven (7) day period and thereafter due hereunder shall abate until Tenantis again able to use such portion of the Premises for its business purposes. Inthe event such interruption or cessation continues for more than thirty (30) consecutivedays and materially affects Tenant’s use and occupancy of the Premises, Tenantshall have the right to terminate this Lease by notice to Landlord within ten (10) daysof the expiration of such thirty (30) day period.

 

D.            Charges for Services.

 

Chargesfor any service for which Tenant is required to pay, from time to timehereunder, including but not limited to hoisting services or after hourslighting, heating or air conditioning shall be due and payable at the same timeas the installment of Rent with which they are billed, or if billed separately,shall be due and payable as further Additional Rent within thirty (30) daysafter such billing. If Tenant shall fail to make

 

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payment forany such services within applicable periods of notice and cure, Landlord may,without notice to Tenant, in addition to any and all other remedies availableunder this Lease or otherwise, discontinue any or all of such services and suchdiscontinuance shall not be deemed to constitute an eviction or disturbance ofTenant’s use and possession of the Premises or relieve Tenant from paying Rentor performing any of its other obligations under this Lease.

 

E.             EnergyConservation.

 

Notwithstanding anything to the contrary in this Paragraph 8 orelsewhere in this Lease, Landlord shall have the right to institute suchpolicies, programs and measures as may be necessary or desirable, inLandlord’s reasonable discretion, for the conservation and/or preservation ofenergy or energy related services if consistent with similar programsinstituted generally in first-class office buildings in Boston (to theextent the systems of such office buildings are not otherwise compliant withconservation and preservation goals generally accepted), or as may berequired to comply with any applicable codes, rules and regulations,whether mandatory or (but only if instituted by first-lass Boston officebuildings whose systems are not otherwise compliant) voluntary.

 

9.             REPAIRS;HAZARDOUS MATERIALS.

 

Tenant will, at Tenant’s own expense, keep the Premises, including allimprovements, fixtures and furnishings therein, in good order, repair andcondition at all times during the Term, reasonable wear and tear excepted (andTenant shall not be obligated hereunder for damage to the Premises arising fromBuilding damage arising from fire or other casualty), and Tenant shall promptlyand adequately repair all damage to the Premises and replace or repair alldamaged or broken glass, fixtures and appurtenances. If Tenant does not do soafter notice and expiration of applicable cure periods, Landlord may, but shallnot be obligated to, make such repairs and replacements, and Tenant shall payLandlord the cost thereof, including a percentage of the cost thereof

 

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(to beuniformly established for the Office Section) sufficient to reimburse Landlordfor all overhead, general conditions, fees and other costs or expenses arisingfrom Landlord’s involvement with such repairs and replacements forthwith uponbeing billed for same. Landlord may, but shall not be required to, enter thePremises at all reasonable times upon reasonable advance notice (and at anytime in emergency situations) to make such repairs, alterations, improvementsand additions to the Premises, to the Office Section or the Building or toany equipment located in the Office Section or the Building as Landlordshall desire or deem necessary or as Landlord may be required to do bygovernmental authority or court order or decree. Nothing contained herein shallimpose any obligation on Tenant to maintain, repair or replace any systemsserving or passing through the Premises (including without limitation the HVAC,electrical, plumbing, life safety and security systems). Landlord shall beresponsible for the same, subject to reimbursement of the cost thereof as acomponent of Operating Expenses.

 

Tenant shall not (either with or without negligence) cause or permitthe escape, disposal or release of any biologically or chemically active orhazardous substances, or materials (collectively the “Hazardous Materials”).Tenant shall not allow the storage or use of Hazardous Materials in any mannernot sanctioned by law or by the highest standards prevailing in the industryfor the storage and use of such Hazardous Materials, not allow to be broughtinto the Building any Hazardous Materials except to use in the ordinary courseof Tenant’s business. Without limitation, Hazardous Materials shall includethose described in the Comprehensive Environmental Response, Compensation andLiability Act of 1980, as amended, 42 U.S.C. Section 9601 etseq.,the Resource Conservation and Recovery Act, as amended, 42 U.S.C. Section 6901et seq., any applicable state or local laws and the regulations adoptedunder these acts. If any lender or governmental agency shall ever requiretesting to ascertain whether or not there has been any release of HazardousMaterials by Tenant, then the reasonable costs thereof shall be reimbursed byTenant to Landlord upon demand as additional charges if such requirementapplies to the Premises. In addition, Tenant shall execute affidavits,representations and the like from time to time at Landlord’s request concerningTenant’s

 

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best knowledge and beliefregarding the presence of Hazardous Materials on the Premises provided such arein form and substance reasonably acceptable to Tenant. In all events,Tenant shall indemnify Landlord in the manner elsewhere provided in this Leasefrom any release of Hazardous Materials on the Premises occurring while Tenantis in possession (unless caused by Landlord, its agents, employees, contractorsor other tenants of the Property) or elsewhere if caused by Tenant or personsacting under Tenant. The within covenants shall survive the expiration orearlier termination of the Term.

 

10.           ADDITIONS AND ALTERATIONS.

 

A.            Tenant shall not, without the prior writtenconsent of Landlord, make any alterations, improvements or additions to thePremises subsequent to initialconstruction, the approval conditions for which are set forth in the WorkLetter; provided, however, Landlord’s consent shall not be required withrespect to nonstructural alterations, improvements or additions below finishedceilings costing less than $12,000 to implement and Landlord shall notunreasonably withhold its consent to other nonstructural alterations which donot materially adversely affect Building Systems. Tenant shall in all eventsprovide at least five (5) business days’ notice to Landlord of anyalterations, improvements or additions (with a summary description of the workto be done and a statement, pursuant to Paragraph 9, describing any HazardousMaterials to be brought into the Building in connection with the work) whetheror not consent is required. Landlord shall respond to requests for consents (a) withintwo (2) business days, as to requests for decorative alterations and (b) withinfive (5) business days, as to requests for other nonstructuralalterations. If Landlord consents to said alterations, improvements oradditions after initial construction, it may impose such reasonableconditions with respect thereto as Landlord reasonably deems appropriate (butin no event shall Landlord be entitled to ask Tenant to remove at the end ofthe term any nonstructural alterations that are Customary Office Improvements,as defined below). Tenant shall have the right to tie into the Buildingsecurity system, at Tenant’s sole cost and expense, its HVAC alarm providedthat plans for such tie-in shall be submitted to

 

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Landlord forapproval and that Landlord, its employees, agents and contractors shall be heldharmless against any and all damages, liabilities, claims and expenses which may beincurred by Tenant arising from any failure of the Building security system toprovide any notice of failure of the Tenant’s system or any other level ofsecurity or alarm which might otherwise be anticipated to be provided by theLandlord’s security system. The work necessary to make any alterations,improvements or additions to the Premises, whether prior to or subsequent to anapplicable Commencement Date, shall be done at Tenant’s expense by employees ofor contractors hired by Landlord except to the extent Landlord gives its priorwritten consent to Tenant’s hiring its own contractors, which consent shall notbe unreasonably withheld or delayed. Initial construction of the Premises shallbe accomplished by Tenant’scontractor using plans and specifications prepared by Tenant’s architect inaccordance with the Work Letter. It is understood that Landlord’s consent tothe hiring by Tenant of Tenant’s own contractors for any work subsequent toinitial construction (the contractor for which has been approved by Landlord asprovided in the Work Letter) may be withheld if Landlord’s permitting suchhiring might reasonably be expected to result in an interruption of servicesprovided to tenants of the Building by reason of labor difficulties. Tenantshall promptly pay to Tenant’s contractors, or to Landlord if Landlord hashired the contractor, when due, the actual cost of all such work and of alldecorating. In connection with seeking Landlord’s approval hereunder, Tenantshall provide to Landlord plans and specifications regarding proposedalterations, additions or improvements, as Landlord shall reasonably require,and Tenant shall, in addition to all other expenses which Tenant is obligated topay to Landlord hereunder, pay to Landlord the actual reasonable out-of-pocketexpense incurred by Landlord in connection with the review of such information.Upon completion of such work Tenant shall deliver to Landlord, if payment ismade directly to contractors, evidence of payment, contractors’ affidavits andfull and final waivers of all liens for labor, services or materials, all in form reasonablysatisfactory to Landlord. Tenant shall defend and hold Landlord, Landlord’slessor, any mortgagee of Landlord, the MTA (hereinafter defined), the Propertyand the Building harmless from all costs, damages, liens and expenses relatedto such work. All work done by Tenant or its

 

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contractorspursuant to Paragraphs 9 or 10 shall be done in a first-class workmanlikemanner using only good grades of materials and shall comply with all insurancerequirements and all applicable laws and ordinances and rules andregulations of governmental departments or agencies.

 

B.            All alterations,improvements and additions to the Premises, whether temporary or permanent incharacter, made or paid for by Landlord or Tenant, which are not removed byTenant (to the extent permitted and as provided in Paragraph 18) prior to theend of the Term shall withoutcompensation to Tenant become Landlord’s property at the termination of thisLease by lapse of time or otherwise and shall, unless Landlord has requitedtheir removal as a condition of its consent to installation (in which case Tenantshall remove the same as provided in Paragraph 18), be relinquished to Landlordin good condition, ordinary wear and damage or condition resulting from theeffects of casualty and eminent domain excepted. Notwithstanding the foregoing,Tenant shall not be obligated to remove any partitions, floor or wallcoverings, or other normal office layout construction (“Customary OfficeImprovements”), or any improvements made pursuant to the Work Letter unlessotherwise specified by Landlord in connection with Landlord’s approval ofTenant’s plans for initial construction of the Premises. Nothing containedherein shall be deemed to grant Landlord an ownership interest in Tenant’strade fixtures, equipment or personal property (including, without limitation,the work stations and anti-static floor in the communications room) which shallremain Tenant’s property and may be removed during or at the end of theterm of the Lease provided that Tenant shall repair any and all damage to thePremises caused by such removal.

 

Tenant may install, maintain, replace, remove or use anycommunications or computer wires, cables and related devices (collectively the “Lines”)at the Property in or serving the Premises, provided: (a) Tenant shallobtain Landlord’s prior written consent to any such action (which consent shallnot be unreasonably withheld or delayed), use an experienced and qualifiedcontractor approved in writing by Landlord (which approval shall not beunreasonably withheld or delayed), and comply with all of the other

 

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provisions ofParagraph 10A, (b) any such installation, maintenance, replacement,removal or use shall not interfere with the use of any then existing Lines atthe Building, (c) as to Lines installed after the initial buildout, anacceptable number of spare Lines and space for additional Lines shall bemaintained for existing and future occupants of the Building, as determined inLandlord’s reasonable opinion, (d) if Tenant at any time uses any equipmentthat may create an electromagnetic field exceeding the normal insulationratings or ordinary twisted pair riser cable or cause radiation higher thannormal background radiation, the Lines therefor (including riser cables) shallbe appropriately insulated to prevent such excessive electromagnetic fields orradiation, (e) as a condition to permitting the installation of new Lines,Landlord may require that Tenant remove existing Lines located in orserving the Premises (other than Lines installed or used by Tenant), (f) Tenant’srights shall be subject to the rights of any regulated telephone company, and (g) Tenantshall pay all costs in connection therewith. Landlord reserves the right torequire that Tenant remove any Lines installed by Tenant located in or servingthe Premises which are installed in violation of these provisions, or which areat any time in violation of any laws, ordinances, rules or regulations orcausing a dangerous or potentially dangerous condition within thirty (30) daysafter written notice.

 

Landlord may (but shall not have the obligation to): (i) installnew Lines at the Building, (ii) create additional space for Lines at theProperty, and (iii) reasonably monitor and/or supervise the installation,maintenance, replacement and removal of, the allocation and periodicre-allocation of available space (if any) for, and (solely as to Linesinstalled by Landlord) the allocation of excess capacity (if any) on, any Linesnow or hereafter installed at the Building by Landlord, Tenant or any otherparty (but Landlord shall have no right to monitor or control the informationtransmitted through such Lines). Such rights shall not be in limitation ofother rights that may be available to Landlord by law or otherwise. IfLandlord exercises any such rights, Landlord may charge Tenant for thecosts attributable to Tenant, or may include those costs and all othercosts in Operating Expenses under Paragraph 5A(vi) (including withoutlimitation, costs for acquiring and installing Lines and risers to accommodatenew Lines and spare Lines, any

 

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associated computerizedsystem and software for maintaining records of Line connections, and the feesof any consulting engineers and other experts); provided, the cost of anycapital improvements shall be included in Operating Expenses hereunder andshall be amortized (together with reasonable finance charges) as provided inParagraph 5A(vi) and shall not be included in Operating Expenses ifattributable to any particular tenant or tenants of the Property or wouldotherwise not be includable in Operating Expenses pursuant to exclusions underParagraph 5A(vi).

 

Tenant shall remove currently existing Linesin the Premises, including, without limitation, those above the existingfinished ceiling in connection with Tenant’s construction, but Tenant shallhave no obligation to remove any Lines installed by or for Tenant within orserving the Premises upon termination of this Lease. Any Lines not removedprior to the end of the Term shall, at Landlord’s option, become the propertyof Landlord (without payment by Landlord). Tenant shall not, without the priorwritten consent of Landlord in each instance, grant to any third party asecurity interest or lien in or on the Lines, and any such security interest orlien granted without Landlord’s written consent shall be null and void. Subjectto Paragraph 8C and except to the extent arising from the intentional ornegligent acts of Landlord or Landlord’s agents or employees, Landlord shallhave no liability for damages arising from, and Landlord does not warrant thatthe Tenant’s use of any Lines will be free from the following (collectivelycalled “Line Problems”): (x) any eavesdropping or wire-tapping by unauthorizedparties, (y) any failure of any Lines to satisfy Tenant’s requirements, or (z)any shortages, failures, variations, interruptions, disconnections, loss ordamage caused by the installation, maintenance, replacement, use or removal ofLines by or for other tenants or occupants at the Building, by any failure ofthe environmental conditions or the power supply for the Building to conform toany requirements for the Lines or any associated equipment, or any otherproblems associated with any Lines by any other cause; provided, however, thatLandlord shall use its best efforts to enforce the leases of other tenants inrespect of matters relating to Line Problems. Subject to Paragraph 8C, under nocircumstances shall any Line Problems be deemed an actual or constructive evictionof Tenant or relieve

 

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Tenant from performance ofTenant’s obligations under this Lease. Landlord in no event shall be liable fordamages by reason of loss of profits, business interruption or otherconsequential damage arising from any Line Problems.

 

11.           COVENANT AGAINST LIENS.

 

Tenanthas no authority or power to cause or permit any lien or encumbrance of anykind whatsoever, whether created by act of Tenant, operation of law orotherwise, to attach to or be placed upon the Property, the Building or thePremises, or to affect any estate or interest of Landlord, Landlord’s lessor,any mortgagee or the MTA. Tenant covenants and agrees not to suffer or permitany lien of mechanics, materialmen or others to the placed against theProperty, the Building or the Premises, or to affect any estate or interest ofLandlord, Landlord’s lessor, any mortgagee or the MTA, with respect to work orservices claimed to have been performed for or materials claimed to have beenfurnished to Tenant or the Premises, and, in case of any such lien attaching ornotice of any lien, or claim therefor being asserted, Tenant covenants andagrees to cause same to the immediately released and removed of record orbonded over. In the event that such lien is not released and removed or bondedover within twenty (20) days of the date Tenant receives notice of the same,Landlord, at its sole option, may take all action necessary to release andremove such lien (without any duty to investigate the validity thereof) andTenant shall promptly upon notice reimburse Landlord for all sums, costs andexpenses (including reasonable attorneys’ fees) incurred by Landlord inconnection therewith.

 

12.           INSURANCE.

 

A.            Waiver of Subrogation.

 

Landlordand Tenant each hereby waive any and every claim for recovery from the other forany and all loss of or damage to the Property, the Building or the Premises orto

 

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the contentsthereof, which loss or damage is (i) covered by valid and collectiblephysical damage insurance policies, to the extent that such loss or damage isrecoverable under said insurance policies or (ii) required to be coveredunder this Lease but the party required to maintain such insurance failed tomaintain the same in which event such party shall be deemed to have receivedthe total insurance proceeds required to be carried hereunder. Inasmuch as thismutual waiver will preclude the assignment of any such claim by subrogation (orotherwise) to an insurance company (or any other person), Landlord and Tenant eachagree to give to each insurance company which has issued, or in the future mayissue, to it policies of physical damage insurance, written notice of the termsof this mutual waiver, and to have said insurance policies properly endorsed,if necessary, to prevent the invalidation of said insurance coverage by reasonof said waiver. Tenant’s waiver of subrogation as hereinabove set forth shallalso run to the benefit of and extend to Landlord’s lessor and the MTA.

 

B.            Coverage.

 

Tenant shall purchase and maintain insurance during the entire Term forthe benefit of Tenant, with Landlord, Landlord’s lessor, any mortgagee and theMTA named as additional insureds (as their respective interests may appear) incompanies reasonably satisfactory to Landlord, and with such increases inlimits as Landlord may from time to time request (provided such increases areconsistent with that required of similar tenants in the Greater Boston area),but initially Tenant shall maintain the following coverages in the following amounts:

 

(i)            CommercialGeneral Liability Insurance covering Tenant, with Landlord, Landlord’s lessor,the MTA and Landlord’s management agent named as additional insureds for claimsof bodily injury, personal injury and property damage arising out of Tenant’soperations, assumed liabilities or use of the Premises, for limits of liabilitynot less than:

 

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| Bodily  Injury and Property |   | $3,000,000  each occurrence      |
|-----------------------------|--------|----------------------------------|
|                        |   |                             |
| Damage  Liability           |   | $3,000,000  annual aggregate     |
|                        |   |                             |
| Personal  Injury Liability  |   | $3,000,000  annual aggregate     |
|                        |   | 0% Insured’s  participation |

 

(ii)           ComprehensiveAutomobile Insurance covering all owned, non-owned and hired automobiles ofTenant including the loading and unloading of any automobile with limits ofliability not less than:

 
| Bodily  Injury and Property |   | $3,000,000  each person   |
|-----------------------------|--------|---------------------------|
|                        |   |                      |
| Damage  Liability           |   | $3,000,000  each accident |

 

(iii)          PhysicalDamage Insurance covering all additions, improvements and alterations to thePremises which are beyond the building standard tenant improvements provided byLandlord and all office furniture, trade fixtures, office equipment,merchandise and all other items of Tenant’s property on the Premises. Suchinsurance shall be written on an “all risks” of physical loss or damage basis,for the full replacement cost value of the covered items and in amounts thatmeet any coinsurance clauses of the policies of insurance.

 

Tenant shall, prior to the commencement of the Term, furnish toLandlord certificates evidencing such coverage, on ACORD Form 27, whichcertificates shall state that such insurance coverage may not be changed orcanceled without at least thirty (30) days’ prior written notice to Landlordand Tenant and shall name Landlord and Landlord’s management agent asadditional insureds.

 

During the Term of this Lease, Landlord shall secure and carry (a) apolicy of commercial general liability insurance covering Landlord on anoccurrence basis in an amount not less than $3,000,000 for claims based onbodily injury (including death), personal injury and property damage relatingto the Property and the Land; and (b) a

 

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policy ofproperty insurance covering the Property and the other improvements on the Landfor direct risk of physical loss, on an occurrence basis, in an amount equal tothe full replacement cost of the Property and other improvements on the Land.

 

C.            Avoid ActionIncreasing Rates.

 

Tenant shall comply with all applicable laws and ordinances, all ordersand decrees of court and all requirements of other governmental authoritieshaving jurisdiction over the Building and of the applicable rating bureau, andshall not, directly or indirectly, make any use of the Premises which maythereby be prohibited or be dangerous to person or property or which mayjeopardize any insurance coverage or may increase the cost of insurance orrequire additional insurance coverage. If by reason of the failure of Tenant tocomply with the provisions of this Paragraph 12C, (i) any insurancecoverage is jeopardized Landlord may, in addition to all other remedies whichmay be available to Landlord, require Tenant to cease such use and if Tenantdoes not do so promptly, Landlord may terminate this Lease or (ii) ifinsurance premiums are increased, Landlord may require Tenant to make immediatepayment of the increased insurance premium.

 

13.           FIREOR CASUALTY.

 

A. Paragraph 9 hereof notwithstanding, if the Premises or the accessthereto (which term for purposes of this Paragraph 13 shall include Office Section corridorswhich provide access to the Premises, elevator or escalator service to thePremises and the garage, at least one pedestrian entrance to the Building whichprovides access to the elevators and such other access as shall be necessary topermit Tenant to conduct its business in the Premises) shall be damaged by fireor other casualty and if such damage is not of such a character or magnitude aswould result in Landlord having a right to terminate under this Paragraph 13A,or if a right to terminate is available to either Landlord or Tenant but notermination is exercised, Landlord shall, subject to building

 

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and zoninglaws then applicable, repair and restore the Premises to substantially thecondition (exclusive of tenant improvements thereto to the extent such tenants,including Tenant, are responsible therefor) thereof prior to the casualty, andshall restore access to the Premises and Building systems to the extent necessaryto permit Tenant to operate its business in the Premises, with reasonablepromptness and subject to reasonable delays for insurance adjustments anddelays caused by matters beyond Landlord’s reasonable control, but shall not beobligated to expend therefor an amount in excess of the proceeds of insurancerecovered with respect thereto plus the deductible under Landlord’s insurance,provided that such limitations shall not apply to the extent Landlord has notmaintained all insurance required to be carried hereunder and unless diligentlypursued all claims against its insurer. Landlord shall have the right toterminate this Lease by giving notice of Landlord’s election so to do not laterthan “Landlord’s Restoration Notice Date” (as hereinafter defined) in thefollowing circumstances:

 

(a)           Ifdamage from fire or other casualty to the Premises or access thereto is suchthat the same cannot, in the ordinary course, reasonably be expected to berepaired within two hundred seventy (270) days from the date of damage andLandlord terminates the leases of all other similarly situated tenants in spacewhich is in the Tower in which the damaged space is located; or

 

(b)           Ifdamage from fire or other casualty to a “Tower” (the Office Section beingcomprised of four “Towers” known as One Copley Place, Two Copley Place, ThreeCopley Place and Four Copley Place) in which all or a portion of the Premisesis located is such that the same cannot, in the ordinary course, reasonably beexpected to be repaired within two hundred seventy (270) days from the date ofdamage and Landlord terminates the leases of all other similarly situatedtenants in space which is in the Tower in which the damaged space is located(but Landlord’s right to terminate hereunder shall only apply to that portionof the Premises which is located within the Tower damaged by such fire or othercasualty); or

 

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(c)           IfLandlord determines to demolish all or substantially all of the Building byreason of fire or other casualty; or

 

(d)           Ifdamage to the Building from fire or other casualty is such that the samecannot, in the ordinary course, reasonably be expected to be repaired withinone year from the date of damage and Landlord terminates the leases of all othersimilarly situated tenants in space which is in the Tower in which the damagedspace is located.

 

Landlord shall notify Tenant no later than Landlord’s RestorationNotice Date of the date by which Landlord reasonably estimates such repairswill be substantially completed (the “Estimated Repair Completion Date”).Tenant shall have the right to terminate this Lease by giving notice toLandlord of Tenant’s election so to do in the following circumstances:

 

(1)           Ifonly the Premises and/or the access thereto have been damaged by fire-or-casualtyand the Estimated Repair Construction Date is more than three hundred sixty(360) days after the date of damage,

 

(2)           Ifthe Premises and/or access thereto have not been damaged such that clause (1) isapplicable, but a Tower in which all or a portion of the Premises is locatedhas been damaged by fire or other casualty, the Estimated Repair CompletionDate is more than three hundred sixty (360) days from the date of damage andsuch damage has a materially adverse effect on the business of Tenant in thePremises (but Tenant’s right to terminate hereunder shall only apply to thatportion of the Premises which is located within the Tower damaged by such fireor other casualty),

 

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(3)           Ifthe Premises and/or access thereto or a Tower in which all or a portion of thePremises is located have not been damaged such that clause (1) or (2) isapplicable, but the Building has been damaged by fire or other casualty, theEstimated Repair Completion Date is more than three hundred sixty (360) daysfrom the date of damage and such damage has a materially adverse effect on thebusiness of Tenant in the Premises, or

 

(4)           Ifsubstantial completion of repairs actually takes thirty (30) days longer thanthe Estimated Repair Completion Date and Tenant had the right to terminate orwould have had the right if Landlord had correctly stipulated the EstimatedRepair Completion Date (but Tenant’s right to terminate hereunder shall onlyapply to that portion of the Premises which would have been the subject of sucha termination had Landlord correctly stipulated).

 

(5)           Ifsubstantial completion of repairs to the Premises and access thereto sufficientfor Tenant to conduct its business in the Premises occurs more than threehundred sixty (360) days after the date of damage and Tenant notifies Landlordof its intent to terminate within thirty (30) days after the end of such 360day period unless not later than the end of such thirty (30) day period Landlordshall have so substantially completed such repairs, such termination to beeffective as of midnight on the thirtieth day after such 360 day period (butTenant’s right to terminate hereunder shall only apply to that portion of thePremises which would have been the subject of such a termination had Landlordcorrectly stipulated).

 

In the event aparty entitled to do so gives such termination notice, this Lease shallterminate (with appropriate proration(s) of Rent being made for Tenant’s use ofany tenantable portion of the Premises after the date of such damage) as of thedate specified in such notice (but in no event sooner than thirty (30) daysafter the date of such notice) with the same force and effect as if the datespecified were the Termination Date. Landlord shall have no liability toTenant, and except as specifically set forth above,

 

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Tenant shallnot be entitled to terminate this Lease by virtue of any delays in completionof such repairs and restoration. Further, in the event this Lease is notterminated, Landlord shall not be obligated to restore any portion of theOffice Section or the Building outside of the Premises which is notnecessary for reasonable access to and egress from the Premises provided suchfailure to restore does not interfere with Tenant’s ability legally to occupythe Premises or to reconstruct the alterations, additions and improvements forwhich it is responsible. Rent shall abate on those portions of the Premises asare, from time to time, untenantable (“untenantable” meaning “not suitable forthe normal conduct of Tenant’s business”) as a result of such damage. Forpurposes hereof, Landlord’s Restoration Notice Date shall be the date which isthe earlier of (i) thirty (30) days after Landlord has ascertained allinformation required by Landlord to determine whether or not to terminate thisLease, including without limitation the amount of insurance proceeds which areavailable to Landlord for restoration and (ii) ninety (90) days after thedate of such damage.

 

B.            Notwithstandinganything to the contrary herein set forth, Landlord shall have no duty pursuantto this Paragraph 13 to repair or restore any portion of the alterations,additions or improvements in the Premises or the decorations thereto except tothe extent that such alterations, additions, improvements and decorations wereprovided by Landlord at the beginning of the Term. If Tenant desires any otheror additional repairs or restoration and if Landlord consents thereto, the sameshall be done at Tenant’s sole cost and expense subject to all of theprovisions of Paragraph 9 hereof. Tenant acknowledges that Landlord shall beentitled to the full proceeds of any insurance coverage, whether carried byLandlord or Tenant, for damage to alterations, additions, improvements ordecorations provided by Landlord either directly or through an allowance toTenant.

 

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14.           WAIVEROF CLAIMS - INDEMNIFICATION.

 

To the extent not prohibited by law, Landlord, its partners, itsmanaging agent, Landlord’s lessor, any mortgagee, the MTA and their respectiveofficers, agents, servants and employees shall not be liable for any damageeither to person or property or resulting from the loss of use thereofsustained by Tenant or by other persons due to the Building or any part thereofor any appurtenances thereof becoming out of repair, or due to the happening ofany accident or event in or about the Office Section, the Premises or theBuilding, or due to any act or neglect of any tenant or occupant of the OfficeSection, the Building or of any other person or entity. This provision shallapply particularly, but not exclusively, to damage caused by gas, electricity,snow, frost, steam, sewage, sewer gas or odors, fire, water, noise, vibration,fumes or by the bursting or leaking of pipes, faucets, sprinklers, plumbingfixtures and windows, and shall apply without distinction as to the personwhose act or neglect was responsible for the damage and whether the damage wasdue to any of the causes specifically enumerated above or to some other causeof an entirely different kind. Tenant further agrees that all personal propertyupon the Premises, or upon loading docks, receiving and holding areas, orfreight elevators of the Building shall be at the risk of Tenant only, and thatLandlord shall not be liable for any loss or damage thereto or theft thereof.Without limitation of any other provisions hereof, Tenant agrees to defined,protect, indemnify and save harmless Landlord, Landlord’s lessor, any mortgageeand the MTA from and against all liability to third parties which arose (orwhich were claimed to have arisen) within the Premises. Nothing containedherein shall, however, excuse landlord from its obligations regardingmaintenance of the Building, as contrasted with Landlord being released fromliability for personal or property damage arising from Landlord’s failure tomaintain; nor shall this Paragraph relieve Landlord from liability for itsnegligence except as provided in Paragraph 12A or, but only to the extentliability therefor cannot be released as a matter of law, the negligence of itsagents, employees and contractors; nor shall this Paragraph modify Landlord’sobligations with respect to failure of services pursuant to Paragraph 8C ofthis Lease.

 

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Landlordagrees to defend, protect, indemnify and save harmless Tenant from and againstall liability to third parties which arose (or which is claimed to have arisen)outside of the Premises.

 

15.           NONWAIVER.

 

No waiver of any provision of this Lease shall be implied by anyfailure of either party to enforce any remedy on account of the violation ofsuch provision, even if such violation be continued or repeated subsequently,and no express waiver shall affect any provision other than the one specifiedin such waiver and that one only for the time and in the manner specificallystated. No receipt of monies by Landlord from Tenant after the termination ofthis Lease shall in any way alter the length of the Term or of Tenant’s rightof possession hereunder or after the giving of any notice shall reinstate,continue or extend the Term or affect any notice given Tenant prior to thereceipt of such monies, it being agreed that after the service of notice or thecommencement of a suit or after final judgment for possession of the Premises,Landlord may receive and collect any Rent due, and the payment of said Rentshall not waive or affect said notice, suit or judgment.

 

16.           CONDEMNATION.

 

If the Property, the Building or any portion thereof shall be taken orcondemned by any competent authority for any public or quasi-public use orpurpose (a “taking”), Landlord shall have the right, exercisable at its solediscretion within one hundred eighty (180) days of official notice of taking,to cancel this Lease upon not less than ninety (90) days’ notice prior to thedate of cancellation designated in the notice provided Landlord terminates allother leases of the Tower in which the Premises are located which are similarlyaffected by such taking. No money or other consideration shall be payable byLandlord to Tenant for the right of cancellation and Tenant shall have no rightto share in the condemnation award or in any judgment for damages caused bysuch taking or change

 

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inconfiguration except for Tenant’s relocation expenses and costs of improvementsto the Premises.

 

17.           ASSIGNMENTAND SUBLETTING.

 

A.            Tenant shall not,without the prior written consent of Landlord (which consent shall not beunreasonably withheld) (i) assign, convey or mortgage this Lease or anyinterest hereunder, (ii) permit to occur or exist any assignment of thisLease, or any lien upon Tenant’s interest, voluntarily or by operation of law; (iii) subletthe Premises or any part thereof; or (iv) permit the use of the Premisesby any parties other than Tenant and its employees. Any such action on the partof Tenant shall be void and of no effect. Landlord’s consent to any assignment,subletting or transfer or Landlord’s election to accept any assignee, subtenantor transferee as the tenant hereunder and to collect rent from such assignee,subtenant or transferee shall not release Tenant or any subsequent tenant fromany covenant or obligation under this Lease. Landlord’s consent to anyassignment, subletting or transfer shall not constitute a waiver of Landlord’sright to withhold its consent to any future assignment, subletting, or transfer.Notwithstanding any contrary provision of this Lease, Tenant shall have theright, without the prior consent of Landlord, to assign this Lease and tosublet all or any portion of the leased Premises to any person or entity (a) controlling,controlled by, or under common control with Tenant, (b) acquiring all orsubstantially all of the assets of Tenant, or (c) with or into whichTenant merges or consolidates and which succeeds in any case to the businessconducted by Tenant originally named herein so long as (i) the principalpurpose of such assignment or sublease is not the acquisition of Tenant’sinterest in this Lease, (ii) the assignment or sublet is not made tocircumvent the provisions of this Section 17A, and (iii) the assigneeor sublessee succeeds to Tenant’s business conducted within the Premisesimmediately prior to such assignment or sublet.

 

B.            If Tenant requests orwas obligated to request Landlord’s consent to assign this Lease or sublet allor any portion of the Premises in addition to withholding its

 

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consent, Landlord shall havethe option, exercisable by written notice to Tenant given within thirty (30)days after receipt of such request, to terminate this Lease for the entire Premises,in the case of an assignment or subletting of the whole, and for the portion ofthe Premises, in the case of a subletting of a portion. If Landlord exercisesits right to terminate, Tenant shall have the right to rescind its request forconsent and agree not to assign or sublet by written notice of such rescissionand agreement given to Landlord within five (5) business days of the dateon which Landlord notifies Tenant of Landlord’s intent to terminate this Leaseby reason of such request and in such event Tenant shall be deemed not to haverequested consent, no assignment or sublet which would otherwise requireconsent shall occur and Landlord’s termination notice shall be void and of nofurther force or effect. In the event that Landlord exercises such right toterminate and Tenant does not timely exercise its right to rescind, Landlordshall be entitled to recover possession of and Tenant shall surrender the wholeor such portion of the Premises on the later of (i) the proposed date forpossession by such assignee or subtenant, or (ii) ninety (90) days afterthe date of Landlord’s notice of termination to Tenant. In the event oftermination in respect of a portion of the Premises, the portion so eliminatedshall be delivered to Landlord in good order and condition and thereafter, tothe extent necessary in landlord’s judgment, Landlord, at its own cost andexpense, may have access to and may make modification to the Premises so as tomake such portion a self-contained rental unit with access to common areas,elevators and the like. Base Rent and Tenant’s Proportionate Share shall beadjusted according to the extent of the Premises for which the Lease isterminated. Without limitation of the rights of Landlord hereunder in respectthereto, if there is any assignment of this Lease by Tenant or a subletting ofthe whole of the Premises by Tenant at a rent which, in either case, exceedsthe rent payable hereunder by Tenant, or if there is a subletting of a portionof the Premises by Tenant at a rent in excess of the subleased portion’s prorata share of the rent payable hereunder by Tenant, then Tenant shall pay toLandlord, as additional rent, forthwith upon Tenant’s receipt of eachinstallment of any such excess rent, 50% of the full amount of any such excessrent after deduction of Tenant’s costs in connection with such assignment orsublet including, without limitation, attorneys’ fees, brokerage commissionsand modifications to the

 

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Premises. Theprovisions of this Paragraph shall apply to each and every assignment of theLease and each and every subletting of all or a portion of the Premises withrespect to which the consent of the Landlord is required. Each request byTenant for permission to assign this Lease or to sublet the whole or any partof the Premises shall be accompanied by a warranty by Tenant as to the amountof rent to be paid to Tenant by the proposed assignee or sublessee. Landlord orits authorized representatives shall have the right at all reasonable times toaudit the books, records and papers of Tenant relating to any considerationreceived in connection with such an assignment or subletting, and shall havethe right to make copies thereof. If the excess rent being paid shall be foundunderstated, Tenant shall within thirty (30) days after demand pay thedeficiency, and Landlord’s cost of such audit if understated by more than fivepercent (5%) and if the amount paid is so understated more than once during theTerm by more than five percent (5%), Landlord shall have the right to terminatethis Lease upon thirty (30) days’ notice. For the purposes of this Paragraph17B, the term “rent” shall mean all Base Rent, Additional Rent or otherpayments and/or consideration payable by one party to another related to theuse and occupancy of all or a portion of the Premises.

 

18.           SURRENDEROF POSSESSION.

 

Upon the expiration of the Term or upon the termination of Tenant’sright of possession to all or a portion of the Premises, whether by lapse of timeor at the option of Landlord as herein provided, Tenant shall forthwith quietlyand peaceably surrender the Premises or portion thereof to Landlord in goodorder, repair and condition, ordinary wear, damage by fire or other casualty,taking by eminent domain or caused by Landlord, its agents, employees orcontractors excepted. Except as otherwise provided in this Lease, any interestof Tenant in the alterations, improvements and additions to the Premises madeor paid for by Landlord or Tenant shall, without compensation to Tenant, becomeLandlord’s property at the termination of this Lease by lapse of time orotherwise and such alterations, improvements and additions shall berelinquished to Landlord in good condition, ordinary wear, damage by fire or othercasualty, taking by eminent

 

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domain or caused byLandlord, its agents, employees or contractors excepted. Not later than thetermination of the Term or of Tenant’s right of possession Tenant shall removeoffice furniture, trade fixtures, office equipment and all other items ofTenant’s property on the Premises. Subject to Paragraph 12A above, Tenant shallpay to Landlord upon demand the cost of repairing any damage to the Premisesand to the Building caused by any removal required hereunder. If Tenant shallfail or refuse to remove any such property from the Premises, Landlord shall,at Tenant’s expense, (i) remove the same or any part in any manner thatLandlord shall choose, repairing any damage to the Premises caused by suchremoval, and (ii) store the same without incurring liability to Tenant orany other person. If Tenant fails to pay Landlord’s cost relating to suchremoval, storage and repair and claim such property within thirty (30) days oftermination, Tenant shall be conclusively presumed to have abandoned the same,and title thereto shall thereupon pass to Landlord without any cost either byset-off, credit, allowance or otherwise and Landlord may destroy or otherwisedispose of the same, but such abandonment shall not affect Tenant’s obligationswith respect to the costs of removal, storage, repair, destruction and/ordisposition.

 

19.           HOLDING OVER.

 

Inaddition to performing all of Tenant’s other obligations hereunder, Tenantshall pay to Landlord an amount as Rent equal to the greater of (i) themonthly market rental rate for a term of not less than one (1) year forsimilar premises in the Building without regard to concessions such as tenantimprovement allowance and free rent, if any, or (ii) the sum of onehundred fifty percent (150%) of one-twelfth the Base Rent and one hundred fiftypercent (150%) of one-twelfth the Additional Rent paid by Tenant during theprevious Calendar Year herein provided, such amount to be paid monthly duringeach month or portion thereof for which Tenant shall retain possession of thePremises or any part thereof after the termination of the Term or of Tenant’sright of possession, whether by lapse of time or otherwise, and also shall payall damages sustained by Landlord, whether direct or consequential, on accountthereof. At the option of Landlord, expressed

 

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in a written notice toTenant and not otherwise, if such holding over continues for more than thirty (30)days, such holding over shall constitute a renewal of this Lease for a periodof one year at such Base Rent and Additional Rent as would be applicable forsuch year, and if Landlord does not so notify Tenant, such holding over shallconstitute the Tenant a tenant-at-will from month to month. The provisions ofthis Paragraph 19 shall not be deemed to limit or constitute a waiver of anyother rights or remedies of Landlord provided herein or at law.

 

20.           ESTOPPEL CERTIFICATE.

 

Tenantagrees that, from time to time upon not less than twenty (20) days’ priorrequest by Landlord, Landlord’s lessor or any mortgagee, Tenant or Tenant’sduly authorized representative having knowledge of the following facts willdeliver to Landlord a statement in writing certifying (i) that to Tenant’sknowledge this Lease is unmodified and in full force and effect (or if therehave been modifications, a description of such modifications and that the Leaseas modified is in full force and effect); (ii) the dates to which Rent andother charges have been paid; (iii) that Landlord is not in default underany provision of this Lease, or, if in default, the nature thereof in detail; (iv) thatthe Premises have been-delivered to Tenant by Landlord and accepted by Tenant(or if not, the reason therefor); (v) that there are no proceedingspending against Tenant which have been adversely decided and which would affectTenant’s obligations under this Lease (and if not correct, detail regardingsuch proceeding); (vi) that Tenant has not made a claim against Landlordwhich has not been resolved or satisfied (and if not, correct details regardingthe same); and (vii) such further matters as may be reasonably requestedby Landlord, it being intended that any such statement may be relied upon by anyprospective assignee of Landlord, any mortgagee or prospective mortgagee of theBuilding, any prospective assignee of any such mortgagee, or any prospectiveand/or subsequent purchaser or transferee of all or a part of Landlord’sinterest in the Property, the Office Section or the Building, or any otherperson having an interest therein. Tenant shall execute and deliver whateverinstruments may be reasonably required for such

 

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purposes, andin the event Tenant fails so to do within twenty (20) days after demand inwriting, Tenant shall be considered in default under this Lease.

 

21.           SUBORDINATION.

 

This Lease and all rights of Tenant hereunder are subject andsubordinate to the mortgage which now encumbers the Property and to any and allrenewals, modifications, consolidations, replacements and extensions thereof,and to any ground lease or similar instrument now against the Building. It isthe intention of the parties that this provision be self-operative and that nofurther instrument shall be required to effect such subordination of this Leaseother than the non-disturbance agreements described below. Tenant shall,however, upon demand at any time or times execute, acknowledge and deliver toLandlord, any and all instruments that may be necessary or proper tosubordinate this Lease and all rights of Tenant hereunder to such mortgage orground lease or to any mortgage or ground lease which may hereafter encumberthe Property or the Building or to confirm or evidence such subordination andto confirm or evidence Tenant’s agreement to attorn to the holder of any suchmortgage or the ground lessor under such ground lease, on condition withrespect to mortgages other than the mortgage which now encumbers the Property,that such holder or ground lessor shall agree in such instrument (a “Non-DisturbanceAgreement”) that such holder or ground lessor for so long as Tenant is not indefault of those terms, covenants and conditions of this Lease, beyondapplicable periods of notice and grace, which are to be performed by Tenant (i) willnot disturb Tenant’s possession of the Premises or other rights under thisLease and (ii) will not join in any foreclosure action or action toterminate the ground and (iii) will recognize the Tenant as its tenant onthe terms and conditions of this Lease in the event of a foreclosure, deed inlieu of foreclosure or termination of a ground lease, as applicable. SuchNon-Disturbance Agreement shall further provide, at the option of the mortgageeor ground lessor, that in the event any proceedings are brought for theforeclosure of any mortgage with respect to which a Non-Disturbance Agreementin Tenant’s favor is in effect or for the termination of a ground lease withrespect to which a Non-Disturbance

 

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Agreement inTenant’s favor is in effect, Tenant will attorn, without any deductions orset-offs whatsoever, to the purchaser upon any such foreclosure sale or to suchground lessor if so requested to do by such purchaser or ground lessor, and torecognize such purchaser or ground lessor as the Landlord under this Lease.Landlord agrees to use reasonable efforts to cause the holder of the existingmortgage on the Property to enter into such a Non-Disturbance Agreement withTenant, in such holder’s standard form, as promptly as reasonably possible. For*purposes of the foregoing,* “reasonableefforts” shall mean: (a) Landlord shall, not later than the date hereof,submit the then most current draft of this Lease (or the execution copy of thisLease, as the case may be) to Metropolitan Life Insurance Company (“Met”) withthe request that Met promptly review the Lease and enter into a Non-DisturbanceAgreement in the form of Non-Disturbance Agreement which Met has previouslyissued to tenants of the Office Section with such modifications as Tenantmay request, (b) at regular intervals, Landlord shall renew its request toMet in the event a Non-Disturbance Agreement has not then been issued and (c) inthe event Met indicates its unwillingness to issue a Non-Disturbance Agreementor that it is unwilling to issue Non-Disturbance Agreement in the formrequested by Tenant, Landlord shall request that Met discuss any issuesdirectly with Tenant and/or its counsel. In all event, in attempting to obtaina Non-Disturbance Agreement for the benefit of Tenant, Landlord will proceed withdiligence and in good faith. Tenant agrees to execute and deliver at any timeand from time to time, upon the request and at the expense of Landlord or ofany holder of such mortgage or of such purchaser and ground lessor, anyinstrument which, in the sole reasonable judgment of such requesting party, maybe necessary or appropriate in any such foreclosure proceeding or terminationor otherwise to evidence such attornment by Tenant as described herein, oncondition that such party shall agree in such instrument that for so long asTenant is not in default of those terms, covenants and conditions of thisLease, beyond applicable periods of notice and grace, which are to be performedby Tenant it (x) will not disturb Tenant’s possession of the Premises or otherrights under this Lease and (y) will not join in any foreclosure action oraction to terminate the ground lease and (z) will recognize the Tenant as itstenant on the terms and conditions of this Lease in the event of a foreclosure,deed in lieu of

 

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foreclosure ortermination of a ground lease, as applicable. Tenant further waives theprovisions of any statute or rule of law, now or hereafter in effect,which may give or purport to give Tenant any right or election to terminate orotherwise adversely affect this Lease or the obligations of Tenant hereunder inthe event any such foreclosure proceeding or termination is brought, prosecutedor completed. Tenant and Landlord further agree that if so requested by anymortgagee or ground lessor of Landlord, this Lease shall be made superior toany such mortgage or ground lease and that they will execute such documents asmay be reasonably required by such mortgagee or ground lessor to effect thesuperiority of this Lease to such mortgage or ground lease, provided such is inform and substance-reasonably acceptable to Tenant.

 

22.           CERTAINRIGHTS RESERVED BY LANDLORD.

 

Landlord shall have the following rights (but not obligations), each ofwhich Landlord may exercise without notice to Tenant and, except as provided inParagraph 14, without liability to Tenant for damage or injury to property,person or business on account of the exercise thereof, and the exercise of anysuch rights shall not be deemed to constitute an eviction or disturbance ofTenant’s use or possession of the Premises and shall not give rise to any claimfor set-off or abatement of Rent:

 

(i)            Tochange the Building’s name or street address.

 

(ii)           Toinstall, affix and maintain any and all signs on the exterior and on theinterior of the Building (including, but only if mandated by law, within the Premises).

 

(iii)          Todecorate or to make repairs, alterations, additions, or improvements, whetherstructural or otherwise, in and about the Building, or any part thereof, andfor such purposes to enter upon the Premises, and during the continuance of anyof said work, to temporarily close doors, entryways, public

 

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spaceand corridors in the Building and, upon not less than forty-eight (48) hours’advance notice (except in case of emergency), to interrupt or temporarilysuspend services or use of facilities, all without affecting any of Tenant’sobligations hereunder, so long as the Premises are reasonably accessible andusable. Landlord’s exercise of its rights hereunder shall be conducted at suchtimes and in such manner as to avoid unreasonable interference with Tenant’suse and occupancy of the Premises. Any exercise of such rights within thePremises (except for repairs) shall be subject to Tenant’s consent, which shallnot be unreasonably withheld, conditioned or delayed.

 

(iv)          To furnish door keys for the entry door(s) in the Premises at thecommencement of this Lease and to retain at all times, and to use inappropriate instances, keys to all doors within and into the Premises. Tenantagrees to purchase only from Landlord additional duplicate keys as required, tochange no locks, and not to affix locks on doors without the prior writtenconsent of Landlord, which consent shall not be unreasonably withheld. Upon theexpiration of the Term or of Tenant’s right of possession, Tenant shall returnall keys to Landlord and shall disclose to Landlord the combination of anysafes, cabinets or vaults left in the Premises.

 

(v)           To designate and approve all window coverings used in the Building.

 

(vi)          To approve the weight, size and location of safes, vaults and otherheavy equipment and articles in and about the Premises and the Building so asnot to exceed the legal live load per square foot designated by the structuralengineers for the Building, and to require all such items and furniture andsimilar items to be moved into or out of the Building and Premises only at suchreasonable times and in such manner as Landlord shall direct in writing. Tenantshall not install or operate machinery or any mechanical devices of a naturenot directly related to

 

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Tenant’sordinary use of the Premises without the prior written consent of Landlord.Movements of Tenant’s property into or out of the Building or the Premises andwithin the Building are entirely at the risk and responsibility of Tenant, andLandlord reserves the right for security purposes on reasonable notice toTenant to require permits before allowing any property to be moved into or outof the Building or the Premises.

 

(vii)         To establish reasonable security policies and other controls for thepurpose of regulating all property and packages, both personal and otherwise,to be moved into or out of the Building and Premises and all persons using theBuilding both during and after normal office hours.

 

(viii)        To regulate delivery and service of supplies and the usage of theloading docks, receiving areas and freight elevators.

 

(ix)           To show the Premises to prospective tenants at reasonable times withinthe last twelve (12) months of the Term.

 

(x)            To erect, use and maintain pipes, ducts,wiring and conduits, and appurtenances thereto, in and through the Premises atreasonable locations, but in no event may such installations reduce the usablesquare footage of the Premises by more than a *deminimus*amount.

 

(xi)           To enter the Premises at any reasonable time upon reasonable advancenotice (except in case of emergency) to inspect the Premises.

 

23.           RULES AND REGULATIONS.

 

Tenantagrees to observe the rules and regulations for the Building attachedhereto as Exhibit C and made a part hereof. Landlord shall have the rightfrom time to time to

 

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prescribeadditional reasonable rules and regulations of uniform applicabilitywhich, in its judgment, may be desirable for the use, entry, operation andmanagement of the Premises, the Office Section and the Building, each ofwhich rules and regulations and any amendments thereto shall become a partof this Lease. Tenant shall comply with all such rules and regulations;provided, however, that such rules and regulations shall not contradict orabrogate any right or privilege herein expressly granted to Tenant.

 

24.           LANDLORD’SREMEDIES.

 

If default shall be made in the payment of the Rent or any installmentthereof or in the payment of any other sum required to be paid by Tenant underthis Lease or under the terms of any other agreement between Landlord andTenant and such default shall continue for five (5) days after writtennotice to Tenant, or if default shall be made in the observance or performanceof any of the other covenants or conditions in this Lease which Tenant isrequired to observe and perform and such default shall continue for thirty (30)days after written notice to Tenant (or such longer period of time as isnecessary to cure if such default is not reasonably curable within thirty (30)days but is curable provided Tenant pursues such cure diligently to completion)or if a default involves a hazardous condition and is not cured by Tenant immediatelyupon written notice to Tenant, or if the interest of Tenant in this Lease shallbe levied on under execution or other legal process, or if any voluntarypetition in bankruptcy or for corporate reorganization or any similar reliefshall be filed by Tenant, or if any involuntary petition in bankruptcy shall befiled against Tenant under any federal or state bankruptcy or insolvency actand shall not have been dismissed within ninety (90) days from the filingthereof, or if a receiver shall be appointed for Tenant or any of the propertyof Tenant by any court and such receiver shall not have been dismissed withinthirty (30) days from the date of his appointment, or if Tenant shall make andassignment for the benefit of creditors, or if Tenant shall admit in writingTenant’s inability to meet Tenant’s debts as they mature, then Landlord maytreat the occurrence of any one or more of the foregoing events as a breach ofthis Lease, and thereupon at its option may, without notice or any

 

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demand of anykind to Tenant or any other person, have any one or more of the followingdescribed remedies in addition to all other rights and remedies provided at lawor in equity or elsewhere herein:

 

(i)            Landlordmay terminate this Lease and the Term created hereby and shall give Tenantwritten notice of Landlord’s election to do so and the effective date thereof(the “Effective Date”), in which event Landlord may forthwith repossess thePremises in accordance with applicable laws and shall be entitled to recover,forthwith, in addition to any other sums or damages for which Tenant may beliable to Landlord (including without limitation amounts then due or thereafterdue with respect to periods prior to the Effective Date),

 

(a)           asliquidated damages, a sum of money equal to the amount by which the presentvalue (such present value to be computed on the basis of a per annum discountrate equal to seven percent (7%) per annum) of the Rent and other sums tobecome due under this Lease for all or a part of the period from the EffectiveDate to the Termination Date exceeds the present value of the fair marketrental value of the Premises, after deduction from the present value of suchfair market rental value of all reasonably anticipated expenses of reletting.Should the present value of the fair market rental value of the Premises, afterdeduction of all anticipated reasonable expenses of reletting, for the balanceof the Term exceed the present value of the Rent provided to be paid by Tenantfor the balance of the Term, Landlord shall have no obligation to pay to Tenantthe excess or any part thereof or to credit such excess or any part thereofagainst any other sums or damages for which Tenant may be liable to Landlord.

 

(b)           asum of money equal to the sum of (x) the present value (computed as aforesaid)of that portion of the Rent related (on a per square

 

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foot, proportionate basis) to such portion of the Premises that hasbeen relet by Landlord after the termination of this Lease (but during a periodwhich would have been within the Term but for such termination by reason of aTenant default) to the extent amounts to be credited (as described below) toBase Rent and Operating Expenses, from amounts paid by the tenant to whom suchportion of the Premises has been relet, is less than the Rent and AdditionalRent which would have been paid by Tenant (during such period) with respect tosuch portion of the Premises had this Lease not been so terminated plus (y)from time to time as the same become due, all Rent and other sums to become dueunder this Lease, other than Rent accelerated and paid pursuant to clause (x).In the event Landlord elects the remedy under this subparagraph (b) andrelets The Premises (but Landlord shall be under no obligation to relet, exceptas required by law) or any part thereof for the account of Tenant, the rentsfrom any such reletting before crediting as set forth in clause (x) shall befirst applied to the payment of reasonable and actual expenses of reentry,redecoration, repair and alterations and the expenses of reletting and theexcess or residue remaining shall then be applied to the payment of Rent andother sums in this Lease provided to be paid by Tenant and not theretofore paidby acceleration or otherwise, and any such excess or residue shall operate onlyas an off setting credit against the amount of Rent and other sums then due andowing and to the extent any excess or residue is still remaining shall, atLandlord’s option, either be refunded to Tenant to the extent of amounts paidas a result of acceleration under this subparagraph (b) or be applied asan offsetting credit against Rent and other sums thereafter becoming due andpayable hereunder; provided that in no event shall Tenant be entitled to acredit on its indebtedness to Landlord or refunds of amounts accelerated inexcess of the aggregate of the amount paid (by reason of acceleration underthis subparagraph (b)) or payable by Tenant for the period for which the creditto Tenant is being

 

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determined, had no default occurred. Any such reletting by Landlordfrom time to time (which may be for a term extending beyond the Term of thisLease), shall be upon such terms as Landlord in Landlord’s reasonablediscretion shall determine, but Landlord shall not be required to accept anytenant offered by Tenant or to observe any instructions given by Tenantrelative to such reletting. Also, in any such case, Landlord may change thelocks or other entry devices of the Premises and make repairs, alterations andadditions in or to the Premises and redecorate same to the extent deemed byLandlord necessary or desirable, and Tenant shall upon written demand pay thecost thereof together with Landlord’s reasonable and actual expenses ofreletting, including without limitation, brokerage commissions payable toLandlord’s agent or to others. No such reentry, repossession, repairs,alterations, additions or reletting shall operate to release Tenant in whole orin part from any of Tenant’s obligations hereunder, and Landlord may, at anytime and from time to time, sue and recover judgment for any deficiencies fromtime to time remaining after the application from time to time of the proceedsof any such reletting.

 

(ii)           Landlord,without thereby waiving such default, may cure the same for the account and atthe expense of Tenant, if not cured by Tenant within applicable notice and cureperiods but without notice in a case of emergency, as determined by Landlord inits sole discretion, or in case of correction of a dangerous or hazardouscondition, and in any other case if such default continues after ten (10) daysfrom the date of the giving by Landlord to Tenant of written notice of suchdefault or of intention to cure. Bills for any expense incurred by Landlord inconnection with any such performance by Landlord shall be for the account ofTenant, and shall be due and payable in accordance with the terms of saidbills, and if not paid when due, the amounts thereof shall become immediatelydue and payable as Additional Rent under this Lease.

 

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25.           EXPENSESOF ENFORCEMENT.

 

Tenant shall pay upon demand all Landlord’s costs, charges and expensesincluding the fees and out-of-pocket expenses of counsel, agents and othersretained by Landlord incurred in enforcing Tenant’s obligations hereunder orincurred by Landlord in any litigation, negotiation or transaction in whichTenant causes Landlord without Landlord’s fault to become involved orconcerned.

 

Landlord shall pay upon demand all Tenant’s costs, charges and expensesincluding the fees and out-of-pocket expenses of counsel, agents and othersretained by Tenant incurred in enforcing Landlord’s obligations hereunder orincurred by Tenant in any litigation, negotiation or transaction in whichLandlord causes Tenant without Tenant’s fault to become involved or concerned.

 

26.           COVENANTOF QUIET ENJOYMENT.

 

Landlord covenants that Tenant, provided Tenant is not in defaultbeyond applicable notice and cure periods, shall, during the Term, peaceablyand quietly have, hold and enjoy the Premises subject to the terms, covenants,conditions, provisions and agreements hereof, without hindrance or ejection byany persons lawfully claiming by, through or under Landlord, the foregoingcovenant of quiet enjoyment being in lieu of any other covenant, expressed orimplied.

 

27.           INTENTIONALLYOMITTED.

 

28.           REALESTATE BROKER.

 

The Tenant represents that Tenant has dealt with (and only with) theBroker specified in Paragraph 1 hereof as broker in connection with this Lease,and that insofar as Tenant knows, no other broker negotiated this Lease or isentitled to any commission

 

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in connectiontherewith. Tenant agrees to indemnify, defend and hold harmless Landlord itsemployees and agents from and against any claims made by any broker or findermaking such claim by reason of a relationship with Tenant, other than theBroker, for a commission or fee in connection with this Lease or any subleasehereunder (but nothing herein shall be construed as permitting any suchsublease) provided that Landlord has not in fact retained such broker or finder.Landlord shall pay the commission or fee due to the Broker.

 

The Landlord represents that Landlord has dealt with (and only with)the Broker specified in Paragraph 1 hereof as broker in connection with thisLease, and that insofar as Landlord knows, no other broker negotiated thisLease or is entitled to any commission in connection therewith. Landlord agreesto indemnify, defend and hold harmless Tenant its employees and agents from andagainst any claims made by any broker or finder except as provided in theimmediately preceding grammatical paragraph for a commission or fee inconnection with this Lease or any sublease hereunder, but nothing herein shallbe construed as permitting any such sublease, provided that Tenant has not infact retained such broker or finder.

 

29.           UNDERLYINGLEASES.

 

Landlord is the lessee of the air rights premises within which theBuilding is constructed pursuant to that certain Sublease (the “Sublease”)dated September 1, 1982 by and between a predecessor of Urban Investmentand Development Co. (“Urban”), as lessor. Urban is the lessee of said airrights premises and other adjacent air rights premises which collectively arereferred to as Copley Place, pursuant to that certain Amended and RestatedLease (the “Underlying Lease”) dated January 31, 1980 by and between Urbanand the Massachusetts Turnpike Authority (“MTA”), as lessor.

 

Landlord hereby gives notice to Tenant that it supports the AffirmativeAction and Resident Preference goals set forth in Paragraph 6 of Schedule Dto the Underlying Lease

 

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and inAttachment C to the City of Boston’s Urban Development Action Grant applicationfor Copley Place, and encourages Tenant to pursue such goals in Tenant’s ownemployment practices. In connection with hiring to fill permanent jobs at thePremises, Tenant shall not discriminate against any employee or applicant foremployment because of race, color, religious creed, national origin, age orsex. Tenant shall comply to the extent applicable, with Title VII of the U.S.Civil Rights Act and M.G.L. c.151B with respect to employment at the Premises.

 

30.           NOTICETO MORTGAGEE AND GROUND LESSOR.

 

After receiving notice from any person, firm or other entity that itholds a mortgage which includes the Premises, the Building or the Office Section aspart of the mortgaged premises, or that it is the ground lessor under a groundlease (which term shall include the Underlying Lease and the Sublease) withLandlord, as ground lessee, which includes the Premises, the Building or theOffice Section as part of the demised premises, no notice of default fromTenant to Landlord shall be effective unless and until a copy of the same isgiven to such holder or ground lessor, and the curing of any of Landlord’sdefaults by such holder or ground lessor shall be treated as performance byLandlord. Such holder or ground lessor shall be given such reasonable time asmay be necessary to effect such cure or as otherwise agreed by Tenant andmortgagee. For the purposes of Paragraph 21, this Paragraph 30, Paragraph 31and Paragraph 34, the term “mortgage” includes a mortgage on a leaseholdinterest of Landlord (but not one on Tenant’s leasehold interest).

 

31.           ASSIGNMENTOF RENTS.

 

With reference to any assignment by Landlord of Landlord’s interest inthis Lease, or the rents payable hereunder, conditional in nature or otherwise,which assignment is made to the holder of a mortgage or ground lease (whichterm shall include the 

 

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UnderlyingLease and the Sublease) on property which includes the Premises, the Buildingor the Office Section, Tenant agrees:

 

(i)            thatthe execution thereof by Landlord, and the acceptance thereof by the holder ofsuch mortgage, or the ground lessor, shall never be treated as an assumption bysuch holder or ground lessor of any of the obligations of Landlord hereunder,unless such holder, or ground lessor, shall, by notice sent to Tenant,specifically otherwise elect; and

 

(ii)           that,except as aforesaid, such holder or ground lessor shall be treated as havingassumed Landlord’s obligations hereunder only upon a foreclosure of such holder’smortgage and the taking of possession of the Premises, or in the case of aground lessor, the assumption of Landlord’s position hereunder by such groundlessor. In no event shall the acquisition of title to the Building and the landon which the same is located by a purchaser which, simultaneously therewith,leases the entire Building or such land back to the seller thereof be treatedas an assumption, by operation of law or otherwise, of Landlord’s obligationshereunder, but Tenant shall look solely to such seller-lessee, and itssuccessors from time to time in title, for performance of Landlord’s obligationshereunder. In any such event, this Lease shall be subject and subordinate tothe lease to such seller provided such purchaser enters into an agreement withTenant whereby purchaser agrees to recognize Tenant as its tenant on the termsand conditions of this Lease in the event of a termination of the lease withthe seller-lessee. For all purposes, such seller-lessee, and its successors intitle, shall be the landlord hereunder unless and until Landlord’s positionshall have been assumed by such purchaser-lessor.

 

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32.           PERSONAL PROPERTY TAXES.

 

Tenant shall pay all taxes which may be lawfully charged, assessed, orimposed upon all fixtures and equipment of every type owned by Tenant and alsoupon all personal property in the Premises, and Tenant shall pay all licensefees which may lawfully be imposed upon the business of Tenant conducted uponthe Premises.

 

33.           MISCELLANEOUS.

 

A.            Rights Cumulative.All rights and remedies of Landlord under this Lease shall be cumulative andnone shall exclude any other rights and remedies allowed by law.

 

B.            Interest. Allpayments becoming due under this Lease and remaining unpaid for a period of ten(10) days after when due shall bear interest from the date originally due untilpaid at the rate of the greater of (i) twelve percent (12%) per annum or (ii) twopercent (2%) per annum above the prime rate of interest charged from time totime by The First National Bank of Boston (but in no event at a rate which ismore than the highest rate which is at the time lawful in the Commonwealth ofMassachusetts).

 

C.            Terms. Thenecessary grammatical changes required to make the provisions hereof applyeither to corporations or partnerships or individuals, men or women, as thecase may require, shall in all cases be assumed as though in each case fullyexpressed.

 

D.            Binding Effect.Each of the provisions of this Lease shall extend to and shall, as the case mayrequire, bind or inure to the benefit not only of Landlord and of Tenant, butalso of their respective successors or assigns, provided this clause shall notpermit any assignment by Tenant contrary to the provisions of Paragraph 17hereof. All indemnities, covenants and agreements of Tenant contained hereinshall inure to the benefit of Landlord’s agents and employees.

 

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E.             Lease Contains AllTerms. All of the representations and obligations of Landlord are containedherein and in the Exhibits attached hereto, and no modification, waiver oramendment of this Lease or of any of its conditions or provisions shall bebinding upon Landlord or Tenant unless in writing signed by the party againstwhom such waiver is claimed or by a duly authorized agent of Landlord or Tenantempowered by a written authority signed by Landlord or Tenant.

 

F.             Delivery forExamination. Submission of this Lease for examination shall not bindLandlord in any manner, and no lease or obligations of Landlord shall ariseuntil this instrument is signed by both Landlord and Tenant and delivery ismade to each.

 

G.            No Air Rights.No rights to any view or to light or air over any property, whether belongingto Landlord or any other person, are granted to Tenant by this Lease.

 

H.            Kitchen Equipment.Tenant shall have the right to install microwaves, coffee machines andrefrigerators in convenience kitchens for the use of employees and businessinvitees, but shall have no right to vent to the outside and all suchinstallations shall be in compliance with applicable codes and regulations.

 

I.              IntentionallyOmitted.

 

J.             Transfer ofLandlord’s Interest. Tenant acknowledges that Landlord has the right totransfer its interest in the Premises, the Office Section and the Buildingand in this Lease, and Tenant agrees that in the event of any such transferLandlord shall automatically be released from all liability under this Leaseprovided the transferee assumes in writing all of the transferor’s liabilityunder this Lease (and shall be release from liability in any event to the extentthe transferee agrees to be liable therefor) and Tenant agrees to look solelyto such transferee for the performance of Landlord’s obligations hereunder. Tenantfurther acknowledges that Landlord may assign its interest

 

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in this Leaseto a mortgage lender as additional security and agrees that such an assignmentshall not release Landlord from its obligations hereunder and that Tenant shallcontinue to look to Landlord for the performance of its obligations hereunder.

 

K.            Landlord’s Title.Landlord’s title is and always shall be paramount to the title of Tenant.Nothing herein contained shall empower Tenant to commit or engage in any actwhich can, shall or may encumber the title of Landlord.

 

L.             ProhibitionAgainst Recording. This Lease shall not be recorded by Tenant or by anyoneacting through, under or on behalf of Tenant, and the recording thereof inviolation of this provision shall make this Lease null and void at Landlord’selection. At Tenant’s request, Landlord agrees to execute a Notice of Lease inrecordable form for recording with the Suffolk County Registry of Deeds.

 

M.           Captions. Thecaptions of paragraphs and subparagraphs are for convenience only and shall notbe deemed to limit, construe, affect or alter the meaning of such paragraphs orsubparagraphs.

 

N.            Covenants andConditions. All of the covenants of Tenant hereunder shall be deemed andconstrued to be “conditions”, if Landlord so elects, as well as “covenants” asthough the words specifically expressing or importing covenants and conditionswere used in each separate instance.

 

O.            OnlyLandlord/Tenant Relationship. Nothing contained in this Lease shall bedeemed or construed by the parties hereto or by any third party to create therelationship of principal and agent, partnership, joint venturer or anyassociation between Landlord and Tenant, it being expressly understood andagreed that neither the method of computation of Rent nor any act of theparties hereto shall be deemed to create any relationship between Landlord andTenant other than the relationship of landlord and tenant.

 

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P.             Application ofPayments. Landlord shall have the right to apply payments received fromTenant pursuant to this Lease (regardless of Tenant’s designation of suchpayments) to satisfy any obligations of Tenant hereunder, in such order andamounts as Landlord in its sole discretion may elect.

 

Q.            Definition ofLandlord. All indemnities, covenants and agreements of Tenant containedherein which inure to the benefit of Landlord shall be construed to also inureto the benefit of Landlord’s agents and employees.

 

R.            Time of Essence.Time is of the essence of this Lease and each of its provisions.

 

S.             Governing Law.Interpretation of this Lease shall be governed by the law of the Commonwealthof Massachusetts.

 

T.            Partial Invalidity.If any term, provision or condition contained in this Lease shall, to anyextent, be invalid or unenforceable, the remainder of this Lease (or the applicationof such term, provision or condition *to*personsor circumstances other than those in respect of which it is invalid orunenforceable) shall not be affected thereby, and each and every other term,provision and condition of this Lease shall be valid and enforceable to thefullest extent possible permitted by law.

 

U.            Size of Premises.Landlord and Tenant agree that the size of the Premises is as set forth in theBasic Data under Paragraph I of this Lease.

 

34.           NOTICES.

 

All notices to be given under this Lease shall be in writing and eitherhand delivered; delivered by reputable overnight courier, delivery acknowledgedby recipient;

 

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or deposited in the United States mail, certified or registered mailwith return receipt requested, postage prepaid, addressed as follows:

 

A.            If to Landlord:

 

c/o Overseas Management, Inc.

Two Copley Place, Suite 100

Boston, Massachusetts 02116-6502

Attn: Building Manager

 

with copies to:

 

Urban Retail Properties

Suite 1300

900 North Michigan Avenue

Chicago, Illinois 60611-1575

Attn: Law Department

 

or to suchother person or such other address designated by notice sent by Landlord orTenant, and as provided in Paragraph 30 of this Lease.

 

B.            If to Tenant:

 

Addressed to Tenant at Tenant’s present address, and after occupancy ofthe Premises by Tenant, at 200 Clarendon Street, Boston, Massachusetts 02116,Attn: Richard Bartony with a copy to General Counsel at the same address or tosuch other address as is designated by Tenant in a notice to Landlord.

 

with copies to:

 

Testa, Hurwitz & Thibeault, LLP

125 High Street, High Street Tower

Boston, MA 02110

Attn: Real Estate Department

 

Notice by mail shall be deemed to have been given as of the date ofmailing as aforesaid, but for purposes of computing the period during which aparty may cure notice shall be deemed to have been given three (3) businessdays after mailing provided the

 

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same isactually delivered. Notice by hand delivery or reputable overnight couriershall be deemed to have been given at the time of delivery.

 

35.           LIMITATIONON LANDLORD’S LIABILITY.

 

It is expressly understood and agreed by Tenant that none of Landlord’scovenants, undertakings or agreements are made or intended as personalcovenants, undertakings or agreements by Landlord or its partners, and anyliability for damage or breach or nonperformance by Landlord shall becollectible only out of Landlord’s interest in the Property and in the proceedsof any insurance policies carried by Landlord and no personal liability isassumed by, nor at any time may be asserted against, Landlord or itspartners or any of its or their directors, officers, agents, employees, legalrepresentatives, successors or assigns, all such liability, if any, beingexpressly waived and released by Tenant. The provisions of this Paragraph 35shall expressly be applicable to and inure to the benefit of Landlord’ssuccessors and assigns. In no event shall Landlord or its constituent partnersbe liable for any incidental or consequential damages in connection with itsobligations under, or any action taken by Landlord or its constituent partnersin connection with, this Lease. In no event shall Tenant or its constituentpartners be liable for any incidental or consequential damages in connectionwith its obligations under, or any action taken by Tenant or its constituentpartners in connection with, this Lease.

 

36.           LANDLORD’SDESIGNATED AGENT.

 

It is expressly understood and agreed by Tenant that the provisions ofthis Lease may be enforced on behalf of Landlord by an agent designated byLandlord for such purpose, and such enforcement shall be equally effectivewhether in the name of Landlord or such agent.

 

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37.           PARKING.

 

Tenant shall have the right during the Term to use up to eighteen (18)non-reserved parking spaces in the garage located within and serving theProperty, subject to payment by Tenant for such use at the prevailing ratetherefor charged by the operator of the garage from time to time (which as ofthe date of this Lease is $285 per month per space); provided, however, atLandlord’s option, all or some of Tenant’s parking may be relocated to theDartmouth Street Garage in the property adjacent to the Building and located onDartmouth Street, in which event, the payment due for use of such relocated *l*spaces shall beat the prevailing rate charged therefor by the operator of the Dartmouth StreetGarage. In the event of non-payment of parking charges due hereunder by theTenant, Landlord shall have the right to terminate Tenant’s rights with respectto parking without any obligation to reinstate such right to parking in theevent Tenant attempts to resume payment for parking.

 

38.           SIGNAGE.

 

Tenant shall have the right to install in the lobby, of each floor onwhich Premises is located building standard signage, at Tenant’s sole cost andexpense. Landlord shall, at its expense, provide building standard signage,naming the Tenant and its location, on building directories located in the SkyLobby and in the lobby of One Copley Place.

 

39.           CONSTRUCTIONALLOWANCE.

 

The sum which is the lesser of (a) the amount spent by Tenant onits “Qualified Costs” incurred in construction of the Premises as certified toLandlord by Tenant and, as to construction, wiring and cabling costs, by Tenant’sArchitect and (b) an amount (Landlord’s Base Allowance”) equal to$2,513,600 shall be paid by the Landlord as the Landlord’s contribution towardTenant’s Work (as defined in the Work Letter). Such amount shall be due andpayable by Landlord as described in the Work Letter. For

 

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purposeshereof, “Qualified Costs” shall mean actual out-of-pocket costs for (a) preparationof drawings and other expenses incurred in connection with initial construction,including without limitation permit fees and costs of labor and materials, (c) constructionof the Premises in accordance with the Working Drawings (as defined in the WorkLetter), (d) wiring and cabling in the Premises and (e) architectural,engineering and other professional fees relating to construction of thePremises.

 

In the event Qualified Costs are less than the Landlord’s BaseAllowance, Landlord shall allow Tenant a credit against Rent in an amount equalto the difference between such amounts. Such credit shall be applied pro rataover the term of this Lease.

 

40.           EXTENSIONOPTION.

 

A.            Tenant shall have theright to extend the Term of this Lease for one (1) additional five (5) yearperiod, such right of Tenant to be conditioned upon this Lease at the time ofelection being in full force and effect and Tenant not then being in default underthis Lease beyond any applicable notice and cure period, such extension periodto commence upon the expiration of the original Term of this Lease.

 

B.            Tenant’s right ofextension shall be exercised, if at all, by written notice to Landlord given atleast twelve (12) months prior to the expiration of the original Term of thisLease. If a notice is given in compliance with the provisions hereof, thisLease shall, thereupon, be extended, subject to the terms of this paragraph,without the need for any further instrument to be executed (but either partyshall execute such a confirmatory instrument upon the request of the other);and if no such notice is given, Tenant’s right of extension shall be null andvoid. All of the terms, conditions and provisions of this Lease shall beapplicable to any extension of the Term hereof, as if the termination date ofthe extension period were the date originally set forth herein for theexpiration of the Term, except that (i) the exercised right of extensionshall be of no further force or effect, so that there shall be no further rightof extension with respect thereto, (ii) the Base Rent during

 

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the extensionperiod shall be the “Fair Market Rent” (as hereinafter defined) and (iii) theBase Year shall be the calendar year in which the extension Term begins.

 

C.            “Fair Market Rent”shall mean the rent for Class A office space in the Back Bay area similarin size, condition of building, and services provided for a term of five (5) yearsas of the date the extension is to commence, (i) without taking intoaccount actual improvements (regardless of who paid for such improvements), orthe cost of demolition of the space, and (ii) taking into account the BaseYear and the magnitude of free rent, if any, buildout allowance, if any, andother market tenant inducements which would be offered to new tenants but arenot being offered to Tenant and (iii) taking into account the brokeragecommissions, if any, to be paid in connection with the renewal and compared tothe market commission for 5-year leases.

 

D.            Within fifteen (15)days after exercise of the extension right, but not earlier than fifteen (15)months prior to the expiration of the original Term, Landlord shall provideTenant with its quotation of the “Fair Market Rent” as of the first day of the extensionperiod. If within thirty (30) days of having received Landlord’s quotation, Tenantshall not have notified Landlord of its objection to Landlord’s quotation andof Tenant’s calculation of Fair Market Rent, the “Fair Market Rent” quoted byLandlord shall be the new Base Rent. If Tenant so notifies Landlord, theparties shall discuss the matter in good faith for thirty (30) days afterTenant’s notice. If within forty-five (45) days of having received Tenant’snotice the parties have not agreed in writing, then, Landlord and Tenant shall,during a period of forty-five (45) days, attempt to agree on an arbitrator notaffiliated with either party (and if they are unable to do so, either party may requestthat the President of the American Arbitration Association in Boston choose an arbitrator(as promptly as possible) meeting the criteria of the second to last sentenceof this grammatical paragraph). Such arbitrator shall have a period of thirty(30) days to pick either Landlord’s quotation of “Fair Market Rent” or Tenant’sdetermination of “Fair Market Rent” as the “Fair Market Rent” hereunder. Sucharbitrator shall have at least ten (10) years’ experience in the valuationand appraisal of office rents real estate in the

 

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Greater Bostonarea. “Fair Market Rent” so determined by the arbitrator shall be the new BaseRent and shall be binding on the parties.

 

The expenses of the arbitrator shall be borne equally by the Landlordand the Tenant.

 

41.           EXPANSIONOPTION: RIGHT OF FIRST OFFER.

 

A.            Provided that Tenantis not in default under this Lease beyond any applicable notice and cure periodat the time of exercise of such option, Tenant shall have the option to expandthe Premises to include the approximately 20,084 rentable square feet of spaceon the third floor of Two Copley Place shown on Exhibit E attached hereto andmade apart hereof, currently occupied by The United States Census Bureau(the “Bureau”) (such space hereinafter referred to as “Expansion Space”) byproviding notice of the exercise of this expansion option (hereinafter, “Tenant’sExpansion Notice”) to the Landlord not later than the first to occur of (i) thirty(30) days after the Landlord’s notice to Tenant of the availability of theExpansion Space setting forth the date of availability to the best of Landlord’sknowledge and (ii) September 1, 2002. Such expansion shall be effective(notwithstanding the date of anticipated availability) on the date (the “ExpansionDate”) on which Landlord delivers the Expansion Space to Tenant in broom cleancondition, free of all occupants, but in no event prior to the first to occurof (x) the date the Landlord indicated to Tenant as to the anticipatedavailability date or (y) September 1, 2003 if Tenant received no noticefrom Landlord and timely provided Tenant’s Expansion Notice on or prior to September 1,2002; provided, however, if the Expansion Date would or is anticipated to occurlater than December 1, 2003 pursuant to the foregoing, Tenant shall havethe right to withdraw Tenant’s Expansion Notice by notice to the Landlord givennot more than thirty (30) days after the earlier of the date on which Landlordin good faith notifies Tenant that the Expansion Space will not be available onor before December 1, 2003, or December 1, 2003. In the event thatTenant shall fail timely to give Tenant’s Expansion Notice to Landlord asaforesaid, all obligations of

 

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Landlordpursuant to this Paragraph shall terminate and be of no further force andeffect and Landlord shall be free to enter into any agreement(s) respecting theExpansion Space with any other party or parties whatsoever on such terms asLandlord may elect. Landlord represents that no other party holds anyprior rights to lease the Expansion Space from and after October 1, 2003. Inthe event that Tenant shall give Tenant’s Expansion Notice to Landlord asaforesaid and does not withdraw such notice pursuant hereto, thennotwithstanding anything to the contrary contained in this Lease, as of the ExpansionDate (except as otherwise provided below):

 

(i)            ThePremises shall be deemed to include the Expansion Space, with the result thatall references in this Lease to the “Premises” (except for references to suchterm in this Paragraph) shall for periods from and after the Expansion Date beand be deemed to be, for all purposes hereunder, references to the Premises andthe Expansion Space;

 

(ii)           BaseRent for the Expansion Space shall be the Fair Market Rent. “Fair Market Rent”for purposes of this Paragraph 41 shall mean the rent for Class A officespace in the Back Bay area similar in size, condition of building and servicesprovided for a term of four (4) years as of the Expansion Date, (i) withouttaking into account actual improvements (regardless of who paid for suchimprovements), or the cost of demolition of the space, and (ii) takinginto account the Base Year and the magnitude of free rent, if any, buildoutallowance, if any, and other market tenant inducements, if any, otherwiseincluded in rents being quoted, and (iii) taking into account thebrokerage commissions, if any, to be paid in connection with the renewal andcompared to the market commission for 5-year leases. In this connection, withinfifteen (15) days after Tenant has given Tenant’s Expansion Notice, Landlordshall provide Tenant with its quotation of the “Fair Market Rent” as of theExpansion Date. If within thirty (30) days of having received Landlord’squotation, Tenant shall not have notified Landlord of its objection to Landlord’squotation and of Tenant’s calculation of

 

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FairMarket Rent, the “Fair Market Rent” quoted by Landlord shall be the increaseto the Base Rent. If Tenant sonotifies Landlord, the parties shall discuss the matter in good faith for thirty (30) days after Tenant’s notice. Ifwithin forty-five (45) days ofhaving received Tenant’s notice the parties have not agreed in writing, then, Landlord and Tenant shall,during a period of forty-five (45) days, attempt to agree on an arbitrator not affiliated with either party (andif they are unable to do so,either party may request that the President of the American Arbitration Association in Boston choose anarbitrator (as promptly as possible) meeting the criteria of the second to last sentence of this grammaticalparagraph). Such arbitratorshall have a period of thirty (30) days to pick either Landlord’s quotation of “Fair Market Rent” or Tenant’sdetermination of “Fair Market Rent” as the “Fair Market Rent” hereunder. Such arbitrator shall have atleast ten (10) years’ experience in the valuation and appraisal of officerents peal estate in the GreaterBoston area. “Fair Market Rent” so determined by the arbitrator shall be theincrease in the Base Rent and shall be binding on the parties.

 

The expenses of the arbitrator shall be borne equally by the Landlordand the Tenant.

 

(iii)          Tenant shall accept the Expansion Space in “AS IS, WHERE LOCATED” condition except Landlord shalldeliver the same in a broom clean condition, free of all occupants, and all work necessary to prepare theExpansion Space for Tenant’soccupancy shall be performed by Tenant pursuant to plans and specifications therefor prepared by Tenantand subject to Landlord’s prior written approval (such approval not to be unreasonably withheld, conditioned ordelayed), all at Tenant’s solecost and expense; and

 

(iv)          Tenant’s Proportionate Share shall be increased proportionately totake into account the additional floorarea of the Expansion Space. In the year in which the Expansion Space isdelivered, Tenant’s Proportionate Share shall be

 

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proportionatelyallocated between the period prior to and the period subsequent tothe delivery of the Expansion Space.

 

B. Replaced in 2nd Amendment

 

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C.Replacedin 2nd Amendment

 

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42.           SATELLITEDISH: GENERATOR.

 

Notwithstanding anything to the contrary in this Lease, Landlord herebyagrees that at any time during the term of this Lease, Tenant shall have theright to install, (a) on the roof of the Building in a location mutuallyagreed upon by Landlord and Tenant, a satellite communications dish, not morethan five (5) feet in diameter, and related equipment, and (b) in alocation mutually agreeable to Landlord and Tenant (at least one reasonablelocation to be proposed by Landlord) a generator (such satellite communicationsdish and related equipment and/or such generator referred to herein collectivelyas “Equipment”). If Tenant shall install Equipment, Tenant shall do so at its owncost and expense and in accordance with all applicable laws, rules andregulations. In this connection, prior to any such installation or operation,Tenant shall obtain, at Tenant’s sole cost and expense, all permits, licenses,approvals and the like required under applicable law for the same. Tenant shalldefend, indemnify and hold Landlord harmless from and against any claims, costsor expenses incurred by**Landlord as a result of suchinstallation by Tenant. If Tenant shall install Equipment, Tenant shall be responsiblefor the maintenance and repair thereof and for any maintenance, repair or replacementof the roof, roofing system or other Building component occasioned by such installationand/or other maintenance and repair of Equipment, all at Tenant’s sole cost andexpense. Any and all Equipment shall at all times remain the property of Tenantand shall not be deemed a fixture or accession to the demised premises and/orthe Building. Any and all Equipment may be removed by Tenant at any time,and must be removed by Tenant prior to termination or expiration of the Term ofthis Lease; provided that Tenant shall repair any and all damage to the demisedpremises and/or the Building caused by such removal.

 

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43.           COMPETITIVE USES.

 

Landlordagrees that during the Term of this Lease, Landlord shall not lease spacewithin Tower One to State StreetBank, Brown Brothers Harriman or Chase Manhattan Bank for use in the business of transfer agency, mutual, fundsadministration, foreign exchange,securities lending or custody fund accounting; provided, however, if at anytime during the Term, the generalunemployment rate in Massachusetts equals eight percent (8%) as measured by the Federal Bureau of Labor Statistics orthe state agency charged withproducing such statistics for state purposes, this restriction shall thereafterbe of no further force or effect.

 

*[Signatureson next page]*

 

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Executed as asealed instrument as of the date first above written.

 
|   | LANDLORD:                                 |
|--------|-------------------------------------------|
|   |                                      |
|   | COPLEY PLACE  ASSOCIATES, LLC,            |
|   | a Delaware  limited liability company     |
|   |                                      |
|   | By:                                       | Overseas  Management, Inc., |
|   |                                      | a Delaware  corporation, |
|   |                                      | Managing  Agent |
|   |                                      |
|   |                                      | By: | /s/ Paul C. Grant |   |
|   |                                      |   | Paul C. Grant |
|   |                                      |   | Its: | VP &  GM |   |
|   |                                      |
|   | TENANT:                                   |
|   |                                      |
|   | INVESTORS  BANK & TRUST COMPANY, |
|   | a  Massachusetts trust company            |
|   |                                      |
|   | By:                                       | /s/ Kevin J.  Sheehan |   |
|   |                                      | Kevin J.  Sheehan |
|   |                                      | President  and Chief Executive Officer |
|        |                                           |  |  |  |  |  |  |

 

71

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FIRST AMENDMENT TO LEASE

 

THISFIRST AMENDMENT TO LEASE is made and entered into as of the 4th day of August, 2000 byand between COPLEY PLACE ASSOCIATES, LLC, a Delaware limited liability company(the “Landlord”), and INVESTORS BANK & TRUST COMPANY, a Massachusettstrust company (the “Tenant”).

 

Referenceis made to the following:

 

A.                                   That certain lease dated as of August 2,1999 by and between Landlord, as the “Landlord” therein named, and Tenant, as the“Tenant” therein named (the “Lease”), relative to premises consisting ofapproximately 28,784 rentable square feet of space on the Sixth Floor of OneCopley Place, Boston, Suffolk County, Massachusetts, designated as Area B inthe Lease, and approximately 34,116 rentable square feet of space on the SeventhFloor of One Copley Place, designated at Area A in the Lease, as moreparticularly described in the Lease (collectively, from the Area B CommencementDate, the “Premises”); and

 

B.                                     The size of the Premises has decreased fromthat set forth in the Lease by reason of the requirement of law that a commoncorridor be constructed within the area on the Sixth Floor originallyconstituting a part of the Premises; and

 

C.                                     The parties now wish to amend the Lease ashereinafter set forth to modify the Lease as to the area constituting thePremises as well as the Rent and other provisions affected by the change insuch area.

 

NOW,THEREFORE, in consideration of the mutual covenants and agreements hereinafterset forth, and other good and valuable consideration, the receipt andsufficiency of which are hereby acknowledged, Landlord and Tenant hereby agreeas follows:

 

1.                                       Effective as of April 1, 2000 (the “AreaB Rent Commencement Date”), the Lease is hereby amended to reduce the portionof the Premises designated as Area B in the Lease from 28,724 rentable squarefeet to 28,592 rentable square feet and Exhibit A-2 of the Lease isamended by deleting Exhibit A-2 in its entirety and replacing it with Exhibit A**tothis First Amendment to Lease,

 

2.                                       From and after the Area B Rent CommencementDate, Paragraph 1 of the Lease is hereby amended by deleting the section thereofcaptioned “Base Rent”, and substituting the following words and figurestherefor:

 
| “Base Rent: | From the Area A Rent  Commencement Date through the date immediately preceding the Area B |
|------------------|-------------------------------------------------------------------------------------------|

 

----

 
|   | Rent  Commencement Date, at the race of One Million Three Hundred Thousand Eight  Hundred Six and no/100 Dollars ($1,398,756.00) per annum in equal monthly  installments of One Hundred Sixteen Thousand Seven Hundred Thirty-Three and 83/100  Dollars ($116,563.00) (computed on the basis of $41.00 per rentable square  foot per annum on 34,116 rentable square feet of space); from the Area B Rent  Commencement Date through the day prior to the fifth (5th)  anniversary of the Area B Rent Commencement Date, at the rate of Two Million  Five Hundred Seventy-One Thousand Twenty-Eight and no/100 Dollars  (52,571,028.00) per annum, in equal monthly installments of Two Hundred  Fourteen Thousand Two Hundred Fifty-Two and 33/100 Dollars ($5214,252.33)  (computed on the basis of $41.00 per rentable square foot per annum on 62,708  rentable square feet of space); and from the fifth (5th) anniversary of the Area B  Rent Commencement Date through October 30, 2007 at the rate of Two  Million Seven Hundred Fifty-Nine Thousand One Hundred Fifty-Two and no/100  Dollars ($52,759,152.00) per annum, in equal monthly installments of Two  Hundred Twenty-Nine Thousand Nine Hundred Twenty-Nine and 33/100 Dollars  ($229,929.33) (computed on the basis of $44.00 per rentable square foot per  annum on 62,708 rentable square feet of space). (See Paragraph 4)” |
|--------|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|

 

3.                                       Paragraph 1 ofthe Lease is hereby amended by deleting the section thereof captioned “Tenant’sProportionate Share”, and substituting the following words and figurestherefor:

 
| “Tenant’s  Proportionate Share: | With respect  to the portion of Operating Expenses payable with respect to the period from  the Area A Rent Commencement Date through the day immediately preceding the  Area B Rent Commencement Date, 4.2499% (computed on the basis of 95%  occupancy) and thereafter 7.812% (computed on the basis of 95% occupancy)  subject to adjustment as provided in Paragraph 41 hereof.” |
|-------------------------------------------|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|

 

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4.                                       Any term contained in this First Amendment toLease having an initial capital letter and not otherwise herein defined shallhave the meaning assigned to it in the Lease.

 

5.                                       The Lease, as hereby amended, is ratified andconfirmed and remains in full force and effect.

 

INWITNESS WHEREOF, Landlord and Tenant have caused this document to be executedas of the date first above written.

 
|   | LANDLORD:                               |
|--------|-----------------------------------------|
|   |                                    |
|   | COPLEY PLACE ASSOCIATES,  LLC,          |
|   | a Delaware limited  liability company   |
|   |                                    |
|   | By:                                     | Overseas Management, Inc., |
|   |                                    | a Delaware corporation, |
|   |                                    | Managing Agent |
|   |                                    |
|   |                                    | By: | /s/ Paul C. Grant |   |
|   |                                    |   | Paul C. Grant |
|   |                                    |   | Its Vice President and |
|   |                                    |   | General Manager |
|   |                                    |
|   |                                    |
|   | TENANT:                                 |
|   |                                    |
|   | INVESTORS BANK &  TRUST        |
|   | COMPANY, a Massachusetts  trust company |
|   |                                    |
|   | By:                                     | /s/ Kevin J. Sheehan |   |
|   |                                    | Kevin J. Sheehan |
|   |                                    | President and Chief  Executive Officer |
|        |                                         |  |  |  |  |

 

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**SECOND AMENDMENT TO LEASE**

 

THIS SECOND AMENDMENT TO LEASE is made and entered into as of the 24day of May, 2001 by and between COPLEY PLACE ASSOCIATES, LLC, a Delawarelimited liability company (the “Landlord”), and INVESTORS BANK & TRUSTCOMPANY, a Massachusetts trust company (the “Tenant”).

 

Reference ismade to the following:

 

A.                                   That certain leasedated as of August 2, 1999 by and between Landlord, as the “Landlord”therein named, and Tenant, as the “Tenant” therein named, as amended by a FirstAmendment to Lease dated August 4th,2000 (the lease as so amended, the “Lease”), relative to premises consisting ofapproximately 28,592 rentable square feet of space on the Sixth Floor of OneCopley Place, Boston, Suffolk County, Massachusetts, designated as Area B inthe Lease, and approximately 34,116 rentable square feet of space on theSeventh Floor of One Copley Place, designated at Area A in the Lease, as moreparticularly described in the Lease (collectively, from the Area B CommencementDate, the “Premises”); and

 

B.                                     Pursuantto its right of first offer set forth in the Lease, Tenant has agreed to add tothe Premises demised under the Lease, the Fourth Floor and Fifth Floor of OneCopley Place consisting of, respectively, 44,072 rentable square feet and43,489 rentable square feet, referred to herein as the “4/5 Space”, such FourthFloor space and such Fifth Floor space being shown on Exhibit “Floor 4”and Exhibit “Floor 5”, respectively, both such Exhibits being attachedhereto and made a part hereof; and

 

C.                                     Theparties now wish to amend the Lease as hereinafter set forth to modify theLease as to the area constituting the Premises as well as the Rent and otherprovisions affected by the change in such area and to make certain othermodifications to the Lease as are hereinbelow set forth.

 

NOW, THEREFORE, in consideration of the mutual covenants and agreementshereinafter set forth and other good and valuable consideration, the receiptand sufficiency of which are hereby acknowledged, Landlord and Tenant herebyagree to amend the Lease and otherwise agree as follows: 

 

1.                                       Toamend the Lease to add to the Premises the 4/5 Space so that the first sentenceunder the caption “Premises” in Paragraph 1 of the Lease shall read in itsentirety as follows:

 
| “Premises: |   | From the  Area A Commencement Date through the day immediately preceding the Area B  Commencement Date, that portion of the Office |
|-----------------|--------|------------------------------------------------------------------------------------------------------------------------------------|

 

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|   |   | Section designated on  the plan attached hereto as  Exhibit A-1 and commonly described as approximately 34,116 rentable square feet, consisting  of the seventh (7th) floor of One Copley Place (“Area A”). From the Area B Commencement Date, Area A and that portion  of the Office Section designated  on the plan attached hereto as  Exhibit A-2 (“Area B”) and commonly described as approximately 28,592 rentable square feet, consisting of a portion of the sixth  (6th) floor of One Copley Place. From the Area C and D Delivery Date (as defined below) Area A,  Area B, and that portion of  the Office Section designated on the plans attached hereto as Exhibit A-3 (“Area C”) and commonly described as approximately  43,489 rentable square feet,  consisting of the entire fifth (5th) floor of One Copley Place and that portion of the Office Section designated on the  plans attached hereto as Exhibit A-4  (“Area D”) and commonly described  as approximately 44,072 rentable square feet, consisting of the entire fourth (4th) floor of One Copley  Place |
|--------|--------|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|

 

and Exhibit A of theLease is amended by adding thereto as Exhibit A-4 and Exhibit A-3,respectively, Exhibit Floor4 and Exhibit Floor 5 to this Second Amendment to Lease. In addition, by reason of the Tenant havingadded Area C and Area D to the Premises, Paragraphs 41B and 41C of the Lease are deleted therefrom and of nofurther force or effect and anew Paragraph 41B and a new Paragraph 41C are added to the Lease and shall read in their entirety as follows:

 

“B.                               The current tenant of the 3rd floor of One CopleyPlace is The MassachusettsRegistry of Motor Vehicles (the “Registry”) whose current lease expires on July 31,2001. Tenant acknowledges that the Registry may holdover in such space notwithstanding the termination of itsLease. Tenant furtheracknowledges that the Registry may enter into a new lease for the 3rd floor of One Copley Place or for the 3rd floor of One Copley Placeand for all or part of the 1st and/or2nd floorsof One Copley Place.

 

If the Registry has not renewed or extended its lease for the 3rd floor space in whole or entered into a new lease or an amendment of itsexisting lease with respect to the 3rd floor of One CopleyPlace (which amendment or newlease may include all or a portion of the 1st and 2nd floors of One Copley Place), provided Tenant is not, at the timeLandlord proposes to enter intoa new lease which includes the 3rd floor of One Copley Place with a third party, in default of Tenant’s obligationsunder

 

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thisLease beyond applicable periods of notice and grace, Landlord shallnot enter into such third-party lease whichincludes space on the 3rd floor of One Copley Place until Landlord first offers in writing (the “RFR Notice”)to lease the space which includes such 3rd floor space (the spaceso offered referred to herein as theRFR Space) to Tenant on the terms and conditions contained in a letter of intent (a “LOI”) executed by anunrelated third party which desires tolease such space. Without limiting thegenerality of the foregoing, in the event the RFR Space includes space on floors of One Copley Place other than the3rd floor, Tenant’s rights hereunder shall only be exercisable if Tenantagrees to lease all of the RFR Spacesubject to the other conditions of this subparagraph B.

 

If Tenant has the rights referred to in the preceding grammaticalparagraph, (x) Landlord shalldeliver a copy of the LOI to Tenant with the RFR. Notice and (y) Tenant shall have the right to lease the RFR Spaceon the terms and conditions setforth in the LOI, which right Tenant may exercise by giving written notice to Landlord within ten (10) businessdays of receiving the RFR Noticefrom Landlord; provided, however, if Tenant fails to exercise such right, Landlord shall be free to lease the RPRSpace according to the terms andconditions of the LOI and such other terms that are not materially inconsistent with, or more favorable than, the termsand conditions of the LOI, butif Landlord fails to consummate such a lease of the RPR Space with the proposed tenant under the LOI, Tenant shallagain have a right of firstrefusal to lease all or any portion of the 3rd floor of One Copley Place in accordance with andsubject to the provisions of this Section (thatis, the procedures of the first sentence of this Section shall again be invoked and Tenant’s rights shall besubject to the Registry continuingto occupy the space by reason of holdover, amendment of lease or new lease whether there was an interveningaborted attempt to lease to a thirdparty as described above).

 

In the event the Tenant fails to exercise the aforesaid right andspace which was part of the RPRSpace on the 3rd floor of One Copley Place is subsequently leased to a third partyor parties (such third party or thirdparties being referred to herein as the ‘The Successor Tenant(s)”) and such of the RFR Space as was so leased isthereafter available for lease (in wholeor in part) during the term of this Lease, the Tenant shall again have the rights with respect to the such space asRFR Space as are set forth in thefirst two grammatical paragraphs of this subparagraph B (with the designation “Registry” being replaced inclause (ii) of this sentence with “The Successor Tenant(s)” in such grammatical paragraphs, it being theintention that such rights subject tothe limitations on such rights and particularlysubject to the right of the Landlord to make any kind of occupancy agreement with The SuccessorTenant(s) as Landlord in its sole discretiondetermines without interference by the Tenant. Thus, as is the

 

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casewith occupancy by the Registry, the Tenant shall have no righthereunder as to any part of the 3rd floor of One Copley Place which The Successor Tenant(s) continues to occupy after the date on which itsthen current lease of all or aportion of the 3rd floor of One Copley Place would otherwise terminate incident to arenegotiation of the then-current lease(s) or an extension of the then current lease(s) or a re-leasing to TheSuccessor Tenant(s) of the 3rd floor of One Copley Place, or a part thereof, and Landlord expresslynegates any implication that it has any responsibility to the Tenant to assure that all or any portionof the 3rd floor of One Copley Place becomes available to Tenanthereunder by terminating the tenancy of a then tenant.

 

If Tenant validly exercises its right to lease the RFR Space, it shallbe added to the Premises,effective as of the date (the “RFR Space Effective Date”) which is the later to occur of the date set forth in Landlord’snotice or, if the Registry holds over, the date on which the Registry vacates all or that portion of theRFR Space occupied by the Registry,on the terms and conditions specified in the RFR Notice and otherwise on the terms and conditions of thisLease, modified as necessary tomake the same consistent with the RFR Notice.

 

In the event that Tenant shall exercise Tenant’s right to add theRFR Space to the Premises, as ofthe RFR Space Effective Date:

 

(i)                                     the Premises shall be deemed to include theRFR Space, with the result thatall references in this Lease to the “Premises” (except for references to such term in thisParagraph) shall thereafter be and be deemed to be, for all purposes hereunder, references to the Premisesand such space except to theextent such references are necessarily modified or impacted by the terms of the RHR Notice;

 

(ii)                                  Tenant shall accept the RFR Space in “AS IS, WHERELOCATED” condition except Landlordshall deliver the same in a broom clean condition, free of all occupants, andall work necessary to prepare theRFR I Space for Tenant’s occupancy shall be performed by Tenant pursuant to plans and specifications thereforprepared by Tenant and subjectto Landlord’s prior written approval (such approval not to be unreasonably withheld, conditioned ordelayed), all at Tenant’s sole cost and expense but, notwithstanding the foregoing, Landlord shall, at itsexpense, make such modifications, ifany, as are necessary to bring the atriumwall adjacent to the space into compliance with the state building and fire codes; and

 

(iii)                               Tenant’s Proportionate Share shall beincreased to take into accountthe additional floor area of the RFR Space in a manner consistent 

 

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withthe RFR Notice. In the year in which the RFR Space is delivered,Tenant’s Proportionate Share applicable tothe RFR Space shall be proportionatelyallocated between the period prior to and the period subsequent to the delivery of the RPR Space.

 

If Tenant timely exercises its rights hereunder so that all or a partof: the 3rd.floor of One Copley Place becomes a part of the Premises under this Lease but the 2nd floor of One Copley Place is not a part of the Premises under thisLease, and Landlord subsequently determines to make all or a portion of the 2nd floor of One Copley Place available for lease, as of the date on which the lease of the currenttenant of such space expires oris terminated (as the case may be) which Landlord reasonably and in good faith estimates will be not be less thanthree (3) years prior to the end of the then Term of this Lease, to thirdparties other than the then tenant(s) by reason of such tenant not having (x) renewed or extended its Leasefor the 2nd floor space in whole or in part or (y) entered into a new lease or an amendmentof its existing lease with respect to the 2nd floor of One CopleyPlace), and provided Tenant is not thenin default of its obligations under this Lease beyond applicable periods of notice and grace, Landlordshall promptly notify (the “RFOI Notice”) Tenant of the terms under which it intends to offer the space on the 2nd floor of One CopleyPlace which will no longer beleased to the such tenant (the “RFO I Space”) and the date as of which Landlord estimates the RFO I Spacewill be available and Tenant shallhave the right, by notice to Landlord given within thirty (30) days after receipt of Landlord’s notice by Tenantto add such space to the Premises,effective as of the date (the “RFO I Effective Date”) which is the later to occur of the date set forth inLandlord’s notice or, if the then tenant holds over, the date on which the then tenant vacates the RFO I Space,on the terms and conditionsspecified in Landlord’s notice and otherwise on the terms and conditions of this Lease.

 

In the event that Tenant shall exercise Tenant’s right to add theRFO I Space to the Premises, asof the RFO I Effective Date:

 

(i)                                     the Premises shall be deemed to include theRFO I Space, with the resultthat all references in this Lease to the “Premises” (except for references to such term in thisParagraph) shall thereafter be and be deemed to be, for all purposes hereunder, references to the Premisesand such space; except to theextent such references are necessarily modified or impacted by the terms of the RFO I Notice;

 

(ii)                                  Tenant shall accept the RFO I Space in “ASIS, WHERE LOCATED” conditionexcept Landlord shall deliver the same in a broom clean condition, free of all occupants, andall work necessary to prepare theRFO I Space for Tenant’s occupancy shall be performed by Tenant

 

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pursuantto plans and specifications therefor prepared by Tenant andsubject to Landlord’s prior written approval(such approval not to be unreasonablywithheld, conditioned or delayed), all at Tenant’s sole cost and expense but, notwithstanding theforegoing, Landlord shall at its expense, make such modifications, if any, asare necessary to bring the atriumwall adjacent to the space into compliance with the state building and firecodes; and

 

(iii)                               Tenant’s Proportionate Share shall beincreased proportionately totake into account the additional floor area of the RFO I Space in a manner consistent with the RFO INotice. In the year in which theRFO I Space is delivered, Tenant’s Proportionate Share applicable to the RFO I Space shall be proportionately allocatedbetween the period prior to and the period subsequent to the delivery of theRFO I Space.

 

In the event the Tenant fails to exercise the aforesaid right and (i) Landlordhas failed to enter into a lease of the RFO I Space within.sixty(60) days of the RFO I Notice or (ii) afterthe RFO I Space is subsequentlyleased to a third party or parties and the RFO II Space is thereafter available for lease in whole or inpart during the term of this Lease,the Tenant shall again have the rights with respect to all or such portion of the RFO I Space as are set forthin the two grammatical paragraphsimmediately preceding this grammatical paragraph, it being the intention hereof that such rights shall besubject to the limitations on such rightsand particularly the right of the Landlord to make any kind of occupancy agreement with the then tenant(s)as Landlord in its sole discretiondetermines without interference by the Tenant. Thus, the Tenant shall have no right hereunder if thethen tenant continues to occupy allor any part of the 2nd floor of One Copley Place after the date onwhich its then current lease ofall of a, portion of the 2nd floorof One Copley Place wouldotherwise terminate incident to a renegotiation of the then current lease(s) or an extension of the thencurrent lease(s) or a re-leasing tothe then tenant of all or a portion of the 2nd floor of One CopleyPlace, and Landlord expresslynegates any implication that it has any responsibility to the Tenant to assure that all or any portion of the 2nd floor of One CopleyPlace becomes available to Tenant hereunder by terminating the tenancy of the then tenant. 

 

If Tenant does not exercise the right to lease such space andthereafter Landlord proposes to lease suchspace to a third party on terms whichvary from those contained in Landlord’s notice, Landlord shall again, and before leasing such space toanother party, offer the space to Tenantin written notice upon such varied terms and Tenant shall have thirty (30) days after receipt of such noticeto add such space to the Premiseson such varied terms.

 

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If Tenant timely exercises its rights hereunder so that all or a partof the 2nd floor of One Copley Place becomes a part of the Premises under this Lease but the 1st floor of One Copley Place is not a part of the Premises under thisLease, and Landlord subsequently determines to make all or a portion of the 1st floor of One Copley Place available for lease, as of the date on which the lease of the currenttenant of such space expires oris terminated (as the case may be) which Landlord reasonably and in good faithestimates will be not be less than three (3) years prior to the endof the then Term of this Lease, tothird parties other than the then tenant(s) by reason of such tenant not having (x) renewed or extended its leasefor the 1st floor space in whole or in part or (y) entered into a new lease or anamendment of its existing lease withrespect to the 1st floor of One Copley Place), the three grammatical paragraphsimmediately preceding this grammaticalparagraph shall be changed, *mutatismutandis,*so that Tenant shall have the same rights with respect to such 1st floor space as are describedin the foregoing provisions of this subparagraph B with respect to RFO I Space, subject to the samelimitations and conditions, and withoutlimiting the generality of the foregoing, references to “2nd floor of One CopleyPlace” shall be read as references to the “1st floor of One Copley Place” and references to “RFO I Space”shall be read as references to “RFOII Space.” 

 

If the RFR Effective Date, the RFO I Effective Date or the RFO IIEffective Date, as applicable,has not occurred within sixty (60) days after the delivery date set forth in the applicable Landlord’s notice, Tenantshall have the right toterminate its obligations with respect to the space which would otherwise become a part of the Premisespursuant to Tenant’s noticegiven in response to the RFR Notice, the RFO I Notice or the RFO II Notice, as applicable by notice to theLandlord given RFO II not more than ten (10) days after the expiration of such sixty (60) day period.Landlord agrees that in theevent it becomes aware that the current tenant of the RFR Space, the RFO I Space or the RFO IISpace may holdover in such spacebeyond the date specified as the delivery date in the applicable Landlord’s notice, Landlord shall, if Tenanthas exercised its rights to add suchspace to the Premises, promptly notify Tenant of the same and shall provide regular updates to Tenant as to thestatus of the holdover tenant andthat date on which it intends to vacate the applicable space.

 

2.                                       Paragraph 1 of the Lease is hereby furtheramended as follows:

 

(a)                                  Ninety (90) days after the Area C and DDelivery Date (the “Area C and D RentCommencement Date”), the section thereof captioned “Base Rent” shall readin its entirety as follows:

 

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“BaseRent:                                                           (i) From the Area A RentCommencement Date through the date immediately preceding the Area B RentCommencement Date, at the rate of One Million Three Hundred Thousand EightHundred Six and no/100 Dollars ($1,398,756.00) per annum, in equal monthlyinstallments of One Hundred Sixteen Thousand Seven Hundred Thirty-Three and 83/100Dollars ($116,563.00) (computed on the basis of $41.00 per rentable square footper annum on 34,116 rentable square feet of space); (ii) from the Area BRent Commencement Date through the day prior to the Area C and D RentCommencement Date, at the rate of Two Million Five Hundred Seventy-One ThousandTwenty-Eight and no/100 Dollars ($2,571,028.00) per annum, in equal monthlyinstallments of Two Hundred Fourteen Thousand Two Hundred Fifty-Two and 33/100 Dollars($214,252.33) (computed on the basis of $41.00 per rentable square foot perannum on 62,708 rentable square feet of space); (iii) from the Area C andD Rent Commencement Date through the day prior to the fifth (5th) anniversaryof the Area B Rent Commencement Date, at a rate equal to the sum of Six MillionEight Hundred Sixty-One Thousand Five Hundred Seventeen and no/100 Dollars($6,861,517.00) per annum, in equal monthly installments of Five HundredSeventy-One Thousand Seven Hundred Ninety-Three and 08/100. Dollars($571,793.08) (computed on the basis of $41.00 per rentable square foot perannum on 62,708 rentable square feet of space in Area A and Area B,collectively and $49.00 per rentable foot on 87,561 rentable square feet ofspace in Area C and Area D, collectively; and (iv) from the fifth (5th) anniversaryof the Area B Rent Commencement Date through October 30,2007, at the rateof Seven Million Forty-Nine Thousand Six Hundred Forty-One and no/100 Dollars($7,049,641.00) per annum, in equal monthly installments of Five Hundred Eighty-SevenThousand Four Hundred Seventy and O8/100 Dollars ($587,470.08) (computed on thebasis of $44.00 per rentable square foot per annum on 62,708 rentable squarefeet of space in Area A and Area B, collectively and $49.00 per rentable

 

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footon 87,561 rentable square feet of space in AreaC and Area D, collectively.(See Paragraph 4)”

 

(b)           The section thereofcaptioned “Tenant’s Proportionate Share’’ shall read in its entirety asfollows:

 

“Tenant’s Proportionate Share:         With respect to the portion of Operating Expensespayable withrespect to Area A and Area B,collectively, (i) forthe period from the Area A RentCommencement Date through theday immediatelypreceding the Area B Rent Commencement Date,4.2499%(computed on the basis of 95%occupancy) and thereafter,7.812% (the “Area A/BProportionate Share”), and with respect tothe portion of Operating Expenses payable with respectto Area C andArea D commencing on the Area Cand D Rent CommencementDate, collectively,10.908% (the “Area C/D Proportionate Share”),suchpercentages having been computed based on95% occupancy of theBuilding and being subject toadjustment as provided inParagraph 41 hereof.”

 

(c)           The section thereofcaptioned “Base Year” shall read in its entirety as follows:

 

“Base Year:                                           As to Area Aand Area B, the Calendar Year 1999 and as to Area C and Area D, the CalendarYear 2001.”

 

(d)           The section thereofcaptioned “Base Year Operating Expenses” shall read in its entirety as follows:

 

“Base Year Operating Expenses:       As to Area A and Aiea B, the amount ofOperatingExpenses incurred with respect toCalendar Year 1999 (the “A/BOperating ExpenseBase”) and as to Area C and Area D, theamount ofOperating Expenses incurred with respect toCalendar Year 2001 (the “C/DOperating ExpenseBase”).”

 

3.             Paragraph 5B of the Lease,Expense Adjustment, is hereby amended so that the first sentence thereof shallread as follows:

 

“Tenant shall pay to Landlord or Landlord’s agent asAdditional Rent, anamount (“Expense Adjustment Amount”) equal tothe sum of (i) the Area

 

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A/BProportionate Share (as defined in Paragraph 1 of this Lease) of theamount by whichOperating Expenses incurred with respect to eachCalendar Year exceeds A/BOperating Expense Base (as defined inParagraph 1 of this Lease)plus (ii) for and with respect to all periods fromand after theArea C and D Rent Commencement Date, the Area C/DProportionate Share (asdefined in Paragraph 1 of this Lease) of theamount by which OperatingExpenses incurred with respect to eachCalendar Year exceeds C/DOperating Expenses (as defined inParagraph I of this Lease). Withrespect to any Calendar Year withinwhich Areas A, B, C and/or Dare added to the Premises, Tenant’sExpense Adjustment Amountshall be prorated based on the portion ofsuch Calendar Year that suchspace is a part of the Premises.”

 

4.             AreaC and Area D shall be delivered on April 1, 2002 (the “Scheduled Area Cand D Delivery Date”) in an “AS IS, WHERE LOCATED” condition except Landlordshall deliver the same in a broom clean condition, free of all occupants and furnitureand excess equipment associated with the data center currently in the 4/5 Spaceremoved but, notwithstanding the foregoing, Landlord shall, at its expense,make such modifications as are necessary to bring the atrium wall adjacent tothe space into compliance with the state building and fire codes with allmechanical and electrical systems in good working order. In the event that AreaC and/or Area D is not delivered to Tenant in the condition required pursuantto this Section 4 on the Scheduled Area C and D Delivery Date, then theprovisions of Section 3.A of the Lease shall apply thereto except that thephrase “Area C” shall be substituted for “Area A”, the phrase “Area D” shall besubstituted for “Area B”, the phrase “Scheduled Area C and D Delivery Date” shallbe substituted for the phrase “Area A Commencement Date”, the phrase “ScheduledArea C and D Delivery Date” shall be substituted for the phrase “Area BCommencement Date”, the phrase “Area C and D Rent Commencement Date” shall besubstituted for the phrase “Area A Rent Commencement Date”, the phrase “Area Cand D Rent Commencement Date” shall be substituted for the phrase “Area B RentCommencement Date”, the date “April 15, 2002” shall be substituted for “January 15,2000”, the date “April 16, 2002” shall be substituted for “January 16,2000”, the date “April 30, 2002” shall be substituted for “February 15,2000” and the date “May 5, 2002” shall be substituted for February 20,2000” and the termination rights of Tenant shall only apply as to such area asis not delivered on the applicable termination dates, and not with respect tothe entire Lease. Tenant shall also have the early access rights with respectto Areas C and/or D as described in Section 3.B of the Lease and Landlordshall provide Tenant with reasonable access to such other areas of the Buildingas are necessary to the construction of the Tenant Work. The date on which AreaC and Area D are delivered in the condition required above shall be the “Area Cand D Delivery Date.”

 

5.             Tenant shall be responsible for all construction ofthe Premises and allcosts related thereto except as hereinafterprovided. Such construction shall be accomplished in accordance with the workletter attached hereto as Exhibit ”Work Letter*1and made a part hereof (the “Work Letter” forpurposes hereof). The sum which is the

 

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lesser of (a) theamount spent by Tenant on its “Qualified Costs” incurred in constructionof the Premisesas certified to Landlord by Tenant and, as to construction, wiring andcabling costs,by Tenant’s Architect and (b) an amount (Landlord’s Base Allowance”)equal to$1,751,220 shall be paid by the Landlord as the Landlord’s contribution toward  Tenant’s Work (as defined inthe Work Letter). .Such amount shall be due and payable by Landlord asdescribed in the Work Letter. For purposes hereof, “Qualified Costs” shallmean actualout-of-pocket costs for (a) preparation of drawings and other expensesincurred inconnection with construction of the 4/5 Space, including without limitation permit fees andcosts of labor and materials, (c) construction of the Premises inaccordance withWorking Drawings for such space approved by Landlord, and paymentwith respect toQualified Costs to be made, in a manner consistent with the Work Letter,(d) wiringand cabling in the Premises and (e) architectural, engineering and other professionalfees relating to construction of the Premises. Landlord hereby agrees thatTenant shallhave the right to use Lee Kennedy Company, Inc., Payton ConstructionCorporation, TurnerConstruction Company or H&H Builders for the construction ofTenant’s Work,so long as the work is union.

 

Inthe event Qualified Costs are less than the Landlord’s Base Allowance,Landlord shallallow Tenant a credit against Rent in an amount equal to the differencebetween suchamounts. Such credit shall be applied pro rata over the term of this Lease.

 

6.             Any term contained in thisSecond Amendment to Lease having an initialcapital letter and nototherwise herein defined shall have the meaning assigned to it in theLease.

 

7.             The Lease, as herebyamended, is ratified and confirmed and remains infull force and effect, andrights of Tenant contained in the Lease shall apply to Area Cand Area D,including without limitation, the right to connect such areas to theEquipmentdescribed in Section 42 of the Lease.

 

8.             Paragraph 37 of the Lease isamended so that Tenant shall have the right toeighteen (18) non-reservedparking spaces and such paragraph is further amended so that at least two (2) ofsuch non-reserved parking spaces shall at all times be located in thegarage locatedwithin and serving the Property.

 

9.             The first sentence ofParagraph 38 of the Lease shall be modified so as toread in its entirety asfollows:

 

“Tenant shall have the right to install in the lobby of each floor ofOneCopley Place on which a part of the Premises is located, buildingstandardsignage, at Tenant’s sole cost and expense.”

 

10.           Landlord represents andwarrants that Metropolitan Life InsuranceCompany continues to holdthe only mortgage which encumbers the Property and that

 

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such mortgage is the samemortgage which encumbered the Property as of August 2,1999.

 

11.           Landlord represents andwarrants that it may enter into this SecondAmendment of Lease withoutthe consent or approval of any other party.

 

INWITNESS WHEREOF, Landlord and Tenant have caused this document to beexecuted as ofthe date first above written.

 

 
|   | LANDLORD:                               |
|--------|-----------------------------------------|
|   |                                    |
|   | COPLEY PLACE ASSOCIATES,  LLC,          |
|   | a Delaware limited  liability company   |
|   |                                    |
|   | By:                                     | Overseas Management, Inc., |
|   |                                    | a Delaware corporation, |
|   |                                    | Managing Agent |
|   |                                    |   |
|   |                                    |   |
|   |                                    | By: | /s/ Paul C. Grant |   |
|   |                                    |   | Paul C. Grant |
|   |                                    |   | Its Vice President and |
|   |                                    |   | General Manager |
|   |                                    |   |
|   |                                    |   |
|   | TENANT:                                 |
|   |                                    |   |
|   | INVESTORS BANK &  TRUST        |
|   | COMPANY, a Massachusetts  trust company |
|   |                                    |   |
|   | By:                                     | /s/ Kevin J.  Sheehan |   |
|   |                                    | Kevin J. Sheehan |
|   |                                    | President and Chief  Executive Officer |
|        |                                         |  |  |  |  |  |

 

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EXHIBIT WORK LETTER

 

INVESTORS BANK & TRUST COMPANY

 

BOSTON, MASSACHUSETTS

 

WORK LETTER

 

Thisis the Work Letter referred to and specifically made a part of the SecondAmendment toLease to which this Work Letter is attached, covering premises defined inthe Second Amendmentto Lease as the 4/5 Space and referred to herein 35 the“New Premises”,as more particularly described in said Second Amendment to Lease, inthe Buildingknown as One Copley Place, Boston, Massachusetts.

 

A.            Space Design Package

 

Landlordshall promptly after the execution of the Lease furnish to Tenantone (1) reproduciblesepia and one (1) blue-line print of the demise layoutof thePremises, and the Landlord’s design guidelines and standardimprovementdetails (“Landlord’s Design Criteria”) which gives thetechnical anddesign information relative to the Premises, (collectively,“Landlord’sSpace Design Package”). Landlord gives no assurance thatthe sepia andprint provided accurately present existing conditions; it isTenant’sresponsibility to field verify conditions.

 

B.            Space Layout

 

1.             Prior tocommencing construction of the New Premises, Tenant agrees to deliver toLandlord one (1) set of sepia reproducibles andtwo (2) sets ofblue-line prints of Tenant’s approved Space Layout(the “Space Layout”) of theNew Premises sufficiently complete to permit preparation of architectural,structural, plumbing, fireprotection, mechanical andelectrical engineering drawings for theNew Premises. The SpaceLayout shall designate and include allTenant finish work (“TenantImprovement Work”) and shallspecifically include,without limitation:

 

a.             Partitionlayout and door location;

 

b.             Electricaloutlet locations, data cable, sound system, pagingsystem, etc. and anticipatedusage thereof.

 

c.             Tenant’s telephonesystem indicating location of outlets.

 

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d.             Reflectedceiling plan, including ceiling grid, lighting,switching, sprinkler, diffusers,registers, speakers and allother items necessary forthe engineering design to beincorporated in the WorkingDrawings (hereinafterdefined).

 

e.             Tenant’santicipated occupancy loads for any area in whichsuch occupancy load isexpected to be in excess of buildingstandard heating,ventilation, air conditioning, electricaland structural designs(e.g., computer rooms, print/copymachines., equipment to beused in any luncheon areas,concentrated file andlibrary loadings and any otherequipment or systems (withbrand names wherever possible) which require structural, mechanical, fireprotection,electrical, or life safety modifications [abovethat set forth in Landlord’sDesign Criteria]).

 

2.             Within seven (7) daysof Landlord’s receipt of Tenant’s SpaceLayout, Landlord shallreview the same for compliance with theintended space usagerequirements of the New Premises consistentwith the Lease, and returnto Tenant one (1) sepia of the same withLandlord’s comments.

 

3.             Landlord’sreview of the Space Layout shall not imply (i) approvalby Landlord asto compliance of the Space Layout with therequirements of applicablecodes, rules or regulations of anygovernmental agencies havingjurisdiction over the New Premisesor (ii) the SpaceLayout’s compatibility with the Building’s shelland core construction.Tenant understands that the obtaining of allpermits to comply with allapplicable codes, rules and regulationsand the compatibility of theSpace Layout with the Building’s shelland core construction isTenant’s responsibility. Landlord willcooperate with Tenant, atTenant’s expense, in Tenant’sapplications for permitsand, where necessary, will make suchcertifications in connectionwith such applications as are requiredand correct.

 

C.            Working Drawings

 

1.             Within thirty(30) days (the “Working Drawing Delivery Date”) ofTenant’s receipt of Landlord’scomments on the Space Layout,Tenant agrees to deliver toLandlord one (1) set of sepiareproducibles and three (3) setsof blue-line prints of workingdrawings and specificationsfor the New Premises (hereinafter

 

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referredto collectively as “Working Drawings”) prepared, atTenant’s sole cost andexpense by an architect (“Tenant’sArchitect”) licensed in theCommonwealth of Massachusetts andreasonably acceptable toLandlord.  Landlord hereby approvesDick Davis andAssociates as Tenant’s Architect. All structural,plumbing, fire protection,mechanical and electrical engineeringaspects of the WorkingDrawings shall be prepared by engineersapproved by the Landlord,such approval to be not unreasonablywithheld.

 

2.             Within fourteen(14) days after receipt of Tenant’s WorkingDrawings, Landlord shallreturn to Tenant one (1) sepia set of samemarked “Approved”, “Approvedas Noted’, or “Disapproved asNoted, Revise and Resubmit”. If said Working Drawings arereturned toTenant marked “Disapproved as Noted, Revise andResubmit (in which event,Landlord shall state the reasons forsuch disapproval), suchdrawings shall be revised by Tenant toincorporate Landlord’sreasonable comments and resubmitted toLandlord within twenty-one(21) days and the same procedure shallbe repeated until Landlordfully approves the Working Drawings,which approval shall not beunreasonably withheld, conditioned ordelayed. Landlord shall notwithhold approval based on purelyaesthetic considerations solong as the offending aesthetics are notvisible outside of thespace.

 

3.             It isunderstood that the Working Drawings are to be consistentwith and alogical extension of the approved Space Layout. Anyinconsistencies between theWorking Drawings and the shell andcore construction of theBuilding shall be Tenant’s soleresponsibility. Tenant shallalso be solely responsible for thecompleteness of the WorkingDrawings.

 

4.             In the eventLandlord approves the Working Drawings, suchapproval shall not limitLandlord’s right to require changes inportions of the WorkingDrawings which are incompatible withLandlord’s Design Criteriaor which adversely affect Buildingstructure, systems or theavailability to Landlord of third partywarranties. When the WorkingDrawings are approved byLandlord and Tenant, they shall beacknowledged as such byLandlord and Tenant signing each sheet of theWorking Drawingsand a complete copy of the Working Drawingsshall be provided toLandlord by Tenant.

 

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D.            Payment for TenantImprovement Work

 

1.             Tenant shallsubmit to Landlord monthly requests for payment(“Request for Payment”) asQualified Costs (as defined in theSecond Amendment to Lease towhich this Work Letter isattached) are incurred. SuchRequests for Payment shall be for theportion of the Workcompleted during the period covered by suchRequest for Payment less thecustomary retainage (which retainageshall be paid within thirty(30) days of completion of the Work).Landlord shall make paymentsunder each Request for Paymentan amount equal to theamount shown on the Request for Paymentas due and payable for Workcompleted (less amounts which werethe subject of priorRequests for Payment and are to be paid undersuch prior Requests)multiplied by a fraction, the numerator ofwhich is Landlord’s BaseAllowance and the denominator of whichis the total of QualifiedCosts reasonably estimated by Tenant(based upon contracts forsuch work) as the total Qualified Costsfor construction of the NewPremises. Payments due hereunderfrom Landlord shall be madewithin thirty (30) days of submissionof completed Requests forPayment.  To the extent Landlord hasapproved anychanges (as defined below), Landlord will pay thecost thereof aftersubstantial completion of construction of the NewPremises to the extent thetotal Qualified Costs do not exceedLandlord’s Base Allowance.Tenant shall pay all costs incurred inconnection with suchchanges, subject to Landlord’s laterreimbursement.Notwithstanding the foregoing, Landlord willhave no obligation with respectto any Request for Payment ifTenant has not theretoforemade all payments due from Tenantwith respect to constructionor if Tenant’s construction has resultedin any liens thenencumbering the Building or if Landlord’sdocumentation with respect tothe Request for Payment is notreasonably satisfactory toLandlord.

 

2.             In the eventLandlord does not timely fund any portion of theQualified Costs for whichLandlord is responsible hereunder,Tenant shall notify Landlordof Landlord’s failure and if Landlorddoes not cure the samewithin thirty (30) days of such notice,Tenant may make such paymentand the amount for whichLandlord was responsible may be offset by theTenant against rentpayments under the Lease thereafter becomingdue.

 

E.             Changes to the Work

 

Amaterial change to the Work may be made only by a written request ofthe Tenant,accompanied by a Field Order Form describing the change.

 

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Uponapproval of a proposed Change to the Work, Tenant shall causechanges to theWorking Drawings to be made to reflect the changes to theWork and Tenantwill supply revised Working Drawings to the Landlord.  Such changes to the WorkingDrawings must be consistent with thedescription of the change inLandlord’s Field Order Form.

 

F.             Performance of Work

 

Tenantagrees that all construction, and services and work performed onthe NewPremises including installation of telephone and carpeting, anddelivery ofmaterials and personal property to the New Premises on behalfof or for theaccount of Tenant shall be performed or delivered, as the casemay be only bypersons whose employment for such tasks shall not result in any work stoppage orslow-down by union members working in theBuilding.

 

G.            Access

 

Landlordshall allow such Tenant contractors to have access to theBuilding and touse the freight elevator serving the Building. Schedulingto the use ofthe freight elevator shall be as reasonably determined by the Landlord.

 

H.            Tenant’s Representative;Tenant’s Contractor

 

Tenanthereby designates Richard D. Bartony as its sole representativewith respect tothe matters set forth in this Work Letter and such personshall have fullauthority and responsibility to act on behalf of Tenant asrequiredherein. Tenant’s Architect shall not be an authorizedrepresentativeof Tenant unless Tenant specifically advised Landlord inwriting of suchdesignation.

 

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THIRD AMENDMENT TO LEASE

 

THIS THIRD AMENDMENT TO LEASE is made and enteredinto as of the 18 day of March, 2005 by and between COPLEY PLACE ASSOCIATES, LLC,a Delaware limited liability company (the “Landlord”), and INVESTORS BANK &TRUST COMPANY, a Massachusetts trust company (the “Tenant”).

 

Reference is made to the following:

 

A.            That certainlease dated as of August 2, 1999 by and between Landlord, as the “Landlord”therein named, and Tenant, as the “Tenant” therein named, as amended by a FirstAmendment to Lease dated August 4th, 2000 and a Second Amendment to Leasedated May   , 2001 (the lease as so amended, the “Lease”),relative to premises consisting of 44,072 rentable square feet of spacecomprising the entire Fourth Floor of One Copley Place, designated as Area D inthe Lease; 43,489 rentable square feet of space comprising the entire FifthFloor of One Copley Place, designated as Area C in the Lease; 28,592 rentablesquare feet of space on the Sixth Floor of One Copley Place, Boston, SuffolkCounty, Massachusetts, designated as Area B in the Lease; and 34,116 rentablesquare feet of space on the Seventh Floor of One Copley Place, designated at AreaA in the Lease, as more particularly described in the Lease (collectively, the “Premises”);and

 

B.            Landlord andTenant desire to amend the Lease to extend the Term, determine Rent payableduring the extension of the Term and make certain other modifications to theLease as are hereinbelow set forth.

 

NOW, THEREFORE, in consideration of the mutualcovenants and agreements hereinafter set forth and other good and valuableconsideration, the receipt and sufficiency of which are hereby acknowledged,Landlord and Tenant hereby agree to amend the Lease and otherwise agree asfollows:

 

1.             TerminationDate.  To extend the Term of theLease to December 31, 2014, and consistent therewith to amend the caption “TerminationDate” in Paragraph 1 of the Lease to read in its entirety as follows:

 

“Termination Date:                      December 31,2014, unless sooner terminated as provided in this Lease.”

 

2.             Base Rent.  To provide for the Base Rent to be paid afterOctober 31, 2007 through the Termination Date, and consistent therewith toamend the caption “Base Rent” in Paragraph 1 of the Lease by adding at the endthereof, immediately prior to the parenthetical expression “(See Paragraph 4)”the following sentence:

 

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“From November 1, 2007 through June 30,2008, no Base Rent shall be payable; from July 1, 2008 through December 31,2010, at the rate of Four Million Six Hundred Fifty- Eight Thousand ThreeHundred Thirty-Nine and no/100 Dollars ($4,658,339.00) per annum, in equalmonthly installments of Three Hundred Eighty-Eight Thousand One HundredNinety-Four and 92/100 Dollars ($388,194.92) (computed on the basis of $31.00per rentable square foot per annum on 150,269 rentable square feet of space);and from January 1, 2011 through December 31, 2014, at the rate ofFive Million One Hundred Nine Thousand One Hundred Forty-Six and no/100 Dollars($5,109,146.00) per annum, in equal monthly installments of Four HundredTwenty-Five Thousand Seven Hundred Sixty-Two and 17/100 Dollars ($425,762.17)(computed on the basis of $34.00 per rentable square foot per annum on 150,269rentable square feet of space); provided, however, if prior to October 31,2007, Tenant has not made alterations and/or additions to the Premises (inaccordance with the requirements of Paragraph 10 of this Lease) which cost lessthan $751,345.00 in actual contractor costs (as distinguished from costsrelated thereto of architects, engineers and lawyers and other so-called “softcosts”, the Base Rent payable during the period commencing November 1,2007 shall be increased by the difference between such costs and $751,345.00and one-eighth of such difference shall accordingly be paid as Base Rent on thefirst day of each calendar month commencing November 1, 2007 and ending onJune 30, 2008.”

 

3.             ProportionateShare.  To reflect the proper Tenant’sProportionate Share relating to 150,269 rentable square feet in Paragraph 1 ofthe Lease (and subject to adjustment for changes in the rentable square footageof the Premises), the caption “Tenant’s Proportionate Share” therein shall forperiods from and after the date hereof read in its entirety as follows:

 

“Tenant’s ProportionateShare:         18.7193% ofOperating Expenses (computed on the basis of 95% occupancy), such percentageshaving been computed based on 95% occupancy of the Building and being subjectto adjustment as provided in Paragraph 41 hereof.”

 

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4.             Base Year.  The caption “Base Year” in Paragraph 1 shallbe amended to add thereto the following sentence:

 

“With respect to periods from and after November 1,2007, for the Premises consisting of the 150,269 rentable square feetcomprising the Premises on December 31, 2004, the Calendar Year 2007.”

 

andthe caption “Base Year Operating Expenses” shall be correspondingly amended byadding thereto the following sentence:

 

“With respect to periods from and after November 1,2007, for the entire Premises, the amount of Operating Expenses incurred withrespect to Calendar Year 2007.”

 

5.             ExpenseAdjustment.  Paragraph5B of the Lease, Expense Adjustment, is hereby amended so that the firstsentence thereof shall read as follows:

 

“For periods through October 31, 2007, Tenantshall pay to Landlord or Landlord’s agent as Additional Rent, an amount (“ExpenseAdjustment Amount”) equal to the sum of (i) the Area A/B ProportionateShare (as defined in Paragraph 1 of this Lease) of the amount by whichOperating Expenses incurred with respect to each Calendar Year exceeds A/BOperating Expense Base (as defined in Paragraph 1 of this Lease) plus (ii) forand with respect to all periods from and after the Area C and D RentCommencement Date, the Area C/D Proportionate Share (as defined in Paragraph 1of this Lease) of the amount by which Operating Expenses incurred with respectto each Calendar Year exceeds C/D Operating Expense Base (as defined inParagraph 1 of this Lease).  With respectto any Calendar Year within which Areas A, B, C and/or D are added to thePremises, Tenant’s Expense Adjustment Amount shall be prorated based on theportion of such Calendar Year that such space is a part of the Premises.  For periods from and after November 1,2007, the Expense Adjustment Amount shall be Tenant’s Proportionate Share (asdefined in Paragraph 1 of this Lease) of the amount by which Operating Expensesincurred with respect to each Calendar Year exceeds Base Year OperatingExpenses for the applicable Base Year (as defined in Paragraph 1 of thisLease).”

 

6.             Compliance withLaws.  Subclause (iii) of thesecond sentence of Paragraph 7 is hereby amended to delete the words “on andafter the Area A Commencement Date as to Area A and the Area B CommencementDate as to Area B” therefrom.

 

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7.             Signage.  Paragraph 38 of the Lease is hereby amendedto read in its entirety as follows:

 

“38.         SIGNAGE.

 

Tenant shall have the right,at Tenant’s sole cost and expense, to install signage at the entrance to TowerOne, subject to Landlord’s approval not to be unreasonably withheld.  Tenant shall also have the right to installin the lobby of each floor of One Copley Place (and if any portion of thePremises should hereafter be located in Two Copley Place, then also on eachsuch floor of Two Copley Place) on which a part of the Premises is located,building standard signage, at Tenant’s sole cost and expense.  Landlord shall, at its expense, providebuilding standard signage, naming the Tenant and its location, on buildingdirectories located in the Sky Lobby and in the lobby of One Copley Place” (andif any portion of the Premises should hereafter be located in Two Copley Place,then also on each such floor of Two Copley Place).

 

8.             Extension.  Paragraph 40 of the Lease is hereby amendedto read in its entirety as follows:

 

“40.         EXTENSION OPTIONS.

 

A.            Tenant shall have the rightto extend the Term of this Lease for two (2) successive additional five (5) yearperiods, such right of Tenant to be conditioned upon this Lease at the time ofelection being in full force and effect and Tenant not then being in defaultunder this Lease beyond any applicable notice and cure period, the first suchextension period to commence upon the expiration of the original Term of thisLease and the second such extension period to commence upon the expiration ofthe first extension period, but only if the first right of extension was timelyand properly exercised.

 

B.            Tenant’s rights of extensionshall be exercised, if at all, by written notice to Landlord given at leasttwelve (12) months prior to the expiration of the then current term of thisLease.  If a notice is given incompliance with the provisions hereof, this Lease shall, thereupon, be extendedfor the applicable period, subject to the terms of this paragraph, without theneed for any further instrument to be executed (but either party shall executesuch a confirmatory instrument upon the request of the other); and if no suchnotice is given, Tenant’s right of extension shall be null and void.  All of the terms, conditions and provisionsof this Lease shall be applicable to any extension of the Term hereof, as ifthe termination date of the extension period were the date originally set forthherein for the expiration of the Term, except that (i) the exercised rightof

 

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extension shall be of no further force or effect, sothat there shall be no further right of extension except, during the firstextension term, for Tenant’s right to extend for a second extension term asprovided in this Paragraph 40, (ii) the Base Rent during the extensionperiod shall be ninety-five percent (95%) of the “Fair Market Rent” (ashereinafter defined) and (iii) the Base Year shall be the calendar year inwhich the extension Term begins.

 

C.            “Fair Market Rent” shallmean the rent for Class A office space in the Back Bay area similar insize, condition of building, and services provided for a term of five (5) yearsas of the date the extension is to commence, (i) without taking intoaccount actual improvements (regardless of who paid for such improvements), orthe cost of demolition of the space, and (ii) taking into account the BaseYear and the magnitude of free rent, if any, buildout allowance, if any, andother market tenant inducements which would be offered to new tenants but arenot being offered to Tenant and (iii) taking into account the brokeragecommissions, if any, to be paid in connection with the renewal and compared tothe market commission for 5-year leases.

 

D.            Within fifteen (15) daysafter exercise of an extension right, but not earlier than fifteen (15) monthsprior to the expiration of the then Term, Landlord shall provide Tenant withits quotation of the “Fair Market Rent” as of the first day of the extensionperiod.  If within thirty (30) days ofhaving received Landlord’s quotation, Tenant shall not have notified Landlordof its objection to Landlord’s quotation and of Tenant’s calculation of FairMarket Rent, the “Fair Market Rent” quoted by Landlord shall be the new BaseRent.  If Tenant so notifies Landlord,the parties shall discuss the matter in good faith for thirty (30) days afterTenant’s notice.  If within forty-five(45) days of having received Tenant’s notice the parties have not agreed inwriting, then, Landlord and Tenant shall, during a period of forty-five (45)days, attempt to agree on an arbitrator not affiliated with either party (andif they are unable to do so, either party may request that the President of theAmerican Arbitration Association in Boston choose an arbitrator (as promptly aspossible) meeting the criteria of the second to last sentence of thisgrammatical paragraph).  Such arbitratorshall have a period of thirty (30) days to pick either Landlord’s quotation of “FairMarket Rent” or Tenant’s determination of “Fair Market Rent” as the “FairMarket Rent” hereunder.  Such arbitratorshall have at least ten (10) years’ experience in the valuation andappraisal of office rents real estate in the Greater Boston area.  “Fair Market Rent” so determined by thearbitrator shall be the new Base Rent and shall be binding on the parties.

 

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The expenses of thearbitrator shall be borne equally by the Landlord and the Tenant.”

 

9.             Expansion.  Paragraph 41A of the Lease is hereby amendedto read in its entirety as follows:

 

“A.          Provided that Tenant is not in default under thisLease beyond any applicable notice and cure period at the time of exercise ofthe option then being exercised, Tenant shall have options to expand thePremises in each of calendar years 2008 and 2011 to include an additional15,000 to 25,000 rentable square feet (which may be reduced as described belowin this Paragraph 41 A) of space in the Building (each such space, an “ExpansionSpace” and the location in the Building being solely within the Landlord’sdiscretion so long as the entire square footage of the Expansion Space offeredto Tenant constitutes a single block of space on one floor of the Building) fora term beginning on the Expansion Date (as hereinafter defined) and ending onthe Termination Date.  No later thantwelve (12) months prior to the date in each of 2008 and 2011 in which Landlordanticipates an Expansion Space will be available for occupancy by Tenant (eachsuch date an “Anticipated Expansion Date”), Landlord shall provide Tenantnotice thereof, setting forth the size and location of the space covered by theoption and the Anticipated Expansion Date for such Expansion Space.  Notwithstanding the foregoing, if during thetwenty (20) month period preceding an Anticipated Expansion Date, Tenantexercises an option or options to acquire space pursuant to its rights underParagraph 41B of this Lease, the amount of an Expansion Space which Landlordwould otherwise be required to offer to Tenant under this Paragraph A may bereduced, at Landlord’s discretion by notice given within thirty (30) days ofTenant’s exercise of its rights under Paragraph 4IB, by the amount of squarefootage leased by Tenant during that twenty (20) month period pursuant toTenant’s rights under Paragraph 41B, except that once Tenant has deliveredTenant’s Expansion Notice (as hereinafter defined), the amount of squarefootage of the applicable Expansion Space shall not be subject to reduction asaforesaid.  Tenant may exercise itsoptions hereunder by providing notice of exercise (hereinafter, a “Tenant’sExpansion Notice”) to the Landlord not later than thirty (30) business daysafter its receipt of Landlord’s notice to Tenant of the availability of theExpansion Space, time being of the essence of Tenant’s rights hereunder.  A particular expansion shall be effective(notwithstanding the date of anticipated availability) on the date (each, an “ExpansionDate”) on which Landlord delivers the Expansion Space to Tenant in broom cleancondition, free of all occupants, but in no event prior to the AnticipatedExpansion Date and in no event later than the last day of the calendar year inwhich such Expansion Space is to have been delivered pursuant hereto (i.e., 2008or 2011).  In the event that Tenant

 

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shall fail timely to give Tenant’s Expansion Noticeto Landlord as aforesaid, all obligations of Landlord pursuant to theapplicable expansion option only shall terminate and be of no further force andeffect.  In the event that Tenant shallgive Tenant’s Expansion Notice to Landlord as aforesaid and does not withdrawsuch notice pursuant hereto, as of the applicable Expansion Date (except asotherwise provided below):

 

(i)            The Premises shall be deemedto include the applicable Expansion Space, with the result that all referencesin this Lease to the “Premises” (except for references to such term in thisParagraph) shall for periods from and after the applicable Expansion Date beand be deemed to be, for all purposes hereunder, references to the Premises,the applicable Expansion Space and any RFO Space (as defined in Paragraph 4IBof this Lease) and Expansion Space previously added to the Premises pursuant tothis Paragraph 41.  The term for anyExpansion Space shall be coterminous with the Term of this Lease for thePremises, as such Term may be extended pursuant to Paragraph 40 of this Lease;

 

(ii)           Base Rent for each ExpansionSpace shall be the Fair Market Rent.  “FairMarket Rent” for purposes of this Paragraph 41 shall mean the rent for Class Aoffice space in the Back Bay area similar in size to the applicable ExpansionSpace, condition of building and services provided, for a term equal to theterm (i.e., concluding December 31, 2014) for the applicable ExpansionSpace as of the applicable Expansion Date, (i) without taking into accountactual improvements (regardless of who paid for such improvements), or the costof demolition of the space, and (ii) taking into account the Base Year andthe magnitude of free rent, if any, buildout allowance, if any, and othermarket tenant inducements, if any, otherwise included in rents being quoted,and (iii) taking into account the brokerage commissions, if any, to bepaid in connection with the expansion and compared to the market commission fora lease for the duration of the term (i.e., concluding December 31, 2014)of the applicable Expansion Space.  Inthis connection, within fifteen (15) days after Tenant has given a Tenant’sExpansion Notice, Landlord shall provide Tenant with its quotation of the “FairMarket Rent” for the applicable Expansion Space as of the applicable ExpansionDate.  If within thirty (30) days ofhaving received Landlord’s quotation, Tenant shall not have notified Landlordof its objection to Landlord’s quotation and of Tenant’s calculation of FairMarket Rent, the “Fair Market Rent” quoted by Landlord shall be the increase tothe Base Rent for that particular Expansion Space.  If Tenant so notifies Landlord, the partiesshall discuss the matter in good faith for thirty (30) days after Tenant’snotice.  If within forty-five (45) daysof having received Tenant’s notice the parties have not agreed in writing,then, Landlord and Tenant shall, during a period of

 

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forty-five (45) days, attempt to agree on anarbitrator not affiliated with either party (and if they are unable to do so,either party may request that the President of the American ArbitrationAssociation in Boston choose an arbitrator (as promptly as possible) meetingthe criteria of the second to last sentence of this grammaticalparagraph).  Such arbitrator shall have aperiod of thirty (30) days to pick either Landlord’s quotation of “Fair MarketRent” or Tenant’s determination of “Fair Market Rent” as the “Fair Market Rent”hereunder for that particular Expansion Space. Such arbitrator shall have at least ten (10) years’ experience inthe valuation and appraisal of office rents real estate in the Greater Bostonarea.  “Fair Market Rent” so determinedby the arbitrator shall be the increase in the Base Rent and shall be bindingon the parties.

 

The expenses of the arbitrator shall be borneequally by the Landlord and the Tenant.

 

(iii)          Tenant shall accept theExpansion Space in “AS IS, WHERE LOCATED” condition except Landlord shalldeliver the same in a broom clean condition, free of all occupants, and allwork necessary to prepare the Expansion Space for Tenant’s occupancy shall beperformed by Tenant pursuant to plans and specifications therefor prepared byTenant and subject to Landlord’s prior written approval (such approval not tobe unreasonably withheld, conditioned or delayed), all at Tenant’s sole costand expense, but, notwithstanding the foregoing, Landlord shall, at itsexpense, make such modifications, if any, as are necessary to bring any atriumwalls adjacent to any Expansion Space into compliance with the state buildingand fire codes; and

 

(iv)          Tenant’s Proportionate Shareshall be increased proportionately to take into account the additional floorarea of the Expansion Space.  In the yearin which an Expansion Space is delivered, Tenant’s Proportionate Share shall beproportionately allocated between the period prior to and the period subsequentto the delivery of the applicable Expansion Space.”

 

10.           Right of First Offer.  Paragraphs 41B and 41C of the Lease aredeleted therefrom (Paragraph 41C having been deleted by the Second Amendment toLease but a reference thereto having been improperly added to the SecondAmendment to Lease) and of no further force or effect and a new Paragraph 41Band 41C are added to the Lease and shall read in their entirety as follows:

 

“B.          In the event (i) space on the first or secondfloor of Tower Two of the Office Section becomes available for lease tothird parties (i.e., the then current tenant has not renewed or extended itsthen current lease or

 

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entered into a new lease for the space) after January 1,2006, and thereafter during the Term of this Lease, as the same may beextended, or (ii) space in Tower One of the Office Section becomes soavailable for lease to third parties at any time during the Term of this Lease;provided Tenant is not then in default of its obligations under this Leasebeyond applicable periods of notice and grace, Landlord shall promptly notifyTenant of the terms under which it intends to offer such space, and as to suchspace in Tower Two together with such other space in the Building as would bethe subject of such offer (the space to be subject to such offer in each suchevent, “RFO Space”) and the date as of which Landlord estimates the subject RFOSpace will be available and Tenant shall have the right, by notice to Landlordgiven within thirty (30) days after receipt of Landlord’s notice by Tenant toadd such space to the Premises, effective as of the date (the “RFO EffectiveDate”) which is the later to occur of the date set forth in Landlord’s noticeor, if the then current tenant holds over, the date on which the then currenttenant vacates the RFO Space and Landlord delivers the RFO Space to Tenant inbroom clean condition and free of all occupants.  The term for any RFO Space added to thePremises shall be coterminous with the Term of this Lease for the Premises, assuch Term may be extended pursuant to Paragraph 40 of this Lease; provided,however, if the subject RFO Space (i) is less than 25,000 rentable squarefeet, Landlord shall have no obligation to lease such RFO Space to the Tenantfor a term of less than two (2) years from the date which Landlordreasonably anticipates will be the RFO Effective Date for such RFO Space, (ii) isequal to or greater than 25,000 rentable square feet and less than 50,000rentable square feet, Landlord shall have no obligation to lease such RFO Spaceto the Tenant for a term of less than three (3) years from the date whichLandlord reasonably anticipates will be the RFO Effective Date for such RFOSpace and (iii) is equal to or greater than 50,000 rentable square feet,Landlord shall have no obligation to lease such RFO Space to the Tenant for aterm of less than five (5) years from the date which Landlord reasonablyanticipates will be the RFO Effective Date for such RFO Space.

 

In the event that Tenantshall exercise Tenant’s right to add a particular RFO Space to the Premises, asof the applicable RFO Effective Date:

 

(i)            the Premises shall be deemedto include the subject RFO Space, with the result that all references in thisLease to the “Premises” (except for references to such term in this Paragraph)shall thereafter be and be deemed to be, for all purposes hereunder, referencesto the Premises, such RFO Space and any Expansion Space or RFO Space previouslyadded to the Premises pursuant to this Paragraph 41;

 

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(ii)           Tenant shall accept RFOSpace in “AS IS, WHERE LOCATED” condition except Landlord shall deliver the samein a broom clean condition, free of all occupants, and all work necessary toprepare the RFO Space for Tenant’s occupancy shall be performed by Tenantpursuant to plans and specifications therefor prepared by Tenant and subject toLandlord’s prior written approval (such approval not to be unreasonablywithheld, conditioned or delayed), all at Tenant’s sole cost and expense but,notwithstanding the foregoing, Landlord shall, at its expense, make suchmodifications, if any, as are necessary to bring any atrium walls adjacent toany RFO Space into compliance with the state building and fire codes; and

 

(iii)          Tenant’s Proportionate Shareshall be increased proportionately to take into account the additional floorarea of the subject RFO Space.  In theyear in which the subject RFO Space is delivered, Tenant’s Proportionate Shareshall be proportionately allocated between the period prior to and the periodsubsequent to the delivery of the subject RFO Space.

 

If Tenant does not exercisethe right to lease space subject to Tenant’s rights under this Paragraph 41Band thereafter Landlord proposes to lease such space to a third party on termswhich vary in any material way adverse to the Tenant from those contained inLandlord’s notice, Landlord shall again, and before leasing such space toanother party, offer the space to Tenant in a written notice upon such variedterms and Tenant shall again have thirty (30) days after receipt of such noticeto add such space to the Premises on such varied terms.

 

In the event the Tenantfails to exercise the aforesaid right and (i) Landlord has failed to enterinto a lease of the subject RFO Space within sixty (60) days of the applicableRFO Notice, Tenant shall again have the rights with respect to such RFO Spaceas described above, it being the intention hereof that such rights shall besubject to the limitations on such rights and particularly the right of theLandlord to make any kind of occupancy agreement with the then currenttenant(s) of the applicable RFO Space, if any, as Landlord in its solediscretion determines without interference by the Tenant.”

 

C.            Notwithstanding anything inthis Lease to the contrary, if Landlord fails to deliver any Expansion Space onthe Anticipated Expansion Date therefor, or to deliver any RFO Space on thedate estimated by Landlord in its notice as the RFO Effective Date then Tenantshall not have any obligations with respect to the space in question until

 

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the same is delivered to Tenant in accordance withthe terms of this Lease.  If the failureof delivery of the applicable space is on account of the holdover of anothertenant (a “holdover tenant”), then from and after the Anticipated ExpansionDate or the estimated RFO Effective Date, as applicable, Landlord shall pay toTenant (or at Tenant’s option, Tenant may elect to receive such amount in theform of a rent credit) an amount equal to the difference between the rent(exclusive of any damages for which such tenant may be separately liable) duefrom the holdover tenant (“holdover rent”) with respect to the space which wasto have been delivered to Tenant and with respect to the period beginning onthe Anticipated Expansion Date or the estimated RFO Effective Date, asapplicable, and the amount which would have been payable by Tenant under thisLease with respect to such period had the Premises been delivered on theAnticipated Expansion Date or the estimated RFO Effective Date, as applicable,as and when payable by such holdover tenant pursuant to its lease andregardless of whether holdover tenant can or does make payment (Landlord havingthe risk of collectibility).  If Landlordfails to deliver the Expansion Space or RFO Space within sixty (60) days afterthe Anticipated Expansion Date or the estimated RFO Effective Date, as applicable,irrespective of the reason for such failure, then Tenant shall continue toreceive the excess of the holdover rent payable thereafter with respect to suchspace less the amount that would have been due from Tenant until the earlier ofTenant terminating its rights with respect to the space by reason of thefailure to deliver or the date on which the space is delivered (or a rentcredit with respect thereto) and shall, in addition, receive a rental credit(the “Credit”) towards its Base Rent thereafter due under this Lease withrespect to such space equal to one (1) day of the Base Rent allocable tothe Expansion Space or RFO Space, as applicable, due under this Lease for eachday from and after the expiration of such sixty (60) day period through the dateof the Expansion Date or the RFO Effective Date, as applicable, actuallyoccurs.  Furthermore, by notice to theLandlord given to the Landlord within five (5) days after the end of theadditional thirty (30) day period commencing on the expiration of the sixty(60) day period, the Tenant may terminate its rights with respect to the spacewhich Landlord has to such date failed to deliver and Tenant shall thereuponhave no right to any portion of the holdover rent payable with respect toperiods after the date of such notice or any Credit with respect to the periodafter the date of such notice, but Landlord may by notice to Tenant within five(5) days after receiving such termination notice from Tenant elect todelay such termination until the end of an additional thirty (30) day periodcommencing at the end of the ninety day period (comprised of the sixty (60) dayperiod and the additional thirty (30) day period after which Tenant gave itsnotice of termination) and in such event, the right to the portion of holdoverrent shall continue during such final thirty (30) day period as will the Creditapplicable to such period; and

 

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the termination shall not be effective if within thefinal thirty (30) day period, Landlord delivers such Expansion Space or RFOSpace as required under this Lease. Tenant shall be entitled to offset against its Base Rent due under thisLease the amount of any rent credit to which Tenant is entitled to under theprovision of this Paragraph 41C; provided, however, Tenant shall not beentitled to offset any Credit against Base Rent, nor shall tenant be entitledto any payment with respect thereto if the Expansion Space or the RFO Space, asapplicable, with respect to which such Credit is payable does not become a partof the Premises at the end of the period during which the Credit wasgenerated.  Landlord agrees that in theevent it becomes aware that the current tenant of any Expansion Space or anyRFO space may hold over in such space beyond the date specified as the deliverydate therefor in the applicable Landlord’s notice, Landlord shall, if Tenanthas exercised its rights to add such space to the Premises, promptly notifyTenant of the same and shall provide regular updates to Tenant as to the statusof the holdover tenant and that date on which it then intends to vacate theapplicable space.  Landlord shall usereasonable commercial efforts to cause holdover tenant to vacate the applicablespace.

 

11.           Roof Rights; Generator; Additional Cooling.  In addition to Tenant’s rights underParagraph 42 of the Lease, Landlord hereby grants to Tenant the right toadditionally install (i) during the period ending twenty-four (24) monthsafter the date of this Third Amendment to Lease, in a location mutuallyagreeable to Landlord and Tenant (at least one reasonable location to beproposed by Landlord), an additional standby diesel generator and relateddiesel tank, and related equipment; (ii) in a location mutually agreeableto Landlord and Tenant (at least one reasonable location to be proposed byLandlord), an additional chiller on the roof of Tower One; and (iii) additionalair handling equipment on the roof of the Building in order to accommodateTenant’s ventilation needs so that Tenant can accommodate an occupancy level ofone person for each 125 rentable square feet in the Premises.  Landlord agrees to exercise commerciallyreasonable efforts to adjust its existing Office Section HVAC system toprovide to Tenant an additional 8,000 Cubic Feet per Minute of outsideventilation/fresh air, but if the same requires that the Landlord incur coststo modify its system or additional operating costs with respect thereto,Landlord will provide Tenant with its best estimate of such costs, and Tenantmay at Tenant’s option exercised by notice to the Landlord agree to beresponsible for all such costs in which event Landlord shall so modify thesystem and the parties will enter into an appropriate amendment to this Leaseto reflect such obligation of Tenant.  IfTenant does not exercise such option, Landlord shall be under no obligation toso modify its system.  All additionalequipment referred to above and installed by Tenant, together with theequipment already referred to in said Paragraph 42, shall be included in thedefinition of Equipment for all purposes of the Lease.  Notwithstanding anything in Paragraph 42 orelsewhere in the Lease to the contrary, (i) with respect to any coolingequipment installed by Tenant hereunder, Tenant shall have no obligation toremove such Equipment from the roof if Tenant has remained in the Premisesthrough the end of the initial Term and through all extension periods, and (ii) withrespect to any generator and

 

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dieseltank installed hereunder, the same shall be removed at the end of the Termunless Landlord elects by a then notice to Tenant to require Tenant to removesuch generator and the related diesel tank within one hundred twenty daysfollowing such notice.  Obligations withrespect to removal shall survive any termination of this Lease.  It is understood that Tenant’s existingrights to a roof antenna permits microwave communication devices.

 

12.           Security and First Responders.  Landlord shall continue to provide a securitycard access system on the skylobby level and two (2) manned securitystations during normal business hours to monitor all skylobby activity.  Each tower shall continue to be equipped witha card reader and magnetic locking device. Notwithstanding the foregoing, Landlord may from time to time replacesuch manned and card based system with a more advanced security system that isconsistent with Class A buildings in Boston.  Landlord shall, within six months afterexecution of this Third Amendment to Lease, provide security personnel at theBuilding during normal Building business hours that are trained “FirstResponders,” trained and certified in CPR and cardiac defibrillation.  It is understood that such technicians maynot be available at all times during such business hours and that Landlord maynot be able to maintain such trained personnel continuously during the Term.

 

13.           Tenant Improvements.  Tenant acknowledges that no further amount isowed by Landlord to Tenant under the provisions of Paragraph 39 of theLease.  In connection with this ThirdAmendment to Lease, Landlord shall provide Tenant with an additionalconstruction allowance in the amount of $6,611,836.00 (the “Allowance”).  Of the Allowance, $3,305,918.00 shall be paidto Tenant on the date upon which this Third Amendment to Lease has been fullyexecuted and delivered by the Parties, and the balance of the Allowance equalto $3,305,918.00 shall be paid on the first business day following theforty-fifth day after Tenant requests such amount, but in no event prior to January 2,2006.  The aforesaid Allowance may beused by Tenant for any purpose that Tenant determines, in its sole discretion,and in the event such amount is not paid within five (5) business days ofthe date due, Tenant may offset such amount against Rent thereafter becomingdue; provided, however, if Tenant receives any portion of the balance of suchAllowance after so offsetting such that the offset(s) plus the amount soreceived exceeds $3,305,918.00, Tenant shall promptly pay said excess toLandlord as Additional Rent under the Lease.

 

14.           Assignment and Subletting.  Paragraph 17B of the Lease is modified toread in its entirety as follows:

 

B.            If Tenant requests or wasobligated to request Landlord’s consent to assign this Lease or sublet all orany portion of the Premises, in addition to withholding its consent, Landlordshall have the option, exercisable by written notice to Tenant given withinthirty (30) days after receipt of such request, to terminate this Lease for theentire Premises, in the case of an assignment or subletting of the whole, and,in the case of a

 

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subletting of a portion of the Premises for a termwhich ends within six (6) months of the end of the then term of thisLease, for such portion of the Premises. If Landlord exercises its right to terminate, Tenant shall have the rightto rescind its request for consent and agree not to assign or sublet by writtennotice of such rescission and agreement given to Landlord within five (5) businessdays of the date on which Landlord notifies Tenant of Landlord’s intent toterminate this Lease by reason of such request and in such event Tenant shallbe deemed not to have requested consent, no assignment or sublet which wouldotherwise require consent shall occur and Landlord’s termination notice shallbe void and of no further force or effect. In the event that Landlord exercises such right to terminate and Tenantdoes not timely exercise its right to rescind, Landlord shall be entitled torecover possession of and Tenant shall surrender the whole or such portion ofthe Premises on the later of (i) the proposed date for possession by suchassignee or subtenant, or (ii) ninety (90) days after the date of Landlord’snotice of termination to Tenant.  In theevent of termination in respect of a portion of the Premises, the portion soeliminated shall be delivered to Landlord in good order and condition andthereafter, to the extent necessary in Landlord’s judgment, Landlord, at itsown cost and expense, may have access to and may make modification to thePremises so as to make such portion a self-contained rental unit with access tocommon areas, elevators and the like. Base Rent and Tenant’s Proportionate Share shall be adjusted accordingto the extent of the Premises for which the Lease is terminated.  Without limitation of the rights of Landlordhereunder in respect thereto, if there is any assignment of this Lease byTenant or a subletting of the whole of the Premises by Tenant at a rent which,in either case, exceeds the rent payable hereunder by Tenant, or if there is asubletting of a portion of the Premises by Tenant at a rent in excess of thesubleased portion’s pro rata share of the rent payable hereunder by Tenant,then Tenant shall pay to Landlord, as additional rent, forthwith upon Tenant’sreceipt of each installment of any such excess rent, 50% of the full amount ofany such excess rent after deduction of Tenant’s costs in connection with suchassignment or sublet including, without limitation, attorneys’ fees, brokeragecommissions and modifications to the Premises. The provisions of this Paragraph shall apply to each and everyassignment of the Lease and each and every subletting of all or a portion ofthe Premises with respect to which the consent of the Landlord isrequired.  Each request by Tenant forpermission to assign this Lease or to sublet the whole or any part of thePremises shall be accompanied by a warranty by Tenant as to the amount of rentto be paid to Tenant by the proposed assignee or sublessee.  Landlord or its authorized representativesshall have the right at all reasonable times to audit the books, records andpapers of Tenant relating to any consideration received in connection with suchan assignment or subletting, and shall have the right to make copies thereof.

 

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If the excess rent being paid shall be foundunderstated, Tenant shall within thirty (30) days after demand pay thedeficiency together with interest thereon as required under Section 33B ofthis Lease (determined from the date the same would have been paid but for suchunderstatement), and shall also pay Landlord’s cost of such audit ifunderstated by more than five percent (5%). For the purposes of this Paragraph 17B, the term “rent” shall mean allBase Rent, Additional Rent or other payments and/or consideration payable byone party to another related to the use and occupancy of all or a portion ofthe Premises.

 

15.           Notice of Lease.  Landlord and Tenant agree to execute anamended Notice of Lease in the form attached hereto as Exhibit A whichTenant may record.

 

16.           Definitional.  Any term contained in this Third Amendment toLease having an initial capital letter and not otherwise herein defined shallhave the meaning assigned to it in the Lease.

 

17.           Ratification of Lease.  The Lease, as hereby amended, is ratified andconfirmed and remains in full force and effect.

 

18.           No Approval Required.  Landlord and Tenant each represents andwarrants to the other that it may enter into this Third Amendment of Leasewithout the consent or approval of any other party.

 

19.           Met Life Only Mortgagee.  Landlord represents and warrants thatMetropolitan Life Insurance Company continues to hold the only mortgage whichencumbers the Property and that such mortgagee is the same mortgagee whichencumbered the Property as of August 2, 1999.

 

20.           Notices.  Paragraph 34B of the Lease is amended to readin its entirety as follows:

 

34.           NOTICES.

 

All notices to be given under this Lease shall be inwriting and either hand delivered; delivered by reputable overnight courier,delivery acknowledged by recipient; or deposited in the United States mail,certified or registered mail with return receipt requested, postage prepaid,addressed as follows:

 

A.            If to Landlord:

 

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Simon Property Group, L.P.

Attention Property Manager

Two Copley Place, Suite 100

Boston, MA 02116-6502

 

With a copy to:

 

Simon Property Group, L.P.

115 West Washington Street

Indianapolis, IN 46204

 

or to such other person or such other addressdesignated by notice sent by Landlord or Tenant, and as provided in Paragraph30 of this Lease.

 

B.            If to Tenant:

 

Addressed to Tenant at Tenant’s present address, andafter occupancy of the Premises by Tenant, at 200 Clarendon Street, Boston,Massachusetts 02116, Attn:  EdSargavakian with a copy to General Counsel at the same address or to such otheraddress as is designated by Tenant in a notice to Landlord.

 

with copies to:

 

Goodwin Procter LLP

Exchange Place

Boston, MA 02109-2881

 

Notice by mail shall bedeemed to have been given as of the date of mailing as aforesaid, but forpurposes of computing the period during which a party may cure notice shall bedeemed to have been given three (3) business days after mailing providedthe same is actually delivered.  Noticeby hand delivery or reputable overnight courier shall be deemed to have beengiven at the time of delivery.

 

21.           Broker.  The Tenant represents that Tenant has dealtwith (and only with) Meredith & Grew (“Broker”) hereof as broker inconnection with this Third Amendment to Lease, and that insofar as Tenantknows, no other broker negotiated this third Amendment to Lease or is entitledto any commission in connection therewith other than

 

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brokersrepresenting Landlord.  Tenant agrees toindemnify, defend and hold harmless Landlord, its employees and agents from andagainst any claims made by any broker or finder making such claim by reason ofa relationship with Tenant, other than Broker and CB RichardEllis-New EnglandPartners, L.P.  (“CBRE LP”), for acommission or fee in connection with this Lease or any sublease hereunder (butnothing herein shall be construed as permitting any such sublease) providedthat Landlord has not in fact retained such broker or finder.  Landlord agrees to indemnify, defend and holdharmless Tenant, its employees and agents from and against any claims made byany broker or finder making such claim by reason of a relationship withLandlord for a commission or fee in connection with this Lease provided thatTenant has not in fact retained such broker or finder.  Landlord shall pay the commission or fee dueto the Broker and CBRE LP.

 

22.           Confidentiality.  Except in case of emergency, access byLandlord or its employees, agents, contractors or representatives (each a “Landlord’sAgent”) shall be limited to those certain areas necessary to perform theobligations or services of Landlord under the Lease, or as reasonably necessaryto exercise Landlord’s rights under Paragraph 22 of the Lease.  Landlord shall reasonably cooperate if Tenantdesires to escort any Landlord’s Agent while accessing the Premises andnotifies Landlord thereof sufficiently prior to such access (reasonable priornotice of which need for access shall be given to Tenant in all cases otherthan in cases of emergency) to assure that there is no unreasonable delay inobtaining such access by any Landlord’s Agent. Landlord will not, and will use reasonable efforts to cause Landlord’sAgents not to, at any time, reveal to any person, association or company, anyinformation or documentation which comes to the attention of Landlord orLandlord’s Agent during any such access to the Premises; provided, however,such reasonable efforts shall be limited to making Landlord’s Agents aware ofthe confidential nature of such information and documentation and of theobligation to maintain the confidentiality thereof.  Tenant may furnish Landlord its standardwritten confidentiality advisory, that Tenant desires be furnished by Landlordto each Landlord’s Agent who shall enter the Premises, which advisory will somake such Landlord’s Agent aware of the confidential nature of such informationand documentation, and if Tenant does so, Landlord shall furnish such advisoryto each of Landlord’s Agents prior to their entering the Premises.  In the case of regularly scheduled repeatedentries (i) such advisory need not be given prior to each entry, but shallbe given in any event at least once per calendar year following Tenant’srequest therefor, and upon any replacement of the company providing the servicein question, without Tenant being required to make a request and (ii) withrespect to Building service contractors, such as Landlord’s cleaningcontractor, such advisory need only be furnished to the company providing suchservice and not to each individual employee. The aforesaid prohibition upon disclosure shall exclude information that(a) becomes generally available to the public other than as a result of adisclosure by Landlord or any Landlord Agent, or (b) was available toLandlord on a non-confidential basis prior to its having been observed at thePremises or otherwise disclosed to Landlord by Tenant or its representatives inconnection with access to the Premises as aforesaid.  Nothing in this Section 22 shallprohibit Landlord from disclosing financial information about Tenant that wasintentionally provided by Tenant to Landlord, to actual or prospective lendersor

 

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purchasersof the Property and/or actual or prospective investors in Landlord or any ofits affiliates and to Landlord’s consultants, attorneys, and accountants, solong as any person or entity to whom Landlord discloses such information agreesto keep such information confidential. In addition, Landlord and any Landlord Agent may disclose anyinformation (a) to the extent required by any law, regulation, or order ofany public authority or court, and (b) in connection with any litigationbetween Landlord and Tenant under the Lease.

 

IN WITNESS WHEREOF, Landlord and Tenant have causedthis document to be executed as of the date first above written.

 

 

**LANDLORD:**

 

COPLEY PLACE ASSOCIATES, LLC, a Delaware limitedliability company

 
| By:    | SPG COPLEY ASSOCIATES, LLC, a Delaware limited liability  company, managing member |
|--------|------------------------------------------------------------------------------------|
|   |                                                                               |
|   | By:                                                                                | SIMON PROPERTY GROUP, L.P., a Delaware limited  partnership, sole member |
|   |                                                                               |   |
|   |                                                                               | By: | SIMON PROPERTY GROUP, INC., a Delaware  corporation, general partner |
|   |                                                                               |   |   |   |
|   |                                                                               |   |   |   |
|   |                                                                               |   | By: | /s/ David Simon |   |
|   |                                                                               |   |   | David Simon, Chief Executive Officer |

 

**TENANT:**

 

INVESTORS BANK & TRUST COMPANY, aMassachusetts trust company

 
| By:    | /s/ Kevin J. Sheehan    |   |
|--------|-------------------------|--------|
|   | KEVIN J. SHEEHAN        |
|   | Chief Executive Officer |

 

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