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

  



 


i

















 


	
  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

  



 


ii

















 


	
   

  	
  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

  	
   

  
					



 


iii

















 


OFFICE LEASE


 


COPLEY PLACE


 


BOSTON, MASSACHUSETTS


 


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


 


In consideration thereof, Landlord and Tenant covenant and agree as
follows:


 


1.             BASIC
DATA.


 


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


 


1

















 


	
  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

  



 


2

















 


	
  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

  



 


3

















 


	
  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 A
Commencement Date and ending on the Termination Date, and the right to use the
Common Areas during such term in common with others entitled thereto. The Term
of this Lease (hereinafter referred to as the “Term”) shall commence on the
Area A Commencement Date specified in Paragraph 1 hereof and end on the
Termination Date, specified in Paragraph 1 hereof unless sooner terminated as
provided herein.


 


3.             POSSESSION.


 


A.            In the event Landlord
is unable to deliver possession of Area A on the date originally designated as
the Area A Commencement Date or of Area B on the date originally designated as
the Area B Commencement Date on the applicable commencement date by reason of
the holding over or retention of possession by any tenant or occupant, or for
any 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 the
case may be, shall be correspondingly deferred until Landlord can so deliver


 


4

















 


Area A and/or Area B. The
obligation of Tenant to begin paying Rent for Area A shall commence on the Area
A Rent Commencement Date and for Area B shall be on the Area B Rent
Commencement Date. In the event Area A or Area B will not be delivered in the
condition required hereunder on the date initially designated as the Area A
Commencement Date or the Area B Commencement Date, respectively, Landlord shall
give Tenant at least five (5) business days’ advance written notice of the
date on which Landlord expects the deferred Area A Commencement Date and/or
Area B Commencement Date will occur. In the event the Area A Commencement Date
has not occurred by January 15, 2000, Landlord shall pay to Tenant fifty
percent (50%) of any holdover rent paid by the current tenant with respect to
the period January 16, 2000 through the day immediately preceding the Area
A Commencement Date, in excess of the Base Rent and Additional Rent payable at
the rate paid in the final month of the Term then expired; and in the event the
Area A Commencement Date has not occurred by February 15, 2000, Tenant
may, 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 the
Tenant and the Tenant to the Landlord with respect to this Lease shall be of no
further force or effect. Furthermore, in the event the Area B Commencement Date
has not occurred by January 15, 2000, Landlord shall pay to Tenant fifty
percent (50%) of any holdover rent paid by the current tenant with respect to
the period January 16, 2000 through the day immediately preceding the Area
B Commencement Date, in excess of the Base Rent and Additional Rent payable at
the rate paid in the final month of the Term then expired; and in the event the
Area B Commencement Date has not occurred by February 15, 2000, Tenant
may, 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 not
increase by reason of the addition of Area B and Tenant’s proportionate share
of 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 the
Landlord with respect to Area B shall be of no further force or effect.


 


5

















 


B.            If the current lease
of the Tenant of Area A and/or Area B terminates prior to the Commencement Date
originally designated herein for such Area, Tenant shall have the right to
enter the Premises or any part thereof prior to the applicable
Commencement Date (which Tenant may not do without prior written notice to
Landlord and providing Landlord with evidence of insurance as required
hereunder as if the Commencement Date had occurred), such entry shall be at
Tenant’s sole risk and without interference to any work then being performed in
the Building by Landlord or other tenants or occupants, and all of the
covenants and conditions of this Lease shall be binding upon the parties hereto
with respect to such whole or part of the Premises, except the Base Rent
and any other charges shall not commence until the dates provided above.


 


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


 


4.             BASE
RENT.


 


Tenant shall pay to Landlord or Landlord’s agent without notice or
demand at the present mailing address of Landlord, or at such other place as
Landlord 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 the
United States of America, the Base Rent specified in Paragraph 1 hereof in the
equal monthly installments specified in Paragraph 1 hereof in advance on or
before the first day of each and every month during the Term, without any
abatement (except as specifically provided herein), counterclaim, set-off or
deduction whatsoever. If the Term for Area A and/or Area B commences other than
on 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 the
portion of the month in which the Term commences shall be paid on the first day
of the first full month during the Term.


 


6

















 


5.             ADDITIONAL
RENT.


 


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


 


A.            Definitions. As
used in this Paragraph 5, the terms:


 


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


 


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


 


(iii)          “Calendar
Year” 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’s
Proportionate Share” shall mean the percentage specified in Paragraph 1 hereof,
being the percentage calculated by dividing the rentable area contained in the
Premises from time to time by 802,750 (being 95% of the


 


7

















 


rentable
square foot area of the Office Section), rentable area to be determined by
Landlord on a uniform basis for the tenants of the Office Section.


 


(v)           “Taxes” shall mean all real estate taxes and assessments, special or
otherwise, levied or assessed upon or with respect to the Building or any part thereof
and Common Areas which Landlord determines in its sole judgment to be for the
benefit of the Building and ad valorem taxes for any personal property of
Landlord used in connection therewith. Landlord’s determination of which Common
Areas benefit the Building shall not be revised adversely to Tenant for
purposes of determining Taxes included in Operating Expenses. Should the
Commonwealth of Massachusetts, or any political subdivision thereof, or any
other governmental authority having jurisdiction over the Building, (a) impose
a tax, assessment, charge or fee, which Landlord shall be required to pay, by
way of substitution for or as a supplement to such real estate taxes and ad
valorem personal property taxes, or (b) impose an income or franchise tax
or a tax on rents in substitution for or as a supplement to a tax levied
against the Building or any part thereof and/or the personal property used
in connection with the Building or any part thereof, all such taxes,
assessments, fees or charges (hereinafter defined as “in lieu of taxes”) shall
be deemed to constitute Taxes hereunder. Taxes shall also include, in the year
paid, all reasonable fees and costs incurred by Landlord in seeking to obtain a
reduction of, or a limit on the increase in, any Taxes, regardless of whether
any reduction or limitation is obtained. Except as hereinabove provided with
regard 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 Landlord
in operating, owning, managing, leasing, repairing and maintaining the Office Section, the Building, the Property
and their appurtenances as such Taxes,


 


8

















 


expenses,
costs and disbursements are allocated to the Office Section by the
Landlord in its reasonable judgment (which allocation shall remain consistent
for the Base Year and each Calendar Year of the Term) or as the same are
incurred directly in the operation of Office Section, including but without
limitation: premiums for fire, casualty, liability and such other insurance as
Landlord may from time to time maintain; security expenses; compensation
and all fringe benefits, workmen’s compensation insurance premiums and payroll
taxes paid by Landlord to, for or with respect to all persons engaged in
operating, maintaining, or cleaning; steam, water, sewer, electric, gas,
telephone, and other utility charges not billed directly to tenants by Landlord
or the utility; expenses incurred in connection with the central plant
furnishing heating, ventilating and air conditioning to the Office Section (and
to the Building and the Property where and to the extent such expenses of the
Building and the Property are otherwise allocable to the Office Section), which
expenses may include a reasonable fee paid to the operator of such central
plant; costs of lighting, ventilating, (including maintaining and repairing
ventilating fans and fan rooms); making routine repairs to and maintenance of
underground roadways (and the access ramps servicing such roadways) and
railroad platforms and railroad rights of way (including track); costs of
repairing and maintaining fire protection systems relating to the underground
roadways, access ramps, railroad platforms and railroad rights of way to the
extent the same are required of Landlord by separate agreement running with the
Property and binding the Property whether currently in effect or arising from
obligations and commitments currently in effect; costs of building and cleaning
supplies and equipment (including rental); cost of maintenance, cleaning and
repairs; cost of snow plowing or removal, or both, and care of interior and
exterior landscaping; payments to independent contractors under contracts for
cleaning, operating, management, maintenance and repair (which payments may be
to affiliates of Landlord provided such are at competitive rates); all other
expenses paid in connection with cleaning, operating, management, maintenance
and repair of, or are otherwise allocable to, the Office Section; costs


 


9

















 


of
any Qualified Capital Improvements (as hereinafter defined) as reasonably
amortized by Landlord, with interest on the unamortized amount at the rate of
the greater of (i) 12% per annum or (ii) 2% per annum above the base
rate 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 allowable
in The Commonwealth of Massachusetts), to the extent the cost of the particular
capital improvement exceeds the amount of insurance proceeds, if any, received
by Landlord on account of damage to the particular Qualified Capital
Improvement. As used in this Lease, “Qualified Capital Improvement” shall mean
a capital improvement or replacement of such capital improvement which is
intended to reduce or stabilize Operating Expenses in any Calendar Year below
or at the Operating Expense which would have been incurred in the absence of
such capital improvement. The term “capital improvement” does not include
expenses for equipment of a capital nature incurred in connection with
operation, repair and maintenance of the Building if such equipment is not a part of
the Building structure or systems and, instead, is used to maintain or repair
Building structure or systems. Operating Expenses shall not, however, include
the following:


 


a.             Costs of alterations of any tenant’s premises
for a particular tenant;


 


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


 


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


 


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


 


10

















 


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


 


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


 


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


 


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


 


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


 


j.              Costs
of any additions to or
expansions of the Property;


 


k.             The
cost of environmental
monitoring, compliance, testing and remediation performed in, on, about and
around the Property;


 


11

















 


1.             Depreciation;


 


m.            Costs
or expenses for items to the
extent theretofore reimbursed to Landlord by insurance proceeds;


 


n.             Costs
of repairs, restoration or replacements occasioned by fire or other casualty or
caused by the exercise of the right of eminent domain, whether or not insurance
proceeds or condemnation award proceeds are recovered or adequate for such
purposes except that the deductible amount under insurance coverage shall be
included in Operating Expenses;


 


o.             An
amount equal to all amounts received by Landlord (i) through proceeds of
insurance to the extent the proceeds are compensation for expenses which previously
were included in Operating Expenses hereunder, or (ii) as rebates or credits
toward costs and expenses previously included in Operating Expenses hereunder;
and


 


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


 


r.              Costs
of capital improvements or replacements except to the extent specifically to be
included under this Section 5A(vi).


 


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


 


12

















 


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


 


B.            Expense Adjustment.
Replaced per 2nd
amendment. The Expense Adjustment Amount with respect to each Calendar Year
shall be paid in monthly installments, in an amount estimated from time to time
by Landlord in good faith and communicated by written notice to Tenant, which
estimate may be revised to reflect, without limitation, increases in Taxes
during any period. Landlord shall cause to be kept books and records showing
Operating Expenses in accordance with an appropriate system of accounts and
accounting practices consistently maintained. Within twelve (12) months after
the close of each Calendar Year, Landlord shall cause the amount of the Expense
Adjustment Amount for such Calendar Year to be computed based on Operating
Expenses for such Calendar Year and Landlord shall deliver to Tenant a
statement of such amount and Tenant shall pay any deficiency to Landlord as
shown by such statement within thirty (30) days after receipt of such
statement. If the total of the estimated monthly installments paid by Tenant
during any Calendar Year exceed the actual Expense Adjustment Amount due from
Tenant for such Calendar Year, such amount shall be refunded by Landlord within
thirty (30) days of the delivery of the statement to Tenant, provided Tenant is
not then in monetary default hereunder or in other than monetary default beyond
applicable periods of notice and cure. Tenant shall have the right to audit
Landlord’s books and records relating to Operating Expenses incurred during the
Term provided such audit shall be conducted by professional auditors; may occur
not 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 this
sentence) of receipt of a statement of Operating Expense Adjustment for the
Calendar Year being audited; shall be conducted during regular business hours
of Landlord on not less than fifteen (15) business days’ notice and may be
deferred by Landlord by notice given at least ten (10) business days before the
date


 


13

















 


proposed by Tenant, for up
to three (3) months to a date convenient to Landlord. In the event the
results of such audit disclose an overcharge of Tenant, Landlord shall promptly
refund the amount of such overcharge to Tenant. In addition, if as a result of
such audit, Operating Expenses are found to be overstated by more than ten
percent (10%), Landlord shall pay to Tenant, Tenant’s reasonable cost of
conducting such audit. Delay in computation of the Expense Adjustment Amount or
failure to deliver a statement of such amount shall not be deemed a default
hereunder or a waiver of Landlord’s right to collect the Expense Adjustment
Amount. In computing the Expense Adjustment Amount, the following provisions
relating to Taxes shall be applicable: The amount of any refund of Taxes received
by Landlord shall be credited against Taxes for the Calendar Year in which such
refund is received; provided, however, that in the event Landlord receives a
refund of Taxes after the Termination Date (as the same may be accelerated
or extended as provided elsewhere in this Lease) which refund relates to a
Calendar Year during the Term hereof, the amount of such refund fairly
allocable 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 cost
of obtaining such refund and the cost, if any, of making such refund); and
further provided that if Tenant expands into space formerly occupied by other
tenants, which expansion space becomes subject to this Lease, Tenant shall not
be entitled to any refund or credit with respect to such expansion space in
connection with a refund or abatement of Taxes for periods prior to Tenant’s
occupancy of such expansion space. All references to Taxes “for” a particular
Calendar Year shall be deemed to refer to Taxes due and payable during such
Calendar Year without regard to when such Taxes are assessed or levied.


 


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


 


14

















 


Expense
Adjustment Amount to be increased by an amount equal to the additional
Operating Expenses which would reasonably have been incurred during such period
by Landlord if it had at its own expense furnished such work or service to such
tenant.


 


6.             USE
OF PREMISES.


 


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


 


7.             CONDITION
OF 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 be
performed at Tenant’s sole cost and expense, in accordance with the applicable
provisions of this Lease. Notwithstanding the foregoing, (i) Landlord
agrees that all systems serving the Premises shall be in good and operational
condition on the applicable Commencement Date, (ii) the Premises will be
delivered in compliance with all applicable code requirements, laws,
regulations and ordinances applicable to the delivery of unfinished, undemolished
space except as to compliance with ADA bathroom and fire requirements
which are Tenant’s responsibility in full floor usage and except for the
wallboard adjacent to the atrium area of the Building which is not in
compliance with the fire code; provided, however, that the reasonable cost of
bringing the wallboard to code shall be reimbursed by Landlord (separate from
and outside of the Landlord Base Allowance) to Tenant promptly after Tenant
submits its bill for such work to Landlord together with reasonable evidence of
the completion thereof, and (iii) the Landlord represents, warrants and
covenants that the Common Areas and portions of the Property which are not
leased or leaseable will at all times on and after the Area A Commencement Date
as to Area A and the Area B Commencement Date as to Area B be in compliance
with all code requirements, laws, regulations and ordinances including without
limitation ADA, OSHA and the Clean Air Act which must be complied with for
general office uses so as to assure


 


15

















 


Tenant uninterrupted use of
the Premises without the imposition of fees or penalties or incurrence of
liability by reason of such noncompliance. In no event shall Landlord be
obligated to cause compliance of the Premises with ADA requirements noted
above. No promise of Landlord to alter, remodel or improve the Premises, the
Office Section or the Building and no representation by Landlord or its
agents respecting the condition of the Premises, the Office Section or the
Building have been made to Tenant or relied upon by Tenant other than as may be
contained in this Lease or in any written amendment hereto signed by Landlord
and Tenant. Tenant shall have the right, upon reasonable notice and during
hours as will minimally interfere with the business of the current occupant of
Area B (and consistent with reasonable security policies of the current
occupant), to cause the Landlord to arrange with the current occupant of Area B
for access to Area B prior to the Area B Commencement Date to permit cabling
within Area B so as to coordinate cabling work with the installation of cabling
in Area A. All costs of such cabling shall be the responsibility of Tenant
under the Work Letter.


 


8.             SERVICES.


 


A.            List of Services.


 


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


 


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


 


16

















 


round basis regardless of outdoor temperature with fresh air of not
less than 0.25 cubic feet per minute for each square foot of useable area in
the Premises provided Tenant does not exceed a heat load of six (6) watts
per rentable square foot and an occupancy level of not more than one person for
each 125 rentable square feet in the Premises, but subject to Tenant’s failure
to properly design its heating and air-conditioning system distribution within
the Premises. Tenant will pay for all heating and air-conditioning requested
and furnished prior to or following such hours at rates to be established from
time 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 in
writing and delivered to Landlord not later than 2 p.m. of the previous
day.


 


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


 


(iii)          City
water from the regular Building outlets for drinking, lavatory and toilet
purposes.


 


17

















 


(iv)          Janitorial
services as delineated in Exhibit D attached hereto.


 


(v)           Window
washing of the inside and outside of windows in the Building’s perimeter walls
as may be situated in the Premises as delineated in Exhibit D
attached hereto.


 


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


 


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


 


B.            Billing for
Electricity.


 


Landlord shall submeter Tenant’s use of all electrical service to the
Premises (other than the electrical service necessary for Landlord to fulfill
its obligation to provide heating and air conditioning as provided in Paragraph
8A(i) hereof) or shall determine such usage through an intellimeter or
similar device. Tenant shall pay Landlord as further Additional Rent, in
monthly installments at the time prescribed for monthly installments, the cost
of such electrical usage. Tenant’s obligation for electricity usage by Tenant
during the Term shall survive the termination of this Lease and/or Tenant’s
right to occupancy of all or any part of the Premises.


 


C.            Interruption of
Services.


 


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


 


18

















 


furnishing any service, or
for any diminution in the quality or quantity thereof, when such failure or
delay or diminution is occasioned, in whole or in part, by repairs, renewals,
or improvements, by any strike, lockout or other labor trouble, by inability to
secure electricity, gas, water, or other fuel at the Building after reasonable
effort so to do, by any accident or casualty whatsoever, by act or default of
Tenant or other parties, or by any other cause beyond Landlord’s reasonable
control; and such failures or delays or diminution shall never be deemed to
constitute an eviction or disturbance of Tenant’s use and possession of the
Premises or relieve Tenant from paying Rent or performing any of its
obligations under this Lease. Notwithstanding anything in this Lease to the
contrary, if as a result of a cessation limited to utilities or interruption of
utilities or access which Landlord is required to provide hereunder for any
other 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) reasons
arising out of Tenant’s use and occupancy of the Premises, (iii) any other
reason within the reasonable control of Tenant, Tenant is unable to use all or
a portion of the Premises for its business purposes for a period of seven (7) consecutive
days, the Base Rent and Additional Rent relating to periods subsequent to such
seven (7) day period and thereafter due hereunder shall abate until Tenant
is again able to use such portion of the Premises for its business purposes. In
the event such interruption or cessation continues for more than thirty (30) consecutive
days and materially affects Tenant’s use and occupancy of the Premises, Tenant
shall have the right to terminate this Lease by notice to Landlord within ten (10) days
of the expiration of such thirty (30) day period.


 


D.            Charges for Services.


 


Charges
for any service for which Tenant is required to pay, from time to time
hereunder, including but not limited to hoisting services or after hours
lighting, heating or air conditioning shall be due and payable at the same time
as 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) days
after such billing. If Tenant shall fail to make


 


19

















 


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


 


E.             Energy
Conservation.


 


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


 


9.             REPAIRS;
HAZARDOUS MATERIALS.


 


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


 


20

















 


(to be
uniformly established for the Office Section) sufficient to reimburse Landlord
for all overhead, general conditions, fees and other costs or expenses arising
from Landlord’s involvement with such repairs and replacements forthwith upon
being billed for same. Landlord may, but shall not be required to, enter the
Premises at all reasonable times upon reasonable advance notice (and at any
time in emergency situations) to make such repairs, alterations, improvements
and additions to the Premises, to the Office Section or the Building or to
any equipment located in the Office Section or the Building as Landlord
shall desire or deem necessary or as Landlord may be required to do by
governmental authority or court order or decree. Nothing contained herein shall
impose any obligation on Tenant to maintain, repair or replace any systems
serving or passing through the Premises (including without limitation the HVAC,
electrical, plumbing, life safety and security systems). Landlord shall be
responsible for the same, subject to reimbursement of the cost thereof as a
component of Operating Expenses.


 


Tenant shall not (either with or without negligence) cause or permit
the escape, disposal or release of any biologically or chemically active or
hazardous substances, or materials (collectively the “Hazardous Materials”).
Tenant shall not allow the storage or use of Hazardous Materials in any manner
not sanctioned by law or by the highest standards prevailing in the industry
for the storage and use of such Hazardous Materials, not allow to be brought
into the Building any Hazardous Materials except to use in the ordinary course
of Tenant’s business. Without limitation, Hazardous Materials shall include
those described in the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, 42 U.S.C. Section 9601 et  seq.,
the Resource Conservation and Recovery Act, as amended, 42 U.S.C. Section 6901
et seq., any applicable state or local laws and the regulations adopted
under these acts. If any lender or governmental agency shall ever require
testing to ascertain whether or not there has been any release of Hazardous
Materials by Tenant, then the reasonable costs thereof shall be reimbursed by
Tenant to Landlord upon demand as additional charges if such requirement
applies to the Premises. In addition, Tenant shall execute affidavits,
representations and the like from time to time at Landlord’s request concerning
Tenant’s


 


21

















 


best knowledge and belief
regarding the presence of Hazardous Materials on the Premises provided such are
in form and substance reasonably acceptable to Tenant. In all events,
Tenant shall indemnify Landlord in the manner elsewhere provided in this Lease
from any release of Hazardous Materials on the Premises occurring while Tenant
is in possession (unless caused by Landlord, its agents, employees, contractors
or other tenants of the Property) or elsewhere if caused by Tenant or persons
acting under Tenant. The within covenants shall survive the expiration or
earlier termination of the Term.


 


10.           ADDITIONS AND ALTERATIONS.


 


A.            Tenant shall not, without the prior written
consent of Landlord, make any alterations, improvements or additions to the
Premises subsequent to initial
construction, the approval conditions for which are set forth in the Work
Letter; provided, however, Landlord’s consent shall not be required with
respect to nonstructural alterations, improvements or additions below finished
ceilings costing less than $12,000 to implement and Landlord shall not
unreasonably withhold its consent to other nonstructural alterations which do
not materially adversely affect Building Systems. Tenant shall in all events
provide at least five (5) business days’ notice to Landlord of any
alterations, improvements or additions (with a summary description of the work
to be done and a statement, pursuant to Paragraph 9, describing any Hazardous
Materials to be brought into the Building in connection with the work) whether
or not consent is required. Landlord shall respond to requests for consents (a) within
two (2) business days, as to requests for decorative alterations and (b) within
five (5) business days, as to requests for other nonstructural
alterations. If Landlord consents to said alterations, improvements or
additions after initial construction, it may impose such reasonable
conditions with respect thereto as Landlord reasonably deems appropriate (but
in no event shall Landlord be entitled to ask Tenant to remove at the end of
the term any nonstructural alterations that are Customary Office Improvements,
as defined below). Tenant shall have the right to tie into the Building
security system, at Tenant’s sole cost and expense, its HVAC alarm provided
that plans for such tie-in shall be submitted to


 


22

















 


Landlord for
approval and that Landlord, its employees, agents and contractors shall be held
harmless against any and all damages, liabilities, claims and expenses which may be
incurred by Tenant arising from any failure of the Building security system to
provide any notice of failure of the Tenant’s system or any other level of
security or alarm which might otherwise be anticipated to be provided by the
Landlord’s security system. The work necessary to make any alterations,
improvements or additions to the Premises, whether prior to or subsequent to an
applicable Commencement Date, shall be done at Tenant’s expense by employees of
or contractors hired by Landlord except to the extent Landlord gives its prior
written consent to Tenant’s hiring its own contractors, which consent shall not
be unreasonably withheld or delayed. Initial construction of the Premises shall
be accomplished by Tenant’s
contractor using plans and specifications prepared by Tenant’s architect in
accordance with the Work Letter. It is understood that Landlord’s consent to
the hiring by Tenant of Tenant’s own contractors for any work subsequent to
initial construction (the contractor for which has been approved by Landlord as
provided in the Work Letter) may be withheld if Landlord’s permitting such
hiring might reasonably be expected to result in an interruption of services
provided to tenants of the Building by reason of labor difficulties. Tenant
shall promptly pay to Tenant’s contractors, or to Landlord if Landlord has
hired the contractor, when due, the actual cost of all such work and of all
decorating. In connection with seeking Landlord’s approval hereunder, Tenant
shall provide to Landlord plans and specifications regarding proposed
alterations, additions or improvements, as Landlord shall reasonably require,
and Tenant shall, in addition to all other expenses which Tenant is obligated to
pay to Landlord hereunder, pay to Landlord the actual reasonable out-of-pocket
expense incurred by Landlord in connection with the review of such information.
Upon completion of such work Tenant shall deliver to Landlord, if payment is
made directly to contractors, evidence of payment, contractors’ affidavits and
full and final waivers of all liens for labor, services or materials, all in form reasonably
satisfactory to Landlord. Tenant shall defend and hold Landlord, Landlord’s
lessor, any mortgagee of Landlord, the MTA (hereinafter defined), the Property
and the Building harmless from all costs, damages, liens and expenses related
to such work. All work done by Tenant or its


 


23

















 


contractors
pursuant to Paragraphs 9 or 10 shall be done in a first-class workmanlike
manner using only good grades of materials and shall comply with all insurance
requirements and all applicable laws and ordinances and rules and
regulations of governmental departments or agencies.


 


B.            All alterations,
improvements and additions to the Premises, whether temporary or permanent in
character, made or paid for by Landlord or Tenant, which are not removed by
Tenant (to the extent permitted and as provided in Paragraph 18) prior to the
end of the Term shall without
compensation to Tenant become Landlord’s property at the termination of this
Lease by lapse of time or otherwise and shall, unless Landlord has requited
their removal as a condition of its consent to installation (in which case Tenant
shall remove the same as provided in Paragraph 18), be relinquished to Landlord
in good condition, ordinary wear and damage or condition resulting from the
effects of casualty and eminent domain excepted. Notwithstanding the foregoing,
Tenant shall not be obligated to remove any partitions, floor or wall
coverings, or other normal office layout construction (“Customary Office
Improvements”), or any improvements made pursuant to the Work Letter unless
otherwise specified by Landlord in connection with Landlord’s approval of
Tenant’s plans for initial construction of the Premises. Nothing contained
herein shall be deemed to grant Landlord an ownership interest in Tenant’s
trade fixtures, equipment or personal property (including, without limitation,
the work stations and anti-static floor in the communications room) which shall
remain Tenant’s property and may be removed during or at the end of the
term of the Lease provided that Tenant shall repair any and all damage to the
Premises caused by such removal.


 


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


 


24

















 


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


 


Landlord may (but shall not have the obligation to): (i) install
new Lines at the Building, (ii) create additional space for Lines at the
Property, and (iii) reasonably monitor and/or supervise the installation,
maintenance, replacement and removal of, the allocation and periodic
re-allocation of available space (if any) for, and (solely as to Lines
installed by Landlord) the allocation of excess capacity (if any) on, any Lines
now or hereafter installed at the Building by Landlord, Tenant or any other
party (but Landlord shall have no right to monitor or control the information
transmitted through such Lines). Such rights shall not be in limitation of
other rights that may be available to Landlord by law or otherwise. If
Landlord exercises any such rights, Landlord may charge Tenant for the
costs attributable to Tenant, or may include those costs and all other
costs in Operating Expenses under Paragraph 5A(vi) (including without
limitation, costs for acquiring and installing Lines and risers to accommodate
new Lines and spare Lines, any


 


25

















 


associated computerized
system and software for maintaining records of Line connections, and the fees
of any consulting engineers and other experts); provided, the cost of any
capital improvements shall be included in Operating Expenses hereunder and
shall be amortized (together with reasonable finance charges) as provided in
Paragraph 5A(vi) and shall not be included in Operating Expenses if
attributable to any particular tenant or tenants of the Property or would
otherwise not be includable in Operating Expenses pursuant to exclusions under
Paragraph 5A(vi).


 


Tenant shall remove currently existing Lines
in the Premises, including, without limitation, those above the existing
finished ceiling in connection with Tenant’s construction, but Tenant shall
have no obligation to remove any Lines installed by or for Tenant within or
serving the Premises upon termination of this Lease. Any Lines not removed
prior to the end of the Term shall, at Landlord’s option, become the property
of Landlord (without payment by Landlord). Tenant shall not, without the prior
written consent of Landlord in each instance, grant to any third party a
security interest or lien in or on the Lines, and any such security interest or
lien granted without Landlord’s written consent shall be null and void. Subject
to Paragraph 8C and except to the extent arising from the intentional or
negligent acts of Landlord or Landlord’s agents or employees, Landlord shall
have no liability for damages arising from, and Landlord does not warrant that
the Tenant’s use of any Lines will be free from the following (collectively
called “Line Problems”): (x) any eavesdropping or wire-tapping by unauthorized
parties, (y) any failure of any Lines to satisfy Tenant’s requirements, or (z)
any shortages, failures, variations, interruptions, disconnections, loss or
damage caused by the installation, maintenance, replacement, use or removal of
Lines by or for other tenants or occupants at the Building, by any failure of
the environmental conditions or the power supply for the Building to conform to
any requirements for the Lines or any associated equipment, or any other
problems associated with any Lines by any other cause; provided, however, that
Landlord shall use its best efforts to enforce the leases of other tenants in
respect of matters relating to Line Problems. Subject to Paragraph 8C, under no
circumstances shall any Line Problems be deemed an actual or constructive eviction
of Tenant or relieve


 


26

















 


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


 


11.           COVENANT AGAINST LIENS.


 


Tenant
has no authority or power to cause or permit any lien or encumbrance of any
kind whatsoever, whether created by act of Tenant, operation of law or
otherwise, to attach to or be placed upon the Property, the Building or the
Premises, 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 permit
any lien of mechanics, materialmen or others to the placed against the
Property, the Building or the Premises, or to affect any estate or interest of
Landlord, Landlord’s lessor, any mortgagee or the MTA, with respect to work or
services claimed to have been performed for or materials claimed to have been
furnished to Tenant or the Premises, and, in case of any such lien attaching or
notice of any lien, or claim therefor being asserted, Tenant covenants and
agrees to cause same to the immediately released and removed of record or
bonded over. In the event that such lien is not released and removed or bonded
over 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 and
remove such lien (without any duty to investigate the validity thereof) and
Tenant shall promptly upon notice reimburse Landlord for all sums, costs and
expenses (including reasonable attorneys’ fees) incurred by Landlord in
connection therewith.


 


12.           INSURANCE.


 


A.            Waiver of Subrogation.


 


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


 


27

















 


the contents
thereof, which loss or damage is (i) covered by valid and collectible
physical damage insurance policies, to the extent that such loss or damage is
recoverable under said insurance policies or (ii) required to be covered
under this Lease but the party required to maintain such insurance failed to
maintain the same in which event such party shall be deemed to have received
the total insurance proceeds required to be carried hereunder. Inasmuch as this
mutual waiver will preclude the assignment of any such claim by subrogation (or
otherwise) to an insurance company (or any other person), Landlord and Tenant each
agree to give to each insurance company which has issued, or in the future may
issue, to it policies of physical damage insurance, written notice of the terms
of this mutual waiver, and to have said insurance policies properly endorsed,
if necessary, to prevent the invalidation of said insurance coverage by reason
of said waiver. Tenant’s waiver of subrogation as hereinabove set forth shall
also 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 for
the benefit of Tenant, with Landlord, Landlord’s lessor, any mortgagee and the
MTA named as additional insureds (as their respective interests may appear) in
companies reasonably satisfactory to Landlord, and with such increases in
limits as Landlord may from time to time request (provided such increases are
consistent with that required of similar tenants in the Greater Boston area),
but initially Tenant shall maintain the following coverages in the following amounts:


 


(i)            Commercial
General Liability Insurance covering Tenant, with Landlord, Landlord’s lessor,
the MTA and Landlord’s management agent named as additional insureds for claims
of bodily injury, personal injury and property damage arising out of Tenant’s
operations, assumed liabilities or use of the Premises, for limits of liability
not less than:


 


28

















 


	
  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)           Comprehensive
Automobile Insurance covering all owned, non-owned and hired automobiles of
Tenant including the loading and unloading of any automobile with limits of
liability not less than:


 


	
  Bodily
  Injury and Property

  	
   

  	
  $3,000,000
  each person

  
	
   

  	
   

  	
   

  
	
  Damage
  Liability

  	
   

  	
  $3,000,000
  each accident

  



 


(iii)          Physical
Damage Insurance covering all additions, improvements and alterations to the
Premises which are beyond the building standard tenant improvements provided by
Landlord and all office furniture, trade fixtures, office equipment,
merchandise and all other items of Tenant’s property on the Premises. Such
insurance 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 that
meet any coinsurance clauses of the policies of insurance.


 


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


 


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


 


29

















 


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


 


C.            Avoid Action
Increasing Rates.


 


Tenant shall comply with all applicable laws and ordinances, all orders
and decrees of court and all requirements of other governmental authorities
having jurisdiction over the Building and of the applicable rating bureau, and
shall not, directly or indirectly, make any use of the Premises which may
thereby be prohibited or be dangerous to person or property or which may
jeopardize any insurance coverage or may increase the cost of insurance or
require additional insurance coverage. If by reason of the failure of Tenant to
comply with the provisions of this Paragraph 12C, (i) any insurance
coverage is jeopardized Landlord may, in addition to all other remedies which
may be available to Landlord, require Tenant to cease such use and if Tenant
does not do so promptly, Landlord may terminate this Lease or (ii) if
insurance premiums are increased, Landlord may require Tenant to make immediate
payment of the increased insurance premium.


 


13.           FIRE
OR CASUALTY.


 


A. Paragraph 9 hereof notwithstanding, if the Premises or the access
thereto (which term for purposes of this Paragraph 13 shall include Office Section corridors
which provide access to the Premises, elevator or escalator service to the
Premises and the garage, at least one pedestrian entrance to the Building which
provides access to the elevators and such other access as shall be necessary to
permit Tenant to conduct its business in the Premises) shall be damaged by fire
or other casualty and if such damage is not of such a character or magnitude as
would 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 no
termination is exercised, Landlord shall, subject to building


 


30

















 


and zoning
laws then applicable, repair and restore the Premises to substantially the
condition (exclusive of tenant improvements thereto to the extent such tenants,
including Tenant, are responsible therefor) thereof prior to the casualty, and
shall restore access to the Premises and Building systems to the extent necessary
to permit Tenant to operate its business in the Premises, with reasonable
promptness and subject to reasonable delays for insurance adjustments and
delays caused by matters beyond Landlord’s reasonable control, but shall not be
obligated to expend therefor an amount in excess of the proceeds of insurance
recovered with respect thereto plus the deductible under Landlord’s insurance,
provided that such limitations shall not apply to the extent Landlord has not
maintained all insurance required to be carried hereunder and unless diligently
pursued all claims against its insurer. Landlord shall have the right to
terminate this Lease by giving notice of Landlord’s election so to do not later
than “Landlord’s Restoration Notice Date” (as hereinafter defined) in the
following circumstances:


 


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


 


(b)           If
damage from fire or other casualty to a “Tower” (the Office Section being
comprised of four “Towers” known as One Copley Place, Two Copley Place, Three
Copley Place and Four Copley Place) in which all or a portion of the Premises
is located is such that the same cannot, in the ordinary course, reasonably be
expected to be repaired within two hundred seventy (270) days from the date of
damage and Landlord terminates the leases of all other similarly situated
tenants 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 portion
of the Premises which is located within the Tower damaged by such fire or other
casualty); or


 


31

















 


(c)           If
Landlord determines to demolish all or substantially all of the Building by
reason of fire or other casualty; or


 


(d)           If
damage to the Building from fire or other casualty is such that the same
cannot, in the ordinary course, reasonably be expected to be repaired within
one year from the date of damage and Landlord terminates the leases of all other
similarly situated tenants in space which is in the Tower in which the damaged
space is located.


 


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


 


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


 


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


 


32

















 


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


 


(4)           If
substantial completion of repairs actually takes thirty (30) days longer than
the Estimated Repair Completion Date and Tenant had the right to terminate or
would have had the right if Landlord had correctly stipulated the Estimated
Repair Completion Date (but Tenant’s right to terminate hereunder shall only
apply to that portion of the Premises which would have been the subject of such
a termination had Landlord correctly stipulated).


 


(5)           If
substantial completion of repairs to the Premises and access thereto sufficient
for Tenant to conduct its business in the Premises occurs more than three
hundred sixty (360) days after the date of damage and Tenant notifies Landlord
of its intent to terminate within thirty (30) days after the end of such 360
day period unless not later than the end of such thirty (30) day period Landlord
shall have so substantially completed such repairs, such termination to be
effective as of midnight on the thirtieth day after such 360 day period (but
Tenant’s right to terminate hereunder shall only apply to that portion of the
Premises which would have been the subject of such a termination had Landlord
correctly stipulated).


 


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


 


33

















 


Tenant shall
not be entitled to terminate this Lease by virtue of any delays in completion
of such repairs and restoration. Further, in the event this Lease is not
terminated, Landlord shall not be obligated to restore any portion of the
Office Section or the Building outside of the Premises which is not
necessary for reasonable access to and egress from the Premises provided such
failure to restore does not interfere with Tenant’s ability legally to occupy
the Premises or to reconstruct the alterations, additions and improvements for
which it is responsible. Rent shall abate on those portions of the Premises as
are, from time to time, untenantable (“untenantable” meaning “not suitable for
the normal conduct of Tenant’s business”) as a result of such damage. For
purposes hereof, Landlord’s Restoration Notice Date shall be the date which is
the earlier of (i) thirty (30) days after Landlord has ascertained all
information required by Landlord to determine whether or not to terminate this
Lease, including without limitation the amount of insurance proceeds which are
available to Landlord for restoration and (ii) ninety (90) days after the
date of such damage.


 


B.            Notwithstanding
anything to the contrary herein set forth, Landlord shall have no duty pursuant
to this Paragraph 13 to repair or restore any portion of the alterations,
additions or improvements in the Premises or the decorations thereto except to
the extent that such alterations, additions, improvements and decorations were
provided by Landlord at the beginning of the Term. If Tenant desires any other
or additional repairs or restoration and if Landlord consents thereto, the same
shall be done at Tenant’s sole cost and expense subject to all of the
provisions of Paragraph 9 hereof. Tenant acknowledges that Landlord shall be
entitled to the full proceeds of any insurance coverage, whether carried by
Landlord or Tenant, for damage to alterations, additions, improvements or
decorations provided by Landlord either directly or through an allowance to
Tenant.


 


34

















 


14.           WAIVER
OF CLAIMS - INDEMNIFICATION.


 


To the extent not prohibited by law, Landlord, its partners, its
managing agent, Landlord’s lessor, any mortgagee, the MTA and their respective
officers, agents, servants and employees shall not be liable for any damage
either to person or property or resulting from the loss of use thereof
sustained by Tenant or by other persons due to the Building or any part thereof
or any appurtenances thereof becoming out of repair, or due to the happening of
any accident or event in or about the Office Section, the Premises or the
Building, or due to any act or neglect of any tenant or occupant of the Office
Section, the Building or of any other person or entity. This provision shall
apply 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, plumbing
fixtures and windows, and shall apply without distinction as to the person
whose act or neglect was responsible for the damage and whether the damage was
due to any of the causes specifically enumerated above or to some other cause
of an entirely different kind. Tenant further agrees that all personal property
upon the Premises, or upon loading docks, receiving and holding areas, or
freight elevators of the Building shall be at the risk of Tenant only, and that
Landlord 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 mortgagee
and the MTA from and against all liability to third parties which arose (or
which were claimed to have arisen) within the Premises. Nothing contained
herein shall, however, excuse landlord from its obligations regarding
maintenance of the Building, as contrasted with Landlord being released from
liability for personal or property damage arising from Landlord’s failure to
maintain; nor shall this Paragraph relieve Landlord from liability for its
negligence except as provided in Paragraph 12A or, but only to the extent
liability therefor cannot be released as a matter of law, the negligence of its
agents, employees and contractors; nor shall this Paragraph modify Landlord’s
obligations with respect to failure of services pursuant to Paragraph 8C of
this Lease.


 


35

















 


Landlord
agrees to defend, protect, indemnify and save harmless Tenant from and against
all 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 any
failure of either party to enforce any remedy on account of the violation of
such provision, even if such violation be continued or repeated subsequently,
and no express waiver shall affect any provision other than the one specified
in such waiver and that one only for the time and in the manner specifically
stated. No receipt of monies by Landlord from Tenant after the termination of
this Lease shall in any way alter the length of the Term or of Tenant’s right
of possession hereunder or after the giving of any notice shall reinstate,
continue or extend the Term or affect any notice given Tenant prior to the
receipt of such monies, it being agreed that after the service of notice or the
commencement 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 Rent
shall not waive or affect said notice, suit or judgment.


 


16.           CONDEMNATION.


 


If the Property, the Building or any portion thereof shall be taken or
condemned by any competent authority for any public or quasi-public use or
purpose (a “taking”), Landlord shall have the right, exercisable at its sole
discretion 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 the
date of cancellation designated in the notice provided Landlord terminates all
other leases of the Tower in which the Premises are located which are similarly
affected by such taking. No money or other consideration shall be payable by
Landlord to Tenant for the right of cancellation and Tenant shall have no right
to share in the condemnation award or in any judgment for damages caused by
such taking or change


 


36

















 


in
configuration except for Tenant’s relocation expenses and costs of improvements
to the Premises.


 


17.           ASSIGNMENT
AND SUBLETTING.


 


A.            Tenant shall not,
without the prior written consent of Landlord (which consent shall not be
unreasonably withheld) (i) assign, convey or mortgage this Lease or any
interest hereunder, (ii) permit to occur or exist any assignment of this
Lease, or any lien upon Tenant’s interest, voluntarily or by operation of law; (iii) sublet
the Premises or any part thereof; or (iv) permit the use of the Premises
by any parties other than Tenant and its employees. Any such action on the part
of 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, subtenant
or transferee as the tenant hereunder and to collect rent from such assignee,
subtenant or transferee shall not release Tenant or any subsequent tenant from
any covenant or obligation under this Lease. Landlord’s consent to any
assignment, subletting or transfer shall not constitute a waiver of Landlord’s
right to withhold its consent to any future assignment, subletting, or transfer.
Notwithstanding any contrary provision of this Lease, Tenant shall have the
right, without the prior consent of Landlord, to assign this Lease and to
sublet 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 or
substantially all of the assets of Tenant, or (c) with or into which
Tenant merges or consolidates and which succeeds in any case to the business
conducted by Tenant originally named herein so long as (i) the principal
purpose of such assignment or sublease is not the acquisition of Tenant’s
interest in this Lease, (ii) the assignment or sublet is not made to
circumvent the provisions of this Section 17A, and (iii) the assignee
or sublessee succeeds to Tenant’s business conducted within the Premises
immediately prior to such assignment or sublet.


 


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


 


37

















 


consent, Landlord shall have
the 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 of
the Premises, in the case of a subletting of a portion. If Landlord exercises
its right to terminate, Tenant shall have the right to rescind its request for
consent and agree not to assign or sublet by written notice of such rescission
and agreement given to Landlord within five (5) business days of the date
on which Landlord notifies Tenant of Landlord’s intent to terminate this Lease
by reason of such request and in such event Tenant shall be deemed not to have
requested consent, no assignment or sublet which would otherwise require
consent shall occur and Landlord’s termination notice shall be void and of no
further force or effect. In the event that Landlord exercises such right to
terminate and Tenant does not timely exercise its right to rescind, Landlord
shall be entitled to recover possession of and Tenant shall surrender the whole
or such portion of the Premises on the later of (i) the proposed date for
possession by such assignee or subtenant, or (ii) ninety (90) days after
the date of Landlord’s notice of termination to Tenant. In the event of
termination in respect of a portion of the Premises, the portion so eliminated
shall be delivered to Landlord in good order and condition and thereafter, to
the extent necessary in landlord’s judgment, Landlord, at its own cost and
expense, may have access to and may make modification to the Premises so as to
make such portion a self-contained rental unit with access to common areas,
elevators and the like. Base Rent and Tenant’s Proportionate Share shall be
adjusted according to the extent of the Premises for which the Lease is
terminated. Without limitation of the rights of Landlord hereunder in respect
thereto, if there is any assignment of this Lease by Tenant 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 a subletting of a portion
of the Premises by Tenant at a rent in excess of the subleased portion’s pro
rata share of the rent payable hereunder by Tenant, then Tenant shall pay to
Landlord, as additional rent, forthwith upon Tenant’s receipt of each
installment of any such excess rent, 50% of the full amount of any such excess
rent after deduction of Tenant’s costs in connection with such assignment or
sublet including, without limitation, attorneys’ fees, brokerage commissions
and modifications to the


 


38

















 


Premises. The
provisions of this Paragraph shall apply to each and every assignment of the
Lease and each and every subletting of all or a portion of the Premises with
respect to which the consent of the Landlord is required. Each request by
Tenant for permission to assign this Lease or to sublet the whole or any part
of the Premises shall be accompanied by a warranty by Tenant as to the amount
of rent to be paid to Tenant by the proposed assignee or sublessee. Landlord or
its authorized representatives shall have the right at all reasonable times to
audit the books, records and papers of Tenant relating to any consideration
received in connection with such an assignment or subletting, and shall have
the right to make copies thereof. If the excess rent being paid shall be found
understated, Tenant shall within thirty (30) days after demand pay the
deficiency, and Landlord’s cost of such audit if understated by more than five
percent (5%) and if the amount paid is so understated more than once during the
Term by more than five percent (5%), Landlord shall have the right to terminate
this Lease upon thirty (30) days’ notice. For the purposes of this Paragraph
17B, the term “rent” shall mean all Base Rent, Additional Rent or other
payments and/or consideration payable by one party to another related to the
use and occupancy of all or a portion of the Premises.


 


18.           SURRENDER
OF POSSESSION.


 


Upon the expiration of the Term or upon the termination of Tenant’s
right of possession to all or a portion of the Premises, whether by lapse of time
or at the option of Landlord as herein provided, Tenant shall forthwith quietly
and peaceably surrender the Premises or portion thereof to Landlord in good
order, repair and condition, ordinary wear, damage by fire or other casualty,
taking by eminent domain or caused by Landlord, its agents, employees or
contractors excepted. Except as otherwise provided in this Lease, any interest
of Tenant in the alterations, improvements and additions to the Premises made
or paid for by Landlord or Tenant shall, without compensation to Tenant, become
Landlord’s property at the termination of this Lease by lapse of time or
otherwise and such alterations, improvements and additions shall be
relinquished to Landlord in good condition, ordinary wear, damage by fire or other
casualty, taking by eminent


 


39

















 


domain or caused by
Landlord, its agents, employees or contractors excepted. Not later than the
termination of the Term or of Tenant’s right of possession Tenant shall remove
office furniture, trade fixtures, office equipment and all other items of
Tenant’s property on the Premises. Subject to Paragraph 12A above, Tenant shall
pay to Landlord upon demand the cost of repairing any damage to the Premises
and to the Building caused by any removal required hereunder. If Tenant shall
fail 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 that
Landlord shall choose, repairing any damage to the Premises caused by such
removal, and (ii) store the same without incurring liability to Tenant or
any other person. If Tenant fails to pay Landlord’s cost relating to such
removal, storage and repair and claim such property within thirty (30) days of
termination, Tenant shall be conclusively presumed to have abandoned the same,
and title thereto shall thereupon pass to Landlord without any cost either by
set-off, credit, allowance or otherwise and Landlord may destroy or otherwise
dispose of the same, but such abandonment shall not affect Tenant’s obligations
with respect to the costs of removal, storage, repair, destruction and/or
disposition.


 


19.           HOLDING OVER.


 


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


 


40

















 


in a written notice to
Tenant 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 period
of one year at such Base Rent and Additional Rent as would be applicable for
such year, and if Landlord does not so notify Tenant, such holding over shall
constitute the Tenant a tenant-at-will from month to month. The provisions of
this Paragraph 19 shall not be deemed to limit or constitute a waiver of any
other rights or remedies of Landlord provided herein or at law.


 


20.           ESTOPPEL CERTIFICATE.


 


Tenant
agrees that, from time to time upon not less than twenty (20) days’ prior
request by Landlord, Landlord’s lessor or any mortgagee, Tenant or Tenant’s
duly authorized representative having knowledge of the following facts will
deliver to Landlord a statement in writing certifying (i) that to Tenant’s
knowledge this Lease is unmodified and in full force and effect (or if there
have been modifications, a description of such modifications and that the Lease
as modified is in full force and effect); (ii) the dates to which Rent and
other charges have been paid; (iii) that Landlord is not in default under
any provision of this Lease, or, if in default, the nature thereof in detail; (iv) that
the Premises have been-delivered to Tenant by Landlord and accepted by Tenant
(or if not, the reason therefor); (v) that there are no proceedings
pending against Tenant which have been adversely decided and which would affect
Tenant’s obligations under this Lease (and if not correct, detail regarding
such proceeding); (vi) that Tenant has not made a claim against Landlord
which has not been resolved or satisfied (and if not, correct details regarding
the same); and (vii) such further matters as may be reasonably requested
by Landlord, it being intended that any such statement may be relied upon by any
prospective assignee of Landlord, any mortgagee or prospective mortgagee of the
Building, any prospective assignee of any such mortgagee, or any prospective
and/or subsequent purchaser or transferee of all or a part of Landlord’s
interest in the Property, the Office Section or the Building, or any other
person having an interest therein. Tenant shall execute and deliver whatever
instruments may be reasonably required for such


 


41

















 


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


 


21.           SUBORDINATION.


 


This Lease and all rights of Tenant hereunder are subject and
subordinate to the mortgage which now encumbers the Property and to any and all
renewals, modifications, consolidations, replacements and extensions thereof,
and to any ground lease or similar instrument now against the Building. It is
the intention of the parties that this provision be self-operative and that no
further instrument shall be required to effect such subordination of this Lease
other than the non-disturbance agreements described below. Tenant shall,
however, upon demand at any time or times execute, acknowledge and deliver to
Landlord, any and all instruments that may be necessary or proper to
subordinate this Lease and all rights of Tenant hereunder to such mortgage or
ground lease or to any mortgage or ground lease which may hereafter encumber
the Property or the Building or to confirm or evidence such subordination and
to confirm or evidence Tenant’s agreement to attorn to the holder of any such
mortgage or the ground lessor under such ground lease, on condition with
respect to mortgages other than the mortgage which now encumbers the Property,
that such holder or ground lessor shall agree in such instrument (a “Non-Disturbance
Agreement”) that such holder or ground lessor for so long as Tenant is not in
default of those terms, covenants and conditions of this Lease, beyond
applicable periods of notice and grace, which are to be performed by Tenant (i) will
not disturb Tenant’s possession of the Premises or other rights under this
Lease and (ii) will not join in any foreclosure action or action to
terminate the ground and (iii) will recognize the Tenant as its tenant on
the terms and conditions of this Lease in the event of a foreclosure, deed in
lieu of foreclosure or termination of a ground lease, as applicable. Such
Non-Disturbance Agreement shall further provide, at the option of the mortgagee
or ground lessor, that in the event any proceedings are brought for the
foreclosure of any mortgage with respect to which a Non-Disturbance Agreement
in Tenant’s favor is in effect or for the termination of a ground lease with
respect to which a Non-Disturbance


 


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Agreement in
Tenant’s favor is in effect, Tenant will attorn, without any deductions or
set-offs whatsoever, to the purchaser upon any such foreclosure sale or to such
ground lessor if so requested to do by such purchaser or ground lessor, and to
recognize such purchaser or ground lessor as the Landlord under this Lease.
Landlord agrees to use reasonable efforts to cause the holder of the existing
mortgage on the Property to enter into such a Non-Disturbance Agreement with
Tenant, in such holder’s standard form, as promptly as reasonably possible. For
purposes of the foregoing, “reasonable
efforts” 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 this
Lease, as the case may be) to Metropolitan Life Insurance Company (“Met”) with
the request that Met promptly review the Lease and enter into a Non-Disturbance
Agreement in the form of Non-Disturbance Agreement which Met has previously
issued to tenants of the Office Section with such modifications as Tenant
may request, (b) at regular intervals, Landlord shall renew its request to
Met in the event a Non-Disturbance Agreement has not then been issued and (c) in
the event Met indicates its unwillingness to issue a Non-Disturbance Agreement
or that it is unwilling to issue Non-Disturbance Agreement in the form
requested by Tenant, Landlord shall request that Met discuss any issues
directly with Tenant and/or its counsel. In all event, in attempting to obtain
a Non-Disturbance Agreement for the benefit of Tenant, Landlord will proceed with
diligence and in good faith. Tenant agrees to execute and deliver at any time
and from time to time, upon the request and at the expense of Landlord or of
any holder of such mortgage or of such purchaser and ground lessor, any
instrument which, in the sole reasonable judgment of such requesting party, may
be necessary or appropriate in any such foreclosure proceeding or termination
or otherwise to evidence such attornment by Tenant as described herein, on
condition that such party shall agree in such instrument that for so long as
Tenant is not in default of those terms, covenants and conditions of this
Lease, beyond applicable periods of notice and grace, which are to be performed
by Tenant it (x) will not disturb Tenant’s possession of the Premises or other
rights under this Lease and (y) will not join in any foreclosure action or
action to terminate the ground lease and (z) will recognize the Tenant as its
tenant on the terms and conditions of this Lease in the event of a foreclosure,
deed in lieu of


 


43

















 


foreclosure or
termination of a ground lease, as applicable. Tenant further waives the
provisions 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 or
otherwise adversely affect this Lease or the obligations of Tenant hereunder in
the event any such foreclosure proceeding or termination is brought, prosecuted
or completed. Tenant and Landlord further agree that if so requested by any
mortgagee or ground lessor of Landlord, this Lease shall be made superior to
any such mortgage or ground lease and that they will execute such documents as
may be reasonably required by such mortgagee or ground lessor to effect the
superiority of this Lease to such mortgage or ground lease, provided such is in
form and substance-reasonably acceptable to Tenant.


 


22.           CERTAIN
RIGHTS RESERVED BY LANDLORD.


 


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


 


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


 


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


 


(iii)          To
decorate or to make repairs, alterations, additions, or improvements, whether
structural or otherwise, in and about the Building, or any part thereof, and
for such purposes to enter upon the Premises, and during the continuance of any
of said work, to temporarily close doors, entryways, public


 


44

















 


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


 


(iv)          To furnish door keys for the entry door(s) in the Premises at the
commencement of this Lease and to retain at all times, and to use in
appropriate instances, keys to all doors within and into the Premises. Tenant
agrees to purchase only from Landlord additional duplicate keys as required, to
change no locks, and not to affix locks on doors without the prior written
consent of Landlord, which consent shall not be unreasonably withheld. Upon the
expiration of the Term or of Tenant’s right of possession, Tenant shall return
all keys to Landlord and shall disclose to Landlord the combination of any
safes, 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 other
heavy equipment and articles in and about the Premises and the Building so as
not to exceed the legal live load per square foot designated by the structural
engineers for the Building, and to require all such items and furniture and
similar items to be moved into or out of the Building and Premises only at such
reasonable times and in such manner as Landlord shall direct in writing. Tenant
shall not install or operate machinery or any mechanical devices of a nature
not directly related to


 


45

















 


Tenant’s
ordinary 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 and
within the Building are entirely at the risk and responsibility of Tenant, and
Landlord reserves the right for security purposes on reasonable notice to
Tenant to require permits before allowing any property to be moved into or out
of the Building or the Premises.


 


(vii)         To establish reasonable security policies and other controls for the
purpose 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 the
Building both during and after normal office hours.


 


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


 


(ix)           To show the Premises to prospective tenants at reasonable times within
the 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 at
reasonable locations, but in no event may such installations reduce the usable
square footage of the Premises by more than a de
minimus amount.


 


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


 


23.           RULES AND REGULATIONS.


 


Tenant
agrees to observe the rules and regulations for the Building attached
hereto as Exhibit C and made a part hereof. Landlord shall have the right
from time to time to


 


46

















 


prescribe
additional reasonable rules and regulations of uniform applicability
which, in its judgment, may be desirable for the use, entry, operation and
management of the Premises, the Office Section and the Building, each of
which rules and regulations and any amendments thereto shall become a part
of this Lease. Tenant shall comply with all such rules and regulations;
provided, however, that such rules and regulations shall not contradict or
abrogate any right or privilege herein expressly granted to Tenant.


 


24.           LANDLORD’S
REMEDIES.


 


If default shall be made in the payment of the Rent or any installment
thereof or in the payment of any other sum required to be paid by Tenant under
this Lease or under the terms of any other agreement between Landlord and
Tenant and such default shall continue for five (5) days after written
notice to Tenant, or if default shall be made in the observance or performance
of any of the other covenants or conditions in this Lease which Tenant is
required 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 is
necessary 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 immediately
upon written notice to Tenant, or if the interest of Tenant in this Lease shall
be levied on under execution or other legal process, or if any voluntary
petition in bankruptcy or for corporate reorganization or any similar relief
shall be filed by Tenant, or if any involuntary petition in bankruptcy shall be
filed against Tenant under any federal or state bankruptcy or insolvency act
and shall not have been dismissed within ninety (90) days from the filing
thereof, or if a receiver shall be appointed for Tenant or any of the property
of Tenant by any court and such receiver shall not have been dismissed within
thirty (30) days from the date of his appointment, or if Tenant shall make and
assignment for the benefit of creditors, or if Tenant shall admit in writing
Tenant’s inability to meet Tenant’s debts as they mature, then Landlord may
treat the occurrence of any one or more of the foregoing events as a breach of
this Lease, and thereupon at its option may, without notice or any


 


47

















 


demand of any
kind to Tenant or any other person, have any one or more of the following
described remedies in addition to all other rights and remedies provided at law
or in equity or elsewhere herein:


 


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


 


(a)           as
liquidated damages, a sum of money equal to the amount by which the present
value (such present value to be computed on the basis of a per annum discount
rate equal to seven percent (7%) per annum) of the Rent and other sums to
become due under this Lease for all or a part of the period from the Effective
Date to the Termination Date exceeds the present value of the fair market
rental value of the Premises, after deduction from the present value of such
fair market rental value of all reasonably anticipated expenses of reletting.
Should the present value of the fair market rental value of the Premises, after
deduction of all anticipated reasonable expenses of reletting, for the balance
of the Term exceed the present value of the Rent provided to be paid by Tenant
for the balance of the Term, Landlord shall have no obligation to pay to Tenant
the excess or any part thereof or to credit such excess or any part thereof
against any other sums or damages for which Tenant may be liable to Landlord.


 


(b)           a
sum 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


 


48

















 


foot, proportionate basis) to such portion of the Premises that has
been relet by Landlord after the termination of this Lease (but during a period
which would have been within the Term but for such termination by reason of a
Tenant default) to the extent amounts to be credited (as described below) to
Base Rent and Operating Expenses, from amounts paid by the tenant to whom such
portion of the Premises has been relet, is less than the Rent and Additional
Rent which would have been paid by Tenant (during such period) with respect to
such 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 due
under this Lease, other than Rent accelerated and paid pursuant to clause (x).
In the event Landlord elects the remedy under this subparagraph (b) and
relets The Premises (but Landlord shall be under no obligation to relet, except
as required by law) or any part thereof for the account of Tenant, the rents
from any such reletting before crediting as set forth in clause (x) shall be
first applied to the payment of reasonable and actual expenses of reentry,
redecoration, repair and alterations and the expenses of reletting and the
excess or residue remaining shall then be applied to the payment of Rent and
other sums in this Lease provided to be paid by Tenant and not theretofore paid
by acceleration or otherwise, and any such excess or residue shall operate only
as an off setting credit against the amount of Rent and other sums then due and
owing and to the extent any excess or residue is still remaining shall, at
Landlord’s option, either be refunded to Tenant to the extent of amounts paid
as a result of acceleration under this subparagraph (b) or be applied as
an offsetting credit against Rent and other sums thereafter becoming due and
payable hereunder; provided that in no event shall Tenant be entitled to a
credit on its indebtedness to Landlord or refunds of amounts accelerated in
excess of the aggregate of the amount paid (by reason of acceleration under
this subparagraph (b)) or payable by Tenant for the period for which the credit
to Tenant is being


 


49

















 


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


 


(ii)           Landlord,
without thereby waiving such default, may cure the same for the account and at
the expense of Tenant, if not cured by Tenant within applicable notice and cure
periods but without notice in a case of emergency, as determined by Landlord in
its sole discretion, or in case of correction of a dangerous or hazardous
condition, and in any other case if such default continues after ten (10) days
from the date of the giving by Landlord to Tenant of written notice of such
default or of intention to cure. Bills for any expense incurred by Landlord in
connection with any such performance by Landlord shall be for the account of
Tenant, and shall be due and payable in accordance with the terms of said
bills, and if not paid when due, the amounts thereof shall become immediately
due and payable as Additional Rent under this Lease.


 


50

















 


25.           EXPENSES
OF ENFORCEMENT.


 


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


 


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


 


26.           COVENANT
OF QUIET ENJOYMENT.


 


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


 


27.           INTENTIONALLY
OMITTED.


 


28.           REAL
ESTATE BROKER.


 


The Tenant represents that Tenant has dealt with (and only with) the
Broker 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 is
entitled to any commission


 


51

















 


in connection
therewith. Tenant agrees to indemnify, defend and hold harmless Landlord its
employees and agents from and against any claims made by any broker or finder
making such claim by reason of a relationship with Tenant, other than the
Broker, for a commission or fee in connection with this Lease or any sublease
hereunder (but nothing herein shall be construed as permitting any such
sublease) 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 this
Lease, and that insofar as Landlord knows, no other broker negotiated this
Lease or is entitled to any commission in connection therewith. Landlord agrees
to indemnify, defend and hold harmless Tenant its employees and agents from and
against any claims made by any broker or finder except as provided in the
immediately preceding grammatical paragraph for a commission or fee in
connection with this Lease or any sublease hereunder, but nothing herein shall
be construed as permitting any such sublease, provided that Tenant has not in
fact retained such broker or finder.


 


29.           UNDERLYING
LEASES.


 


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


 


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


 


52

















 


and in
Attachment C to the City of Boston’s Urban Development Action Grant application
for Copley Place, and encourages Tenant to pursue such goals in Tenant’s own
employment practices. In connection with hiring to fill permanent jobs at the
Premises, Tenant shall not discriminate against any employee or applicant for
employment because of race, color, religious creed, national origin, age or
sex. 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.           NOTICE
TO MORTGAGEE AND GROUND LESSOR.


 


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


 


31.           ASSIGNMENT
OF RENTS.


 


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


 


53

















 


Underlying
Lease and the Sublease) on property which includes the Premises, the Building
or the Office Section, Tenant agrees:


 


(i)            that
the execution thereof by Landlord, and the acceptance thereof by the holder of
such mortgage, or the ground lessor, shall never be treated as an assumption by
such 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 having
assumed Landlord’s obligations hereunder only upon a foreclosure of such holder’s
mortgage and the taking of possession of the Premises, or in the case of a
ground lessor, the assumption of Landlord’s position hereunder by such ground
lessor. In no event shall the acquisition of title to the Building and the land
on which the same is located by a purchaser which, simultaneously therewith,
leases the entire Building or such land back to the seller thereof be treated
as an assumption, by operation of law or otherwise, of Landlord’s obligations
hereunder, but Tenant shall look solely to such seller-lessee, and its
successors from time to time in title, for performance of Landlord’s obligations
hereunder. In any such event, this Lease shall be subject and subordinate to
the lease to such seller provided such purchaser enters into an agreement with
Tenant whereby purchaser agrees to recognize Tenant as its tenant on the terms
and conditions of this Lease in the event of a termination of the lease with
the seller-lessee. For all purposes, such seller-lessee, and its successors in
title, shall be the landlord hereunder unless and until Landlord’s position
shall have been assumed by such purchaser-lessor.


 


54

















 


32.           PERSONAL PROPERTY TAXES.


 


Tenant shall pay all taxes which may be lawfully charged, assessed, or
imposed upon all fixtures and equipment of every type owned by Tenant and also
upon all personal property in the Premises, and Tenant shall pay all license
fees which may lawfully be imposed upon the business of Tenant conducted upon
the Premises.


 


33.           MISCELLANEOUS.


 


A.            Rights Cumulative.
All rights and remedies of Landlord under this Lease shall be cumulative and
none shall exclude any other rights and remedies allowed by law.


 


B.            Interest. All
payments 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 until
paid at the rate of the greater of (i) twelve percent (12%) per annum or (ii) two
percent (2%) per annum above the prime rate 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 rate which is at the time lawful in the Commonwealth of
Massachusetts).


 


C.            Terms. The
necessary grammatical changes required to make the provisions hereof apply
either to corporations or partnerships or individuals, men or women, as the
case may require, shall in all cases be assumed as though in each case fully
expressed.


 


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


 


55

















 


E.             Lease Contains All
Terms. All of the representations and obligations of Landlord are contained
herein and in the Exhibits attached hereto, and no modification, waiver or
amendment of this Lease or of any of its conditions or provisions shall be
binding upon Landlord or Tenant unless in writing signed by the party against
whom such waiver is claimed or by a duly authorized agent of Landlord or Tenant
empowered by a written authority signed by Landlord or Tenant.


 


F.             Delivery for
Examination. Submission of this Lease for examination shall not bind
Landlord in any manner, and no lease or obligations of Landlord shall arise
until this instrument is signed by both Landlord and Tenant and delivery is
made to each.


 


G.            No Air Rights.
No rights to any view or to light or air over any property, whether belonging
to 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 and
refrigerators in convenience kitchens for the use of employees and business
invitees, but shall have no right to vent to the outside and all such
installations shall be in compliance with applicable codes and regulations.


 


I.              Intentionally
Omitted.


 


J.             Transfer of
Landlord’s Interest. Tenant acknowledges that Landlord has the right to
transfer its interest in the Premises, the Office Section and the Building
and in this Lease, and Tenant agrees that in the event of any such transfer
Landlord shall automatically be released from all liability under this Lease
provided the transferee assumes in writing all of the transferor’s liability
under this Lease (and shall be release from liability in any event to the extent
the transferee agrees to be liable therefor) and Tenant agrees to look solely
to such transferee for the performance of Landlord’s obligations hereunder. Tenant
further acknowledges that Landlord may assign its interest


 


56

















 


in this Lease
to a mortgage lender as additional security and agrees that such an assignment
shall not release Landlord from its obligations hereunder and that Tenant shall
continue 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 act
which can, shall or may encumber the title of Landlord.


 


L.             Prohibition
Against Recording. This Lease shall not be recorded by Tenant or by anyone
acting through, under or on behalf of Tenant, and the recording thereof in
violation of this provision shall make this Lease null and void at Landlord’s
election. At Tenant’s request, Landlord agrees to execute a Notice of Lease in
recordable form for recording with the Suffolk County Registry of Deeds.


 


M.           Captions. The
captions of paragraphs and subparagraphs are for convenience only and shall not
be deemed to limit, construe, affect or alter the meaning of such paragraphs or
subparagraphs.


 


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


 


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


 


57

















 


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


 


Q.            Definition of
Landlord. All indemnities, covenants and agreements of Tenant contained
herein which inure to the benefit of Landlord shall be construed to also inure
to 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 Commonwealth
of Massachusetts.


 


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


 


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


 


34.           NOTICES.


 


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


 


58

















 


or deposited in the United States mail, certified or registered mail
with 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 such
other person or such other address designated by notice sent by Landlord or
Tenant, and as provided in Paragraph 30 of this Lease.


 


B.            If to Tenant:


 


Addressed to Tenant at Tenant’s present address, and after occupancy of
the Premises by Tenant, at 200 Clarendon Street, Boston, Massachusetts 02116,
Attn: Richard Bartony with a copy to General Counsel at the same address or to
such 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 of
mailing as aforesaid, but for purposes of computing the period during which a
party may cure notice shall be deemed to have been given three (3) business
days after mailing provided the


 


59

















 


same is
actually delivered. Notice by hand delivery or reputable overnight courier
shall be deemed to have been given at the time of delivery.


 


35.           LIMITATION
ON LANDLORD’S LIABILITY.


 


It is expressly understood and agreed by Tenant that none of Landlord’s
covenants, undertakings or agreements are made or intended as personal
covenants, undertakings or agreements by Landlord or its partners, and any
liability for damage or breach or nonperformance by Landlord shall be
collectible only out of Landlord’s interest in the Property and in the proceeds
of any insurance policies carried by Landlord and no personal liability is
assumed by, nor at any time may be asserted against, Landlord or its
partners or any of its or their directors, officers, agents, employees, legal
representatives, successors or assigns, all such liability, if any, being
expressly waived and released by Tenant. The provisions of this Paragraph 35
shall expressly be applicable to and inure to the benefit of Landlord’s
successors and assigns. In no event shall Landlord or its constituent partners
be liable for any incidental or consequential damages in connection with its
obligations under, or any action taken by Landlord or its constituent partners
in connection with, this Lease. In no event shall Tenant or its constituent
partners be liable for any incidental or consequential damages in connection
with its obligations under, or any action taken by Tenant or its constituent
partners in connection with, this Lease.


 


36.           LANDLORD’S
DESIGNATED AGENT.


 


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


 


60

















 


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 the
Property, subject to payment by Tenant for such use at the prevailing rate
therefor charged by the operator of the garage from time to time (which as of
the date of this Lease is $285 per month per space); provided, however, at
Landlord’s option, all or some of Tenant’s parking may be relocated to the
Dartmouth Street Garage in the property adjacent to the Building and located on
Dartmouth Street, in which event, the payment due for use of such relocated l spaces shall be
at the prevailing rate charged therefor by the operator of the Dartmouth Street
Garage. In the event of non-payment of parking charges due hereunder by the
Tenant, Landlord shall have the right to terminate Tenant’s rights with respect
to parking without any obligation to reinstate such right to parking in the
event Tenant attempts to resume payment for parking.


 


38.           SIGNAGE.


 


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


 


39.           CONSTRUCTION
ALLOWANCE.


 


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


 


61

















 


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


 


In the event Qualified Costs are less than the Landlord’s Base
Allowance, Landlord shall allow Tenant a credit against Rent in an amount equal
to the difference between such amounts. Such credit shall be applied pro rata
over the term of this Lease.


 


40.           EXTENSION
OPTION.


 


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


 


B.            Tenant’s right of
extension shall be exercised, if at all, by written notice to Landlord given at
least twelve (12) months prior to the expiration of the original Term of this
Lease. If a notice is given in compliance with the provisions hereof, this
Lease shall, thereupon, be extended, subject to the terms of this paragraph,
without the need for any further instrument to be executed (but either party
shall 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 and
void. All of the terms, conditions and provisions of this Lease shall be
applicable to any extension of the Term hereof, as if the termination date of
the extension period were the date originally set forth herein for the
expiration of the Term, except that (i) the exercised right of extension
shall be of no further force or effect, so that there shall be no further right
of extension with respect thereto, (ii) the Base Rent during


 


62

















 


the extension
period shall be the “Fair Market Rent” (as hereinafter defined) and (iii) the
Base 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 similar
in size, condition of building, and services provided for a term of five (5) years
as of the date the extension is to commence, (i) without taking into
account actual improvements (regardless of who paid for such improvements), or
the cost of demolition of the space, and (ii) taking into account the Base
Year and the magnitude of free rent, if any, buildout allowance, if any, and
other market tenant inducements which would be offered to new tenants but are
not being offered to Tenant and (iii) taking into account the brokerage
commissions, if any, to be paid in connection with the renewal and compared to
the 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 provide
Tenant with its quotation of the “Fair Market Rent” as of the first day of the extension
period. If within thirty (30) days of having received Landlord’s quotation, Tenant
shall not have notified Landlord of its objection to Landlord’s quotation and
of Tenant’s calculation of Fair Market Rent, the “Fair Market Rent” quoted by
Landlord shall be the new Base Rent. If Tenant so notifies Landlord, the
parties shall discuss the matter in good faith for thirty (30) days after
Tenant’s notice. If within forty-five (45) days of having 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 (and if they are unable to do so, either party may request
that the President of the American Arbitration Association in Boston choose an arbitrator
(as promptly as possible) meeting the criteria of the second to last sentence
of 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’s
determination of “Fair Market Rent” as the “Fair Market Rent” hereunder. Such
arbitrator shall have at least ten (10) years’ experience in the valuation
and appraisal of office rents real estate in the


 


63

















 


Greater Boston
area. “Fair Market Rent” so determined by the arbitrator shall be the new Base
Rent and shall be binding on the parties.


 


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


 


41.           EXPANSION
OPTION: RIGHT OF FIRST OFFER.


 


A.            Provided that Tenant
is not in default under this Lease beyond any applicable notice and cure period
at the time of exercise of such option, Tenant shall have the option to expand
the Premises to include the approximately 20,084 rentable square feet of space
on the third floor of Two Copley Place shown on Exhibit E attached hereto and
made apart hereof, currently occupied by The United States Census Bureau
(the “Bureau”) (such space hereinafter referred to as “Expansion Space”) by
providing notice of the exercise of this expansion option (hereinafter, “Tenant’s
Expansion 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 the
Expansion Space setting forth the date of availability to the best of Landlord’s
knowledge and (ii) September 1, 2002. Such expansion shall be effective
(notwithstanding the date of anticipated availability) on the date (the “Expansion
Date”) on which Landlord delivers the Expansion Space to Tenant in broom clean
condition, free of all occupants, but in no event prior to the first to occur
of (x) the date the Landlord indicated to Tenant as to the anticipated
availability date or (y) September 1, 2003 if Tenant received no notice
from 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 occur
later than December 1, 2003 pursuant to the foregoing, Tenant shall have
the right to withdraw Tenant’s Expansion Notice by notice to the Landlord given
not more than thirty (30) days after the earlier of the date on which Landlord
in good faith notifies Tenant that the Expansion Space will not be available on
or before December 1, 2003, or December 1, 2003. In the event that
Tenant shall fail timely to give Tenant’s Expansion Notice to Landlord as
aforesaid, all obligations of


 


64

















 


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


 


(i)            The
Premises shall be deemed to include the Expansion Space, with the result that
all references in this Lease to the “Premises” (except for references to such
term in this Paragraph) shall for periods from and after the Expansion Date be
and be deemed to be, for all purposes hereunder, references to the Premises and
the Expansion Space;


 


(ii)           Base
Rent 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 office
space in the Back Bay area similar in size, condition of building and services
provided for a term of four (4) years as of the Expansion Date, (i) without
taking into account actual improvements (regardless of who paid for such
improvements), or the cost of demolition of the space, and (ii) taking
into account the Base Year and the magnitude of free rent, if any, buildout
allowance, if any, and other market tenant inducements, if any, otherwise
included in rents being quoted, and (iii) taking into account the
brokerage commissions, if any, to be paid in connection with the renewal and
compared to the market commission for 5-year leases. In this connection, within
fifteen (15) days after Tenant has given Tenant’s Expansion Notice, Landlord
shall provide Tenant with its quotation of the “Fair Market Rent” as of the
Expansion Date. If within thirty (30) days of having received Landlord’s
quotation, Tenant shall not have notified Landlord of its objection to Landlord’s
quotation and of Tenant’s calculation of


 


65

















 


Fair
Market Rent, the “Fair Market Rent” quoted by Landlord shall be the increase
to the Base Rent. If Tenant so
notifies Landlord, the parties shall discuss the matter in good faith for thirty (30) days after Tenant’s notice. If
within forty-five (45) days of
having 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 (and
if they are unable to do so,
either party may request that the President of the American Arbitration Association in Boston choose an
arbitrator (as promptly as possible) meeting the criteria of the second to last sentence of 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’s
determination of “Fair Market Rent” as the “Fair Market Rent” hereunder. Such arbitrator shall have at
least ten (10) years’ experience in the valuation and appraisal of office
rents peal estate in the Greater
Boston area. “Fair Market Rent” so determined by the arbitrator shall be the
increase in the Base Rent and shall be binding on the parties.


 


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


 


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


 


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


 


66

















 


proportionately
allocated between the period prior to and the period subsequent to  the delivery of the Expansion Space.


 


B. Replaced in 2nd Amendment


 


67

















 


C.
Replaced
in 2nd Amendment


 


68

















 


42.           SATELLITE
DISH: GENERATOR.


 


Notwithstanding anything to the contrary in this Lease, Landlord hereby
agrees that at any time during the term of this Lease, Tenant shall have the
right to install, (a) on the roof of the Building in a location mutually
agreed upon by Landlord and Tenant, a satellite communications dish, not more
than five (5) feet in diameter, and related equipment, and (b) in a
location mutually agreeable to Landlord and Tenant (at least one reasonable
location to be proposed by Landlord) a generator (such satellite communications
dish and related equipment and/or such generator referred to herein collectively
as “Equipment”). If Tenant shall install Equipment, Tenant shall do so at its own
cost and expense and in accordance with all applicable laws, rules and
regulations. 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 shall
defend, indemnify and hold Landlord harmless from and against any claims, costs
or expenses incurred by Landlord as a result of such
installation by Tenant. If Tenant shall install Equipment, Tenant shall be responsible
for the maintenance and repair thereof and for any maintenance, repair or replacement
of the roof, roofing system or other Building component occasioned by such installation
and/or other maintenance and repair of Equipment, all at Tenant’s sole cost and
expense. Any and all Equipment shall at all times remain the property of Tenant
and shall not be deemed a fixture or accession to the demised premises and/or
the 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 of
this Lease; provided that Tenant shall repair any and all damage to the demised
premises and/or the Building caused by such removal.


 


69

















 


43.           COMPETITIVE USES.


 


Landlord
agrees that during the Term of this Lease, Landlord shall not lease space
within Tower One to State Street
Bank, Brown Brothers Harriman or Chase Manhattan Bank for use in the business of transfer agency, mutual, funds
administration, foreign exchange,
securities lending or custody fund accounting; provided, however, if at anytime during the Term, the general
unemployment rate in Massachusetts equals eight percent (8%) as measured by the Federal Bureau of Labor Statistics or
the state agency charged with
producing such statistics for state purposes, this restriction shall thereafter
be of no further force or effect.


 


[Signatures
on next page]


 


70

















 


Executed as a
sealed 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

















 


FIRST AMENDMENT TO LEASE


 


THIS
FIRST AMENDMENT TO LEASE is made and entered into as of the 4th day of August, 2000 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 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 of
approximately 28,784 rentable square feet of space on the Sixth Floor of One
Copley Place, Boston, Suffolk County, Massachusetts, designated as Area B in
the Lease, and approximately 34,116 rentable square feet of space on the Seventh
Floor of One Copley Place, designated at Area A in the Lease, as more
particularly described in the Lease (collectively, from the Area B Commencement
Date, the “Premises”); and


 


B.                                     The size of the Premises has decreased from
that set forth in the Lease by reason of the requirement of law that a common
corridor be constructed within the area on the Sixth Floor originally
constituting a part of the Premises; and


 


C.                                     The parties now wish to amend the Lease as
hereinafter set forth to modify the Lease as to the area constituting the
Premises as well as the Rent and other provisions affected by the change in
such area.


 


NOW,
THEREFORE, in consideration of the mutual covenants and agreements hereinafter
set forth, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Landlord and Tenant hereby agree
as follows:


 


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


 


2.                                       From and after the Area B Rent Commencement
Date, Paragraph 1 of the Lease is hereby amended by deleting the section thereof
captioned “Base Rent”, and substituting the following words and figures
therefor:


 


	
  “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 of
the Lease is hereby amended by deleting the section thereof captioned “Tenant’s
Proportionate Share”, and substituting the following words and figures
therefor:


 


	
  “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.”

  



 

















 


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


 


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


 


IN
WITNESS WHEREOF, Landlord and Tenant have caused this document to be executed
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 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

  
						



 

















 


SECOND AMENDMENT TO LEASE


 


THIS SECOND AMENDMENT TO LEASE is made and entered into as of the 24
day of May, 2001 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 certain lease
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 First
Amendment to Lease dated August 4th,
2000 (the lease as so amended, the “Lease”), relative to premises consisting of
approximately 28,592 rentable square feet of space on the Sixth Floor of One
Copley Place, Boston, Suffolk County, Massachusetts, designated as Area B in
the Lease, and approximately 34,116 rentable square feet of space on the
Seventh Floor of One Copley Place, designated at Area A in the Lease, as more
particularly described in the Lease (collectively, from the Area B Commencement
Date, the “Premises”); and


 


B.                                     Pursuant
to its right of first offer set forth in the Lease, Tenant has agreed to add to
the Premises demised under the Lease, the Fourth Floor and Fifth Floor of One
Copley Place consisting of, respectively, 44,072 rentable square feet and
43,489 rentable square feet, referred to herein as the “4/5 Space”, such Fourth
Floor space and such Fifth Floor space being shown on Exhibit “Floor 4”
and Exhibit “Floor 5”, respectively, both such Exhibits being attached
hereto and made a part hereof; and


 


C.                                     The
parties now wish to amend the Lease as hereinafter set forth to modify the
Lease as to the area constituting the Premises as well as the Rent and other
provisions affected by the change in such area and to make certain other
modifications to the Lease as are hereinbelow set forth.


 


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


 


1.                                       To
amend the Lease to add to the Premises the 4/5 Space so that the first sentence
under the caption “Premises” in Paragraph 1 of the Lease shall read in its
entirety as follows:


 


	
  “Premises:

  	
   

  	
  From the
  Area A Commencement Date through the day immediately preceding the Area B
  Commencement Date, that portion of the Office

  



 

















 


	
   

  	
   

  	
  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 the
Lease is amended by adding thereto as Exhibit A-4 and Exhibit A-3,
respectively, Exhibit Floor
4 and Exhibit Floor 5 to this Second Amendment to Lease. In addition, by reason of the Tenant having
added Area C and Area D to the Premises, Paragraphs 41B and 41C of the Lease are deleted therefrom and of no
further force or effect and a
new 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 Copley
Place is The Massachusetts
Registry 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 its
Lease. Tenant further
acknowledges 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 Place
and for all or part of the 1st and/or
2nd floors
of 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 Copley
Place (which amendment or new
lease may include all or a portion of the 1st and 2nd floors of One Copley Place), provided Tenant is not, at the time
Landlord proposes to enter into
a new lease which includes the 3rd floor of One Copley Place with a third party, in default of Tenant’s obligations
under


 


2

















 


this
Lease beyond applicable periods of notice and grace, Landlord shall  not enter into such third-party lease which
includes 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 the
RFR Space) to Tenant on the terms and conditions contained in a letter of intent (a “LOI”) executed by anunrelated third party which desires to
lease such space. Without limiting the
generality of the foregoing, in the event the RFR Space includes space on floors of One Copley Place other than the
3rd floor, Tenant’s rights hereunder shall only be exercisable if Tenant
agrees to lease all of the RFR Space
subject to the other conditions of this subparagraph B.


 


If Tenant has the rights referred to in the preceding grammatical
paragraph, (x) Landlord shall
deliver a copy of the LOI to Tenant with the RFR. Notice and (y) Tenant shall have the right to lease the RFR Space
on the terms and conditions set
forth in the LOI, which right Tenant may exercise by giving written notice to Landlord within ten (10) business
days of receiving the RFR Notice
from Landlord; provided, however, if Tenant fails to exercise such right, Landlord shall be free to lease the RPR
Space according to the terms and
conditions of the LOI and such other terms that are not materially inconsistent with, or more favorable than, the terms
and conditions of the LOI, but
if Landlord fails to consummate such a lease of the RPR Space with the proposed tenant under the LOI, Tenant shall
again have a right of first
refusal to lease all or any portion of the 3rd floor of One Copley Place in accordance with and
subject to the provisions of this Section (that
is, the procedures of the first sentence of this Section shall again be invoked and Tenant’s rights shall be
subject to the Registry continuing
to occupy the space by reason of holdover, amendment of lease or new lease whether there was an intervening
aborted attempt to lease to a third
party as described above).


 


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


 


3

















 


case
with occupancy by the Registry, the Tenant shall have no right  hereunder 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 its
then current lease of all or a
portion of the 3rd floor of One Copley Place would otherwise terminate incident to a
renegotiation of the then-current lease(s) or an extension of the then current lease(s) or a re-leasing to The
Successor Tenant(s) of the 3rd floor of One Copley Place, or a part thereof, and Landlord expressly
negates any implication that it has any responsibility to the Tenant to assure that all or any portion
of the 3rd floor of One Copley Place becomes available to Tenant
hereunder by terminating the tenancy of a then tenant.


 


If Tenant validly exercises its right to lease the RFR Space, it shall
be 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’s
notice or, if the Registry holds over, the date on which the Registry vacates all or that portion of the
RFR Space occupied by the Registry,
on the terms and conditions specified in the RFR Notice and otherwise on the terms and conditions of this
Lease, modified as necessary to
make the same consistent with the RFR Notice.


 


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


 


(i)                                     the Premises shall be deemed to include the
RFR Space, with the result that
all references in this Lease to the “Premises” (except for references to such term in this
Paragraph) shall thereafter be and be deemed to be, for all purposes hereunder, references to the Premises
and such space except to the
extent 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 Landlord
shall deliver the same in a broom clean condition, free of all occupants, and
all work necessary to prepare the
RFR I Space for Tenant’s occupancy shall be performed by Tenant pursuant to plans and specifications therefor
prepared by Tenant and subject
to Landlord’s prior written approval (such approval not to be unreasonably withheld, conditioned or
delayed), all at Tenant’s sole cost and expense but, notwithstanding the foregoing, Landlord shall, at itsexpense, make such modifications, if
any, as are necessary to bring the atrium
wall adjacent to the space into compliance with the state building and fire codes; and


 


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


 


4

















 


with
the RFR Notice. In the year in which the RFR Space is delivered,  Tenant’s Proportionate Share applicable to
the RFR Space shall be proportionately
allocated 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 part
of: 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 this
Lease, 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 current
tenant of such space expires or
is terminated (as the case may be) which Landlord reasonably and in good faith estimates will be not be less than
three (3) years prior to the end of the then Term of this Lease, to third
parties other than the then tenant(s) by reason of such tenant not having (x) renewed or extended its Lease
for the 2nd floor space in whole or in part or (y) entered into a new lease or an amendment
of its existing lease with respect to the 2nd floor of One CopleyPlace), and provided Tenant is not then
in default of its obligations under this Lease beyond applicable periods of notice and grace, Landlord
shall promptly notify (the “RFO
I Notice”) Tenant of the terms under which it intends to offer the space on the 2nd floor of One Copley
Place which will no longer be
leased to the such tenant (the “RFO I Space”) and the date as of which Landlord estimates the RFO I Space
will be available and Tenant shall
have the right, by notice to Landlord given within thirty (30) days after receipt of Landlord’s notice by Tenant
to 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 in
Landlord’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 conditions
specified 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 the
RFO I Space to the Premises, as
of the RFO I Effective Date:


 


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


 


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


 


5

















 


pursuant
to plans and specifications therefor prepared by Tenant and  subject to Landlord’s prior written approval
(such approval not to be unreasonably
withheld, conditioned or delayed), all at Tenant’s sole cost and expense but, notwithstanding the
foregoing, Landlord shall at its expense, make such modifications, if any, as
are necessary to bring the atrium
wall adjacent to the space into compliance with the state building and fire
codes; and


 


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


 


In the event the Tenant fails to exercise the aforesaid right and (i) Landlord
has failed to enter into a lease of the RFO I Space within.sixty  (60) days of the RFO I Notice or (ii) after
the RFO I Space is subsequently
leased to a third party or parties and the RFO II Space is thereafter available for lease in whole or in
part 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 forth
in the two grammatical paragraphs
immediately preceding this grammatical paragraph, it being the intention hereof that such rights shall be
subject to the limitations on such rights
and particularly the right of the Landlord to make any kind of occupancy agreement with the then tenant(s)
as Landlord in its sole discretion
determines without interference by the Tenant. Thus, the Tenant shall have no right hereunder if the
then tenant continues to occupy all
or any part of the 2nd floor of One Copley Place after the date on
which its then current lease of
all of a, portion of the 2nd floor
of One Copley Place would
otherwise terminate incident to a renegotiation of the then current lease(s) or an extension of the then
current lease(s) or a re-leasing to
the then tenant of all or a portion of the 2nd floor of One Copley
Place, and Landlord expressly
negates any implication that it has any responsibility to the Tenant to assure that all or any portion of the 2nd floor of One Copley
Place becomes available to Tenant hereunder by terminating the tenancy of the then tenant. 


 


If Tenant does not exercise the right to lease such space and  thereafter Landlord proposes to lease such
space to a third party on terms which
vary from those contained in Landlord’s notice, Landlord shall again, and before leasing such space to
another party, offer the space to Tenant
in written notice upon such varied terms and Tenant shall have thirty (30) days after receipt of such notice
to add such space to the Premises
on such varied terms.


 


6

















 


If Tenant timely exercises its rights hereunder so that all or a part
of 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 this
Lease, 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 current
tenant of such space expires or
is terminated (as the case may be) which Landlord reasonably and in good faith
estimates will be not be less than three (3) years prior to the endof the then Term of this Lease, to
third parties other than the then tenant(s) by reason of such tenant not having (x) renewed or extended its lease
for the 1st floor space in whole or in part or (y) entered into a new lease or anamendment of its existing lease with
respect to the 1st floor of One Copley Place), the three grammatical paragraphs
immediately preceding this grammatical
paragraph shall be changed, mutatis
mutandis, so that Tenant shall have the same rights with respect to such 1st floor space as are described
in the foregoing provisions of this subparagraph B with respect to RFO I Space, subject to the same
limitations and conditions, and without
limiting the generality of the foregoing, references to “2nd floor of One Copley
Place” 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 “RFO
II Space.” 


 


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


 


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


 


(a)                                  Ninety (90) days after the Area C and D
Delivery Date (the “Area C and D Rent
Commencement Date”), the section thereof captioned “Base Rent” shall read
in its entirety as follows:


 


7






 













 


“Base
Rent:                                                           (i) From the Area A Rent
Commencement Date through the date immediately preceding the Area B Rent
Commencement Date, at the rate 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); (ii) from the Area B
Rent Commencement Date through the day prior to the Area C and D Rent
Commencement Date, at the rate of Two Million Five Hundred Seventy-One Thousand
Twenty-Eight and no/100 Dollars ($2,571,028.00) per annum, in equal monthly
installments 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 per
annum on 62,708 rentable square feet of space); (iii) from the Area C and
D Rent Commencement Date through the day prior to the fifth (5th) anniversary
of the Area B Rent Commencement Date, at a rate equal to the sum of Six Million
Eight Hundred Sixty-One Thousand Five Hundred Seventeen and no/100 Dollars
($6,861,517.00) per annum, in equal monthly installments of Five Hundred
Seventy-One Thousand Seven Hundred Ninety-Three and 08/100. Dollars
($571,793.08) (computed on the basis of $41.00 per rentable square foot per
annum 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 of
space in Area C and Area D, collectively; and (iv) from the fifth (5th) anniversary
of the Area B Rent Commencement Date through October 30,2007, at the rate
of 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-Seven
Thousand Four Hundred Seventy and O8/100 Dollars ($587,470.08) (computed on the
basis of $44.00 per rentable square foot per annum on 62,708 rentable square
feet of space in Area A and Area B, collectively and $49.00 per rentable


 


8

















 


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


 


(b)           The section thereof
captioned “Tenant’s Proportionate Share’’ shall read in its entirety as
follows:


 


“Tenant’s Proportionate Share:         With respect to the portion of Operating Expenses payable with
respect to Area A and Area B, collectively, (i) for
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% (the “Area A/B Proportionate Share”), and with respect to
the portion of Operating Expenses payable with respect to Area C and
Area D commencing on the Area C and D Rent Commencement
Date, collectively, 10.908% (the “Area C/D Proportionate Share”), such
percentages having been computed based on 95% occupancy of the
Building and being subject to adjustment as provided in
Paragraph 41 hereof.”


 


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


 


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


 


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


 


“Base Year Operating Expenses:       As to Area A and Aiea B, the amount of Operating
Expenses incurred with respect to Calendar Year 1999 (the “A/B
Operating Expense Base”) and as to Area C and Area D, the
amount of Operating Expenses incurred with respect to Calendar Year 2001 (the “C/D
Operating Expense Base”).”


 


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


 


“Tenant shall pay to Landlord or Landlord’s agent as
Additional Rent, an amount (“Expense Adjustment Amount”) equal to
the sum of (i) the Area


 


9

















 


A/B
Proportionate Share (as defined in Paragraph 1 of this Lease) of the amount by which
Operating Expenses incurred with respect to each Calendar Year exceeds A/B
Operating Expense Base (as defined in Paragraph 1 of this Lease)
plus (ii) for and with respect to all periods from and after the
Area C and D Rent Commencement Date, the Area C/D Proportionate Share (as
defined in Paragraph 1 of this Lease) of the amount by which Operating
Expenses incurred with respect to each Calendar Year exceeds C/D
Operating Expenses (as defined in Paragraph I of this Lease). With
respect to any Calendar Year within which Areas A, B, C and/or D
are added to the Premises, Tenant’s Expense Adjustment Amount
shall be prorated based on the portion of such Calendar Year that such
space is a part of the Premises.”


 


4.             Area
C and Area D shall be delivered on April 1, 2002 (the “Scheduled Area C
and D Delivery Date”) in an “AS IS, WHERE LOCATED” condition except Landlord
shall deliver the same in a broom clean condition, free of all occupants and furniture
and excess equipment associated with the data center currently in the 4/5 Space
removed but, notwithstanding the foregoing, Landlord shall, at its expense,
make such modifications as are necessary to bring the atrium wall adjacent to
the space into compliance with the state building and fire codes with all
mechanical and electrical systems in good working order. In the event that Area
C and/or Area D is not delivered to Tenant in the condition required pursuant
to this Section 4 on the Scheduled Area C and D Delivery Date, then the
provisions of Section 3.A of the Lease shall apply thereto except that the
phrase “Area C” shall be substituted for “Area A”, the phrase “Area D” shall be
substituted for “Area B”, the phrase “Scheduled Area C and D Delivery Date” shall
be substituted for the phrase “Area A Commencement Date”, the phrase “Scheduled
Area C and D Delivery Date” shall be substituted for the phrase “Area B
Commencement Date”, the phrase “Area C and D Rent Commencement Date” shall be
substituted for the phrase “Area A Rent Commencement Date”, the phrase “Area C
and D Rent Commencement Date” shall be substituted for the phrase “Area B Rent
Commencement 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 as
is not delivered on the applicable termination dates, and not with respect to
the entire Lease. Tenant shall also have the early access rights with respect
to Areas C and/or D as described in Section 3.B of the Lease and Landlord
shall provide Tenant with reasonable access to such other areas of the Building
as are necessary to the construction of the Tenant Work. The date on which Area
C and Area D are delivered in the condition required above shall be the “Area C
and D Delivery Date.”


 


5.             Tenant shall be responsible for all construction of
the Premises and all costs related thereto except as hereinafter
provided. Such construction shall be accomplished in accordance with the work
letter attached hereto as Exhibit ”Work Letter*1 and made a part hereof (the “Work Letter” for purposes hereof). The sum which is the


 


10

















 


lesser of (a) the
amount spent by Tenant on its “Qualified Costs” incurred in construction of the Premises
as certified to Landlord by Tenant and, as to construction, wiring and cabling 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 in
the Work Letter). .Such amount shall be due and payable by Landlord as
described in the Work Letter. For purposes hereof, “Qualified Costs” shall mean actual
out-of-pocket costs for (a) preparation of drawings and other expenses incurred in
connection with construction of the 4/5 Space, including without limitation permit fees and
costs of labor and materials, (c) construction of the Premises in accordance with
Working Drawings for such space approved by Landlord, and payment with respect to
Qualified Costs to be made, in a manner consistent with the Work Letter, (d) wiring
and cabling in the Premises and (e) architectural, engineering and other professional
fees relating to construction of the Premises. Landlord hereby agrees that Tenant shall
have the right to use Lee Kennedy Company, Inc., Payton Construction Corporation, Turner
Construction Company or H&H Builders for the construction of Tenant’s Work,
so long as the work is union.


 


In
the event Qualified Costs are less than the Landlord’s Base Allowance, Landlord shall
allow Tenant a credit against Rent in an amount equal to the difference between such
amounts. Such credit shall be applied pro rata over the term of this Lease.


 


6.             Any term contained in this
Second Amendment to Lease having an initial capital letter and not
otherwise herein defined shall have the meaning assigned to it in the Lease.


 


7.             The Lease, as hereby
amended, is ratified and confirmed and remains in full force and effect, and
rights of Tenant contained in the Lease shall apply to Area C and Area D,
including without limitation, the right to connect such areas to the Equipment
described in Section 42 of the Lease.


 


8.             Paragraph 37 of the Lease is
amended so that Tenant shall have the right to eighteen (18) non-reserved
parking spaces and such paragraph is further amended so that at least two (2) of
such non-reserved parking spaces shall at all times be located in the garage located
within and serving the Property.


 


9.             The first sentence of
Paragraph 38 of the Lease shall be modified so as to read in its entirety as
follows:


 


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


 


10.           Landlord represents and
warrants that Metropolitan Life Insurance Company continues to hold
the only mortgage which encumbers the Property and that


 


11

















 


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


 


11.           Landlord represents and
warrants that it may enter into this Second Amendment of Lease without
the consent or approval of any other party.


 


IN
WITNESS WHEREOF, Landlord and Tenant have caused this document to be executed 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 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

  
							



 


12

















 


EXHIBIT WORK LETTER


 


INVESTORS BANK & TRUST COMPANY


 


BOSTON, MASSACHUSETTS


 


WORK LETTER


 


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


 


A.            Space Design Package


 


Landlord
shall promptly after the execution of the Lease furnish to Tenant one (1) reproducible
sepia and one (1) blue-line print of the demise layout of the
Premises, and the Landlord’s design guidelines and standard improvement
details (“Landlord’s Design Criteria”) which gives the technical and
design information relative to the Premises, (collectively, “Landlord’s
Space Design Package”). Landlord gives no assurance that the sepia and
print provided accurately present existing conditions; it is Tenant’s
responsibility to field verify conditions.


 


B.            Space Layout


 


1.             Prior to
commencing construction of the New Premises, Tenant agrees to deliver to
Landlord one (1) set of sepia reproducibles and two (2) sets of
blue-line prints of Tenant’s approved Space Layout (the “Space Layout”) of the
New Premises sufficiently complete to permit preparation of architectural,
structural, plumbing, fire protection, mechanical and
electrical engineering drawings for the New Premises. The Space
Layout shall designate and include all Tenant finish work (“Tenant
Improvement Work”) and shall specifically include,
without limitation:


 


a.             Partition
layout and door location;


 


b.             Electrical
outlet locations, data cable, sound system, paging system, etc. and anticipated
usage thereof.


 


c.             Tenant’s telephone
system indicating location of outlets.


 


1

















 


d.             Reflected
ceiling plan, including ceiling grid, lighting, switching, sprinkler, diffusers,
registers, speakers and all other items necessary for
the engineering design to be incorporated in the Working
Drawings (hereinafter defined).


 


e.             Tenant’s
anticipated occupancy loads for any area in which such occupancy load is
expected to be in excess of building standard heating,
ventilation, air conditioning, electrical and structural designs
(e.g., computer rooms, print/copy machines., equipment to be
used in any luncheon areas, concentrated file and
library loadings and any other equipment or systems (with
brand names wherever possible) which require structural, mechanical, fire protection,
electrical, or life safety modifications [above that set forth in Landlord’s
Design Criteria]).


 


2.             Within seven (7) days
of Landlord’s receipt of Tenant’s Space Layout, Landlord shall
review the same for compliance with the intended space usage
requirements of the New Premises consistent with the Lease, and return
to Tenant one (1) sepia of the same with Landlord’s comments.


 


3.             Landlord’s
review of the Space Layout shall not imply (i) approval by Landlord as
to compliance of the Space Layout with the requirements of applicable
codes, rules or regulations of any governmental agencies having
jurisdiction over the New Premises or (ii) the Space
Layout’s compatibility with the Building’s shell and core construction.
Tenant understands that the obtaining of all permits to comply with all
applicable codes, rules and regulations and the compatibility of the
Space Layout with the Building’s shell and core construction is
Tenant’s responsibility. Landlord will cooperate with Tenant, at
Tenant’s expense, in Tenant’s applications for permits
and, where necessary, will make such certifications in connection
with such applications as are required and correct.


 


C.            Working Drawings


 


1.             Within thirty
(30) days (the “Working Drawing Delivery Date”) of Tenant’s receipt of Landlord’s
comments on the Space Layout, Tenant agrees to deliver to
Landlord one (1) set of sepia reproducibles and three (3) sets
of blue-line prints of working drawings and specifications
for the New Premises (hereinafter


 


2

















 


referred
to collectively as “Working Drawings”) prepared, at Tenant’s sole cost and
expense by an architect (“Tenant’s Architect”) licensed in the
Commonwealth of Massachusetts and reasonably acceptable to
Landlord.  Landlord hereby approves Dick Davis and
Associates as Tenant’s Architect. All structural, plumbing, fire protection,
mechanical and electrical engineering aspects of the Working
Drawings shall be prepared by engineers approved by the Landlord,
such approval to be not unreasonably withheld.


 


2.             Within fourteen
(14) days after receipt of Tenant’s Working Drawings, Landlord shall
return to Tenant one (1) sepia set of same marked “Approved”, “Approved
as Noted’, or “Disapproved as Noted, Revise and Resubmit”.
 If said Working Drawings are returned to
Tenant marked “Disapproved as Noted, Revise and Resubmit (in which event,
Landlord shall state the reasons for such disapproval), such
drawings shall be revised by Tenant to incorporate Landlord’s
reasonable comments and resubmitted to Landlord within twenty-one
(21) days and the same procedure shall be repeated until Landlord
fully approves the Working Drawings, which approval shall not be
unreasonably withheld, conditioned or delayed. Landlord shall not
withhold approval based on purely aesthetic considerations so
long as the offending aesthetics are not visible outside of the
space.


 


3.             It is
understood that the Working Drawings are to be consistent with and a
logical extension of the approved Space Layout. Any inconsistencies between the
Working Drawings and the shell and core construction of the
Building shall be Tenant’s sole responsibility. Tenant shall
also be solely responsible for the completeness of the Working
Drawings.


 


4.             In the event
Landlord approves the Working Drawings, such approval shall not limit
Landlord’s right to require changes in portions of the Working
Drawings which are incompatible with Landlord’s Design Criteria
or which adversely affect Building structure, systems or the
availability to Landlord of third party warranties. When the Working
Drawings are approved by Landlord and Tenant, they shall be
acknowledged as such by Landlord and Tenant signing each sheet of the
Working Drawings and a complete copy of the Working Drawings
shall be provided to Landlord by Tenant.


 


3

















 


D.            Payment for Tenant
Improvement Work


 


1.             Tenant shall
submit to Landlord monthly requests for payment (“Request for Payment”) as
Qualified Costs (as defined in the Second Amendment to Lease to
which this Work Letter is attached) are incurred. Such
Requests for Payment shall be for the portion of the Work
completed during the period covered by such Request for Payment less the
customary retainage (which retainage shall be paid within thirty
(30) days of completion of the Work). Landlord shall make payments
under each Request for Payment an amount equal to the
amount shown on the Request for Payment as due and payable for Work
completed (less amounts which were the subject of prior
Requests for Payment and are to be paid under such prior Requests)
multiplied by a fraction, the numerator of which is Landlord’s Base
Allowance and the denominator of which is the total of Qualified
Costs reasonably estimated by Tenant (based upon contracts for
such work) as the total Qualified Costs for construction of the New
Premises. Payments due hereunder from Landlord shall be made
within thirty (30) days of submission of completed Requests for
Payment.  To the extent Landlord has approved any
changes (as defined below), Landlord will pay the cost thereof after
substantial completion of construction of the New Premises to the extent the
total Qualified Costs do not exceed Landlord’s Base Allowance.
Tenant shall pay all costs incurred in connection with such
changes, subject to Landlord’s later reimbursement.
Notwithstanding the foregoing, Landlord will have no obligation with respect
to any Request for Payment if Tenant has not theretofore
made all payments due from Tenant with respect to construction
or if Tenant’s construction has resulted in any liens then
encumbering the Building or if Landlord’s documentation with respect to
the Request for Payment is not reasonably satisfactory to
Landlord.


 


2.             In the event
Landlord does not timely fund any portion of the Qualified Costs for which
Landlord is responsible hereunder, Tenant shall notify Landlord
of Landlord’s failure and if Landlord does not cure the same
within thirty (30) days of such notice, Tenant may make such payment
and the amount for which Landlord was responsible may be offset by the
Tenant against rent payments under the Lease thereafter becoming
due.


 


E.             Changes to the Work


 


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


 


4

















 


Upon
approval of a proposed Change to the Work, Tenant shall cause changes to the
Working Drawings to be made to reflect the changes to the Work and Tenant
will supply revised Working Drawings to the Landlord.  Such changes to the Working
Drawings must be consistent with the description of the change in
Landlord’s Field Order Form.


 


F.             Performance of Work


 


Tenant
agrees that all construction, and services and work performed on the New
Premises including installation of telephone and carpeting, and delivery of
materials and personal property to the New Premises on behalf of or for the
account of Tenant shall be performed or delivered, as the case may be only by
persons whose employment for such tasks shall not result in any work stoppage or
slow-down by union members working in the Building.


 


G.            Access


 


Landlord
shall allow such Tenant contractors to have access to the Building and to
use the freight elevator serving the Building. Scheduling to the use of
the freight elevator shall be as reasonably determined by the Landlord.


 


H.            Tenant’s Representative;
Tenant’s Contractor


 


Tenant
hereby designates Richard D. Bartony as its sole representative with respect to
the matters set forth in this Work Letter and such person shall have full
authority and responsibility to act on behalf of Tenant as required
herein. Tenant’s Architect shall not be an authorized representative
of Tenant unless Tenant specifically advised Landlord in writing of such
designation.


 


5

















 


THIRD AMENDMENT TO LEASE


 


THIS THIRD AMENDMENT TO LEASE is made and entered
into 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 certain
lease 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 First
Amendment to Lease dated August 4th, 2000 and a Second Amendment to Lease
dated May   , 2001 (the lease as so amended, the “Lease”),
relative to premises consisting of 44,072 rentable square feet of space
comprising the entire Fourth Floor of One Copley Place, designated as Area D in
the Lease; 43,489 rentable square feet of space comprising the entire Fifth
Floor of One Copley Place, designated as Area C in the Lease; 28,592 rentable
square feet of space on the Sixth Floor of One Copley Place, Boston, Suffolk
County, Massachusetts, designated as Area B in the Lease; and 34,116 rentable
square feet of space on the Seventh Floor of One Copley Place, designated at Area
A in the Lease, as more particularly described in the Lease (collectively, the “Premises”);
and


 


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


 


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


 


1.             Termination
Date.  To extend the Term of the
Lease to December 31, 2014, and consistent therewith to amend the caption “Termination
Date” 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 after
October 31, 2007 through the Termination Date, and consistent therewith to
amend the caption “Base Rent” in Paragraph 1 of the Lease by adding at the end
thereof, immediately prior to the parenthetical expression “(See Paragraph 4)”
the following sentence:


 


1

















 


“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 Three
Hundred Thirty-Nine and no/100 Dollars ($4,658,339.00) per annum, in equal
monthly installments of Three Hundred Eighty-Eight Thousand One Hundred
Ninety-Four and 92/100 Dollars ($388,194.92) (computed on the basis of $31.00
per 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 of
Five 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 Hundred
Twenty-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 150,269
rentable square feet of space); provided, however, if prior to October 31,
2007, Tenant has not made alterations and/or additions to the Premises (in
accordance with the requirements of Paragraph 10 of this Lease) which cost less
than $751,345.00 in actual contractor costs (as distinguished from costs
related thereto of architects, engineers and lawyers and other so-called “soft
costs”, the Base Rent payable during the period commencing November 1,
2007 shall be increased by the difference between such costs and $751,345.00
and one-eighth of such difference shall accordingly be paid as Base Rent on the
first day of each calendar month commencing November 1, 2007 and ending on
June 30, 2008.”


 


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


 


“Tenant’s Proportionate
Share:         18.7193% of
Operating Expenses (computed on the basis of 95% occupancy), such percentages
having been computed based on 95% occupancy of the Building and being subject
to adjustment as provided in Paragraph 41 hereof.”


 


2

















 


4.             Base Year.  The caption “Base Year” in Paragraph 1 shall
be 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 feet
comprising the Premises on December 31, 2004, the Calendar Year 2007.”


 


and
the caption “Base Year Operating Expenses” shall be correspondingly amended by
adding thereto the following sentence:


 


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


 


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


 


“For periods through October 31, 2007, Tenant
shall pay to Landlord or Landlord’s agent as Additional Rent, an amount (“Expense
Adjustment Amount”) equal to the sum of (i) the Area A/B Proportionate
Share (as defined in Paragraph 1 of this Lease) of the amount by which
Operating Expenses incurred with respect to each Calendar Year exceeds A/B
Operating Expense Base (as defined in Paragraph 1 of this Lease) plus (ii) for
and with respect to all periods from and after the Area C and D Rent
Commencement Date, the Area C/D Proportionate Share (as defined in Paragraph 1
of this Lease) of the amount by which Operating Expenses incurred with respect
to each Calendar Year exceeds C/D Operating Expense Base (as defined in
Paragraph 1 of this Lease).  With respect
to any Calendar Year within which Areas A, B, C and/or D are added to the
Premises, Tenant’s Expense Adjustment Amount shall be prorated based on the
portion 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 (as
defined in Paragraph 1 of this Lease) of the amount by which Operating Expenses
incurred with respect to each Calendar Year exceeds Base Year Operating
Expenses for the applicable Base Year (as defined in Paragraph 1 of this
Lease).”


 


6.             Compliance with
Laws.  Subclause (iii) of the
second sentence of Paragraph 7 is hereby amended to delete the words “on and
after the Area A Commencement Date as to Area A and the Area B Commencement
Date as to Area B” therefrom.


 


3

















 


7.             Signage.  Paragraph 38 of the Lease is hereby amended
to 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 Tower
One, subject to Landlord’s approval not to be unreasonably withheld.  Tenant shall also have the right to install
in the lobby of each floor of One Copley Place (and if any portion of the
Premises should hereafter be located in Two Copley Place, then also on each
such 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, provide
building standard signage, naming the Tenant and its location, on building
directories located in the Sky Lobby and in the lobby of One Copley Place” (and
if 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 amended
to read in its entirety as follows:


 


“40.         EXTENSION OPTIONS.


 


A.            Tenant shall have the right
to extend the Term of this Lease for two (2) successive additional five (5) year
periods, such right of Tenant to be conditioned upon this Lease at the time of
election being in full force and effect and Tenant not then being in default
under this Lease beyond any applicable notice and cure period, the first such
extension period to commence upon the expiration of the original Term of this
Lease and the second such extension period to commence upon the expiration of
the first extension period, but only if the first right of extension was timely
and properly exercised.


 


B.            Tenant’s rights of extension
shall be exercised, if at all, by written notice to Landlord given at least
twelve (12) months prior to the expiration of the then current term of this
Lease.  If a notice is given in
compliance with the provisions hereof, this Lease shall, thereupon, be extended
for the applicable period, subject to the terms of this paragraph, without the
need for any further instrument to be executed (but either party shall 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 and void.  All of the terms, conditions and provisions
of this Lease shall be applicable to any extension of the Term hereof, as if
the termination date of the extension period were the date originally set forth
herein for the expiration of the Term, except that (i) the exercised right
of


 


4

















 


extension shall be of no further force or effect, so
that there shall be no further right of extension except, during the first
extension term, for Tenant’s right to extend for a second extension term as
provided in this Paragraph 40, (ii) the Base Rent during the extension
period shall be ninety-five percent (95%) of the “Fair Market Rent” (as
hereinafter defined) and (iii) the Base 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 similar in
size, condition of building, and services provided for a term of five (5) years
as of the date the extension is to commence, (i) without taking into
account actual improvements (regardless of who paid for such improvements), or
the cost of demolition of the space, and (ii) taking into account the Base
Year and the magnitude of free rent, if any, buildout allowance, if any, and
other market tenant inducements which would be offered to new tenants but are
not being offered to Tenant and (iii) taking into account the brokerage
commissions, if any, to be paid in connection with the renewal and compared to
the market commission for 5-year leases.


 


D.            Within fifteen (15) days
after exercise of an extension right, but not earlier than fifteen (15) months
prior to the expiration of the then Term, Landlord shall provide Tenant with
its quotation of the “Fair Market Rent” as of the first day of the extension
period.  If within thirty (30) days of
having received Landlord’s quotation, Tenant shall not have notified Landlord
of its objection to Landlord’s quotation and of Tenant’s calculation of Fair
Market Rent, the “Fair Market Rent” quoted by Landlord shall be the new Base
Rent.  If Tenant so notifies Landlord,
the parties shall discuss the matter in good faith for thirty (30) days after
Tenant’s notice.  If within forty-five
(45) days of having 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 (and
if they are unable to do so, either party may request that the President of the
American Arbitration Association in Boston choose an arbitrator (as promptly as
possible) meeting the criteria of the second to last sentence of 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’s determination of “Fair Market Rent” as the “Fair
Market Rent” hereunder.  Such arbitrator
shall have at least ten (10) years’ experience in the valuation and
appraisal of office rents real estate in the Greater Boston area.  “Fair Market Rent” so determined by the
arbitrator shall be the new Base Rent and shall be binding on the parties.


 


5

















 


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


 


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


 


“A.          Provided that Tenant is not in default under this
Lease beyond any applicable notice and cure period at the time of exercise of
the option then being exercised, Tenant shall have options to expand the
Premises in each of calendar years 2008 and 2011 to include an additional
15,000 to 25,000 rentable square feet (which may be reduced as described below
in this Paragraph 41 A) of space in the Building (each such space, an “Expansion
Space” and the location in the Building being solely within the Landlord’s
discretion so long as the entire square footage of the Expansion Space offered
to Tenant constitutes a single block of space on one floor of the Building) for
a term beginning on the Expansion Date (as hereinafter defined) and ending on
the Termination Date.  No later than
twelve (12) months prior to the date in each of 2008 and 2011 in which Landlord
anticipates an Expansion Space will be available for occupancy by Tenant (each
such date an “Anticipated Expansion Date”), Landlord shall provide Tenant
notice thereof, setting forth the size and location of the space covered by the
option and the Anticipated Expansion Date for such Expansion Space.  Notwithstanding the foregoing, if during the
twenty (20) month period preceding an Anticipated Expansion Date, Tenant
exercises an option or options to acquire space pursuant to its rights under
Paragraph 41B of this Lease, the amount of an Expansion Space which Landlord
would otherwise be required to offer to Tenant under this Paragraph A may be
reduced, at Landlord’s discretion by notice given within thirty (30) days of
Tenant’s exercise of its rights under Paragraph 4IB, by the amount of square
footage leased by Tenant during that twenty (20) month period pursuant to
Tenant’s rights under Paragraph 41B, except that once Tenant has delivered
Tenant’s Expansion Notice (as hereinafter defined), the amount of square
footage of the applicable Expansion Space shall not be subject to reduction as
aforesaid.  Tenant may exercise its
options hereunder by providing notice of exercise (hereinafter, a “Tenant’s
Expansion Notice”) to the Landlord not later than thirty (30) business days
after its receipt of Landlord’s notice to Tenant of the availability of the
Expansion 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 “Expansion
Date”) on which Landlord delivers the Expansion Space to Tenant in broom clean
condition, free of all occupants, but in no event prior to the Anticipated
Expansion Date and in no event later than the last day of the calendar year in
which such Expansion Space is to have been delivered pursuant hereto (i.e., 2008
or 2011).  In the event that Tenant


 


6

















 


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


 


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


 


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


 


7

















 


forty-five (45) days, attempt to agree on an
arbitrator not affiliated with either party (and if they are unable to do so,
either party may request that the President of the American Arbitration
Association in Boston choose an arbitrator (as promptly as possible) meeting
the criteria of the second to last sentence of 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’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 in
the valuation and appraisal of office rents real estate in the Greater Boston
area.  “Fair Market Rent” so determined
by the arbitrator shall be the increase in the Base Rent and shall be binding
on the parties.


 


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


 


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


 


(iv)          Tenant’s Proportionate Share
shall be increased proportionately to take into account the additional floor
area of the Expansion Space.  In the year
in which an Expansion Space is delivered, Tenant’s Proportionate Share shall be
proportionately allocated between the period prior to and the period subsequent
to the delivery of the applicable Expansion Space.”


 


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


 


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


 


8

















 


entered into a new lease for the space) after January 1,
2006, and thereafter during the Term of this Lease, as the same may be
extended, or (ii) space in Tower One of the Office Section becomes so
available 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 Lease
beyond applicable periods of notice and grace, Landlord shall promptly notify
Tenant of the terms under which it intends to offer such space, and as to such
space in Tower Two together with such other space in the Building as would be
the subject of such offer (the space to be subject to such offer in each such
event, “RFO Space”) and the date as of which Landlord estimates the subject RFO
Space will be available and Tenant shall have the right, by notice to Landlord
given within thirty (30) days after receipt of Landlord’s notice by Tenant to
add such space to the Premises, effective as of the date (the “RFO Effective
Date”) which is the later to occur of the date set forth in Landlord’s notice
or, if the then current tenant holds over, the date on which the then current
tenant vacates the RFO Space and Landlord delivers the RFO Space to Tenant in
broom clean condition and free of all occupants.  The term for any RFO Space added to the
Premises shall be coterminous with the Term of this Lease for the Premises, as
such 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 square
feet, Landlord shall have no obligation to lease such RFO Space to the Tenant
for a term of less than two (2) years from the date which Landlord
reasonably anticipates will be the RFO Effective Date for such RFO Space, (ii) is
equal to or greater than 25,000 rentable square feet and less than 50,000
rentable square feet, Landlord shall have no obligation to lease such RFO Space
to the Tenant for a term of less than three (3) years from the date which
Landlord reasonably anticipates will be the RFO Effective Date for such RFO
Space 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 a
term of less than five (5) years from the date which Landlord reasonably
anticipates will be the RFO Effective Date for such RFO Space.


 


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


 


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


 


9

















 


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


 


(iii)          Tenant’s Proportionate Share
shall be increased proportionately to take into account the additional floor
area of the subject RFO Space.  In the
year in which the subject RFO Space is delivered, Tenant’s Proportionate Share
shall be proportionately allocated between the period prior to and the period
subsequent to the delivery of the subject RFO Space.


 


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


 


In the event the Tenant
fails to exercise the aforesaid right and (i) Landlord has failed to enter
into a lease of the subject RFO Space within sixty (60) days of the applicable
RFO Notice, Tenant shall again have the rights with respect to such RFO Space
as described above, it being the intention hereof that such rights shall be
subject to the limitations on such rights and particularly the right of the
Landlord to make any kind of occupancy agreement with the then current
tenant(s) of the applicable RFO Space, if any, as Landlord in its sole
discretion determines without interference by the Tenant.”


 


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


 


10

















 


the same is delivered to Tenant in accordance with
the terms of this Lease.  If the failure
of delivery of the applicable space is on account of the holdover of another
tenant (a “holdover tenant”), then from and after the Anticipated Expansion
Date or the estimated RFO Effective Date, as applicable, Landlord shall pay to
Tenant (or at Tenant’s option, Tenant may elect to receive such amount in the
form 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) due
from the holdover tenant (“holdover rent”) with respect to the space which was
to have been delivered to Tenant and with respect to the period beginning on
the Anticipated Expansion Date or the estimated RFO Effective Date, as
applicable, and the amount which would have been payable by Tenant under this
Lease with respect to such period had the Premises been delivered on the
Anticipated Expansion Date or the estimated RFO Effective Date, as applicable,
as and when payable by such holdover tenant pursuant to its lease and
regardless of whether holdover tenant can or does make payment (Landlord having
the risk of collectibility).  If Landlord
fails to deliver the Expansion Space or RFO Space within sixty (60) days after
the Anticipated Expansion Date or the estimated RFO Effective Date, as applicable,
irrespective of the reason for such failure, then Tenant shall continue to
receive the excess of the holdover rent payable thereafter with respect to such
space less the amount that would have been due from Tenant until the earlier of
Tenant terminating its rights with respect to the space by reason of the
failure to deliver or the date on which the space is delivered (or a rent
credit with respect thereto) and shall, in addition, receive a rental credit
(the “Credit”) towards its Base Rent thereafter due under this Lease with
respect to such space equal to one (1) day of the Base Rent allocable to
the Expansion Space or RFO Space, as applicable, due under this Lease for each
day from and after the expiration of such sixty (60) day period through the date
of the Expansion Date or the RFO Effective Date, as applicable, actually
occurs.  Furthermore, by notice to the
Landlord given to the Landlord within five (5) days after the end of the
additional thirty (30) day period commencing on the expiration of the sixty
(60) day period, the Tenant may terminate its rights with respect to the space
which Landlord has to such date failed to deliver and Tenant shall thereupon
have no right to any portion of the holdover rent payable with respect to
periods after the date of such notice or any Credit with respect to the period
after the date of such notice, but Landlord may by notice to Tenant within five
(5) days after receiving such termination notice from Tenant elect to
delay such termination until the end of an additional thirty (30) day period
commencing at the end of the ninety day period (comprised of the sixty (60) day
period and the additional thirty (30) day period after which Tenant gave its
notice of termination) and in such event, the right to the portion of holdover
rent shall continue during such final thirty (30) day period as will the Credit
applicable to such period; and


 


11

















 


the termination shall not be effective if within the
final thirty (30) day period, Landlord delivers such Expansion Space or RFO
Space as required under this Lease. 
Tenant shall be entitled to offset against its Base Rent due under this
Lease the amount of any rent credit to which Tenant is entitled to under the
provision of this Paragraph 41C; provided, however, Tenant shall not be
entitled to offset any Credit against Base Rent, nor shall tenant be entitled
to any payment with respect thereto if the Expansion Space or the RFO Space, as
applicable, with respect to which such Credit is payable does not become a part
of the Premises at the end of the period during which the Credit was
generated.  Landlord agrees that in the
event it becomes aware that the current tenant of any Expansion Space or any
RFO space may hold over in such space beyond the date specified as the delivery
date therefor in the applicable Landlord’s notice, Landlord shall, if Tenant
has exercised its rights to add such space to the Premises, promptly notify
Tenant of the same and shall provide regular updates to Tenant as to the status
of the holdover tenant and that date on which it then intends to vacate the
applicable space.  Landlord shall use
reasonable commercial efforts to cause holdover tenant to vacate the applicable
space.


 


11.           Roof Rights; Generator; Additional Cooling.  In addition to Tenant’s rights under
Paragraph 42 of the Lease, Landlord hereby grants to Tenant the right to
additionally install (i) during the period ending twenty-four (24) months
after the date of this Third Amendment to Lease, in a location mutually
agreeable to Landlord and Tenant (at least one reasonable location to be
proposed by Landlord), an additional standby diesel generator and related
diesel tank, and related equipment; (ii) in a location mutually agreeable
to Landlord and Tenant (at least one reasonable location to be proposed by
Landlord), an additional chiller on the roof of Tower One; and (iii) additional
air handling equipment on the roof of the Building in order to accommodate
Tenant’s ventilation needs so that Tenant can accommodate an occupancy level of
one person for each 125 rentable square feet in the Premises.  Landlord agrees to exercise commercially
reasonable efforts to adjust its existing Office Section HVAC system to
provide to Tenant an additional 8,000 Cubic Feet per Minute of outside
ventilation/fresh air, but if the same requires that the Landlord incur costs
to modify its system or additional operating costs with respect thereto,
Landlord will provide Tenant with its best estimate of such costs, and Tenant
may at Tenant’s option exercised by notice to the Landlord agree to be
responsible for all such costs in which event Landlord shall so modify the
system and the parties will enter into an appropriate amendment to this Lease
to reflect such obligation of Tenant.  If
Tenant does not exercise such option, Landlord shall be under no obligation to
so modify its system.  All additional
equipment referred to above and installed by Tenant, together with the
equipment already referred to in said Paragraph 42, shall be included in the
definition of Equipment for all purposes of the Lease.  Notwithstanding anything in Paragraph 42 or
elsewhere in the Lease to the contrary, (i) with respect to any cooling
equipment installed by Tenant hereunder, Tenant shall have no obligation to
remove such Equipment from the roof if Tenant has remained in the Premises
through the end of the initial Term and through all extension periods, and (ii) with
respect to any generator and


 


12

















 


diesel
tank installed hereunder, the same shall be removed at the end of the Term
unless Landlord elects by a then notice to Tenant to require Tenant to remove
such generator and the related diesel tank within one hundred twenty days
following such notice.  Obligations with
respect to removal shall survive any termination of this Lease.  It is understood that Tenant’s existing
rights to a roof antenna permits microwave communication devices.


 


12.           Security and First Responders.  Landlord shall continue to provide a security
card access system on the skylobby level and two (2) manned security
stations during normal business hours to monitor all skylobby activity.  Each tower shall continue to be equipped with
a card reader and magnetic locking device. 
Notwithstanding the foregoing, Landlord may from time to time replace
such manned and card based system with a more advanced security system that is
consistent with Class A buildings in Boston.  Landlord shall, within six months after
execution of this Third Amendment to Lease, provide security personnel at the
Building during normal Building business hours that are trained “First
Responders,” trained and certified in CPR and cardiac defibrillation.  It is understood that such technicians may
not be available at all times during such business hours and that Landlord may
not be able to maintain such trained personnel continuously during the Term.


 


13.           Tenant Improvements.  Tenant acknowledges that no further amount is
owed by Landlord to Tenant under the provisions of Paragraph 39 of the
Lease.  In connection with this Third
Amendment to Lease, Landlord shall provide Tenant with an additional
construction allowance in the amount of $6,611,836.00 (the “Allowance”).  Of the Allowance, $3,305,918.00 shall be paid
to Tenant on the date upon which this Third Amendment to Lease has been fully
executed and delivered by the Parties, and the balance of the Allowance equal
to $3,305,918.00 shall be paid on the first business day following the
forty-fifth day after Tenant requests such amount, but in no event prior to January 2,
2006.  The aforesaid Allowance may be
used 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 of
the date due, Tenant may offset such amount against Rent thereafter becoming
due; provided, however, if Tenant receives any portion of the balance of such
Allowance after so offsetting such that the offset(s) plus the amount so
received exceeds $3,305,918.00, Tenant shall promptly pay said excess to
Landlord as Additional Rent under the Lease.


 


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


 


B.            If Tenant requests or was
obligated to request Landlord’s consent to assign this Lease or sublet all or
any portion of the Premises, in addition to withholding its consent, Landlord
shall have the 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,
in the case of a


 


13

















 


subletting of a portion of the Premises for a term
which ends within six (6) months of the end of the then term of this
Lease, for such portion of the Premises. 
If Landlord exercises its right to terminate, Tenant shall have the right
to rescind its request for consent and agree not to assign or sublet by written
notice of such rescission and agreement given to Landlord within five (5) business
days of the date on which Landlord notifies Tenant of Landlord’s intent to
terminate this Lease by reason of such request and in such event Tenant shall
be deemed not to have requested consent, no assignment or sublet which would
otherwise require consent shall occur and Landlord’s termination notice shall
be void and of no further force or effect. 
In the event that Landlord exercises such right to terminate and Tenant
does not timely exercise its right to rescind, Landlord shall be entitled to
recover possession of and Tenant shall surrender the whole or such portion of
the Premises on the later of (i) the proposed date for possession by such
assignee or subtenant, or (ii) ninety (90) days after the date of Landlord’s
notice of termination to Tenant.  In the
event of termination in respect of a portion of the Premises, the portion so
eliminated shall be delivered to Landlord in good order and condition and
thereafter, to the extent necessary in Landlord’s judgment, Landlord, at its
own cost and expense, may have access to and may make modification to the
Premises so as to make such portion a self-contained rental unit with access to
common areas, elevators and the like. 
Base Rent and Tenant’s Proportionate Share shall be adjusted according
to the extent of the Premises for which the Lease is terminated.  Without limitation of the rights of Landlord
hereunder in respect thereto, if there is any assignment of this Lease by
Tenant 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 a
subletting of a portion of the Premises by Tenant at a rent in excess of the
subleased portion’s pro rata share of the rent payable hereunder by Tenant,
then Tenant shall pay to Landlord, as additional rent, forthwith upon Tenant’s
receipt of each installment of any such excess rent, 50% of the full amount of
any such excess rent after deduction of Tenant’s costs in connection with such
assignment or sublet including, without limitation, attorneys’ fees, brokerage
commissions and modifications to the Premises. 
The provisions of this Paragraph shall apply to each and every
assignment of the Lease and each and every subletting of all or a portion of
the Premises with respect to which the consent of the Landlord is
required.  Each request by Tenant for
permission to assign this Lease or to sublet the whole or any part of the
Premises shall be accompanied by a warranty by Tenant as to the amount of rent
to be paid to Tenant by the proposed assignee or sublessee.  Landlord or its authorized representatives
shall have the right at all reasonable times to audit the books, records and
papers of Tenant relating to any consideration received in connection with such
an assignment or subletting, and shall have the right to make copies thereof.


 


14

















 


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


 


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


 


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


 


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


 


18.           No Approval Required.  Landlord and Tenant each represents and
warrants to the other that it may enter into this Third Amendment of Lease
without the consent or approval of any other party.


 


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


 


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


 


34.           NOTICES.


 


All notices to be given under this Lease shall be in
writing 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:


 


15

















 


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 address
designated by notice sent by Landlord or Tenant, and as provided in Paragraph
30 of this Lease.


 


B.            If to Tenant:


 


Addressed to Tenant at Tenant’s present address, and
after occupancy of the Premises by Tenant, at 200 Clarendon Street, Boston,
Massachusetts 02116, Attn:  Ed
Sargavakian with a copy to General Counsel at the same address or to such other
address 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 be
deemed to have been given as of the date of mailing as aforesaid, but for
purposes of computing the period during which a party may cure notice shall be
deemed to have been given three (3) business days after mailing provided
the same is actually delivered.  Notice
by hand delivery or reputable overnight courier shall be deemed to have been
given at the time of delivery.


 


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


 


16

















 


brokers
representing Landlord.  Tenant agrees to
indemnify, defend and hold harmless Landlord, its employees and agents from and
against any claims made by any broker or finder making such claim by reason of
a relationship with Tenant, other than Broker and CB RichardEllis-New England
Partners, L.P.  (“CBRE LP”), for a
commission or fee in connection with this Lease or any sublease hereunder (but
nothing herein shall be construed as permitting any such sublease) provided
that Landlord has not in fact retained such broker or finder.  Landlord agrees to indemnify, defend and hold
harmless Tenant, its employees and agents from and against any claims made by
any broker or finder making such claim by reason of a relationship with
Landlord for a commission or fee in connection with this Lease provided that
Tenant has not in fact retained such broker or finder.  Landlord shall pay the commission or fee due
to the Broker and CBRE LP.


 


22.           Confidentiality.  Except in case of emergency, access by
Landlord or its employees, agents, contractors or representatives (each a “Landlord’s
Agent”) shall be limited to those certain areas necessary to perform the
obligations or services of Landlord under the Lease, or as reasonably necessary
to exercise Landlord’s rights under Paragraph 22 of the Lease.  Landlord shall reasonably cooperate if Tenant
desires to escort any Landlord’s Agent while accessing the Premises and
notifies Landlord thereof sufficiently prior to such access (reasonable prior
notice of which need for access shall be given to Tenant in all cases other
than in cases of emergency) to assure that there is no unreasonable delay in
obtaining such access by any Landlord’s Agent. 
Landlord will not, and will use reasonable efforts to cause Landlord’s
Agents not to, at any time, reveal to any person, association or company, any
information or documentation which comes to the attention of Landlord or
Landlord’s Agent during any such access to the Premises; provided, however,
such reasonable efforts shall be limited to making Landlord’s Agents aware of
the confidential nature of such information and documentation and of the
obligation to maintain the confidentiality thereof.  Tenant may furnish Landlord its standard
written confidentiality advisory, that Tenant desires be furnished by Landlord
to each Landlord’s Agent who shall enter the Premises, which advisory will so
make such Landlord’s Agent aware of the confidential nature of such information
and documentation, and if Tenant does so, Landlord shall furnish such advisory
to each of Landlord’s Agents prior to their entering the Premises.  In the case of regularly scheduled repeated
entries (i) such advisory need not be given prior to each entry, but shall
be given in any event at least once per calendar year following Tenant’s
request therefor, and upon any replacement of the company providing the service
in question, without Tenant being required to make a request and (ii) with
respect to Building service contractors, such as Landlord’s cleaning
contractor, such advisory need only be furnished to the company providing such
service 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 a
disclosure by Landlord or any Landlord Agent, or (b) was available to
Landlord on a non-confidential basis prior to its having been observed at the
Premises or otherwise disclosed to Landlord by Tenant or its representatives in
connection with access to the Premises as aforesaid.  Nothing in this Section 22 shall
prohibit Landlord from disclosing financial information about Tenant that was
intentionally provided by Tenant to Landlord, to actual or prospective lenders
or


 


17

















 


purchasers
of the Property and/or actual or prospective investors in Landlord or any of
its affiliates and to Landlord’s consultants, attorneys, and accountants, so
long as any person or entity to whom Landlord discloses such information agrees
to keep such information confidential. 
In addition, Landlord and any Landlord Agent may disclose any
information (a) to the extent required by any law, regulation, or order of
any public authority or court, and (b) in connection with any litigation
between Landlord and Tenant under the Lease.


 


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


 


 


LANDLORD:


 


COPLEY PLACE ASSOCIATES, LLC, a Delaware limited
liability 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, a
Massachusetts trust company


 


	
  By: 

  	
  /s/ Kevin J. Sheehan

  	
   

  
	
   

  	
  KEVIN J. SHEEHAN

  
	
   

  	
  Chief Executive Officer

  



 


18