Exhibit 10.1


 


JOHN HANCOCK TOWER


200
Clarendon Street


Boston,
Massachusetts


(the
“Building”)


 


NINTH
AMENDMENT TO LEASE


Execution
Date: Dated as of January 1, 2005


 


	
  LANDLORD:

  	
   

  	
  100 & 200
  Clarendon, LLC, successor in interest to John Hancock Life Insurance Company

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TENANT:

  	
   

  	
  Investors Bank &
  Trust Company, a Massachusetts trust company

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  OFFICE

  	
   

  	
   

  	
   

  	
   

  
	
  PREMISES:

  	
   

  	
  An area containing 354,936
  rentable square feet (as outlined below) on Floors [/*/ CONFIDENTIAL
  TREATMENT REQUESTED] of the Building, as shown on Exhibit A to the Lease,
  Exhibit A-2 to the First Amendment to Lease, Exhibit A-2 to the
  Second Amendment to Lease, Exhibit A-3 to the Third Amendment to Lease
  (Revised and Corrected), Exhibit A-2 to the Fourth Amendment to Lease,
  Exhibit A-6 to the Sixth Amendment to Lease, Exhibit A-8 to the
  Seventh Amendment to Lease and Exhibit A-9 to the Eighth Amendment to
  Lease

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Floor
  [/*/ CONFIDENTIAL TREATMENT REQUESTED]: 45,243 rentable square feet

  
	
   

  	
   

  	
  Floor
  [/*/ CONFIDENTIAL TREATMENT REQUESTED]: 45,345 rentable square feet

  
	
   

  	
   

  	
  Floor
  [/*/ CONFIDENTIAL TREATMENT REQUESTED]: 45,345 rentable square feet

  
	
   

  	
   

  	
  Floor
  [/*/ CONFIDENTIAL TREATMENT REQUESTED]: 27,419 rentable square feet

  
	
   

  	
   

  	
  Floor
  [/*/ CONFIDENTIAL TREATMENT REQUESTED]: 27,312 rentable square feet

  
	
   

  	
   

  	
  Floor
  [/*/ CONFIDENTIAL TREATMENT REQUESTED]: 27,415 rentable square feet

  
	
   

  	
   

  	
  Floor
  [/*/ CONFIDENTIAL TREATMENT REQUESTED]: 27,416 rentable square feet

  
	
   

  	
   

  	
  Floor
  [/*/ CONFIDENTIAL TREATMENT REQUESTED]: 27,413 rentable square feet

  
	
   

  	
   

  	
  Floor
  [/*/ CONFIDENTIAL TREATMENT REQUESTED]: 26,958 rentable square feet

  
	
   

  	
   

  	
  Floor
  [/*/ CONFIDENTIAL TREATMENT REQUESTED]: 26,958 rentable square feet

  
	
   

  	
   

  	
  Floor
  [/*/ CONFIDENTIAL TREATMENT REQUESTED]: 28.112 rentable square feet

  
	
   

  	
   

  	
  Total

  	
   

  	
  354,936
  rentable square feet

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  DATA CLOSET

  	
   

  	
   

  	
   

  	
   

  
	
  PREMISES:

  	
   

  	
  Floor
  [/*/ CONFIDENTIAL TREATMENT REQUESTED]: 107 rentable square feet (“Data
  Closet Premises”)

  
							



 










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


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  LEASE

  	
   

  	
  DATE OF

  	
   

  	
   

  
	
  DATA

  	
   

  	
  LEASE:

  	
   

  	
  November 13, 1995

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  TERMINATION

  	
   

  	
   

  
	
   

  	
   

  	
  DATE:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Floors [/*/ CONFIDENTIAL
  TREATMENT REQUESTED] (“Area A”): June 30, 2011

  Floors [/*/ CONFIDENTIAL TREATMENT REQUESTED] (“Area B”):
  September 30, 2007

  Floor [/*/ CONFIDENTIAL TREATMENT REQUESTED] (“Area C”):
  November 30, 2010

  Area A, Area B and Area C shall sometimes hereinafter be collectively
  referred to as the “Premises.”

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  PREVIOUS

  	
   

  	
   

  
	
   

  	
   

  	
  LEASE

  	
   

  	
   

  
	
   

  	
   

  	
  AMENDMENTS:

  	
   

  	
  Letter Agreement dated
  November 13, 1995

  First Amendment dated February 24, 1997

  Second Amendment dated June 19, 1997

  Letter from Landlord to Tenant dated June 19, 1997

  re: RFO on Floors [/*/ CONFIDENTIAL TREATMENT REQUESTED]

  Letter from Tenant to Landlord dated July 14, 1997

  (informing Landlord that Tenant is not interested in RFO on [/*/ CONFIDENTIAL
  TREATMENT REQUESTED])

  Third Amendment dated
  December 1, 1997

  (Revised and Corrected)

  Fourth Amendment dated August 17, 1998

  Amendment to Letter Agreement dated October 15, 1999

  Fifth Amendment dated March 14, 2000

  Sixth Amendment dated September 19, 2000

  Seventh Amendment dated December 3, 2000

  Eighth Amendment dated April 19, 2001

  Letter from John Hancock to Tenant dated April 11, 2002

  re: RFO on Floors [/*/ CONFIDENTIAL TREATMENT REQUESTED]

  (Tenant has signed on April 19, 2002 stating Investors Bank is not interested
  at this time)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  EXTENDED

  	
   

  	
   

  
	
   

  	
   

  	
  TERMINATION

  	
   

  	
   

  
	
   

  	
   

  	
  DATE:

  	
   

  	
  December 31, 2014

  



 


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


 


WHEREAS, Landlord is willing
to extend the Term of the lease upon the terms and conditions hereinafter set
forth;


 










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


 


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


 


1.            REMEASUREMENT OF PREMISES


 


A.            The parties hereby acknowledge that, as provided in
Paragraph 3 of the Sixth Amendment to Lease, the Premises have been remeasured
by Visnick & Caulfield, using the Modified BOMA Standard and
therefore, notwithstanding anything to the contrary in the Lease contained,
effective as of January 1, 2005, the Premises shall be deemed to contain
354,936 rentable square feet of Office Premises and 107 rentable square feet of
Data Closet Premises, as set forth above.


 


B.            The parties hereby acknowledge that, as provided in
Paragraph 3 of the Sixth Amendment to Lease, the Building has been remeasured
by Visnick & Caulfield using the Modified BOMA Standard and therefore,
notwithstanding anything to the contrary in the Lease contained, effective as
of January 1, 2005, Tenant’s Proportionate Share shall be deemed to be
20.419% (based on 354,936 rentable square feet of Office Premises plus 107 rentable
square feet of Data Closet Premises divided by 1,738,779 [the rentable square
footage of the Building]).


 


2.             EXTENSION OF TERM


 


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


 


3.             REVISED BASE RENT, TAX BASE AND
OPERATING COSTS IN THE BASE YEAR


 


A.            In consideration of Tenant agreeing to an early extension
of the Term of the Lease, commencing as of January 1, 2005, and continuing
through the Extended Termination Date, the Base Rent for the Office Premises
shall be [/*/ CONFIDENTIAL TREATMENT REQUESTED]. Since Tenant has
previously paid Base Rent and additional rent for the months of January and
February 2005 at the rates in effect before the adjustments effected by
this Amendment, Tenant has overpaid rent for such months in the aggregate
amount of $ [/*/ CONFIDENTIAL TREATMENT REQUESTED]. Tenant shall recover
such overpayment


 










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


 


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by crediting such amount
against the installment of Base Rent payable on March 1, 2005.
Notwithstanding the foregoing, Tenant shall have no obligation to pay Base Rent
in respect of the Office Premises and Data Closet Premises for the period
commencing as of  [/*/ CONFIDENTIAL
TREATMENT REQUESTED] and ending  [/*/ CONFIDENTIAL
TREATMENT REQUESTED].


 


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


 


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


 


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


 


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


 


4.             LANDLORD’S CONTRIBUTION


 


A.            Landlord shall contribute an aggregate amount of  [/*/ CONFIDENTIAL TREATMENT REQUESTED] (“Landlord’s
Contribution”) towards the cost of leasehold improvements to be installed by
Tenant in the Premises (“Tenant’s Work”) and/or, at Tenant’s election, as a
credit against Tenant’s obligation to pay Base Rent under the Lease. From and
after the mutual execution and delivery of this Amendment, Tenant may elect to
apply the Landlord’s Contribution toward any installment of Base Rent falling
due under the Lease by giving Landlord written notice of such election not
later than five (5) days before the due date of such installment. Tenant
may make such election with respect to multiple installments by a single notice.
If Tenant elects to apply the Landlord’s Contribution, or any portion thereof,
towards the cost of Tenant’s Work, the following provisions of this Paragraph 3
shall apply.


 


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


 










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


 


4





















 


mean written documentation
showing in reasonable detail the costs of the improvements then installed by
Tenant in the Premises. Each requisition shall be accompanied by evidence
reasonably satisfactory to Landlord that all work covered by previous requisitions
has been fully paid by Tenant. Tenant shall submit requisition(s) no more often
than monthly.


 


C.            Notwithstanding anything to the contrary herein
contained:


 


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


 


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


 


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


 


5.             CONDITION OF PREMISES


 


The parties hereby
acknowledge that Tenant is in occupancy of the Premises and, notwithstanding
anything to the contrary herein or in the Lease contained, Tenant shall take
the Premises “as-is”, in the condition in which the Premises are in as of January 1,
2005, without any obligation on the part of Landlord to prepare or construct
the Premises for Tenant’s occupancy or to perform any work whatsoever in or
about the Premises and without any warranty or representation by Landlord as to
the condition of the Premises, except as may otherwise be expressly provided in
this Amendment. Notwithstanding the foregoing, Landlord agrees that the
Premises and, to the extent applicable, the Building shall comply with the Base
Building Conditions set forth in Exhibit B attached hereto. To the extent
that any work is required to make the Premises or the Building, as the case may
be, comply with such requirements, the cost of such work shall be allocated as
otherwise provided in the Lease (e.g., if the cost of such work would
constitute Operating Costs under the Lease, then a portion of the same shall be
reimbursed to Landlord as additional rent if and to the extent otherwise
required under the Lease).


 










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


 


5





















 


6.             ADDITIONAL RENT FOR OPERATING COSTS AND TAXES


 


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


 


Section 3.02    ESCALATION:


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(g) “Operating Costs”:


 


(1)           Definition of Operating Costs. “Operating
Costs” shall mean all costs incurred and expenditures of whatever nature made
by Landlord in the operation and management, for repair and replacements,
cleaning and maintenance of the Building and grounds including, without
limitation, vehicular and pedestrian passageways related to the Building (but
excluding those areas, if any, outside the Building and for which operating
expenses are chargeable to non-office (i.e., commercial) tenants), related
equipment, facilities and appurtenances, elevators, cooling and heating
equipment. In the event that Landlord or Landlord’s managers or agents perform
services for the benefit of the Building off-site which would otherwise be performed
on-site (e.g., accounting), the cost of such services shall be reasonably
allocated among the properties benefiting from such service and shall be
included in Operating Costs. Operating Costs shall include, without limitation,
those categories of “Specifically Included Operating Costs,” as set forth
below, but shall not include “Excluded Costs,” as hereinafter defined. If
Landlord incurs Operating Costs for the Building together with one or more
other buildings or properties, the shared costs and expenses shall be equitably
prorated and apportioned between the Building and such other buildings or
properties.


 


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


 


A.            overhead and profit paid to Landlord
or its subsidiaries or affiliates for services to the extent that the same
exceed the cost of such services rendered by other first-class unaffiliated
parties on a competitive basis.


 










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


 


7





















 


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


 


C.            leasehold improvements, alterations
and decorations done for tenants of the Building, and services performed for
any tenant (including Tenant) of the Building, whether at the expense of
Landlord or such tenant, to the extent that such work or services are in excess
of the work or services which Landlord is required to furnish to Tenant under
this Lease.


 


D.            costs incurred in connection with
the making of repairs which are the obligation of another tenant of the
Building.


 


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


 


F.             financing and refinancing costs in
respect of any mortgage placed upon the Property, including points and commissions
in connection therewith.


 


G.            interest or penalties for late payment by Landlord.


 


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


 


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


 


J.             the initial cost of equipment used
in the operation, repair and maintenance of the Building, or the rental costs
of such equipment.


 


K.            Wages, salaries, or other
compensation paid to any executives, or other employees above the grade of
general manager and any compensation paid to any Building employee to the
extent that the same is not fairly allocable to the work or service provided by
such employee to the Property.


 


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


 


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


 


N.            leasing and brokerage commissions
and similar fees.


 


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


 


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


 


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


 


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


 


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


 


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


 


U             costs attributable to the presence
of Hazardous Materials in the Building.


 


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


 


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


 


X.            the cost of acquiring, leasing, installing, or restoring
works of art.


 


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


 


9





















 


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


 


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


 


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


 


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


 


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


 


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


 


FF.          the cost of temporary exhibitions
located at or within the Building.


 


(3)           Capital Expenditures.


 


(i)            Replacements. If, during the
term of this Lease, Landlord shall replace or install any capital items or make
any capital expenditures (collectively called “capital expenditures”) (x) which
have the effect of reducing Operating Costs below the costs that would have
been incurred absent such items or expenditures, or (y) to comply with legal
requirements first enacted or promulgated and in effect, or first becoming
applicable to the Building, after the Execution Date, the total amount of such
costs shall not be includible in Operating Costs for the Operating Year in
which they were made, but there shall nevertheless be included in such
Operating Costs and in Operating Costs for each succeeding Operating Year the
amount, if any, by which the Annual Charge-Off (determined as hereinafter
provided) of such capital expenditure (less insurance proceeds, if any,
collected by Landlord by reason of damage to, or destruction of the capital
item being replaced) exceeds the annual Charge-Off of the capital expenditure
for the item being replaced.


 


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


 


10





















 


annual interest rate equal
to the Capital Interest Rate, as hereinafter defined, where the initial
principal balance is the cost of the capital item in question. Notwithstanding
the foregoing, if Landlord reasonably concludes on the basis of engineering
estimates that a particular capital expenditure will effect savings in Building
operating expenses including, without limitation, energy-related costs, and
that such projected savings will, on an annual basis (“Projected Annual Savings”),
exceed the Annual Charge-Off of such capital expenditure computed as aforesaid,
then and in such events, the Annual Charge-Off shall be increased to an amount
equal to the Projected Annual Savings; and in such circumstances, the increased
Annual Charge-Off (in the amount of the Projected Annual Savings) shall be made
for such period of time as it would take to fully amortize the cost of the
capital item in question, together with interest thereon at the Capital
Interest Rate as aforesaid, in equal monthly payments, each in the amount of
one-twelfth (l/12th) of the Projected Annual Savings, with such payments being
applied first to interest and the balance to principal.


 


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


 


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


 


(4)           Specifically Included Categories of
Operating Costs. Operating Costs shall include, but not be limited to, the
following:


 


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


 


11





















 


taxes withheld from
employees, and “Taxes” as defined in Section 3.02(d) shall not be
included herein.


 


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


 


Heat
and Air Conditioning: All charges connected with heat and air conditioning
supplied to the Building, except to the extent reimbursed to Landlord for
services provided on an overtime basis.


 


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


 


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


 


Elevator
Maintenance: All expenses for or on account of the upkeep and maintenance of
all elevators in the Building.


 


Electricity:
The cost of all electric current for the operation of any machine, appliance or
device used for the operation of the premises and the Building, including the
cost of electric current for the elevators, lights, air conditioning and
heating, but not including electric current which is paid for directly to the
utility by the user/tenant in the Building. (If and so long as Tenant is billed
directly by the electric utility for its own consumption as determined by its
separate meter, then Operating Costs shall include only Building and public
area electric current consumption and not any demised premises electric current
consumption. Wherever separate metering is unlawful, prohibited by utility
company regulation or tariff or is otherwise impracticable, relevant
consumption figures for the purposes of this Section 3.02 shall be
determined by fair and reasonable allocations and engineering estimates made by
Landlord. Furthermore, if and to the extent that the
Operating-Costs-in-the-Base-Year figure shall include any component
representing the cost to the Landlord of electric current supplied to any
tenant’s premises under so-called “rent-inclusion” lease arrangements, then if
such cost is eliminated from Operating Costs in an Operating Year in accordance
with the foregoing provisions, the figure for Operating Costs in the Base Year
for the purposes of this Section 3.02 shall likewise be reduced by the
amount for such cost component.)


 


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


 


12





















 


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


 


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


 


(5)           Gross-Up Provision.
Notwithstanding the foregoing, in determining the amount of Operating Costs for
any calendar year or portion thereof falling within the term (including the
Base Year), Operating Costs for such period shall be adjusted to equal the
amount Operating Costs would have been for such period had occupancy of the
Building been at the Adjustment Percentage throughout such period. As used
herein, the term “Adjustment Percentage” shall be a percentage equal to the
higher of (i) ninety-five percent (95%), and (ii) the actual average
percentage of occupancy of the Building during the Operating Year. The
extrapolation of Operating Costs under this paragraph shall be performed by
appropriately adjusting the cost of those components of Operating Costs that
are impacted by changes in the occupancy of the Building.


 


B.            Tax Excess. If in any Tax Period the Taxes exceed the
Tax Base, Tenant shall pay to Landlord Tenant’s Proportionate Share of such
excess, such amount being hereinafter referred to as “Tax Excess”. If Taxes in
any Tax Period decrease below the Tax Base, Tax Excess for that Tax Period
shall be $0. Tax Excess shall be due when billed by Landlord. In implementation
and not in limitation of the foregoing, Tenant shall remit to Landlord pro rata
monthly installments on account of projected Tax Excess, reasonably calculated
by Landlord on the basis of the most recent Tax data or budget available. If
the total of such monthly remittances on account of any Tax Period is greater
than the actual Tax Excess for such Tax Period, Tenant may credit the
difference against the next installment of rental or other charges due to
Landlord hereunder, or refund such amount to Tenant if the Term of the Lease
has expired. If the total of such remittances is less than the actual Tax
Excess for such Tax Period, Tenant shall pay the difference to Landlord within
thirty (30) days after receipt of Landlord’s bill therefor. Such obligation to
reconcile the payment of Taxes for any Tax Period at the end of the term shall
survive the expiration of the Term.


 


Appropriate
credit against Tax Excess shall be given for any refund obtained by reason of a
reduction in any Taxes by the Assessors or the administrative, judicial or
other governmental agency responsible therefor. The original computations, as
well as


 


13





















 


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


 


C.            Operating Expense Excess. If the Operating Costs in any Operating Year
exceed the Operating Costs in the Base Year, Tenant shall pay to Landlord
Tenant’s Proportionate Share of such excess, such amount being hereinafter
referred to as “Operating Expense Excess.” If Operating Costs in any Operating
Year decrease below Operating Costs in the Base Year, Operating Expense Excess
for that Operating Year shall be $0. Operating Expense Excess shall be due when
billed by Landlord. In implementation and not in limitation of the foregoing,
Tenant shall remit to Landlord pro rata monthly installments on account of
projected Operating Expense Excess, calculated by Landlord on the basis of the
most recent Operating Costs data or budget available. No later than one hundred
twenty (120) days after the end of the first calendar year and of each
succeeding calendar year during the Lease Term or fraction thereof at the end
of the term, Landlord shall render Tenant a statement in reasonable detail and
according to generally accepted accounting practices certified by an officer of
Landlord, showing for the preceding calendar year or fraction thereof, as the
case may be, the Operating Costs. Said statement to be rendered to Tenant also
shall show for the preceding year or fraction thereof, as the case may be, the
amounts already paid by Tenant on account of Operating Cost Excess and the
amount of Operating Cost Excess remaining due from, or overpaid by, Tenant for
the year or other period covered by the statement. If the total of such monthly
remittances on account of any Operating Year is greater than the actual
Operating Expense Excess for such Operating Year, Tenant may credit the
difference against the next installment of rent or other charges due to
Landlord hereunder, or refund such amount to Tenant if the Term of the Lease
has expired. If the total of such remittances is less than actual Operating
Expense Excess for such Operating Year, Tenant shall pay the difference to
Landlord within thirty (30) days after receipt of Landlord’s bill therefor.
Such obligation to reconcile the payment of Operating Costs for any Operating
Year at the end of the term shall survive the expiration of the Term.


 


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


 


14





















 


E.             Effect
of Taking. In
the event of any taking of the Building or the land upon which it stands under
circumstances whereby this Lease shall not terminate under the provisions of Section 7.06
then, for the purposes of determining Tax Excess, there shall be substituted
for the Tax Base originally provided for herein a fraction of such Tax Base,
the numerator of which fraction shall be the Taxes for the first Tax Period
subsequent to the condemnation or taking which takes into account such condemnation
or taking, and the denominator of which shall be the Taxes for the last Tax
Period prior to the condemnation or taking, which did not take into account
such condemnation or taking. Tenant’s Proportionate Share shall be adjusted
appropriately to reflect the proportion of the premises and/or the Building
remaining after such taking.


 


F.             Disputes,
etc.


 


Subject
to the provisions of this paragraph, Tenant shall have the right, at Tenant’s
cost and expense, to examine all documentation and calculations prepared in the
determination of Operating Cost Excess:


 


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


 


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


 


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


 


15





















 


Landlord. Nothing contained
herein shall affect the right of Landlord to contest the findings of any such
examination.


 


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


 


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


 


Any
obligations under this Section 3.02 which shall not have been paid at the
expiration or sooner termination of the term of this Lease shall survive such
expiration and shall be paid when and as the amount of same shall be determined
to be due.


 


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


 


7.             EXTENSION OPTIONS


 


Tenant shall continue to
have two (2) five (5) year Extension Options in respect of all
Premises, pursuant to Section 2.05 of the Lease, as amended by Paragraph
11 of the Eighth Amendment to Lease, except that said Section 2.05 shall
be modified as follows:


 


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


 


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


 


(iii) the phrase “one
hundred (100%) percent” in Section 2.05(c) of the Lease is hereby
deleted and the phrase “ninety-five (95%) percent” is hereby substituted in its
place;


 


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


 


(v) clause (ii) of
Section 2.05(c) is hereby deleted and the following is substituted in
its place: “(ii) the rental shall reflect the then condition of the
Premises and all


 


16





















 


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


 


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


 


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


 


“(e) Conditions
Precedent to Exercise. Notwithstanding any contrary provision of this Section 2.05
or any other provision of this Lease, any Extension Option and any exercise by
Tenant of any Extension Option shall be void and of no effect unless on the
First Extension Exercise Date or the Second Extension Exercise Date, as
applicable, and on the First Extension Term Commencement Date and the Second
Extension term Commencement Date, as applicable, (i) this Lease is in full
force and effect (ii) no Event of Default on the part of Tenant has
occurred and is continuing under this Lease, and (iii) Tenant shall not
have sublet in the aggregate more than thirty-three percent (33%) of the
rentable floor area of the Premises to any entity or entities other than a
Tenant Affiliate (as defined in Section 6.04(f)); provided, however, that
Landlord reserves the right to waive in writing the provisions of this subsection 2.05(e).”


 


In implementation of the
foregoing, Paragraph 11 of the Eighth Amendment is hereby deleted and is of no
further force or effect.


 


8.             TENANT’S EXPANSION OPTION


 


On
the conditions (which conditions Landlord may waive, at its election, by
written notice to Tenant at any time) that Tenant is not in default of its
covenants and obligations under the Lease beyond applicable notice and cure
periods, and that Tenant shall not have sublet in the aggregate more than
thirty-three percent (33%) of the rentable floor area of the Premises to any
entity or entities other than a Tenant Affiliate, Tenant shall have the option
to lease the entirety of the [/*/ CONFIDENTIAL TREATMENT REQUESTED] floor of
the Building (“Expansion Area”). The Expansion Area contains approximately
28,511 rentable square feet, and is substantially as shown on Exhibit A
attached hereto. The expansion option contained herein completely supercedes
all previously existing expansion options of Tenant under the Lease.


 


A.            Exercise of Rights to Expansion Area


 


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


 










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


 


 


 


17





















 


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


 


B.            Lease Provisions Applying to Expansion Area


 


The leasing to Tenant of the
Expansion Area shall be upon all the same terms and conditions of the Lease
except as follows:


 


(1)           Term Commencement Date


 


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


 


18





















 


(2)           Base Rent


 


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


 


(3)           Condition of Expansion Area


 


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


 


C.            Notwithstanding the fact that Tenant’s
exercise of the above-described expansion option shall be self-executing, as
aforesaid, the parties hereby agree to execute a lease amendment reflecting the
addition of the Expansion Area promptly after the determination of the Base
Rent for the Expansion Area. The execution of such lease amendment shall not be
deemed to waive any of the conditions to Tenant’s exercise of the herein
expansion options, unless otherwise specifically provided in such lease
amendment.


 


9.             RIGHT OF FIRST OPPORTUNITY


 


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


 


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


 


“Notwithstanding
anything herein to the contrary, (a) Tenant’s Right of First Opportunity
with respect to Floors [/*/ CONFIDENTIAL TREATMENT REQUESTED] is subject and
subordinate to the rights of occupants contained in existing leases (as of the
date of the Ninth Amendment to Lease) including any extensions or renewals
thereof made pursuant to any options (including, without limitation, any rights
of first offer or similar rights) contained in such leases at


 










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


 


 


 


19





















 


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


 


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


 


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


 


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


 


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


 










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


 


 


 


20





















 


10.          TENANT’S GENERATOR


 


A.            Tenant, subject to Landlord’s review and approval of
Tenant’s plans therefor, which approval shall not be unreasonably withheld
conditioned or delayed, shall have the right to install up to two (2) supplemental
generators with a power output not to exceed, in the aggregate, 2,000 kilowatts
and a fuel storage system with a capacity not to exceed a 48-hour fuel supply
(collectively, the “Generators”) to provide emergency additional electrical
capacity to the Premises during the Term. The installation of the Generator and
all appurtenant cables and other installations shall be at Tenant’s sole
expense, but subject to Landlord’s Contribution if elected by Tenant as
provided herein. The Generators shall be placed at a location on the Property
designated by Landlord and approved by Tenant, which approval shall not be
unreasonably withheld (the “Generator Area”). If the Generator Area is located
in an indoor location, Landlord shall, at Landlord’s cost, separately demise
the location of the Generator Area and deliver the Generator Area to Tenant in
storage room shell condition, including electric supply for lighting only to
such space. In any event, Tenant shall have the right to install, at its
expense, electrical service to the Generator Area, whether the same is in an
indoor location or an outdoor location. If the Generator Area is located in an
outdoor location, the Generator Area shall be delivered to Tenant in “as-is”
condition, without any obligation on the part of Landlord to prepare or
construct the Generator Area for Tenant’s use. Notwithstanding the foregoing,
Tenant’s right to install the Generators shall be subject to Landlord’s
reasonable approval of the manner in which the Generators are installed, the
manner in which any fuel storage and fuel pipe is installed, the manner in
which any ventilation and exhaust systems are installed, the manner in which
any cables are run to and from the Generators to the Premises and the measures
that will be taken to eliminate any vibrations or sound disturbances from the
operation of the Generators, including, without limitation, any necessary 2
hour rated fire enclosures or sound insulation. Landlord hereby agrees that it
will provide reasonable means of access to run cables between the Generators
and the Premises, whether through an air shaft, chase or other conduit or a
combination thereof. In the event that it is technologically feasible to
utilize the existing conveyor chase to run cables to connect the Premises to
the Generators, and if Landlord shall refuse to permit use of such chase, any
additional cost reasonably incurred by Tenant to utilize an alternative means
of running such cable shall be reimbursed by Landlord to Tenant promptly after
written notice from Tenant accompanied by copies of invoices evidencing such
cost. Landlord shall have the right to require an enclosure reasonably
acceptable to Landlord and Tenant to hide or disguise the existence of the
Generators and to minimize any adverse effect that the installation and/or
operation of the Generators may have on the appearance of the Building and
Property. Tenant shall be solely responsible for obtaining at its expense all
necessary governmental and regulatory approvals and permits and for the cost of
installing, operating, maintaining and removing the Generators. Tenant shall
not install or operate the Generators until Tenant has obtained and submitted
to Landlord copies of all required governmental permits, licenses and
authorizations necessary for the installation and operation of the Generators.
In addition to, and without limiting Tenant’s obligations under the Lease,
Tenant shall comply with all applicable environmental and fire prevention Laws


 


21





















 


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


 


B.            Tenant shall be responsible for assuring that the
installation, maintenance, operation and removal of the Generators shall in no
way damage any portion of the Building or Property. To the maximum extent
permitted by Law, the Generators and all appurtenances in the Generator Area
shall be at the sole risk of Tenant, and, subject to Section 7.05,
Landlord shall have no liability to Tenant if the Generators or any appurtenances
installations are damaged, except as a result of gross the negligence or
willful misconduct of Landlord or any Landlord Related Parties. Subject to Section 7.05,
Tenant agrees to be responsible for any damage caused to the Building or
Property in connection with the installation, maintenance, operation or removal
of the Generators and, in accordance with the terms of Section 7.04 of the
Lease, to indemnify, defend and hold Landlord and the Landlord Related Parties
harmless from all liabilities, obligations, damages, penalties, claims, costs,
charges and expenses, including, without limitation, reasonable architects’ and
attorneys’ fees (if and to the extent permitted by Law), which may be imposed
upon, incurred by, or asserted against Landlord or any of the Landlord Related
Parties in connection with the installation, maintenance, operation or removal
of the Generators, including, without limitation, any environmental and
hazardous materials claims. In addition to, and without limiting Tenant’s obligations
under the Lease, Tenant covenants and agrees that the installation and use of
the Generators and appurtenances shall not adversely affect the insurance
coverage for the Building. If for any reason, the installation or use of the
Generators, the Tank and/or the appurtenances shall result in an increase in
the amount of the premiums for such coverage, then Tenant shall be liable for
the full amount of any such increase.


 


C.            Tenant shall be responsible for the installation,
operation, cleanliness, maintenance and removal of the Generators and the
appurtenances, all of which shall remain the personal property of Tenant, and
shall be removed by Tenant at its own expense at the expiration or earlier
termination of the Lease. Tenant shall repair any damage caused by such
removal, including the patching of any holes to match, as closely as possible,
the color surrounding the area where the Generators and appurtenances were
attached. Such maintenance and operation shall be performed in a manner to
avoid any unreasonable interference with any other tenants or Landlord. Tenant
shall take the Generator Area “as is” in the condition in which the Generator
Area is in as of the Commencement Date, without any obligation on the part of
Landlord to prepare or construct the Generator Area for Tenant’s use or
occupancy, other than to deliver any interior Generator Area in Storage Room Shell
Condition. Without limiting the foregoing, Landlord makes no warranties or
representations to Tenant as to the suitability of the Generator Area for the
installation and operation of the Generator. Tenant shall have no right to make
any changes, alterations, additions, decorations or other improvements to the
Generator Area without Landlord’s prior written consent, which shall not be unreasonably
withheld, conditioned or delayed. Tenant agrees to maintain the Generators,
including without limitation, any enclosure installed around the Generators in
good condition and repair. Tenant shall be responsible for performing any
maintenance and


 


22





















 


improvements to any
enclosure surrounding the Generator so as to keep such enclosure in good
condition.


 


D.            Tenant, subject to the rules and regulations enacted
by Landlord and to Landlord’s reasonable security requirements, shall have
access to the Generators and their surrounding area at all times for the
purpose of installing, repairing, maintaining and removing said Generators.


 


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


 


F.             Except for electric service for
lighting in the event that the Generator Area is located in an indoor location,
Landlord shall no obligation to provide any services, including, without
limitation, electric current, to the Generator Area. Tenant shall have no right
to sublet the Generator Area or to assign its interest hereunder except in
connection with an assignment of the Lease.


 


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


 


11.          PARKING


 


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


 


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


 


23





















 


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


 


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


 


12.           BROKERAGE


 


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


 


13.           NOTICES


 


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


 


100 & 200 Clarendon LLC

c/o Beacon Capital Partners LLC

One Federal Street

Boston, Massachusetts 02110


 


with a copy to:


 


Beacon Capital Partners
Management LLC

200 Clarendon Street

Boston, Massachusetts 02116

Attention: General Manager


 


The notice address for
Tenant shall be at the Premises, to the attention of Andrew Joseph, with a copy
to Edward Sargavakian, at the same address,


 


24





















 


and a copy to:


 


Goodwin
Procter LLP

Exchange Place


53
State Street, Boston, MA 02109

Attention: Andrew C. Sucoff, Esq.


 


14.           LANDLORD DEFAULT


 


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


 


15.           DELETED LEASE PROVISIONS


 


Sections 1.02(h), 1.02(w),
2.03, 2.06, 8.01(c), and the last three sentences of Section 6.04(f) of the
Lease, Paragraph 5 of the First Amendment to Lease, Paragraph 5 of the Second
Amendment to Lease, Paragraph 4 of the Revised and Corrected Third Amendment to
Lease, Paragraph 5 of the Fourth Amendment to Lease, the entirety of the Fifth
Amendment to Lease, Paragraphs 8 and 11 through 17 of the Sixth Amendment to
Lease, Paragraphs 7 and 12 of the Seventh Amendment to Lease and Paragraphs 6
and 11 of the Eighth Amendment to Lease are hereby deleted and are of no
further force or effect.


 


16.           SUBORDINATION


 


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


 


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


 


25





















 


17.           EXTRA SERVICES


 


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


 


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


 


18.           DEFINITION OF COMPLEX


 


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


 


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


 


19.           HANCOCK MARKS


 


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


 


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


 


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


 










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


 


26





















 


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


 


“Likeness”
means a photograph, replica, sketch, drawing, image or any other visual or two
dimensional or three dimensional representation of the Building, which
photograph, replica, sketch, drawing, image or other representation does not
include or display the Name, Plain Name, Signature, or any such other logos,
service marks, trademarks, and copyrights, whether registered or unregistered,
proprietary to John Hancock Life Insurance Company with respect to the
Building.


 


“Medium”
(or “Media”) means any communications or storage medium, regardless of method
of storage, compilation or memorialization, if any, including without
limitation, physical storage or representation, electronic storage, graphical
(including designs and drawings) or photographic representation, or writings.


 


“Name” means “John Hancock
Tower”.


 


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


 


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


 


27





















 


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


 


“USPTO” means the United
States Patent and Trademark Office.


 


20.           MISCELLANEOUS AMENDMENTS


 


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


 


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


 


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


 


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


 


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


 










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


 


28





















 


to, nor shall it be enforced
to, restrict any bank from conducting its banking operations on such floors of
the Building.


 


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


 


“The requirements of this
Section 10.20 shall not apply during such periods, if any, that Tenant’s
financial information is publicly available.”


 


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


 


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


 


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


 


29





















 


prospective lenders or
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.
Further, Landlord shall not make, use or permit to be used any notes,
memoranda, drawings, specifications, programs, data or other materials of any
nature relating to any matter within the scope of the business of Tenant or
concerning any of its dealings or affairs, otherwise than for the benefit of
Tenant and during the performance of any Tenant requested or contracted service
under this Lease.


 


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


 


EXECUTED under seal as of
the date first above written.


 


	
  LANDLORD:

  	
  TENANT:

  
	
  100 & 200 CLARENDON
  LLC

  	
  INVESTORS BANK & TRUST

  
	
   

  	
  COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ Philip
  J. Brannigan, Jr.

  	
   

  	
  By:

  	
   

  	
   

  
	
  Name:

  	
  Philip
  J. Brannigan, Jr.

  	
   

  	
  Name:

  	
   

  	
   

  
	
  Title:

  	
               Vice
  President

  	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
  Hereunto Duly Authorized

  	
   

  	
  Hereunto Duly Authorized

  
										



 


30





















 


prospective lenders or
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.
Further, Landlord shall not make, use or permit to be used any notes,
memoranda, drawings, specifications, programs, data or other materials of any
nature relating to any matter within the scope of the business of Tenant or
concerning any of its dealings or affairs, otherwise than for the benefit of
Tenant and during the performance of any Tenant requested or contracted service
under this Lease.


 


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


 


EXECUTED under seal as of
the date first above written.


 


	
   

  	
  [SEAL]

  
	
   

  	
   

  
	
  LANDLORD:

  	
  TENANT:

  
	
  100 & 200 CLARENDON
  LLC

  	
  INVESTORS BANK & TRUST

  
	
   

  	
  COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
  /s/ Kevin J. Sheehan

  	
   

  
	
  Name:

  	
   

  	
   

  	
  Name:

  	
  KEVIN J. SHEEHAN

  	
   

  
	
  Title:

  	
   

  	
   

  	
  Title:

  	
  CEO

  	
   

  
	
   

  	
  Hereunto Duly Authorized

  	
   

  	
  Hereunto Duly Authorized

  
										



 


30





















 


EXHIBIT
A


EXPANSION
AREA


 





 





















 


EXHIBIT
B


 


BASE
BUILDING CONDITIONS


 


1.0           Building Shell & Service Core


 


Landlord shall deliver to
tenant the following items, which collectively comprise and are hereby defined
as the “Base Building.” All items shall be completed in accordance with
applicable Building Codes, laws, and regulations, including without limitation
the Americans with Disabilities Building Act (ADA).


 


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


 


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


 


(c)     Building
Standard doors at stairwells, toilet rooms, and core service rooms, installed
with required hardware;


 


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


 


(e)     Finished
and secured electrical, mechanical, telephone, and janitorial rooms “service
rooms”) to the extent located on the floor and as indicated on the Base Building
plans;


 


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


 


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


 


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


 


B-1





















 


(i)     Passenger
and freight elevators, including finished interior cabs and lobbies complete
with finished doors, frames, hardware, magnetic hold-open devices, call
lanterns and buttons, fire department connections, and placards as required by
Code and consistent with Building Standards;


 


(j)     Ground
floor lobby with first class security;


 


(k)     Parking
facilities with updated lighting, painting, signage, equipment, and other
amenities;


 


(1)     Exterior
plazas and landscaping; 


 


(m)     Loading
dock; 


 


(n)     Exit
signage as required by Code;


 


(o)     Concrete
floors, smooth and level and adequate for the installation of Tenant’s
finishes;


 


(p)     Main
mechanical system, provided for tenant installed distribution system;


 


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


 


(r)     A
primary fire/life safety annunciation system “backbone” sufficient for Tenant’s
secondary distribution as required by Code;


 


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


 


(t)     Fire
extinguishers in all core fire extinguisher cabinets.


 


2.0           Hazardous Materials Criteria


 


Landlord agrees to make
available a copy of a third party Phase I report on the Building regarding
asbestos and other hazardous materials.


 


2.0           HVAC Design and Performance


 


The HVAC system shall be of
sufficient capacity to maintain an average inside


 


B-2





















 


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


 


B-3





















 


EXHIBIT
C


 


[/*/ CONFIDENTIAL TREATMENT REQUESTED]


 










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


 


C-1





















 


[/*/ CONFIDENTIAL
TREATMENT REQUESTED]










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


 


C-2





















 


EXHIBIT
D


 


FORM
OF SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT


AGREEMENT


 


 


	
   

  	
   

  	
   

  
	
   

  	
  (Lender)

  	
   

  



 


 


-and-


 


 


	
   

  	
   

  	
   

  
	
   

  	
  (Tenant)

  	
   

  



 


 


SUBORDINATION,
NON-DISTURBANCE


AND
ATTORNMENT AGREEMENT


 


	
  Dated:

  
	
   

  
	
  Location:

  
	
   

  
	
  Section:

  Block: Lot:

  County:

  
	
   

  
	
   

  
	
  PREPARED BY AND UPON

  RECORDATION RETURN TO:

  
	
   

  
	
  Messrs. Cadwalader,
  Wickersham & Taft LLP

  100 Maiden Lane

  New York, New York 10038

  Attention:

  
	
   

  
	
  File No.:

  Title No.

  



 


D-1





















 


SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT


 


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


 


RECITALS:


 


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


 


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


 


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


 


AGREEMENT:


 


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


 


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


delivery of the Lease.


 


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


 


1





















 


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


 


E.     Attornment. Lender and Tenant agree
that upon the conveyance of the Property by reason of the foreclosure of the
Mortgage or the acceptance of a deed or assignment in lieu of foreclosure or otherwise,
the Lease shall not be terminated or affected thereby (at the option of the
transferee of the Property (the “Transferee”) if the conditions set
forth in Section 2 above have not been met at the time of such transfer)
but shall continue in full force and effect as a direct lease between the
Transferee and Tenant upon all of the terms, covenants and conditions set forth
in the Lease and in that event, Tenant agrees to attorn to the Transferee and
the Transferee shall accept such attornment, provided, however, that the
Transferee shall not be (a) liable (i) for Landlord’s failure to perform any of
its obligations under the Lease which have accrued prior to the date on which
the Transferee shall become the owner of the Property, or (ii) for any act or
omission of Landlord, whether prior to or after such foreclosure or sale, (b)
required to make any repairs to the Property or to the premises demised under
the Lease required as a result of fire, or other casualty or by reason of
condemnation unless the Transferee shall be obligated under the Lease to make
such repairs, (c) subject to any offsets, defenses, abatements or counterclaims
which shall have accrued to Tenant against Landlord prior to the date upon
which the Transferee shall become the owner of the Property, (d) liable for the
return of rental security deposits, if any, paid by Tenant to Landlord in
accordance with the Lease unless such sums are actually received by the
Transferee, (e) bound by any payment of rents, additional rents or other sums
which Tenant may have paid more than one (1) month in advance to any prior
Landlord unless (i) such sums are actually received by the Transferee or (ii)
such prepayment shall have been expressly approved of by the Transferee, (f)
bound to make any payment to Tenant which was required under the Lease, or otherwise,
to be made prior to the time the Transferee succeeded to Landlord’s interest,
(g) bound by any agreement amending, modifying or terminating the Lease made
without the Lender’s prior written consent prior to the time the Transferee
succeeded to Landlord’s interest.


 


F.     Notice to Tenant. After notice is
given to Tenant by Lender that the Landlord is in default under the Note and
the Mortgage and that the rentals under the Lease should be paid to Lender
pursuant to the terms of the assignment of leases and rents executed and
delivered by Landlord to Lender in connection therewith, Tenant shall
thereafter pay to Lender or as directed by the Lender, all rentals and all
other monies due or to become due to Landlord under the Lease and Landlord
hereby expressly authorizes


 


2





















 


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


 


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


 


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


 


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


 


If to Tenant:


 


	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Attention:

  	
   

  	
   

  
	
   

  	
  Facsimile No.

  	
   

  	
   

  
					



 


If
to Lender: [Lender’s Notice]


 


3





















 


With a copy to:    Cadwalader, Wickersham & Taft LLP


100 Maiden Lane


New York, New York 10038

Attention:

Facsimile No. (212) 504-6666


 


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


Either party by notice to
the other may designate additional or different addresses for subsequent
notices or communications.


 


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


 


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


 


L.     No Oral Modifications. This
Agreement may not be modified in any manner or terminated except by an
instrument in writing executed by the parties hereto.


 


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


 


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


 


O.    Duplicate Originals; Counterparts.
This Agreement may be executed in any number of duplicate originals and each
duplicate original shall be deemed to be an original.  This Agreement may be executed in several
counterparts, each of which counterparts shall be deemed an original instrument
and all of which together shall constitute a single Agreement. The failure of
any party hereto to execute this Agreement, or any counterpart hereof, shall
not relieve the other signatories from their obligations hereunder.


 


4





















 


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


 


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


 


R.    Further Acts. Tenant will, at the
sole cost of Lender, do, execute, acknowledge and deliver all and every such
further acts and assurances as Lender shall, from time to time, require, for
the better assuring and confirming unto Lender the property and rights hereby
intended now or hereafter so to be, or for carrying out the intention or
facilitating the performance of the terms of this Agreement or for filing,
registering or recording this Agreement, or for complying with all applicable
laws.


 


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


 


5





















 


IN WITNESS WHEREOF, Lender
and Tenant have duly executed this Agreement as of the date first above
written.


 


	
   

  	
  LENDER:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [Lender]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TENANT:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  a

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
  The undersigned accepts
  and agrees to

  	
   

  
	
  the provisions of Section
  4 hereof:

  	
   

  
	
   

  	
   

  
	
  LANDLORD:

  	
   

  
	
   

  	
  , a

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  
	
  Title:

  	
   

  
											



 


1





















 


ACKNOWLEDGMENTS


 


[INSERT
STATE SPECIFIC ACKNOWLEDGMENT]


 


1





















 


 


EXHIBIT A


 


LEGAL DESCRIPTION


 


A-1