EXHIBIT 10.1


 


PRUDENTIAL CENTER


 


LEASE


 


FROM


 


BP PRUCENTER ACQUISITION LLC


 


TO


 


FEDERAL HOME LOAN BANK OF BOSTON


 

















 


INDEX TO LEASE


 


	
  ARTICLE I BASIC LEASE
  PROVISIONS AND ENUMERATIONS OF EXHIBITS

  	
  1

  
	
  ARTICLE II PREMISES

  	
  5

  
	
  ARTICLE III LEASE TERM

  	
  9

  
	
  ARTICLE IV CONSTRUCTION

  	
  11

  
	
  ARTICLE V ANNUAL FIXED RENT,
  ELECTRICITY AND SPECIAL ALLOWANCES

  	
  22

  
	
  ARTICLE VI TAXES AND
  OPERATING EXPENSES

  	
  24

  
	
  ARTICLE VII LANDLORD’S
  REPAIRS AND SERVICES

  	
  33

  
	
  ARTICLE VIII TENANT’S
  REPAIRS

  	
  36

  
	
  ARTICLE IX ALTERATIONS

  	
  36

  
	
  ARTICLE X PARKING

  	
  40

  
	
  ARTICLE XI CERTAIN TENANT
  COVENANTS

  	
  42

  
	
  ARTICLE XII ASSIGNMENT AND
  SUBLETTING

  	
  46

  
	
  ARTICLE XIII INDEMNITY AND
  COMMERCIAL GENERAL LIABILITY INSURANCE

  	
  51

  
	
  ARTICLE XIV FIRE, CASUALTY
  AND TAKING

  	
  54

  
	
  ARTICLE XV DEFAULT

  	
  57

  
	
  ARTICLE XVI MISCELLANEOUS
  PROVISIONS

  	
  61

  
	
  16.1.

  	
  WAIVER

  	
  61

  
	
  16.2.

  	
  CUMULATIVE REMEDIES

  	
  61

  
	
  16.3.

  	
  QUIET ENJOYMENT

  	
  62

  
	
  16.4.

  	
  SURRENDER

  	
  62

  
	
  16.5.

  	
  BROKERAGE

  	
  62

  
	
  16.6.

  	
  INVALIDITY OF PARTICULAR PROVISIONS

  	
  63

  
	
  16.7.

  	
  PROVISIONS BINDING, ETC.

  	
  63

  
	
  16.8.

  	
  RECORDING.

  	
  63

  
	
  16.9.

  	
  NOTICES AND TIME FOR ACTION

  	
  63

  
	
  16.10.

  	
  WHEN LEASE BECOMES BINDING

  	
  64

  
	
  16.11.

  	
  PARAGRAPH HEADINGS

  	
  64

  
	
  16.12.

  	
  RIGHTS OF MORTGAGEE

  	
  64

  
	
  16.13.

  	
  RIGHTS OF GROUND LESSOR

  	
  65

  
	
  16.14.

  	
  NOTICE OF MORTGAGEE AND GROUND
  LESSOR

  	
  65

  
	
  16.15.

  	
  ASSIGNMENT OF RENTS

  	
  66

  
	
  16.16.

  	
  STATUS REPORT AND FINANCIAL STATEMENTS

  	
  67

  
	
  16.17.

  	
  SELF-HELP

  	
  67

  
	
  16.18.

  	
  HOLDING OVER

  	
  68

  
	
  16.19.

  	
  ENTRY BY LANDLORD

  	
  68

  
	
  16.20.

  	
  TENANT’S PAYMENTS

  	
  69

  
	
  16.21.

  	
  LATE PAYMENT

  	
  69

  
	
  16.22.

  	
  COUNTERPARTS

  	
  69

  
	
  16.23.

  	
  ENTIRE AGREEMENT

  	
  70

  
	
  16.24.

  	
  LANDLORD LIABILITY

  	
  70

  
	
  16.25.

  	
  NO PARTNERSHIP

  	
  70

  
	
  16.26.

  	
  SECURITY DEPOSIT

  	
  71

  
	
  16.27.

  	
  GOVERNING LAW; WAIVER OF TRIAL BY
  JURY

  	
  71

  



 


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  16.28.

  	
  SIGNAGE

  	
  71

  
	
  16.29.

  	
  INTENTIONALLY OMITTED

  	
  71

  
	
  16.30.

  	
  RULES AND REGULATIONS

  	
  71

  



 


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PRUDENTIAL CENTER


 


THIS
INSTRUMENT IS AN INDENTURE OF LEASE in which the Landlord and the Tenant are
the parties hereinafter named, and which relates to space in the building known
as The Prudential Tower, Boston, Massachusetts 
02199.


 


The
parties to this instrument hereby agree with each other as follows:


 


ARTICLE I

BASIC LEASE PROVISIONS AND ENUMERATIONS OF EXHIBITS


 


1.1.                              INTRODUCTION.  The following sets forth the basic data and
identifying Exhibits elsewhere hereinafter referred to in this Lease, and,
where appropriate, constitute definitions of the terms hereinafter listed.


 


1.2.                              BASIC DATA.


 


	
  Date:

  	
  October 26,
  2010

  
	
   

  	
   

  
	
  Landlord:

  	
  BP
  PRUCENTER ACQUISITION LLC

  
	
   

  	
   

  
	
  Present
  Mailing Address of Landlord:

  	
  c/o
  Boston Properties Limited Partnership

  Prudential
  Center

  800
  Boylston Street

  Boston,
  Massachusetts 02199

  
	
   

  	
   

  
	
  Landlord’s
  Construction Representative:

  	
  Jon
  Randall, or such other party as may be designated by written notice to Tenant

  
	
   

  	
   

  
	
  Tenant:

  	
  Federal
  Home Loan Bank of Boston, a Federal instrumentality

  
	
   

  	
   

  
	
  Present
  Mailing Address of Tenant:

  	
  111
  Huntington Avenue 

  Boston,
  Massachusetts 02199

  Attn:
  President

   

  With
  a copy to:

   

  111
  Huntington Avenue 

  Boston,
  Massachusetts 02199

  Attn:
  General Counsel

   

  And
  a copy to:

   

  Andrew
  M. Pearlstein 

  Seyfarth Shaw LLP  

  



 


1

















 


	
   

  	
  World
  Trade Center East 

  Two
  Seaport Lane, Suite 300 

  Boston,
  Ma. 02210 

  
	
   

  	
   

  
	
  Tenant’s
  Construction Representative:

  	
  Earl
  Baucom, or such other party as may be designated by written notice to
  Landlord

  
	
   

  	
   

  
	
  Term
  or Lease Term:

  (sometimes called the “Original Lease Term”)

  	
  The
  Lease Term shall commence on the Commencement Date and end on the date (“Expiration Date”) that is one hundred forty-four (144)
  calendar months (plus the partial month, if any) immediately following the
  later to occur of (x) the Commencement Date, or (y) January 1,
  2012, unless extended or sooner terminated as hereinafter provided.

  
	
   

  	
   

  
	
  Extension
  Options:

  	
  Two
  (2) periods of five (5) years each as provided in and on the terms
  set forth in Section 3.2 hereof.

  
	
   

  	
   

  
	
  Lease
  Year:

  	
  A
  twelve (12) month period beginning on the Commencement Date or any
  anniversary of the Commencement Date, except that if the Commencement Date
  does not fall on the first day of a calendar month, then the first Lease Year
  shall begin on the Commencement Date and end on the last day of the month
  containing the first anniversary of the Commencement Date, and each
  succeeding Lease Year shall begin on the day following the last day of the
  prior Lease Year. In any event, the last Lease Year shall end on the
  Expiration Date.

  
	
   

  	
   

  
	
  Commencement
  Date:

  	
  As
  defined in Section 3.1 hereof.

  
	
   

  	
   

  
	
  Premises:

   

  	
  The
  entirety of the 9th and 10th floors of the Building, containing, in the
  aggregate, approximately 53,972 rentable square feet, as further defined and
  limited in Section 2.1 hereof, and as shown on 

  



 


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  Exhibits
  D and D-1 attached hereto.

  
	
   

  	
   

  
	
  Rentable
  Floor Area of the Premises:

  	
  53,972
  square feet

  
	
   

  	
   

  
	
  Annual
  Fixed Rent:

  	
  (I)            In the event the Commencement Date
  occurs prior to January 1, 2012, then from and after the Commencement Date through
  December 31, 2011: At the agreed upon annual rate of $3,464,118.00.

   

  (II)           From the later to occur of
  (x) the Commencement Date, or (y) January 1, 2012 through the
  end of the sixth (6th) Lease Year:
  At the annual rate of $2,320,796.00, being the product of (i) $43.00 and
  (ii) the Rentable Floor Area of the Premises (hereinabove defined in
  this Section 1.2), provided, however, in no event shall the Annual Fixed
  Rent for the period described in this clause (II) exceed the annual rate
  of $2,320,796.00.

   

  (III)         Tenant shall be entitled to a rent
  credit of Sixty-Two Thousand Five Hundred and 00/100 Dollars ($62,500.00)
  toward Annual Fixed Rent payable for the first month after the Commencement
  Date.

   

  (IV)         During Lease Years 7-12: At the
  annual rate f $2,536,684.00, being the product of (i) $47.00 and
  (ii) the Rentable Floor Area of the Premises (hereinabove defined in
  this Section 1.2), provided, however, in no event shall the Annual Fixed
  Rent for the period described in this clause (III) exceed the annual
  rate of $2,536,684.00.

  
	
   

  	
   

  
	
  Tenant
  Electricity:

  	
  See
  Section 5.2.

  
	
   

  	
   

  
	
  Additional
  Rent:

  	
  All
  charges and other sums payable by Tenant as set forth in this Lease, in
  addition to Annual Fixed Rent.

  
	
   

  	
   

  
	
  Initial
  Minimum Limits of Tenant’s 

  	
  $5,000,000
  combined single limit per 

  



 


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  Commercial
  General Liability Insurance:

  	
  occurrence
  on a per location basis.

  
	
   

  	
   

  
	
  Total
  Rentable Floor Area of the Building

  	
  1,215,527
  square feet.

  
	
   

  	
   

  
	
  Building:

  	
  For
  the purposes of this Lease, the Building shall mean the building commonly
  known as The Prudential Tower located in the Prudential Center (as
  hereinafter defined), as the same may be altered, expanded, reduced or
  otherwise changed by Landlord from time to time. The Building does not
  include any of the retail space commonly known as the Prudential shopping
  center.

  
	
   

  	
   

  
	
  Prudential
  Center:

  	
  For
  purposes of this Lease, the Prudential Center shall mean the land described
  on Exhibit A and the buildings,
  garages and other improvements thereon, commonly known as Prudential Center,
  as the same may be altered, expanded, reduced or otherwise changed from time
  to time.

  
	
   

  	
   

  
	
  PruOwner:

  	
  Each
  owner of record or tenant under a ground lease, from time to time, of all or
  any portion of the Prudential Center.

  
	
   

  	
   

  
	
  Permitted
  Use:

  	
  General
  office use, including banking operations (non retail), a trading desk and an
  employee cafeteria (not open to the general public) and activities incidental
  to non-retail banking operations.

  
	
   

  	
   

  
	
  Broker:

  	
  Colliers
  Meredith & Grew

  
	
   

  	
   

  
	
  Security
  Deposit:

  	
  None

  
	
   

  	
   

  
	
  Market
  Area

  	
  The
  Financial District-Back Bay of Boston, Massachusetts.

  



 


1.3.                              ENUMERATION OF EXHIBITS.  The following Exhibits attached hereto are a
part of this Lease, are incorporated herein by reference, and are to be treated
as a part of this Lease for all purposes. 
Undertakings contained in such Exhibits are agreements on the part of
Landlord and Tenant, as the case may be, to perform the obligations stated
therein to be performed by Landlord and Tenant, as and where stipulated
therein.


 


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  Exhibit A

  	
  —

  	
  Legal
  Description of the Prudential Center.

  
	
   

  	
   

  	
   

  
	
  Exhibit B-1

  	
  —

  	
  Tenant
  Plan and Working Drawing Requirements

  
	
   

  	
   

  	
   

  
	
  Exhibit B-2

  	
  —

  	
  Plans
  and Construction Schedule

  
	
   

  	
   

  	
   

  
	
  Exhibit B-3

  	
  —

  	
  Initial
  Work

  
	
   

  	
   

  	
   

  
	
  Exhibit B-3A

  	
  -

  	
  Clean
  Shell Condition

  
	
   

  	
   

  	
   

  
	
  Exhibit B-3B

  	
  -

  	
  Building
  Standard Core Restroom Specifications

  
	
   

  	
   

  	
   

  
	
  Exhibit C

  	
  —

  	
  Landlord’s
  Services

  
	
   

  	
   

  	
   

  
	
  Exhibit D

  	
  —

  	
  Floor
  Plan (9th Floor)

  
	
   

  	
   

  	
   

  
	
  Exhibit D-1

  	
  —

  	
  Floor
  Plan (10th Floor)

  
	
   

  	
   

  	
   

  
	
  Exhibit E

  	
  —

  	
  Form of
  Commencement Date Agreement

  
	
   

  	
   

  	
   

  
	
  Exhibit F

  	
  —

  	
  Memorandum
  Re: Procedure for Allocation of Electricity Costs

  
	
   

  	
   

  	
   

  
	
  Exhibit G

  	
  —

  	
  Broker
  Determination of Prevailing Market Rent

  
	
   

  	
   

  	
   

  
	
  Exhibit H

  	
  —

  	
  Parking
  Plan

  
	
   

  	
   

  	
   

  
	
  Exhibit I

  	
  —

  	
  Pre-Dated
  Rights

  
	
   

  	
   

  	
   

  
	
  Exhibit J

  	
  —

  	
  Space
  Plans and Specifications for Submission to General Contractors with RFP

  



 


ARTICLE II

PREMISES


 


2.1.                              DEMISE AND LEASE OF PREMISES.


 


Landlord
hereby demises and leases to Tenant, and Tenant hereby hires and accepts from
Landlord, the Premises in the Building, excluding exterior faces of exterior
walls, the common stairways and stairwells, elevators and elevator walls,
mechanical rooms, electric and telephone closets, janitor closets, and pipes,
ducts, shafts, conduits, wires and appurtenant fixtures serving exclusively or
in common other parts of the Building, and if the Premises includes less than
the entire rentable area of any floor, excluding the common corridors, elevator
lobbies and toilets located on such floor.


 


2.2.                              RIGHT OF FIRST OFFER.


 


(A)          Definitions.  With reference to the rights and
obligations of Tenant referred to in this Section 2.2, it is agreed that
the terms used herein are as defined as follows:


 


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(i)            “Available ROFO Space” means any separately
demised office space on Floors 8 and 11 of the Building, which, from time to
time during the Lease Term, becomes “available
for reletting” (as hereinafter defined).  Available ROFO Space shall be deemed “available
for reletting” when Landlord reasonably determines, subject to the provisions
of subsection (iii) below, that the then current tenant or occupant of the
Available ROFO Space will vacate such space at the expiration or earlier
termination of such tenant’s lease and when Landlord intends to offer such
Available ROFO Space for lease.  To the
extent that any of portion of the Available ROFO Space is vacant as of the
Commencement Date of this Lease, the parties agree that no such vacant
Available ROFO Space shall be deemed “available for reletting” until each such
vacant Available ROFO Space has been leased to a third party and thereafter
Landlord determines that such third party tenant of such Available ROFO Space
will vacate such Available ROFO Space and when Landlord intends to again offer
such Available ROFO Space for lease.


 


(ii)           “ROFO Premises” means any Available ROFO
Space incorporated by Tenant into the Premises pursuant to Section 2.2.


 


(iii)          “Prior Rights” means (x) any rights of
first offer, first refusal, expansion, renewal, extension or other rights to
lease that encumber what would otherwise have been Available ROFO Space which
rights were granted prior to the date hereof, which rights (“Pre-dated Rights”) are listed on Exhibit I attached hereto; (y) solely
in the case of extension or renewal rights for tenants occupying the Available
ROFO Space, any such rights granted by Landlord at any time whether prior to or
subsequent to the date hereof (i.e. regardless of whether the existing leases
for such space currently provide the existing tenants thereunder with any such
right to renew or extend); and (z) any Permitted Later-Generation Option
Rights, as hereinafter defined, which Landlord may grant to other
later-generation tenants of premises in the Building.


 


(iv)          “Permitted Later-Generation Option Rights”
shall be defined as:  (w) extension
options, (x) renewal options, and (y) expansion options, rights of
first offer, and rights of first refusal granted to a tenant who leases all or
any portion of premises which were previously offered to Tenant as Available
ROFO Space but for which Tenant rejects Landlord’s ROFO Notice or fails timely
to give Tenant’s ROFO Exercise Notice (in which event Tenant shall be deemed to
have rejected Landlord’s ROFO Notice).


 


(B)           Right
of First Offer Conditions.  During the Term, on the conditions (which
conditions Landlord may waive by written notice to Tenant) that at the time
that any Available ROFO Space first becomes available for reletting: (i) there
exists no Event of Default, (ii) Tenant has not subleased 50% or more of
the Rentable Floor Area of the Premises, and (iii) this Lease is still in
full force and effect, prior to accepting any offer to lease Available ROFO
Space to a third party other than a third party with Prior Rights,


 


6

















 


Landlord
will first offer such Available ROFO Space to Tenant for lease pursuant to this
Section 2.2.


 


(C)           Exercise
of Right to Lease Available ROFO Space.  Landlord shall give Tenant written notice (“Landlord’s ROFO Notice”) at the time that
Landlord determines, as aforesaid, that an Available ROFO Space will become
available for lease to Tenant.  Landlord’s
ROFO Notice shall set forth (i) the exact location of the Available ROFO
Space, (ii) Landlord’s quotation of a proposed annual fixed rent and, if
applicable, concessions such as free rent, tenant improvement allowance,
build-out to be performed by Landlord, and so forth for the Available ROFO
Space, and (iii) all other material terms and conditions which will apply
to the Available ROFO Space.  Tenant
shall have the right, exercisable upon written notice (“Tenant’s ROFO Exercise Notice”) given to
Landlord within ten (10) business days after the receipt of Landlord’s
ROFO Notice, (i) to lease the Available ROFO Space, on the terms set forth
in Landlord’s ROFO Notice, or (ii) to reject Landlord’s ROFO Notice.  In the event Tenant rejects such Landlord’s
ROFO Notice or fails timely to give Tenant’s ROFO Exercise Notice (in which
event Tenant shall be deemed to have rejected Landlord’s ROFO Notice), then
except as set forth in Section 2.2(F) below, Tenant shall have no
further right to lease such Available ROFO Space or any portion thereof
pursuant to this Section 2.2 unless such Available ROFO Space again become
available for reletting after occupancy thereof by a third party.  Upon the timely giving of such Tenant’s ROFO
Exercise Notice, Landlord shall lease and demise to Tenant and Tenant shall
hire and take from Landlord, such Available ROFO Space, upon all of the same
terms and conditions of the Lease except as hereinafter set forth.


 


(D)          Lease
Provisions Applying to ROFO Premises


 


The
leasing to Tenant of such ROFO Premises shall be upon all of the same terms and
conditions of the Lease, except as follows:


 


(i)            Term
Commencement Date.  The Term Commencement Date in respect of such
ROFO Premises shall be the later of:  (x) the
commencement date in respect of such ROFO Premises specified in Landlord’s ROFO
Notice, or (y) the date that Landlord delivers such ROFO Premises to
Tenant.


 


(ii)           Fixed
Annual Rent.  The Fixed Annual Rent rental rate in respect
of such ROFO Premises shall be as set forth in Landlord’s ROFO Notice.


 


(iii)          Condition
of ROFO Premises.  Tenant shall take such ROFO Premises in the
condition specified in Landlord’s ROFO Notice, and if no condition is specified
in Landlord’s ROFO Notice, Tenant shall take such ROFO Premises “as-is” in its
then (i.e. as of the date of delivery) state of construction, finish, and
decoration, without any obligation on the part of Landlord to construct or
prepare any ROFO Premises for Tenant’s occupancy.


 


(E)           Notwithstanding
anything to the contrary provided in Section 2.2(B) above:


 


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(i)            Tenant’s
lease of any Available ROFO Space shall be coterminous with Tenant’s lease of
the remainder of the Premises.


 


(ii)           Tenant’s
rights under this Section 2.2 shall expire on the date twenty-four (24)
months prior to the expiration of the Term (as the same may be extended).


 


(F)           Landlord’s
Obligation to Re-Offer:  If Tenant rejects Landlord’s ROFO Notice with
respect to a particular ROFO Premises, and Landlord later desires to lease such
ROFO Premises to a third party at a net effective rent, averaged over the term
taking into account free rent and tenant improvements, which is ninety percent
(90%) or less of the net effective rent, averaged over the term taking into
account free rent and tenant improvements, in Landlord’s ROFO Notice, Landlord
must first re-offer such ROFO Premises to Tenant at the lower net effective
rent.  Such re-offer shall be on all the
terms and conditions of this Section 2.2.


 


(G)           Time
is of the Essence.  Time is of the essence of this Section 2.2.


 


2.3.          APPURTENANT RIGHTS AND RESERVATIONS.


 


(A)          Subject
to Landlord’s or any other PruOwner’s right to change or alter any of the
following in its discretion as herein provided, Tenant shall have, as
appurtenant to the Premises, the non-exclusive right to use in common with
others, but not in a manner or extent that would materially interfere with the
normal operation and use of the Building as a multi-tenant office building and
subject to reasonable rules of general applicability to tenants of the
Building from time to time made by Landlord or any other PruOwner of which
Tenant is given notice:  (a) the
common lobbies, corridors, stairways, and elevators of the Building, and the
pipes, ducts, shafts, conduits, wires and appurtenant meters and equipment
serving the Premises in common with others, (b) the loading areas serving
the Building and the common walkways and driveways necessary for access to the
Building, (c) if the Premises include less than the entire rentable floor
area of any floor, the common toilets, corridors and elevator lobby of such
floor and (d) the plazas and other common areas of the Prudential Center
as Landlord or any other PruOwner as the case may be, makes the same available
from time to time; and no other appurtenant rights and easements.  Notwithstanding anything to the contrary
herein, Landlord has no obligation to allow any particular telecommunication
service provider to have access to the Building or to the Premises, but
Landlord shall not be unreasonable in denying such access; however Landlord
shall not deny access to the particular telecommunications service providers
who are providing service to Tenant’s trading desk or in connection with Tenant’s
banking operations.  Notwithstanding the
foregoing, Landlord agrees that Tenant’s telecommunications service provider
shall not be assessed a fee (or an incremental fee) based upon its provision of
services to Tenant.


 


(B)           Landlord
reserves for its benefit and of any other PruOwner the right from time to time,
without unreasonable interference with Tenant’s use:  (a) to install, use, maintain, repair,
replace and relocate for service to the Premises and other parts of the
Building, or either, pipes, ducts, conduits, wires and appurtenant fixtures,
wherever located in the


 


8
















 


Premises
or the Building, and (b) to alter or relocate any other common facility,
provided that substitutions are substantially equivalent or better, provided
that any such alteration shall not materially reduce the Rentable Floor Area of
the Premises.  Installations,
replacements and relocations referred to in clause (a) above shall be
located so far as practicable in the central core area of the Building, above
ceiling surfaces, below floor surfaces or within perimeter walls of the
Premises.  Except in the case of
emergencies, Landlord agrees to use all reasonable efforts (i) to give, or
cause such PruOwner to give, Tenant reasonable advance notice of any of the
foregoing activities which require work in the Premises, and (ii) to use
(or cause such PruOwner to use) reasonable efforts to minimize any disruption
to the operation of Tenant’s business in the Premises when making any entry
into the Premises permitted under this Lease, other than for
regularly-scheduled cleaning activities.


 


(C)          Landlord
reserves and excepts for its benefit and the benefit of any other PruOwner all
rights of ownership and use in all respects outside the Premises, including
without limitation, the Building and all other structures and improvements and
plazas and common areas in the Prudential Center, except that at all times
during the term of this Lease Tenant shall have a reasonable means of access
from a public street to the Premises. 
Without limitation of the foregoing reservation of rights by Landlord,
it is understood that in its sole discretion Landlord or any other PruOwner, as
the case may be, shall have the right to change and rearrange the plazas and
other common areas, to change, relocate and eliminate facilities therein, to
erect new buildings thereon, to permit the use of or lease all or part thereof
for exhibitions and displays and to sell, lease or dedicate all or part thereof
to public use; and further that Landlord or any other PruOwner, as the case may
be, shall have the right to make changes in, additions to and eliminations from
the Building and other structures and improvements in the Prudential Center,
the Premises excepted, but the costs thereof shall not be included in Operating
Expenses hereinafter defined; provided however that Tenant, its employees, agents,
clients, customers, and invitees shall at all times have reasonable access to
the Building and Premises.  Landlord is
not under any obligation to permit individuals without proper building
identification to enter the Building after 6:00 p.m.


 


ARTICLE III

LEASE TERM


 


3.1.         TERM.  The Term of this Lease shall be the period
specified in Section 1.2 hereof as the “Lease Term”, unless sooner
terminated.  If Section 1.2 provides
for a fixed Commencement Date, then the Commencement Date of the Lease Term
hereof shall be such date.  Otherwise,
the Lease Term hereof shall commence on, and the Commencement Date shall be,
the first to occur of:


 


(a)           The
later of (i) January 1, 2012, or (ii) the day on which the
Premises are delivered by Landlord to Tenant in accordance with the terms
hereof; or


 


(b)           The
date upon which Tenant commences beneficial use of the Premises.  Notwithstanding the foregoing, if (i) Tenant
commences occupancy of only a portion of the Premises for the Permitted Use
prior to January 1, 2012, and (ii)


 


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Tenant
is still occupying, and paying rent for, the 111 Premises under the 111 Lease
(as both terms are defined in Section 16.31) for such period (conditions (i) and
(ii) being collectively referred to as a “Partial Early Occupancy”), then such Partial Early Occupancy
shall trigger the Commencement Date, but Tenant shall not be required to pay
any Annual Fixed Rent, Tax Excess or Operating Cost Excess with respect to such
Partial Early Occupancy prior to January 1, 2012.


 


In
the case where Landlord is to perform work to the Premises as provided in Article IV,
the Premises shall be considered delivered by Landlord to Tenant on the
Substantial Completion Date, as defined in Section 4.1 hereof.


 


As
soon as may be convenient after the Commencement Date has been determined,
Landlord and Tenant agree to join with each other in the execution, in the form
of Exhibit E hereto, of a written
Commencement Date Agreement in which the Commencement Date and specified Lease
Term of this Lease shall be stated.  If
Tenant shall fail to execute such Agreement, the Commencement Date and Lease
Term shall be as reasonably determined by Landlord in accordance with the terms
of this Lease.


 


3.2.         EXTENSION OPTIONS.


 


(A)          Exercise
of Option.  On the conditions (which conditions Landlord
may waive by written notice to Tenant) that at the time of exercise of the
herein described options to extend (i) there exists no “Event of Default”
(defined in Section 15.1), and (ii) this Lease is still in full force
and effect, Tenant shall have the right, by giving written notice (“Extension Notice”) to Landlord on or before
the date (“Notice Date”) that is
sixteen (16) months prior to the expiration of the Term of this Lease (as it
may have been previously extended) to extend the Term hereof upon all the same
terms, conditions, covenants and agreements herein contained (except for the
Annual Fixed Rent which, with respect to the first Extended Term (as
hereinafter defined) shall be equal to ninety-five percent (95%) of the
Prevailing Market Rent and with respect to the second Extended Term shall be
equal to one hundred percent (100%) of the Prevailing Market Rent, in each case
as determined in accordance with clause (B) hereof and except that there
shall be no further option to extend beyond the options set forth herein) for
two (2) periods of five (5) years each as hereinafter set forth.  Each option period is sometimes herein
referred to as the “Extended Term.”  Notwithstanding the foregoing, the Base
Operating Expenses, as defined in Section 6.2 (including, without
limitation, the paragraph thereof titled “Gross
Up Provision”) shall be equal to the actual amount of Operating
Expenses for the calendar year immediately preceding the calendar year in which
the applicable Extended Term commences. 
Notwithstanding any implication to the contrary Landlord has no
obligation to make any additional payment to Tenant in respect of any
construction allowance or the like or to perform any work to the Premises as a
result of the exercise by Tenant of any such option.


 


(B)          Determination
of Prevailing Market Rent.  “Prevailing
Market Rent” shall be determined based on the use of the Premises as
first class office space utilizing properties of a similar character in
comparable first-class office buildings within the Market Area.  Within 30 days after receipt of Tenant’s
Extension Notice, Landlord shall designate the


 


10

















 


Annual
Fixed Rent payable in respect of the Extended Term in question (“Landlord’s Determination”), but Landlord
shall not be required to make such designation more than seventeen (17) months
prior to the commencement of the Extended Term in question.  The Annual Fixed Rent for the first Extended
Term shall be equal to 95% of the Prevailing Market Rent.  The Annual Fixed Rent for the second Extended
Term shall be equal to 100% of the Prevailing Market Rent.  If Tenant disagrees with Landlord’s
Determination, the parties shall negotiate in good faith for thirty (30) days (“Negotiation Period”) to reach agreement on
the Prevailing Market Rent.  If the
parties have not reached an agreement on the Prevailing Market Rent by the end
of the Negotiation Period, then Tenant shall have the right, within five (5) days
after the expiration of the Negotiation Period, to (i) give Landlord a
written notice (“Broker Determination Notice”)
requesting a broker determination (the “Broker
Determination”) of the Prevailing Market Rent for such Extended
Term, which Broker Determination shall be made in the manner set forth in Exhibit G,
or (ii) to rescind its Extension Notice by delivering written notice
thereof (a “Rescission Notice”) to
Landlord.  If Tenant fails timely to
request the Broker Determination or timely to issue a Rescission Notice, then
the Term of the Lease shall be extended for the applicable Extended Term and
the Annual Fixed Rent for such Extended Term shall be equal to Landlord’s
Determination.


 


(C)          Confirmation
of Exercise.  Upon the giving of the Extension Notice by
Tenant to Landlord exercising Tenant’s applicable option to extend the Lease
Term in accordance with the provisions of Section 3.2 (A) above, then
unless Tenant timely issues a Rescission Notice as aforesaid, this Lease and
the Lease Term hereof shall automatically be deemed extended, for the
applicable Extended Term, without the necessity for the execution of any
additional documents, except that Landlord and Tenant agree to enter into an
instrument in writing setting forth the Annual Fixed Rent for the applicable
Extended Term as determined in the relevant manner set forth in this Section 3.2;
and in such event all references herein to the Lease Term or the Term of this
Lease shall be construed as referring to the Lease Term, as so extended, unless
the context clearly otherwise requires, and except that there shall be no
further option to extend the Lease Term, beyond the options set forth
herein.  Notwithstanding anything
contained herein to the contrary, in no event shall Tenant have the right to
exercise more than one extension option at a time and, further, Tenant shall
not have the right to exercise its second extension option unless it has duly
exercised its first extension option.


 


(D)          No
Prior Rights.  Tenant’s rights under this Section 3.2
are not subject to any Prior Rights or Permitted Later Generation Option
Rights, as those terms are defined in Article II hereof.


 


ARTICLE IV

CONSTRUCTION


 


4.1.         DEFINITIONS.


 


(A)          Landlord’s
Work. 
Landlord, at Landlord’s sole cost and expense, and not as part of the
Special Allowance (as hereinafter defined) shall perform the work listed on Exhibit B-3 hereto (“Initial Work”).  Landlord shall perform the work for the


 


11

















 


preparation
of the Premises for Tenant’s occupancy described on Tenant’s final approved
plans (“Tenant Improvement Work”).  The cost of the Tenant Improvement Work shall
be paid in accordance with Section 4.4 below.  The Initial Work and the Tenant Improvement
Work are sometimes referred to collectively as “Landlord’s Work”. 
Landlord shall perform the demolition portion of Landlord’s Work
promptly after execution hereof.  Subject
to delays due to governmental regulation, unusual scarcity of or inability to
obtain labor or materials, labor difficulties, casualty or other causes
reasonably beyond Landlord’s control (collectively “Landlord’s Force Majeure”) or attributable to Tenant’s action
or inaction, Landlord shall use reasonable speed and diligence in the
construction of Landlord’s Work so as to cause the Substantial Completion Date
occur on or before November 1, 2011, but Tenant shall have no claim
against Landlord for failure so to complete construction of Landlord’s Work,
except as expressly set forth in this Article IV.  Landlord shall commence Landlord’s Work
promptly after Tenant gives Landlord the Authorization to Proceed Notice, as
set forth in Section 4.1(E).


 


(B)          Substantial
Completion Date.  The “Substantial
Completion Date” shall be defined as the date on which: (i) the
Initial Work and the Tenant Improvement Work are (or would have been, but for
Tenant Delay, as hereinafter defined) substantially complete as certified by
Landlord’s architect, other than Punch List Items, as hereinafter defined, and (ii) Landlord
has obtained a certificate of occupancy (or other like governmental approval)
permitting Tenant to legally occupy the Premises (except that Landlord shall,
subject to the provisions of Section 4.4 hereof, be relieved of its
responsibility for obtaining such certificate of occupancy (or such other like
governmental approval) to the extent that Landlord’s failure to obtain such
certificate of occupancy (or such other like governmental approval) is based
upon (i) Tenant Delay, or (ii) if Tenant engages its own contractors
to perform any portion of the work to be performed in the initial preparation
of the Premises, any aspect of the work performed by Tenant’s contractors).


 


(C)          Punch
List Items.  “Punch List
Items” shall be defined as those items of work and adjustment of
equipment and fixtures in the Premises, the incompleteness of which do not
cause material interference with Tenant’s use of the Premises and access
thereto, and which can be completed after Tenant commences its occupancy of the
Premises without causing material interference with Tenant’s use of the
Premises and access thereto.  The Punch
List Items shall be set forth in a so-called punch list prepared and signed by
Tenant and Landlord (provided, however, that Landlord shall give Tenant
reasonable advance notice of the time when Landlord intends to walk through the
Premises and compile the punch list, and if Tenant does not accompany Landlord
on such walk-through, Tenant shall be bound by the punch list compiled by
Landlord).  Landlord shall use diligent
efforts to complete, as soon as conditions practically permit, all Punch List
Items, and Tenant shall cooperate with Landlord in providing access during the
performance as may be required to complete such work in a normal manner.  Notwithstanding the foregoing, after Tenant
opens for business in the Premises, the completion of all Punch List Items,
other than work which does not materially interfere with Tenant’s use of the
Premises or access thereto, will be performed after the Building’s business
hours, to the extent reasonably possible.


 


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(D)          Tenant
Delay.  A “Tenant Delay” shall be defined as any delay
in the performance of Landlord’s Work to the extent that such delay is:


 


(a)           caused
by Tenant’s failure to timely comply with the Plans and Construction Schedule
set forth in Exhibit B-2
except where due to Landlord’s delay; or


 


(b)           due
to special work (i.e., long-lead items (as evidenced by advice from the
suppliers, contractors or the like) of which Landlord advises Tenant in writing
at the time that Landlord approves Tenant’s plans); or


 


(c)           due
to changes, alterations or additions required or made by Tenant in the layout
or finish of the Premises or any part thereof after Landlord approves Tenant’s
plans; or


 


(d)           caused
by delay and/or default on the part of Tenant or its contractors including,
without limitation, the entities furnishing communications, data processing or
other service or equipment, except to the extent caused by Landlord’s failure
to comply with its obligations under this Article IV.  With respect to any Tenant Delay under this
subparagraph (d), no period of time prior to the date that Landlord notifies
Tenant of a Tenant Delay shall be considered to be a Tenant Delay; or


 


(e)           caused
by Tenant or Tenant’s Construction Representatives, as defined in Section 1.2,
taking any action or failing to take any action which Tenant is specifically
required to take pursuant to the terms hereof.


 


(E)           Effect
of Delay in Authorization to Proceed.  If Landlord has complied, as appropriate,
with its obligations under this Article IV as of the Authorization to
Proceed Date set forth on Exhibit B-2
and Tenant fails to give Landlord a written and unconditional authorization to
proceed with the Tenant Improvement Work (“Authorization
to Proceed Notice”) on or before such Authorization to Proceed Date,
then each day between the Authorization to Proceed Date and the date that
Tenant gives Landlord such authorization to proceed shall be deemed to be a day
that Landlord is delayed as the result of a Tenant Delay, provided that the
number of days of Tenant Delay pursuant to this sentence shall not exceed the
number of days by which the actual substantial completion of Landlord’s Work
occurs after November 1, 2011.


 


(F)           Effect
of Tenant Delay.  Except as set forth in the immediately
preceding sentence, Tenant shall not be responsible for any delays in Landlord’s
Work, including the Tenant Improvement Work, except to the extent that Landlord
is delayed solely as the result of a Tenant Delay.  Furthermore, if Tenant delivers full
construction documents to Landlord on or before the Final Plans Date, as set
forth in Exhibit B-2,
then Tenant’s failure to deliver schematic plans on or before the Initial Plans
Submission Date, or failure to deliver design development plans on or before
the Interim Plans Submission Date, both as set forth in Exhibit B-2, shall not be
considered a Tenant Delay.


 


13

















 


4.2.         TERMINATION RIGHTS AND REMEDIES BASED ON DELAYS IN
LANDLORD’S WORK.


 


(A)          Tenant’s
Termination Right for Delay in Commencement Date.  If both (i) the Substantial Completion
Date has not occurred on or before October 31, 2011, and (ii) Tenant
has not requested to occupy the Premises for the Permitted Use prior to the
Substantial Completion Date and, such request being granted, actually so
occupied, on or before October 31, 2011, then Tenant shall have the right
to terminate this Lease as follows: 
Tenant shall notify Landlord of its desire to terminate this Lease by
written notice (“Tenant’s Lease Termination
Notice”) to Landlord given between November 1, 2011 and November 30,
2011. If a Tenant’s Lease Termination Notice is timely delivered, then this
Lease shall terminate immediately.  If
Tenant does not timely give Tenant’s Lease Termination Notice, then Tenant
shall have no further right to terminate this Lease pursuant to this Section 4.2(A).


 


(B)          Termination
for Catastrophic Event.  For purposes hereof, a “Catastrophic Event” shall mean damage or
destruction to the Building sufficient to require the demolition thereof, or
damage to the Premises or the means of access thereto that (i) prevents
use of a substantial portion of the Premises, or prevents or substantially
restricts the means of access thereto, and (ii) is reasonably estimated to
require more than twelve (12) months to repair and restore.  The determination of whether or not a
Catastrophic Event has occurred shall be made by Landlord’s architect.  In the event a Catastrophic Event occurs
prior to the Commencement Date, Landlord and Tenant shall each have the right,
by written notice (“Catastrophic Termination
Notice”) to the other within thirty (30) days after the Catastrophic
Event, to terminate this Lease.  If a
Catastrophic Termination Notice is timely delivered, then this Lease shall
terminate immediately.


 


(C)          Tenant’s
Remedies.  If this Lease is terminated pursuant to Section 4.2(A) or
Section 4.2(B) above, Tenant shall have the following remedies
(collectively, “Tenant’s Termination Remedies”):


 


(a)           Relocation
Remedy.


 


(i)            If
Tenant desires to possibly relocate to other premises in a building owned by
Landlord or an affiliate of Landlord in the Market Area (collectively, “Landlord Portfolio Buildings”), Tenant
shall so notify Landlord in a notice (“Relocation
Request”) given not later than ten (10) days after the
effective date of the termination under Section 4.2(A) or Section 4.2(B).


 


(ii)           If
Tenant delivers a Relocation Request, Landlord shall within fifteen (15) days
notify Tenant (“Relocation Premises Notice”)
whether, in Landlord’s reasonable judgment, there will be any space containing
approximately 54,000 square feet of Rentable Floor Area in a Landlord Portfolio
Building available for lease, and finished or able to be finished to a level
commensurate with the finish level of Landlord’s Work (“Comparable Finish Condition”), on or before
August 31, 2012 (“Relocation Premises”),
and if so identifying such Relocation Premises, the date upon which Landlord
reasonably estimates that it will be available for lease to


 


14

















 


Tenant
in the Comparable Finish Condition, and the Relocation Rent, as hereinafter
defined, applicable thereto.


 


(iii)          For
purposes hereof, “Relocation Rent”
shall be the same rental rate, on a per square foot basis, as is payable from
time to time hereunder (including the same Special Allowance hereunder and a
calculation of Base Operating Expenses using calendar year 2012 and a
calculation of Base Taxes using fiscal year 2012).  Notwithstanding the foregoing, if the
Relocation Premises are not comparable to the Premises, then the Relocation
Rent shall be based upon the Prevailing Market Rent for the market area in
which Relocation Premises are situated (including the same Special Allowance
hereunder and a calculation of Base Operating Expenses using calendar year 2012
and a calculation of Base Taxes using fiscal year 2012), discounted by ten
percent (10%).


 


(iv)          If
Landlord identifies Relocation Premises, then Tenant shall have the right, by
written notice (“Relocation Premises
Acceptance Notice”) to Landlord given within 20 days after receipt
of Landlord’s Relocation Premises Notice, to lease the Relocation
Premises.  Tenant shall have the right,
by so specifying in its Relocation Premises Acceptance Notice, to submit the
Relocation Rent to a Broker Determination in accordance with the provisions of Exhibit G
hereof.  If Tenant does not request a
Broker Determination of the Relocation Rent in its Relocation Premises Acceptance
Notice, then the Relocation Rent shall be as specified by Landlord in its
Relocation Premises Notice.


 


(v)           Upon
the giving of the Relocation Premises Acceptance Notice by Tenant to Landlord
exercising Tenant’s option to lease the Relocation Premises in accordance with
the provisions of this Section 4.2(C), then Landlord (or the affiliate of
Landlord which owns the Landlord Portfolio Building containing the Relocation
Premises) and Tenant shall enter into a new lease for the Relocation Premises
on all of the terms and conditions of Tenant’s lease of the Premises hereunder,
except that the Annual Fixed Rent shall be the Relocation Rent, determined as
aforesaid.


 


(vi)          If
Tenant does not elect to lease the Relocation Premises as aforesaid, then
Landlord shall pay the reasonable cost of moving Tenant’s property from the 111
Premises, as defined in Section 16.31, to Tenant’s new premises, at the
expiration of the 111 Lease.


 


(vii)         If
Tenant does not timely submit a Relocation Request, or having timely submitted
a Relocation Request, does not timely submit a Relocation Premises Acceptance
Notice, then Tenant shall have no further right to lease the Relocation
Premises, time being of the essence hereof.


 


15

















 


(b)           Termination
Fee.


 


(i)            If
Tenant does not lease the Relocation Premises (whether because Tenant does not
submit a Relocation Request, or because Tenant does not submit a Relocation
Premises Acceptance Notice, or because Landlord indicates that no Relocation Premises
are available), then provided the Termination Fee Conditions, as hereinafter
defined, are met, Landlord shall pay to Tenant a fee (“Termination Fee”) in the amount of Eight
Hundred Thousand and 00/100 Dollars ($800,000.00).  Landlord shall pay the Termination Fee to
Tenant within thirty (30) days after the Termination Fee Conditions have been
satisfied.


 


(ii)           If
the Termination Fee Conditions are not met, Landlord shall have no obligation
to pay the Termination Fee to Tenant.


 


(iii)          The
“Termination Fee Conditions” shall
mean both of the following:  (x) this
Lease is terminated pursuant to Section 4.2(A) or Section 4.2(B) above,
and (y) Tenant timely vacates the 111 Premises in accordance with the
provisions of the 111 Lease (as defined in Section 16.31).


 


(iv)          The
Termination Fee shall be payable within thirty (30) days of the satisfaction of
the Termination Fee Conditions.


 


(v)           Except
in the case of Landlord’s willful breach of its obligations under this Article IV,
the remedies set forth in this Section 4.2(C) shall be Tenant’s sole
remedies under this Lease in the case of a termination of this Lease pursuant
to Section 4.2(A).  In the case of
Landlord’s willful breach of its obligations under this Article IV, Tenant
shall retain the right to claim its actual damages as a result thereof in
accordance with the terms of this Lease, but the Termination Fee shall be
offset against such actual damages.


 


(vi)          The
remedies under this Section 4.2(C) shall be Tenant’s sole remedies
under this Lease in the case of a termination of this Lease pursuant to Section 4.2(B).


 


4.3.         PRE-CONSTRUCTION PROCESS.


 


(A)          Selection
of General Contractor:  Landlord and Tenant hereby agree on the
following list of general contractors: 
Shawmut, Lee Kennedy, Commodore, Turner, and Structuretone.  Landlord and Tenant agree not to unreasonably
withhold, delay or condition their consent to a change in such list requested
by the other party on or before October 25, 2010.  Such list, as so modified if applicable,
shall be called the “Final List”.


 


On
or before the “RFP Submission Date” set forth in Exhibit B-2, Landlord shall submit an RFP to the
general contractors on the Final List, together with the space plans and
specifications attached hereto as Exhibit J.  The RFP shall ask each general contractor to
specify, based on the material provided, (i) a budget to complete the work
shown on the plan (that is, the amount (which may be stated as a percentage)
such general contractor would charge for General Conditions, profit and
overhead above the


 


16

















 


total
cost of subcontractor bids for the work), and (ii) the amount of time that
the general contractor estimates would be required to complete the work (“Completion Time”). 
Landlord shall promptly communicate the response (“RFP Response”)
that it receives from each general contractor to Tenant, and shall consult with
Tenant about the merits of the RFP Responses in an effort to reach mutual
agreement on the selection of the general contractor for the performance of the
Tenant Improvement Work.  However, if the
parties do not agree, Landlord shall be entitled, without Tenant’s consent, to
choose the general contractor with the lowest cost RFP Response or any RFP
Response that is within ten percent (10%) of the lowest cost RFP Response (any
such RFP Response, a “Low GC Bid”).  If none of the Low GC Bid(s) includes a
Completion Time of twenty-one (21) weeks or less, Landlord shall be entitled to
eliminate those RFP Responses which propose a Completion Time of more than
twenty-one (21) weeks, and select a Low GC Bid from the remaining bids.  If Landlord desires to choose a general
contractor other than one with a Low GC Bid, Tenant’s consent shall be required
as hereinafter provided.  Landlord shall
provide Tenant with the reasons that it desires to do so, and Tenant’s consent
thereto shall not be unreasonably withheld, conditioned or delayed.  In this manner, the general contractor for
the performance of the Tenant Improvement Work (“Approved GC”)
shall be selected on or before the “GC Selection Date”
set forth in Exhibit B-2.


 


(B)          Planning
Process.


 


(a)           Tenant
shall select an architect (“Tenant’s
Architect”) for the preparation of Tenant’s plans.  Tenant’s Architect shall be licensed by the
Commonwealth of Massachusetts and subject to Landlord’s prior written approval,
not to be unreasonably withheld, delayed or conditioned.  Landlord hereby approves Visnick &
Caulfield as Tenant’s Architect.  Tenant
shall direct Tenant’s Architect in the preparation of Tenant’s plans, and
Landlord shall have no direct relationship with Tenant’s Architect and no
responsibility for the timing, manner or content of the production of Tenant’s
plans, all of which shall be Tenant’s sole responsibility.  Landlord shall, at Tenant’s direction, enter
into a contract with Tenant’s Architect for the preparation of Tenant’s plans,
but Tenant acknowledges that the sole purpose of Landlord entering into such a
contract on Tenant’s behalf is to facilitate use of the Special Allowance (as
hereinafter defined) to pay the fees of Tenant’s Architect (“Tenant’s Architect’s Fees”).


 


(b)           Tenant
shall, on or before the dates set forth in Exhibit B-2,
submit to Landlord for Landlord’s approval an initial set of plans (“Initial Plans”), progress plans from time
to time (“Interim Plans”) and a
full set of construction drawings (“Final
Plans”) for Tenant Improvement Work (collectively “the Plans”).  The Plans shall contain at least the
information required by, and shall conform to the requirements of, Exhibit B-1.


 


(c)           Landlord’s
approval of the Initial Plans and the Interim Plans (and the Final Plans,
provided that the Final Plans are consistent with the Initial Plans and the
Interim Plans and contain at least the information required by, and conform to
the requirements of, said Exhibit B-1),
shall not be unreasonably withheld,


 


17

















 


conditioned
or delayed and shall comply with the requirements to avoid aesthetic or other
conflicts with the design and function of the balance of the Building.  Landlord’s approval is solely given for the
benefit of Landlord under this Article IV and neither Tenant nor any third
party shall have the right to rely upon Landlord’s approval of Tenant’s plans
for any other purpose whatsoever. 
Without limiting the foregoing, Tenant shall be responsible for all
elements of the design of Tenant’s plans (including, without limitation,
compliance with law, functionality of design, the structural integrity of the
design, the configuration of the Premises and the placement of Tenant’s
furniture, appliances and equipment), and Landlord’s approval of Tenant’s plans
shall in no event relieve Tenant of the responsibility for such design.


 


(d)           Landlord
agrees to respond to any Initial Plans within twenty-one days (21) of receipt
thereof and to Interim Plans and the Final Plans within twenty-one (21) days of
receipt thereof.  If Landlord shall fail
to respond to any Initial Plans, Interim Plans or the Final Plans within
twenty-one (21) days of receipt thereof, then Tenant may, at any time after the
expiration of eighteen (18) days after Tenant’s submission of the plans in
question give Landlord another request (“Second
Request”) therefor, which shall clearly identify the plans in
question and state in bold face, capital letters at the top thereof:  “WARNING:  SECOND REQUEST.  FAILURE TO RESPOND TO THIS REQUEST WITHIN
THREE (3) BUSINESS DAYS SHALL RESULT IN DEEMED APPROVAL THEREOF.”  If Landlord does not respond within three (3) business
days after receipt of the Second Request, Tenant’s submission shall be deemed
approved.


 


(e)           If
Landlord disapproves of any Plans, then Tenant shall, within ten (10) days
of receipt of such disapproval, have the Plans revised by its Tenant’s
Architect to incorporate all reasonable objections and conditions presented by
Landlord and resubmitted to Landlord (provided, however, that Tenant shall have
fourteen (14) days to resubmit the Plans in the case a major redesign is
required as the result of such disapproval) or such shorter period of time as
may be required to meet the time frames set forth in the Plans and Construction
Schedule attached hereto as Exhibit B-2.  Such process shall be followed until the
Plans shall have been approved by Landlord without objection or condition.  Landlord shall respond to the resubmission of
any Plans by Tenant within five (5) days of Landlord’s receipt thereof (or
fourteen (14) days in the case of a major redesign).


 


(f)            Tenant
shall prepare the Plans within the time frames set forth in the Plans and
Construction Schedule attached hereto as Exhibit B-2.  If no time period is specified in Exhibit B-2 or elsewhere in this Article IV
for any action which must be taken by Tenant in connection with the approval of
the Plans or the performance of the Tenant Improvement Work, Tenant shall be
required to take such action within five (5) business days after Tenant
receives a written request from Landlord to take such action.  Time is of the essence of Tenant’s obligation
to prepare the Plans in accordance with the Plans and Construction Schedule,
except to the extent that Tenant is delayed by Landlord’s failure to act in a
timely manner in accordance with this Article IV.  To the extent Tenant is delayed by 


 


18

















 


Landlord’s
failure to act in a timely manner in accordance with this Article IV, no
such Tenant Delay shall be deemed to have occurred.


 


(C)          Preliminary
Price Estimates.  Landlord shall advise Tenant of preliminary
price estimates (including breakdowns by trade) as promptly as possible but in
any event within the following time periods: 
(i) fifteen (15) business days after Landlord’s receipt of the
Initial Plans, (ii) twenty (20) business days after Landlord’s receipt of
the Interim Plans, and (iii) thirty (30) business days after Landlord’s
receipt of the Final Plans.  All
Preliminary Price Estimates shall include an estimate of Tenant’s Architect’s
Fees.


 


(D)          Selection
of Subcontractors.  Following Landlord’s approval of the Final
Plans, Landlord shall cause the Approved GC to obtain at least three (3) subcontractor
bids for each trade expected to cost in excess of One Hundred Thousand and
00/100 Dollars ($100,000.00) (“Major Trade”)
in connection with the Tenant Improvement Work, and at least one (1) subcontractor
bid for all other trades.  Tenant shall
have the right to propose one subcontractor for each Major Trade and to consult
with Landlord and the Approved GC regarding the preparation of the bid
packages.  All subcontractors shall be subject
to Landlord’s prior consent, which consent shall not be unreasonably withheld,
conditioned or delayed.  The Approved GC
may bid on portions of the Tenant Improvement Work that would be performed by a
subcontractor, such as rough carpentry. 
Landlord and Tenant shall prequalify each subcontractor for each Major
Trade on the bid list.  The bid packages
shall require bids to identify all long lead items and to specify delivery
dates therefor.  The Approved GC under
the direction of Landlord will solicit the bids from the subcontractors and
administer the bid solicitation process consistent with the time periods
provided for in Exhibit B-2.  Tenant shall reasonably cooperate with
Landlord’s efforts to expedite the bid process. 
Upon the conclusion of the bid solicitation process, Landlord will
provide Tenant with a copy of the bids received from the subcontractors,
including an analysis of such bids and recommendations for Tenant’s review, and
meet with Tenant to determine which of the subcontractors shall be awarded the
subcontract for each Major Trade within the Tenant Improvement Work.  Tenant shall make such determination within
ten (10) days after receiving the bids in question.  Notwithstanding the foregoing, provided that
Tenant performs all of its obligations with respect thereto set out in this Article IV
in a timely fashion, if the bid solicitation and selection process is not
completed within the time-frames set forth herein, such failure to complete
shall not constitute a Tenant Delay.


 


(E)           Final
Cost Proposal.  After Landlord and Tenant meet to evaluate
the results of the bid solicitation process described above, Landlord shall
calculate and furnish to Tenant a “Cost
Proposal” which shall constitute the aggregate of (i) Tenant’s
Architect’s Fees (to the extent known by Landlord), (ii) the amounts
payable under the subcontracts selected (and, subject to Section 4.3(D) above,
where the Approved GC is performing work that would be performed by a
subcontractor, the cost of such work) in the bid process and to be set upon
approval of the Cost Proposal, broken down by trade (“Direct Costs”), and (iii) the amount
of the Approved GC’s fee and indirect costs, as set forth in its RFP
Response.  The components of the Cost
Proposal other than Tenant’s Architect’s Fees shall (subject to Change Orders)
be fixed at the rates set forth therein.


 


19

















 


(F)           Tenant
Approval of Cost Proposal; Redesign Period.  Tenant shall approve or reject the Cost
Proposal in writing to Landlord on or before the later to occur of (i) ten
business days after being furnished the same, or (ii) the Authorization to
Proceed Date set forth on Exhibit B-2.  If Tenant fails to give Landlord notice
approving of the Cost Proposal within the period required under the preceding
sentence, Tenant shall be deemed to have rejected the Cost Proposal. If Tenant
rejects or is deemed to have rejected the Cost Proposal, (i) no Tenant
Improvement Work will commence until a Cost Proposal has been approved by Tenant,
and (ii) within fifteen (15) business days after the expiration of Tenant’s
response period under the first sentence of this Section 4.3(F), Tenant
shall make such revisions to the Final Plans as Tenant desires to make to
change the cost of the Tenant Improvement Work and resubmit the same to
Landlord for approval pursuant to the process set forth above.  In such event, Landlord shall direct the
Approved GC to re-price the Tenant Improvement Work based upon the revised
Final Plans and shall submit a revised Cost Proposal to Tenant within ten (10) business
days (or twenty-one (21) business days in the case of a major redesign) after
receipt of revised Final Plans.  Tenant
shall give Landlord written notice accepting or rejecting the revised Cost
Proposal on or before the later of (x) five (5) business days after
Tenant’s receipt thereof or (y) the Authorization to Proceed Date, and
failure to give such notice within such period shall be deemed a rejection
thereof.


 


(G)          Authorization
to Proceed; Release of Long Lead Items.  In any event, the cost of any change in or
cancellation of any long lead time items after the “Long Lead Items Release Date” (as set forth on Exhibit B-2) shall be Tenant’s
responsibility; and Tenant’s failure, on or before the Authorization to Proceed
Date, to approve a Cost Proposal acceptable to Landlord and to authorize, in
writing, Landlord to commence the performance of the Tenant Improvement Work
shall be deemed to be a Tenant Delay, except to the extent that such failure is
based upon Landlord’s failure to timely satisfy its obligations under this Article IV.


 


(H)          If
either party fails to take any action required of it within the time-frames set
forth in this Article IV, then for each day of such failure, there shall
be a corresponding day for day extension in the time periods under Exhibit B-2 relating to the other
party’s obligations which are related to the first party’s delay, to the extent
applicable.  By way of example only, if
Landlord delays in approving Tenant’s Initial Plans for three days, then the
Interim Plans Submission Date will be extended for three days, but if Tenant
delays in submitting the Initial Plans, the Interim Plans Submission Date will
not be adjusted.


 


4.4.         PERFORMANCE OF LANDLORD’S WORK; COST OF TENANT IMPROVEMENT
WORK AND OF LANDLORD’S BASE BUILDING WORK


 


(A)          Landlord
shall enter into a contract with the Approved GC to perform the Tenant
Improvement Work (the “TI Contract”).  The cost of the Tenant Improvement Work shall
be the approved Cost Proposal.


 


(B)          In
determining the cost of the Tenant Improvement Work to be paid by Tenant (if
any) pursuant to Section 4.4(F), any savings accruing to Landlord under
the TI Contract shall reduce the cost of the Tenant Improvement Work to be paid
by Tenant.  The


 


20
















 


Approved
GC shall be required to submit separate certificates for payment under the TI
Contract from the certificates for payment which it submits to Landlord in
connection with the Initial Work.


 


(C)           Landlord shall receive no construction management fee in connection with
the performance of the Tenant Improvement Work.


 


(D)          Tenant shall have the right, in accordance herewith, to submit for
Landlord’s approval (which shall not be unreasonably withheld) change proposals
subsequent to Landlord’s approval of the Final Plans and Tenant’s approval of
the Cost Proposal (each, a “Change Order”).  Landlord agrees to respond to any such change
proposal (which response shall include any information necessary for Tenant to
evaluate such change order) within such time as is reasonably necessary (taking
into consideration the information contained in such change proposal) after the
submission thereof by Tenant, advising Tenant in writing of any anticipated
costs (“Change Order Costs”)
associated with such change proposal, as well as an estimate of any delay which
would likely result in the completion of the Tenant Improvement Work if a
Change Order is made pursuant thereto. 
Tenant shall have the right to then approve or withdraw such change
proposal within five (5) business days after receipt of such
information.  If Tenant approves such
change proposal and a Change Order is made, then the Change Order Costs
associated with the approved change order shall be deemed additions to the Cost
Proposal.


 


(E)           Landlord’s Initial Work shall be performed by Landlord at Landlord’s
expense.  However, in the event that the
cost of Landlord’s Initial Work is increased as the result of any Tenant
Delays, Tenant shall, within thirty (30) days of billing therefor, pay to
Landlord, as Additional Rent, the cost of any such increase.  Landlord shall give notice to Tenant that
Landlord anticipates that a Tenant Delay will increase the cost of Landlord’s
Initial Work as soon as reasonably possible after Landlord has identified that
such delay will cause such increase even though the amount of such increase has
not been identified.


 


(F)           The Tenant Improvement Work shall, subject to application of the Special
Allowance (as defined in Section 5.3), be performed by Landlord at Tenant’s
sole cost and expense.  If the cost of
the Tenant Improvement Work exceeds the Special Allowance (such excess costs
are hereinafter referred to as “Excess Costs”),
then Landlord shall first expend the Special Allowance in the performance of
the Tenant Improvement Work and thereafter Tenant shall pay to Landlord, as
Additional Rent, the amount of such Excess Costs as they are incurred under the
TI Contract, within thirty (30) days after billing therefor.


 


(G)           Tenant acknowledges and agrees that Tenant’s Construction Representative
shall have full power and authority to act on behalf of Tenant and any action
taken by Tenant’s Construction Representative shall be fully binding upon
Tenant.


 


4.5.          QUALITY AND PERFORMANCE OF WORK.  All construction work required or permitted
by this Lease shall be done in a good and workmanlike manner and in compliance
with all applicable laws, ordinances, rules, regulations, statutes, by-laws,
court decisions, and orders and requirements of all public authorities (“Legal 


 


21

















 


Requirements”) and all
Insurance Requirements (as defined in Section 9.1 hereof).  All of Tenant’s work shall be coordinated
with any work being performed by or for Landlord and in such manner as to
maintain harmonious labor relations. 
Each party may inspect the work of the other at reasonable times and
shall promptly give notice of observed defects. 
Each party authorizes the other to rely in connection with design and
construction upon approval and other actions on the party’s behalf by any
Construction Representative of the party named in Section 1.2 or any
person hereafter designated in substitution or addition by notice to the party
relying.  Except to the extent to which
Tenant shall have given Landlord notice of respects in which Landlord has not
performed Landlord’s construction obligations under this Article IV no
later than eleven months after the Commencement Date Tenant shall be deemed
conclusively to have approved Landlord’s construction and shall have no claim that
Landlord has failed to perform any of Landlord’s obligations under this Article IV.  Landlord agrees to correct or repair at its
expense items which are then incomplete or do not conform to the work
contemplated under the Plans and as to which, in either case, Tenant shall have
given notice to Landlord, as aforesaid.


 


4.6.          EARLY ENTRY.  Landlord hereby grants to Tenant a license to
enter the Premises prior to the Substantial Completion Date in order to perform
such installation or work to the Premises as Tenant shall require and as shall
be permitted by the terms of this Lease; provided, however, that (i) no
such entry shall be made until Landlord has determined that such entry may made
be made in a safe manner, (ii) no such entry or work shall delay Landlord
in the performance of its work in the Premises and any such delay shall be a
Tenant Delay, and Landlord may revoke such license if any such delay shall
occur or be threatened, and (iii) any such access or work shall be at
Tenant’s sole risk and, prior to making any such access, Tenant shall deliver
to Landlord certificates for the insurance required under this Lease.  All of the terms and conditions of this
Lease, except for the payment of rent and other charges, shall apply during
such period of early access.


 


ARTICLE V

ANNUAL FIXED RENT, ELECTRICITY AND SPECIAL ALLOWANCES


 


5.1.          FIXED RENT.  Tenant agrees to pay to Landlord, or as
directed by Landlord at such place as Landlord shall from time to time
designate by notice (1) on the Commencement Date, and thereafter monthly,
in advance, on the first day of each and every calendar month during the Lease
Term, a sum equal to one-twelfth (1/12) of the Annual Fixed Rent specified in Section 1.2
and (2) on the first day of each and every calendar month during each
Extended Term (if exercised), a sum equal to one-twelfth of the Annual Fixed
Rent as determined in Section 3.2 for the applicable Extended Term.  Until notice of some other designation is
given, fixed rent and all other charges for which provision is herein made
shall be paid by remittance to or for the order of Boston Properties Limited
Partnership either (i) by mail to P.O. Box 3557, Boston,
Massachusetts 02241-3557, (ii) by wire transfer to Bank of America in
Dallas, Texas, Bank Routing Number 0260-0959-3 or (iii) by ACH transfer to
Bank of America in Dallas, Texas, Bank Routing Number 111 000 012, and in the
case of (ii) or (iii) referencing Account Number 3756454460, Account
Name of Boston Properties, LP, Tenant’s name and the Prudential Center address.
All remittances received by BOSTON PROPERTIES LIMITED 


 


22

















 


PARTNERSHIP, as Agents as
aforesaid, or by any subsequently designated recipient, shall be treated as a
payment to Landlord.


 


Annual Fixed Rent for any partial month shall be
paid by Tenant to Landlord at such rate on a pro rata basis, and, if the
Commencement Date shall be other than the first day of a calendar month, the
first payment of Annual Fixed Rent which Tenant shall make to Landlord shall be
a payment equal to a proportionate part of such monthly Annual Fixed Rent for
the partial month from the Commencement Date to the first day of the succeeding
calendar month.


 


Additional Rent payable by Tenant on a monthly
basis, as elsewhere provided in this Lease, likewise shall be prorated, and the
first payment on account thereof shall be determined in similar fashion and
shall commence on the Commencement Date and other provisions of this Lease
calling for monthly payments shall be read as incorporating this undertaking by
Tenant.


 


The Annual Fixed Rent and all other charges for
which provision is made in this Lease shall be paid by Tenant to Landlord
without setoff, deduction or abatement, except as may be expressly provided in
this Lease.


 


5.2.          ALLOCATION OF ELECTRICITY CHARGES.  With respect to any portion of the Premises
located below the 19th floor of the Building, Landlord shall reallocate the
cost of electricity to tenants of the Building (including, but not limited to,
Tenant herein) in accordance with the procedure contained in Exhibit F, and Tenant shall
pay for electricity as provided in said Exhibit F.


 


With respect to any portion of the Premises located
on or above the 19th floor of the Building, such portion of the Premises shall
be separately metered for electricity, and Tenant shall pay for all electricity
charges directly to the supplier of the same. Upon Landlord’s request, Tenant
shall, at its cost, install a meter in such portion of the Premises prior to
the Commencement Date in order to monitor usage as aforesaid. Tenant’s failure
to make payment when due to the utility company shall be considered to be a
failure in the payment of rent hereunder for which Landlord shall have all its
rights and remedies under this Lease and at law and in equity.


 


5.3.          SPECIAL ALLOWANCE.  Landlord shall provide Tenant with a special
allowance (“Special Allowance”) in the amount
of Four Million Eight Hundred Fifty Seven Thousand Four Hundred Eighty and
00/100 Dollars ($4,857,480.00) (being Ninety and 00/100 Dollars ($90.00) per
square foot of Rentable Floor Area of the Premises) to be applied against the
costs of the Tenant Improvement Work (the “Tenant Costs”).  In the event that the Tenant Costs are less
than the Special Allowance, Tenant shall be entitled to use the remaining
amount toward soft costs incurred by Tenant, including without limitation (i) architectural,
engineering, legal and consulting fees, (ii) installation of cabling in
the Premises, (iii) telecommunications and audio/visual equipment and
furniture to be used in the Premises, and (iv) moving expenses once the
Tenant Costs have been paid.  Landlord
shall reimburse such costs within thirty (30) days of Landlord’s receipt of
approved invoices from Tenant evidencing such costs.  Tenant shall 


 


23

















 


not be entitled to any
unused Special Allowance remaining after the date eighteen (18) months after
the Commencement Date.  Landlord shall
not be entitled to deduct from the Special Allowance any construction
management fee for Landlord’s oversight of Landlord’s Work.


 


ARTICLE VI

TAXES AND OPERATING EXPENSES


 


6.1.          DEFINITIONS.  With reference to the real estate taxes
referred to in this Article VI, it is agreed that terms used herein are
defined as follows:


 


(a)           “Tax Year” means the
12-month period beginning July 1 each year during the Lease Term or if the
appropriate Governmental tax fiscal period shall begin on any date other than July 1,
such other date.


 


(b)           “Landlord’s Tax Expenses Allocable to
the Premises” means the same proportion of Landlord’s Tax Expenses
as Rentable Floor Area of Tenant’s Premises bears to the Total Rentable Floor
Area of the Building.


 


(c)           “Landlord’s Tax Expenses”
with respect to any Tax Year means the aggregate “real estate taxes”
(hereinafter defined) with respect to that Tax Year, reduced by any net
abatement receipts with respect to that Tax Year.


 


(d)           “Real estate taxes” means
all taxes and special assessments of every kind and nature and user fees and
other like fees assessed by any Governmental authority on, or, subject to the
provisions of this paragraph (d) allocable to, (i) the Building, or (ii) the
land, open areas, public areas and amenities, plazas, common areas and other
non-leasable areas of the Prudential Center (for the purposes of this
subsection (d) “Tax Common Areas”),
which Landlord shall be obligated to pay because of or in connection with the
ownership, leasing or operation of the Building and reasonable expenses of any
proceedings for abatement of taxes (which expenses, in the case of legal fees,
shall not be greater than the amount of abatement or refund actually
received).  The amount of special taxes
or special assessments to be included shall be limited to the amount of the
installment (plus any interest other than penalty interest payable thereon) of
such special tax or special assessment required to be paid during the year in
respect of which such taxes are being determined.  There shall be excluded from such taxes all
income, estate, succession, inheritance and transfer taxes; provided, however,
that if at any time during the Lease Term the present system of ad valorem
taxation of real property shall be changed so that in lieu of, or in addition
to, the whole or any part of the ad valorem tax on real property, there shall
be assessed on Landlord a capital levy or other tax on the gross rents received
with respect to the Building, or a Federal, State, County, Municipal, or other
local income, franchise, excise or similar tax, assessment, levy or charge
(distinct from any now in effect in the jurisdiction in which the Prudential
Center is located) measured by or based, in whole or in part, upon any such
gross rents, then any and all of such taxes, assessments, levies or charges, to
the extent so measured or based, shall be 


 


24

















 


deemed
to be included within the term “real estate taxes” but only to the extent that
the same would be payable if the Building, were the only property of
Landlord.  For the purposes of this
Lease, real estate taxes shall include any payment in lieu of taxes or any
payments made under Chapter 121A of the Massachusetts General Laws or any
similar law.  To the extent that the
Building is not separately assessed for real estate tax purposes, but is
assessed as part of a larger parcel, then Landlord shall make a reasonable
allocation as to the amount of the real estate taxes (i.e. so far as such taxes
are imposed on the land of the Prudential Center and the open areas, public
areas and amenities, plazas, common areas and other non-leasable areas of the
Prudential Center) that shall be allocated to the Building for the purposes of
determination of Tenant’s share of increases in real estate taxes under this
Lease.  In such event, Landlord agrees
that it will not allocate to the Building any real estate taxes associated with
the retail space commonly known as the Prudential shopping center.


 


(e)           “Base Taxes” means Landlord’s
Tax Expenses for fiscal tax year 2012 (that is, the period beginning July 1,
2011 and ending June 30, 2012).


 


(f)            “Base Taxes Allocable to the Premises”
means the same proportion of Base Taxes as the Rentable Floor Area of the
Premises bears to the Total Rentable Floor Area of the Building, provided that
Base Taxes Allocable to the Premises for any calendar year shall be
appropriately adjusted if the Rentable Floor Area of the Premises increases or
decreases during such calendar year.


 


(g)           If during the Lease Term the Tax Year is changed by applicable law to
less than a full 12-month period, the Base Taxes and Base Taxes Allocable to
the Premises shall each be proportionately reduced.


 


6.2.          TENANT’S SHARE OF REAL ESTATE TAXES.  If with respect to any full Tax Year or
fraction of a Tax Year falling within the Lease Term, Landlord’s Tax Expenses
Allocable to the Premises for a full Tax Year exceed Base Taxes Allocable to
the Premises or for any such fraction of a Tax Year exceed the corresponding
fraction of Base Taxes Allocable to the Premises (such amount being hereinafter
referred to as the “Tax Excess”),
then Tenant shall pay to Landlord, as Additional Rent, the amount of such Tax
Excess.  Payments by Tenant on account of
the Tax Excess shall be made monthly at the time and in the fashion herein
provided for the payment of Annual Fixed Rent. 
The amount so to be paid to Landlord shall be an amount from time to
time reasonably estimated by Landlord to be sufficient to provide Landlord, in
the aggregate, a sum equal to the Tax Excess, at least ten (10) days
before the day on which tax payments by Landlord would become delinquent.  Not later than ninety (90) days after
Landlord’s Tax Expenses Allocable to the Premises are determinable for the
first such Tax Year or fraction thereof and for each succeeding Tax Year or
fraction thereof during the Lease Term, Landlord shall render Tenant a
statement in reasonable detail certified by a representative of Landlord
showing for the preceding year or fraction thereof, as the case may be, real
estate taxes allocated to the Building, abatements and refunds, if any, of any
such taxes and assessments, expenditures incurred in seeking such abatement or
refund, the amount of the Tax Excess, the amount thereof already paid by Tenant
and the amount 


 


25

















 


thereof overpaid by, or
remaining due from, Tenant for the period covered by such statement.  Within thirty (30) days after the receipt of
such statement, Tenant shall pay any sum remaining due.  Any balance shown as due to Tenant shall be
credited against Annual Fixed Rent next due, or refunded to Tenant if the Lease
Term has then expired and Tenant has no further obligation to Landlord.  Expenditures for legal fees and for other
expenses incurred in obtaining an abatement or refund may be charged against
the abatement or refund before the adjustments are made for the Tax Year.


 


To the extent that real estate taxes shall be
payable to the taxing authority in installments with respect to periods less
than a Tax Year, the statement to be furnished by Landlord shall be rendered
and payments made on account of such installments.


 


6.3.          OPERATING COSTS DEFINED.  “Operating Expenses
Allocable to the Premises” means the same proportion of the
Operating Expenses for the Building (as hereinafter defined) as Rentable Floor
Area of the Premises bears to 95% of the Total Rentable Floor Area of the
Building.  “Base
Operating Expenses” means Operating Expenses for the Building for
calendar year 2012 (that is, the period beginning January 1, 2012 and
ending December 31, 2012).  Base
Operating Expenses shall not include market-wide cost increases due to
extraordinary circumstances, including but not limited to Force Majeure (as
defined in Section 14.1), boycotts, strikes, conservation surcharges,
embargoes or shortages.  “Base Operating Expenses Allocable to the Premises” means the
same proportion of Base Operating Expenses as the Rentable Floor Area of the
Premises bears to 95% of the Total Rentable Floor Area of the Building,
provided that Base Operating Expenses Allocable to the Premises for any
calendar year shall be appropriately adjusted if the Rentable Floor Area of the
Premises increases or decreases during such calendar year.  “Operating Expenses for the
Building” means the cost of operation of the Building and the
Building’s share of the cost of operating other areas of the Prudential Center
as more specifically provided below in this Section 6.3, including those
incurred in discharging the obligations under Section 7.2 and 7.3; however
there shall be excluded from the Operating Expenses for the Building the cost
of operation of the Garage.  In addition,
such costs shall exclude payments of debt service and any other mortgage
charges, brokerage commissions, salaries of executives and owners not directly
employed in the management or operation of the Building, the general overhead
and administrative expenses of the home office of Landlord or Landlord’s
managing agent, and costs of special services rendered to tenants (including
Tenant) for which a separate charge is made, but shall include, without
limitation:


 


(a)           compensation, wages and all fringe benefits, workmen’s compensation
insurance premiums and payroll taxes paid to, for or with respect to all
persons for their services in the operating, maintaining, managing, insuring or
cleaning of the Building or, as allocated under clause (i) below, the
Operating Common Areas;


 


(b)           payments under service contracts with independent contractors for
operating, maintaining or cleaning of the Building or, as allocated under clause
(i) below, the Operating Common Areas;


 


26

















 


(c)           steam, water, sewer, gas, oil, electricity and telephone charges
(excluding such utility charges separately chargeable to tenants for additional
or separate services and electricity charges paid by Tenant in the manner set
forth in Section 5.2) and costs of maintaining letters of credit or other
security as may be required by utility companies as a condition of providing
such services;


 


(d)           cost of maintenance, cleaning and repairs and replacements (other than
repairs reimbursed from contractors under guarantees);


 


(e)           cost of snow removal and care of landscaping;


 


(f)            cost of building and cleaning supplies and equipment;


 


(g)           premiums for insurance carried with respect to the Building or, as
allocated under clause (i) below, the Operating Common Areas (including,
without limitation, liability insurance, insurance against loss in case of fire
or casualty and of monthly installments of Annual Fixed Rent and any Additional
Rent which may be due under this Lease and other leases of space in the
Building for not more than twelve (12) months in the case of both Annual Fixed
Rent and Additional Rent and, if there be any first mortgage on the Building,
including such insurance as may be required by the holder of such first
mortgage);


 


(h)           management fees at rates comparable to those in effect for self-managed
buildings in the Market Area consistent with the type of occupancy and the
services rendered;


 


(i)            the cost of operating, maintaining, cleaning and insuring the open areas,
public areas and amenities, plazas, common areas, common facilities and other
non-leasable areas of the Prudential Center that are used in common by tenants
of the Prudential Center (“Operating Common
Areas”) and other mixed use common area maintenance costs incurred
by Landlord or any other PruOwner and allocated to the Building, and any
shuttle buses for the use by tenants of the Building either alone or in common
with tenants of other buildings in the Prudential Center (but see subparagraph (xxi) below
for limitations on the inclusion of subsidies for amenities).  For the purposes of this Section 6.3,
the Operating Common Areas of the Prudential Center shall not include the
lobbies within any building now or hereafter located at the Prudential Center
or the Garage;


 


(j)            depreciation for capital improvements (x) to reduce Operating
Expenses if Landlord reasonably shall have determined that the annual reduction
in Operating Expenses shall exceed depreciation therefor or (y) to comply
with Legal Requirements first enacted or applied to the Building after the
Execution Date (plus, in the case of both (x) and (y), an interest factor,
reasonably determined by Landlord, as being 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), and in the case of both (x) and
(y) depreciation shall be determined by dividing the original cost of such
capital expenditure by the 


 


27

















 


number
of years of useful life of the capital item acquired, which useful life shall
be determined reasonably by Landlord in accordance with generally accepted
accounting principles and practices in effect at the time of acquisition of the
capital item; provided, however, if Landlord reasonably concludes on the basis
of engineering estimates that a particular capital expenditure will effect
savings in other Operating Expenses, including, without limitation, energy
related costs, and that such projected savings will, on an annual basis (“Projected Annual Savings”), exceed the
annual depreciation therefor, then and in such event the amount of depreciation
for such capital expenditure shall be increased to an amount equal to the
Projected Annual Savings; and in such circumstance, the increased depreciation
(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 item in question,
together with interest thereon at the interest rate as aforesaid in equal
monthly payments, each in the amount of 1/12th of the Projected Annual Savings,
with such payment to be applied first to interest and the balance to principal
(such depreciation being hereinafter referred to as the “Permitted Depreciation”); and


 


(k)           all other reasonable and necessary expenses paid in connection with the
operating, cleaning and maintenance of the Building or as allocated under
clause (i) above, the Operating Common Areas and properly chargeable
against income.


 


Notwithstanding the foregoing, the following shall
be excluded from Operating Expenses for the Building:


 


(i)            The costs of the initial construction of the Building, and repair costs
in connection with other buildings in the Prudential Center;


 


(ii)           Capital expenditures and depreciation, except as otherwise explicitly
provided in this Section 6.3;


 


(iii)          Leasing fees or commissions, advertising and promotional expenses, legal
fees, the cost of tenant improvements, build out allowances, moving expenses,
assumption of rent under existing leases and other concessions incurred in
connection with leasing space in the Building or in Prudential Center;


 


(iv)          Interest on indebtedness, debt amortization, ground rent, and refinancing
costs for any mortgage or ground lease of the Building or the Prudential
Center, provided however, that the foregoing shall not exclude the inclusion of
the amortization and interest permitted to be included in Operating Expenses on
account of capital improvements under Section 6.3(j) above;


 


(v)           Legal, auditing, consulting and professional fees and other costs, (other
than those legal, auditing, consulting and professional fees and other costs
incurred in connection with the normal and routine maintenance and operation of
the Building and/or the Operating Common Areas of 


 


28

















 


Prudential
Center), including, without limitation, those: (i) paid or incurred in
connection with financings, refinancings or sales of any Landlord’s interest in
the Building or the Prudential Center, (ii) relating to specific disputes
with tenants, and (iii) relating to any special reporting required by
securities laws;


 


(vi)          Costs incurred in performing work or furnishing services for any tenant
(including Tenant), whether at such tenant’s or Landlord’s expense, to the
extent that such work or services is in excess of any work or service that
Landlord is obligated to furnish to Tenant at Landlord’s expense (e.g., if
Landlord agrees to provide extra cleaning to another tenant, the cost thereof
would be excluded since Landlord is not obligated to furnish extra cleaning to
Tenant);


 


(vii)         The
cost of any item or service to the extent reimbursed or reimbursable to Landlord
by insurance required to be maintained under the Lease, by any tenant, or by
any third party, such as the cost of supplying electricity for plugs and lights
in a tenant’s premises;


 


(viii)        The
cost of repairs or replacements incurred by reason of fire or other casualty or
condemnation other than costs not in excess of a reasonable deductible on any
insurance maintained by Landlord which provides a recovery for such repair or
replacement;


 


(ix)           Insurance premiums to the extent any tenant causes Landlord’s existing
insurance premiums to increase or requires Landlord to purchase additional
insurance because of such tenant’s use of the Building for other than office
purposes;


 


(x)            Any advertising, promotional or marketing expenses for the Building or
the Prudential Center;


 


(xi)           The cost of any service or materials provided by any party related to
Landlord, to the extent such costs exceed the reasonable cost for such service
or materials absent such relationship in buildings similar to the Building in
the vicinity of the Building (provided, however, that this clause (xi) shall
not apply to the management fee, which shall be governed by Section 6.3(g) above);


 


(xii)         Payments
for rented equipment, the cost of which equipment would constitute a capital
expenditure if the equipment were purchased to the extent that such payments
exceed the amount which could have been included in Operating Expenses had
Landlord purchased such equipment rather than leasing such equipment;


 


(xiii)        Penalties,
damages, and interest for late payment or violations of any obligations of
Landlord, including, without limitation, taxes, insurance, equipment leases and
other past due amounts;


 


29

















 


(xiv)        Contributions
to charitable organizations;


 


(xv)         Costs
incurred in removing the property of former tenants or other occupants of the
Building;


 


(xvi)        The
cost of testing, remediation or removal of “Hazardous
Materials” (as defined in Section 11.2) in the Building or on
the Prudential Center required by “Hazardous
Materials Laws” (as defined in Section 11.2), provided however,
that with respect to the testing, remediation or removal of any material or
substance which, as of the Commencement Date, was not considered, as a matter
of law, to be a Hazardous Material, but which is subsequently determined to be
a Hazardous Material as a matter of law, the costs thereof shall be included in
Operating Expenses, subject, however, to Section 6.3(j) to the extent
that such cost is treated as a capital expenditure.


 


(xvii)       The
cost of acquiring, installing, moving or restoring objects of art;


 


(xviii)     Wages,
salaries, or other compensation paid to any executive employees above the grade
of general manager at the Prudential Center, except that if any such employee
performs a service which would have been performed by an outside consultant,
the compensation paid to such employee for performing such service shall be
included in Operating Expenses, to the extent only that the cost of such
service does not exceed competitive cost of such service had such service been
rendered by an outside consultant;


 


(xix)        Operating
Costs for the Garage, the retail portions of the Prudential Center (other than
as expressly provided above), or any building now or hereafter located at the
Prudential Center (other than the Building and the Operating Common Areas of
the Prudential Center, as set forth above);


 


(xx)         The
net (i.e. net of the reasonable costs of collection) amount recovered by
Landlord under any warranty or service agreement from any contractor or service
provider shall be credited against Operating Costs;


 


(xxi)        The
cost of installation of, space preparation for, and rent applicable to any
amenities of the Prudential Center (the parties hereby agreeing that this
clause (xxi) shall not be deemed to exclude the cost of subsidizing the
operation of those amenities of the Prudential Center that are not businesses,
a health club being an example of such an amenity);


 


(xxii)       Cost
or expenses due to the willful misconduct or gross negligence of Landlord;


 


(xxiii)      Bad
debt expenses;


 


(xxiv)      General
corporate overhead expenses and general administrative expenses; or


 


30
















 


(xxv)                       Cost of correcting violation of laws currently in effect.


 


Gross-Up Provision.  Notwithstanding the foregoing, in determining
the amount of Operating Expenses for the Building for any calendar year or
portion thereof falling within the Lease Term, or the Base Operating Expenses
applicable to the Premises, if less than ninety-five percent (95%) of the
Rentable Area of the Building shall have been occupied by tenants at any time
during the period in question, then, at Landlord’s election, Operating Expenses
which vary according to occupancy for such period shall be adjusted to equal
the amount that such Operating Expenses would have been for such period had
occupancy been ninety-five percent (95%) throughout such period.


 


6.4.                              TENANT’S ESCALATION PAYMENTS


 


(A)          If with respect to any calendar year falling within the Lease Term, or
fraction of a calendar year falling within the Lease Term at the beginning or
end thereof, the Operating Expenses Allocable to the Premises (as defined in Section 6.3)
for a full calendar year exceed Base Operating Expenses Allocable to the
Premises (as defined in Section 6.3) or for any such fraction of a
calendar year exceed the corresponding fraction of Base Operating Expenses
Allocable to the Premises (such amount being hereinafter referred to as the “Operating Cost Excess”), then Tenant shall
pay to Landlord, as Additional Rent, on or before the thirtieth (30th) day
following receipt by Tenant of the statement referred to below in this Section 6.4,
the amount of such excess.


 


(B)           Payments by Tenant on account of the Operating Cost Excess shall be made
monthly at the time and in the fashion herein provided for the payment of
Annual Fixed Rent.  The amount so to be
paid to Landlord shall be an amount from time to time reasonably estimated by
Landlord to be sufficient to cover, in the aggregate, a sum equal to the
Operating Cost Excess for each calendar year during the Lease Term.


 


(C)           No later than one hundred twenty (120) days after the end of the first
calendar year or fraction thereof ending December 31 and of each
succeeding calendar year during the Lease Term or fraction thereof at the end
of the Lease Term, Landlord shall render Tenant a statement in reasonable
detail and according to usual accounting practices certified by a
representative of Landlord, showing for the preceding calendar year or fraction
thereof, as the case may be, the Operating Expenses for the Building and the
Operating Expenses Allocable to the Premises. 
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.


 


(D)          If such statement shows a balance remaining due to Landlord, Tenant shall
pay same to Landlord on or before the thirtieth (30th) day following receipt by
Tenant of said statement.  Any balance
shown as due to Tenant shall be credited against Annual Fixed Rent next due, or
refunded to Tenant if the Lease Term has then expired and Tenant has no further
obligation to Landlord.  Any payment by
Tenant for the Operating Cost Excess 


 


31

















 


shall
not be deemed to waive any rights of Tenant to claim that the amount thereof
was not determined in accordance with the provisions of this Lease.


 


(E)           Subject to the provisions of this paragraph, provided that Tenant is not
in default beyond any applicable cure period in the payment of (i) Annual
Fixed Rent, or (ii) any other amounts due from Tenant to Landlord
hereunder (except, with respect to such other amounts, to the extent that
Tenant has notified Landlord in writing within thirty (30) days of billing
therefor that it objects in good faith to the amount claimed to be due by
Landlord), 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 a
reasonable time after Landlord receives a written request from Tenant to make
such examination.


 


2.                                       Tenant shall
have the right to make such examination no more than once in respect of any
period for which Landlord has given Tenant a statement of the actual amount of
Operating Expenses.


 


3.                                       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 Expenses in
respect of such calendar year and provides to Tenant the year-end statement
required under Paragraph C of this Section 6.4, 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, and if such examination results in a determination
that Landlord committed a fraud with respect to a calendar year, then Tenant
shall have the right to review Landlord’s books for the three (3) calendar
years immediately prior to the calendar year in question. If such examination
results in the determination that Tenant was overcharged with respect to a
calendar year by more than five percent (5%), then Landlord shall reimburse
Tenant for the reasonable cost of such examination.


 


4.                                       Such examination
may be made only by an independent certified public accounting firm or other
hourly consultant approved by Landlord, which approval shall not be
unreasonably withheld.  Without limiting
Landlord’s approval rights, Landlord may withhold its approval of any examiner
of Tenant who 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, agreeing to keep confidential any information which it discovers
about Landlord or the 


 


32

















 


Building in connection with
such examination, provided however, that Tenant shall be permitted to share
such information with each of its permitted subtenants so long as such
subtenants execute and deliver to Landlord similar confidentiality
agreements.  Without limiting the
foregoing, if Tenant uses any examiner which is other than a nationally recognized
accounting firm, Tenant’s examiner shall be required to agree that it will not
represent any other tenant in the Building or in other buildings located in the
Prudential Center which is owned by Landlord or an affiliate of Landlord in
connection with reviewing operating expenses for such tenant.


 


6.5.                              111 LEASE ESCALATIONS.  Notwithstanding anything to the contrary
contained in this Lease, for the period (if any) between the Commencement Date
through December 31, 2011 (the “Early Period”),
Tenant shall not be required to pay the amounts due under this Article VI.  In lieu thereof, Tenant shall pay, as
Additional Rent, such amounts that otherwise would have been payable with
respect to such Early Period under Article VI of the 111 Lease had such
111 Lease not been terminated.


 


ARTICLE VII

LANDLORD’S REPAIRS AND SERVICES


 


7.1.                              STRUCTURAL REPAIRS.  Except for (a) normal and reasonable
wear and use and (b) damage caused by fire or casualty and by eminent
domain, Landlord shall, throughout the Lease Term, at Landlord’s sole cost and
expense, keep and maintain, or cause to be kept and maintained, in good order,
condition and repair the following portions of the Building:  the structural portions of the roof, the
exterior and load bearing walls, the foundation, the structural columns and
floor slabs and other structural elements of the Building; provided however,
that Tenant shall pay to Landlord, as Additional Rent, the cost of any and all
such repairs which may be required as a result of repairs, alterations, or
installations made by Tenant or any subtenant, assignee, licensee or
concessionaire of Tenant or any agent, servant, employee or contractor of any
of them or to the extent of any loss, destruction or damage caused by the
negligence or willful misconduct of Tenant, any assignee or subtenant or any
agent, servant, employee, or contractor of any of them.  The provisions of this Section 7.1 are
subject to the provisions of Section 13.5 hereof.


 


7.2.                              OTHER REPAIRS TO BE MADE BY LANDLORD.  Except for (a) normal and reasonable
wear and use and (b) damage caused by fire or casualty and by eminent
domain, and except as otherwise provided in this Lease, and subject to
provisions for reimbursement by Tenant as contained in Section 6.3,
Landlord agrees to keep and maintain, or cause to be kept and maintained, in
good order, condition and repair the common areas and facilities of the
Building, including heating, ventilating, air conditioning, plumbing and other
Building systems equipment servicing the Premises, except that Landlord shall
in no event be responsible to Tenant for (a) the condition of glass in and
about the Premises (other than for glass in exterior walls for which Landlord
shall be responsible unless the damage thereto is attributable to Tenant’s
negligence or misuse, in which event the responsibility therefor shall be
Tenant’s, subject to the 


 


33

















 


provisions of Section 13.5
hereof), or (b) subject to the provisions of Section 13.5 hereof, any
condition in the Premises or the Building caused by the negligence or willful
misconduct of Tenant or any agent, employee, contractor, assignee, subtenant,
licensee, or concessionaire of Tenant. 
Without limitation, Landlord shall not be responsible to make any
improvements or repairs to the Building or the Premises other than as expressly
provided in Section 7.1 or in this Section 7.2, unless expressly
otherwise provided in this Lease.


 


7.3.                              SERVICES TO BE PROVIDED BY LANDLORD.  In addition, and except as otherwise provided
in this Lease and subject to provisions for reimbursement by Tenant as
contained in Sections 6.2 and 6.4 and Tenant’s responsibilities in regard to
electricity as provided in Section 5.2, Landlord agrees to furnish
services, utilities, facilities and supplies as set forth in Exhibit C hereto equal in
quality comparable to those customarily provided by landlords in high quality
buildings in the Market Area.  In
addition, Landlord agrees to furnish, at Tenant’s expense, reasonable
additional Building operation services which are usual and customary in similar
buildings in the Market Area, and such additional special services as may be
mutually agreed upon by Landlord and Tenant, upon reasonable and equitable
rates from time to time established by Landlord.


 


7.4.                              NO
DAMAGE


 


(A)          No Liability.          Except to the extent caused by the gross negligence or willful
malfeasance of Landlord, Landlord shall not be liable to Tenant for any
compensation or reduction of rent by reason of inconvenience or annoyance or
for loss of business arising from the necessity of Landlord or its agents
entering the Premises for any purposes in this Lease authorized, or for
repairing the Premises or any portion of the Building or Prudential Center
however the necessity may occur, but such entry shall be subject to the
provisions of Section 2.3 hereof. 
The foregoing sentence is not intended to apply to damage to property or
physical injury to persons, as to which the remaining provisions of this Lease
shall apply.  In case Landlord is prevented
or delayed from making any repairs, alterations or improvements, or furnishing
any services or performing any other covenant or duty to be performed on
Landlord’s part, by reason of any cause reasonably beyond Landlord’s control,
including, without limitation, strike, lockout, breakdown, accident, order or
regulation of or by any Governmental authority, or failure of supply, or
inability by the exercise of reasonable diligence to obtain supplies, parts or
employees necessary to furnish such services, or because of war or other
emergency, or for any cause due to any act or neglect of Tenant or Tenant’s
servants, agents, employees, licensees or any person claiming by, through or
under Tenant, Landlord shall not be liable to Tenant therefor, nor, except as
expressly otherwise provided in this Lease, shall Tenant be entitled to any
abatement or reduction of rent by reason thereof, nor shall the same give rise
to a claim in Tenant’s favor that such failure constitutes actual or
constructive, total or partial, eviction from the Premises.


 


(B)           Stoppage of Service.  Landlord reserves the right to stop any
service or utility system, when necessary by reason of accident or emergency,
or until necessary repairs have been completed; provided, however, that in each
instance of stoppage, Landlord shall exercise reasonable diligence to eliminate
the cause thereof.  Except in case of 


 


34

















 


emergency
repairs, Landlord will give Tenant reasonable advance notice of any contemplated
stoppage and will use reasonable efforts to avoid unnecessary
inconvenience to Tenant by reason thereof.


 


(C)           Rent Abatement.  Notwithstanding anything to the contrary in
this Lease contained, if due to (i) any repairs, alterations,
replacements, or improvements made by Landlord, (ii) Landlord’s failure to
make any repairs, alterations, or improvements required to be made by Landlord
hereunder, or to provide any service required to be provided by Landlord
hereunder, (iii) failure of electric supply caused by Landlord, or (iv) the
presence of any Hazardous Materials not introduced or caused by Tenant or
anyone for whom Tenant is legally responsible, any portion of the Premises is
so adversely affected thereby so that for the Premises Untenantability Cure
Period, as hereinafter defined, the continued operation in the ordinary course
of Tenant’s business is adversely affected, then, provided that Tenant ceases
to use the affected portion of the Premises during the entirety of the Premises
Untenantability Cure Period by reason of such adverse effect, and that such
adverse effect and Landlord’s inability to cure such condition is not caused by
the fault or neglect of Tenant or Tenant’s agents, employees or contractors,
Annual Fixed Rent and Operating Cost Excess shall thereafter be abated,
retroactively back to the beginning of the Premises Untenantability Cure
Period, in proportion to such adverse effect and its impact on the continued
operation in the ordinary course of Tenant’s business until the day such condition
is completely corrected.  For the
purposes hereof, the “Premises
Untenantability Cure Period” shall be defined as three (3) consecutive
business days after Landlord’s receipt of written notice from Tenant of the
condition causing such adverse effect in the Premises, provided however, that
the Premises Untenantability Cure Period shall be five(5) consecutive
business days after Landlord’s receipt of written notice from Tenant of such
condition causing such adverse effect in the Premises if either the condition
was caused by causes beyond Landlord’s control or Landlord is unable to cure
such condition as the result of causes beyond Landlord’s control.  The provisions of this clause (C) shall
not apply in the event of such adverse effect caused by fire or other casualty,
or taking (see Article XIV).


 


7.5.                              LANDLORD’S INSURANCE.  Landlord shall maintain fire and extended
coverage insurance on the Building with commercially responsible insurers and
such other insurance as is required under any mortgage.  Such insurance shall cover the Tenant
Improvement Work to the extent of the Special Allowance under Section 5.3.
Landlord shall maintain insurance against loss or damage with respect to the
Building on an “all risk” type insurance form, with customary exceptions,
subject to such deductibles as Landlord may determine, in an amount equal to at
least the replacement value of the Building. 
Landlord shall also maintain such insurance with respect to any
improvements, alterations, and fixtures of Tenant located at the Premises to
the extent paid for by Landlord. The cost of such insurance shall be treated as
a part of Operating Expenses for the Building. Such insurance shall be
maintained with an insurance company selected by Landlord. Payment for losses
thereunder shall be made solely to Landlord.


 


35

















 


ARTICLE VIII

TENANT’S REPAIRS


 


8.1.                              TENANT’S REPAIRS AND MAINTENANCE.  Tenant covenants and agrees that, from and
after the date that possession of the Premises is delivered to Tenant and until
the end of the Lease Term, Tenant will keep neat and clean and maintain in good
order, condition and repair the Premises and every part thereof, excepting only
for those repairs for which Landlord is responsible under the terms of Article VII
of this Lease and damage by fire or casualty and as a consequence of the
exercise of the power of eminent domain. 
Tenant shall not permit or commit any waste, and, subject to the
provisions of Section 13.5, Tenant shall be responsible for the cost of
repairs which may be made necessary by reason of damages to common areas in the
Building or Prudential Center by Tenant, Tenant’s agents, employees,
contractors, sublessees, licensees, or concessionaires.  Tenant shall maintain all its equipment, furniture
and furnishings in good order and repair. 
Without limiting the foregoing, in the event that there is a leakage or
other escape of water in the Premises which Tenant is required to repair or
restore, Tenant shall do so promptly, and shall perform such mold testing
and/or remediation in connection therewith as may be reasonably requested by
Landlord.


 


If repairs are required to be made by Tenant
pursuant to the terms hereof, Landlord may demand that Tenant make the same
forthwith, and if Tenant refuses or neglects to commence such repairs and
complete the same with reasonable dispatch after such demand, Landlord may (but
shall not be required to do so) make or cause such repairs to be made and shall
not be responsible to Tenant for any loss or damage that may accrue to Tenant’s
stock or business by reason thereof.  If
Landlord makes or causes such repairs to be made, Tenant agrees that Tenant
will forthwith on demand, pay to Landlord as Additional Rent the cost thereof
together with interest thereon at the rate specified in Section 16.21, and
if Tenant shall default in such payment, Landlord shall have the remedies
provided for non-payment of rent or other charges payable hereunder.


 


ARTICLE IX

ALTERATIONS


 


9.1.                              LANDLORD’S
APPROVAL.  Tenant covenants and agrees
not to make alterations, additions or improvements to the Premises, whether
before or during the Lease Term, except in accordance with plans and
specifications therefor first approved by Landlord in writing, which approval
shall not be unreasonably withheld or delayed. 
However, Landlord’s determination of matters relating to aesthetic
issues relating to alterations, additions or improvements which are visible
outside the Premises shall be in Landlord’s sole discretion.  Without limiting such standard, Landlord
shall not be deemed unreasonable:


 


(a)                                  for withholding approval of any alterations, additions or improvements
which (i) in Landlord’s opinion might affect any structural or exterior
element of the Building, any area or element outside of the Premises or any
facility or base building mechanical system serving any area of the Building
outside of the Premises, or (ii) involve or affect the exterior design,
size, height or other exterior 


 


36

















 


dimensions
of the Building, or (iii) enlarge the Rentable Floor Area of the Premises,
or (iv) are inconsistent, in Landlord’s judgment, with alterations
satisfying Landlord’s standards for new alterations in the Building.


 


(b)                                 for making its approval conditional on Tenant’s agreement to restore the
Premises to its condition prior to such alteration, addition, or improvement at
the expiration or earlier termination of the Lease Term.


 


Landlord agrees to respond to any submission by
Tenant under this Article IX (the “First Request”)
within fourteen (14) days of Landlord’s receipt thereof.  If Landlord shall fail to respond to Tenant
within fourteen (14) days of the First Request, then Tenant may, at any time
after the expiration of eleven (11) days, give Landlord another request (“Second Request”) therefor, which shall clearly identify the
plans in question and state in bold face, capital letters at the top
thereof:  “WARNING:  SECOND REQUEST.  FAILURE TO RESPOND TO THIS REQUEST WITHIN
THREE (3) BUSINESS DAYS SHALL RESULT IN DEEMED APPROVAL THEREOF.”  If Landlord does not respond within three (3) business
days after receipt of the Second Request, Tenant’s submission shall be deemed
approved.


 


Landlord’s review and approval of any such plans and
specifications or under Section 4.1 and consent to perform work described
therein shall not be deemed an agreement by Landlord that such plans,
specifications and work conform with applicable Legal Requirements and
requirements of insurers of the Building (herein called “Insurance
Requirements”) nor deemed a waiver of Tenant’s obligations under
this Lease with respect to applicable Legal Requirements and Insurance
Requirements nor impose any liability or obligation upon Landlord with respect
to the completeness, design sufficiency or compliance of such plans,
specifications and work with applicable Legal Requirements and Insurance
Requirements.


 


Tenant acknowledges that Tenant is acting for its
own benefit and account and that Tenant will not be acting as Landlord’s agent
in performing any Tenant Work; accordingly, no contractor, subcontractor or
supplier shall have a right to lien Landlord’s interest in the Prudential
Center in connection with any such work. 
Within 30 days after receipt of an invoice from Landlord, Tenant shall
pay to Landlord, as a fee for Landlord’s review of any plans or work (excluding
any review respecting initial improvements performed pursuant to Section 4.1
hereof for which a fee had previously been paid but including any review of
plans or work relating to any assignment or subletting), as Additional Rent, an
amount equal to the sum of :  (i) $150/hour
for time spent by senior staff, and $100/hour for time spent by junior staff,
plus (ii) reasonable third party expenses (without mark-up) incurred by
Landlord for the services of engineers to review the structural and MEP
portions of Tenant’s plans and Tenant’s work. 
There shall be no charge for Landlord’s review of plans pursuant to Article 4
hereof.


 


9.2.                              CERTAIN ALTERATIONS.  Notwithstanding the terms of Section 9.
1, Tenant shall have the right, without obtaining the prior consent of
Landlord, but upon at least five (5) business days’ prior written notice
to Landlord, to make alterations, additions or improvements to the Premises
where:


 


37

















 


(i)                                    the same are within the interior of the Premises within the Building, and
do not affect the exterior of the Premises and the Building;


 


(ii)                               the same do not affect the roof, any structural element of the Building,
the mechanical, electrical, plumbing, heating, ventilating, air-conditioning
and fire protection systems of the Building;


 


(iii)                            the cost of any individual alteration, addition or improvement shall not
exceed $100,000.00 in each instance; and


 


(iv)                              Tenant shall comply with the provisions of this Lease and if such work
increases the cost of insurance or taxes or of services, Tenant shall pay for
any such increase in cost.


 


9.3.                              CONFORMITY OF WORK.  Tenant covenants and agrees that any
alterations, additions, improvements or installations made by it to or upon the
Premises shall be done in a good and workmanlike manner and in compliance with
all applicable Legal Requirements and Insurance Requirements now or hereafter
in force, that materials of first and otherwise good quality shall be employed
therein, that the structure of the Building shall not be endangered or impaired
thereby and that the Premises shall not be diminished in value thereby.


 


9.4.                              PERFORMANCE OF WORK, GOVERNMENTAL PERMITS AND
INSURANCE.  All of
Tenant’s alterations and additions and installation of furnishings and voice
and data cabling shall be coordinated with any work being performed by or for
Landlord and in such manner as to maintain harmonious labor relations and not
to damage the Building or Prudential Center or interfere with Building
construction or operation and, except for installation of furnishings, shall be
performed by Landlord’s general contractor or by contractors or workmen first
approved by Landlord.  Except for work by
Landlord’s general contractor, Tenant shall procure all necessary governmental
permits before making any repairs, alterations, other improvements or
installations.  Tenant agrees to save
harmless and indemnify Landlord from any and all injury, loss, claims or damage
to any person or property occasioned by or arising out of the doing of any such
work whether the same be performed prior to or during the Term of this
Lease.  At Landlord’s election, Tenant
shall cause its contractor to maintain a payment and performance bond in such
amount and with such companies as Landlord shall reasonably approve.  In addition, Tenant shall cause each
contractor to carry workmen’s compensation insurance in statutory amounts
covering the employees of all contractors and subcontractors, and commercial
general liability insurance or comprehensive general liability insurance with a
broad form comprehensive liability endorsement with such limits as Landlord may
require reasonably from time to time during the Term of this Lease, but in no
event less than the minimum amount of commercial general liability insurance or
comprehensive general liability insurance Tenant is required to maintain as set
forth in Section 1.2 hereof and as the same may be modified as provided in
Section 13.3 hereof (all such insurance to be written in companies
approved reasonably by Landlord and insuring Landlord, Landlord’s managing
agent and Tenant as additional insureds as well as contractors) and to deliver
to Landlord certificates of all such insurance. 
Except with respect to work 


 


38

















 


performed pursuant to Section 9.2
hereof, Tenant shall also prepare and submit to Landlord a set of as-built
plans, in both print and electronic forms, showing such work performed by
Tenant to the Premises promptly after any such alterations, improvements or
installations are substantially complete and promptly after any wiring or
cabling for Tenant’s computer, telephone and other communications systems is
installed by Tenant or Tenant’s contractor. 
Without limiting any of Tenant’s obligations hereunder, Tenant shall be
responsible, as Additional Rent, for the costs of any alterations, additions or
improvements in or to the Building that are required in order to comply with
Legal Requirements as a result of any work performed by Tenant.  Landlord shall have the right to provide such
rules and regulations relative to the performance of any alterations,
additions, improvements and installations by Tenant hereunder and Tenant shall
abide by all such reasonable rules and regulations and shall cause all of
its contractors to so abide including, without limitation, payment for the
costs of using Building services.


 


9.5.                              LIENS.  Tenant covenants and agrees to pay promptly
when due the entire cost of any work done on the Premises by Tenant, its
agents, employees or contractors, and not to cause or permit any liens for
labor or materials performed or furnished in connection therewith to attach to
the Premises or the Building or the Prudential Center and immediately to
discharge any such liens which may so attach.


 


9.6.                              NATURE OF ALTERATIONS.  All work, construction, repairs, alterations,
other improvements or installations made to or upon the Premises (including,
but not limited to, the construction performed by Landlord under Article IV),
shall become part of the Premises and shall become the property of Landlord and
remain upon and be surrendered with the Premises as a part thereof upon the
expiration or earlier termination of the Lease Term, except as follows:


 


(a)                                  All trade fixtures whether by law deemed to be a part of the realty or
not, installed at any time or times by Tenant or any person claiming under
Tenant shall remain the property of Tenant or persons claiming under Tenant and
may be removed by Tenant or any person claiming under Tenant at any time or
times during the Lease Term or any occupancy by Tenant thereafter and shall be
removed by Tenant at the expiration or earlier termination of the Lease Term.  Tenant shall repair any damage to the
Premises occasioned by the removal by Tenant or any person claiming under
Tenant of any such property from the Premises.


 


(b)                                 At the expiration or earlier termination of the Lease Term, unless
otherwise agreed in writing by Landlord, Tenant shall remove (i) any
wiring, cable or other installations appurtenant thereto for Tenant’s computer,
telephone and other communication systems and equipment whether located in the
Premises or in any other portion of the Building; including any risers or
conduits (collectively, “Cable”)
and, (ii) at Landlord’s election, any alterations, additions and
improvements made with Landlord’s consent during the Lease Term which would be
unusually expensive to demolish or remove. 
Landlord agrees to make such election at the time Landlord approves
Tenant’s plans for such alterations, additions or improvements (or at the time
Tenant gives Landlord plans and specifications for work performed pursuant to Section 9.1.1).  Upon such removal 


 


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Tenant
shall restore the Premises to their condition prior to such alterations,
additions and improvements and repair any damage occasioned by such removal and
restoration.  If Tenant has an interior
staircase installed within the Premises then Tenant shall at the expiration or
earlier termination of the Lease Term remove such interior staircase and close
up the openings and restore all damage, all in accordance with plans and
specifications prepared by Tenant and approved by Landlord, such approval not
to be unreasonably withheld, delayed or conditioned, unless no later than
thirty (30) days prior to such expiration or earlier termination date, Landlord
informs Tenant that such staircase is not to be removed, in which case such
staircase shall not be removed and shall remain in place. If Tenant has the
obligation to remove the staircase and has not removed the same by the
expiration or earlier termination date, then Landlord may remove the same at
Tenant’s cost and Tenant shall pay to Landlord the costs incurred by Landlord
in effecting such removal promptly upon billing therefor.


 


(c)                                  If Tenant shall make any alterations, additions or improvements to the
Premises for which Landlord’s approval is required under Section 9.1
without obtaining such approval, then at Landlord’s request at any time during
the Lease Term, and at any event at the expiration or earlier termination of
the Lease Term, Tenant shall remove such alterations, additions and
improvements and restore the Premises to their condition prior to same and
repair any damage occasioned by such removal and restoration. Nothing herein
shall be deemed to be a consent to Tenant to make any such alterations,
additions or improvements, the provisions of Section 9.1 being applicable
to any such work.


 


9.7.                            INCREASES IN TAXES.  Tenant shall pay, as Additional Rent, one
hundred percent (100%) of any increase in real estate taxes on the Building
which shall, at any time after the Commencement Date, result from alterations,
additions or improvements to the Premises made by Tenant if the taxing
authority specifically determines such increase results from such alterations,
additions or improvements made by Tenant.


 


ARTICLE X

PARKING


 


10.1.                      PARKING PRIVILEGES.  Commencing on the Commencement Date, Landlord
shall provide to Tenant monthly parking privileges in the portion of the
Prudential Center Garage designated for the Building (the “Garage”)
of up to one (1) pass for each 2,000 Rentable Square Feet of Premises
leased by Tenant (including any premises demised to Tenant pursuant to Tenant’s
right of first offer rights as set forth in Section 2.2 hereof) (the “Maximum Parking Amount”) for the parking of motor vehicles
in unreserved stalls in the Garage by Tenant’s employees (“Unreserved
Passes”).  In addition,
commencing on the Commencement Date, Landlord shall provide to Tenant monthly
parking privileges of one (1) pass for the parking of motor vehicles in
reserved spaces in the Garage by Tenant’s employees (“Reserved
Space”), which reserved space will be located in one of the areas
shown hatched on Exhibit H.  Tenant shall designate the number of
Unreserved Passes (not more than the Maximum Parking Amount) that it desires to
Landlord by not later than thirty (30) days after the Commencement Date.


 


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Thereafter, Tenant shall
have the right from time to time, on thirty (30) days’ prior written notice,
(i) to give up any such Unreserved Passes taken by Tenant, and (ii) to take any
Unreserved Passes not initially taken by Tenant, and any Unreserved Passes so
taken but later given up, but Tenant’s right to take Unreserved Passes under
this subsection (ii) shall be subject to availability.


 


10.2.                       PARKING CHARGES.   With respect to the Unreserved Spaces,
Tenant shall pay for such parking privileges at the prevailing monthly rates
from time to time charged by the operator or operators of the Garage, for
unreserved spaces whether or not such operator is an affiliate of
Landlord.  With respect to the Reserved
Space, Tenant shall pay for such parking privileges at the prevailing monthly
rates from time to time charged by the operator or operators of the Garage for
reserved spaces, whether or not such operator is an affiliate of Landlord.  Such monthly parking charges for parking
privileges shall constitute Additional Rent and shall be payable monthly as
directed by Landlord upon billing therefor by Landlord or such operator. Tenant
acknowledges that said monthly charges to be paid under this Section are for
the use by Tenant of the parking privileges referred to herein, and not for any
other service.


 


10.3.                       GARAGE OPERATION.  Unless otherwise determined by Landlord or
the operator of the Garage (the “Garage Operator”),
the Garage is to be operated on a self-parking basis, and Tenant shall be
obligated to park and remove its own automobiles, and, other than in connection
with the Reserved Passes, Tenant’s parking shall be on an unreserved basis,
Tenant having the right to park in any available stalls.  Tenant’s access and use privileges with
respect to the Garage shall be in accordance with regulations of uniform
applicability to the users of the Garage from time to time established by
Landlord or the Garage Operator.  Tenant
shall receive one (1) identification sticker or pass and one (1) magnetic card
so-called, or other suitable device providing access to the Garage, for each
parking privilege paid for by Tenant. 
Tenant shall supply Landlord with an identification roster listing, for
each identification sticker or pass, the name of the employee and the make,
color and registration number of the vehicle to which it has been assigned, and
shall provide a revised roster to Landlord from time to time (but not more
often than monthly) on request indicating changes thereto.  Any automobile found parked in the Garage
during normal business hours without appropriate identification will be subject
to being towed at said automobile owner’s expense.  The parking privileges granted herein are
non-transferable (other than to a permitted assignee or subtenant pursuant to
the applicable provisions of Article XII hereof).  Landlord or the Garage Operator may institute
a so-called valet parking program for the Garage, and in such event Tenant
shall cooperate in all respects with such program.  Landlord reserves for itself and any other
PruOwner the right to alter the Garage as it sees fit and in such case to
change the Garage including the reduction in area of the same, Tenant
acknowledging that in connection with the potential expansion of buildings in
the Prudential Center or the addition of other buildings thereto, it may be
necessary to make significant changes to the Garage which may result in the
reduction of the amount of parking available in the Garage and the change of
location of such parking or may change the access to or egress from the Garage,
all of which Landlord or any other PruOwner may perform in its sole and
exclusive discretion, without limitation to its other rights in respect
thereof.  


 


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Notwithstanding the foregoing,
in no event shall the number of Tenant’s Reserved Passes or Unreserved Passes
be reduced during the Term.


 


10.4.                       LIMITATIONS.  Tenant agrees that it and all persons
claiming by, through and under it, shall at all times abide by all reasonable
rules and regulations promulgated by Landlord or the Garage Operator with
respect to the use of the Garage, but such rules and regulations shall not be
inconsistent with this Lease.  Except to
the extent of gross negligence or willful acts, neither Landlord nor the Garage
Operator assumes any responsibility whatsoever for loss or damage due to fire
or theft or otherwise to any automobile or to any personal property therein,
however caused, and Tenant agrees, upon request from Landlord, from time to
time, to notify its officers, employees and agents then using any of the
parking privileges provided for herein, of such limitation of liability.  Tenant further acknowledges and agrees that a
license only is hereby granted, and no bailment is intended or shall be created.


 


ARTICLE
XI

CERTAIN TENANT COVENANTS


 


Tenant
covenants during the Lease Term and for such further time as Tenant occupies
any part of the Premises:


 


11.1.                        To pay when due all Annual Fixed Rent and
Additional Rent and all charges for utility services rendered to the Premises
and service inspections therefor except as otherwise provided in Exhibit C and, as further Additional Rent,
all charges for additional and special services rendered pursuant to Section
7.3.


 


11.2.                        (a)                                  To use and occupy the Premises for the
Permitted Use only, and not to injure or deface the Premises or the Building or
Prudential Center and not to permit in the Premises any auction sale, or
flammable fluids or chemicals (except for standard office and cleaning supplies
stored, handled and disposed of in accordance with all applicable laws), or
nuisance, or the emission from the Premises of any objectionable noise or odor,
and not to use or devote the Premises or any part thereof for any purpose other
than the Permitted Use, nor any use thereof which is (i)  inconsistent with the maintenance of the
Building as an office building of the first-class in the quality of its
maintenance, use and occupancy, or (ii) improper or offensive, or (iii)
contrary to law or ordinance or (iv) liable to invalidate or increase the
premiums for any insurance on the Building or its contents or (v) liable to
render necessary any alteration or addition to the Building.


 


(b)                                 Further, (i) Tenant shall not, nor shall Tenant permit its employees,
invitees, agents, independent contractors, contractors, assignees or subtenants
to,  keep, maintain, store or dispose of
(into the sewage or waste disposal system or otherwise except for standard
office and cleaning supplies stored, handled and disposed of in accordance with
all applicable laws) or engage in any activity which might produce or generate
any substance which is or may hereafter be classified as a hazardous material,
waste or substance (collectively “Hazardous
Materials”), under federal, state or local laws, rules and
regulations, including, 


 


42

















 


without
limitation, 42 U.S.C. Section 6901 et seq., 42 U.S.C. Section 9601 et seq., 42
U.S.C. Section 2601 et seq., 49 U.S.C. Section 1802 et seq. and Massachusetts
General Laws, Chapter 21E and the rules and regulations promulgated under any
of the foregoing, as such laws, rules and regulations may be amended from time
to time (collectively “Hazardous Materials
Laws”), (ii) Tenant shall immediately notify Landlord of any incident
in, on or about the Premises, the Building or the Prudential Center that would
require the filing of a notice under any Hazardous Materials Laws, (iii) Tenant
shall comply and shall cause its employees, invitees, agents, independent
contractors,  contractors, assignees and
subtenants to comply with each of the foregoing and (iv) Landlord shall have
the right to make such inspections (including testing) as Landlord shall elect
from time to time to determine that Tenant is complying with the foregoing.


 


(c)                                  Landlord shall indemnify Tenant and hold it harmless against any claims,
damages, losses or liabilities (including reasonable attorneys’ and expert
consultants’ fees) arising in the event that Landlord, Landlord’s agents,
employees or contractors release Hazardous Materials onto the Building or the
Prudential Center; provided however, the foregoing indemnity shall not apply
to:  (i) any material or substance
existing on the Prudential Center as of the Execution Date of this Lease which,
as of the Date of this Lease, was not considered, as a matter of law, to be a
Hazardous Material, but which is subsequently determined to be a Hazardous
Material as a matter of law or (ii) any material or substance released or
installed or placed on the Prudential Center after the Execution Date of this
Lease which, as of the date of such release, installation or placement, was not
considered, as a matter of law, to be a Hazardous Material but which is later
determined, as a matter of law, to be a Hazardous Material.  In addition, if Hazardous Materials are
discovered in the Building or the Premises which are not caused by Tenant, its
employees, invitees, agents, independent contractors, contractors, assignees or
subtenants, then Landlord shall, if and as required by law, assess, remediate
or remove the same, or cause the same to be assessed, remediated or removed at
no cost to Tenant, except if and to the extent any such costs may be included
in Operating Expenses for the Building in accordance with the provisions of Article
IX.


 


11.3.                       Not to obstruct in any manner any portion of
the Building not hereby leased or any portion thereof or of the Prudential
Center used by Tenant in common with others; not without prior consent of
Landlord to permit the painting or placing of any signs, curtains, blinds,
shades, awnings, aerials or flagpoles, or the like, visible from outside the
Premises; and to comply with all Rules and Regulations (as set forth in Section
16.30) now or hereafter made by Landlord, of which Tenant has been given
notice, for the care and use of the Building and the Prudential Center and
their facilities and approaches, but Landlord shall not be liable to Tenant for
the failure of other occupants of the Building to conform to such rules and
regulations.


 


11.4.                       To keep the Premises equipped with all safety
appliances required by law or ordinance or any other regulation of any public
authority because of any use made by Tenant other than normal office use, and
to procure all licenses and permits so required because of any 


 


43

















 


use made by Tenant other than normal office use,
and to procure all licenses and permits so required because of such use and, if
requested by Landlord, to do any work so required because of such use, it being
understood that the foregoing provisions shall not be construed to broaden in
any way Tenant’s Permitted Use.


 


11.5.                       Not to place a load upon any floor in the
Premises exceeding an average rate of 70 pounds of live load (including
partitions) per square foot of floor area, except where the floor has been
shored up by Tenant in accordance with plans and specifications approved by
Landlord, and notwithstanding such approval or shoring up, Tenant shall remain
responsible for any damage to the Premises or Building caused by any
overloading; and not to move any safe, vault or other heavy equipment in, about
or out of the Premises except in such manner and at such time as Landlord shall
in each instance authorize.  Tenant’s
business machines and mechanical equipment shall be placed and maintained by
Tenant at Tenant’s expense in settings sufficient to absorb and prevent
vibration or noise that may be transmitted to the Building structure or to any
other space in the Building.


 


11.6.                       To pay promptly when due all taxes which may
be imposed upon personal property (including, without limitation, fixtures and
equipment) in the Premises to whomever assessed.


 


11.7.                       To pay, as Additional Rent, all reasonable
costs, counsel and other fees incurred by Landlord in connection with the
successful enforcement by Landlord of any obligations of Tenant under this
Lease or in connection with any bankruptcy case involving Tenant or any
guarantor.


 


11.8.                       Not to do or permit anything to be done in or
upon the Premises, or bring in anything or keep anything therein, which shall
increase the rate of insurance on the Premises or on the Building above the
standard rate applicable to premises being occupied for the use to which Tenant
has agreed to devote the Premises; and Tenant further agrees that, in the event
that Tenant shall do any of the foregoing, Tenant will promptly pay to
Landlord, on demand, any such increase resulting therefrom, which shall be due
and payable as Additional Rent hereunder.


 


11.9.                       To comply with all applicable Legal
Requirements now or hereafter in force which shall impose a duty on Landlord or
Tenant relating to or as a result of the use or occupancy of the Premises other
than for general office purposes; provided that Tenant shall not be required to
make any alterations or additions to the structure, roof, exterior and load
bearing walls, foundation, structural floor slabs and other structural elements
of the Building unless the same are required by such Legal Requirements as a
result of or in connection with Tenant’s use or occupancy of the Premises
beyond normal use of space of this kind. 
If Tenant receives notice of any violation of law, ordinance, order or
regulation applicable to the Premises, it shall give prompt notice thereof to
Landlord.  Tenant shall promptly pay all
fines, penalties and damages that may arise out of or be imposed because of its
failure to comply with the provisions of this Section 11.9.  Landlord, subject to inclusion of the cost of
compliance as Operating Costs to the extent permitted by the provisions of
Section 6.3 of this Lease, shall comply with (i) all Laws which relate to the
structure of the Building, unless the need for such compliance arises 


 


44

















 


from Tenant’s particular use of the Premises or any
alterations made by Tenant, and (ii) all other Laws applicable to the Building,
or the use and occupancy thereof, other than those Laws for which Tenant is
responsible pursuant to this Section 11.9 or, with respect to another tenant’s
premises, for which such tenant is responsible pursuant to the provisions of
its lease with Landlord.


 


11.10.                 The word “Prudential” alone or in any
combination other than “Prudential Center” shall not be used by Tenant for any
purpose whatsoever.  Tenant shall not use
the words “Prudential Center” other than as part of the business address of
Tenant and then only in such manner as will not appear to be part of Tenant’s
name.  Tenant shall not use the words “Prudential
Center” in any manner which is undignified, confusing, detrimental or
misleading in Landlord’s opinion and shall give no greater prominence to the
words “Prudential Center” than to any other part of the business address of
Tenant and shall give less prominence to the words “Prudential Center” than to
Tenant’s name.  Tenant shall not utilize
signage or advertising which contains (a) any description of the Prudential
Center or the description of the location of the Premises other than “Prudential
Center”, “at Prudential Center”, or an official street address such as “Boylston
Street” or “Huntington Avenue” or a regional locator such as “Boston” or “Back
Bay” and (b) any name of a building, space or area within the Prudential Center
other than “Prudential Tower” if Tenant is located within the Prudential Tower
in order to describe the location of the Premises.


 


In order to reduce peak-hour trip generation of
employees at the Prudential Center, Landlord encourages all employers at the
Prudential Center to adopt flexible work schedules for its employees.  Landlord encourages all employers at the
Prudential Center to participate in the Corporate Pass Program of the
Massachusetts Bay Transit Authority which is designed to encourage the use of
mass transit by persons working in Boston. 
As of June 1988, one hundred and twenty-five greater Boston companies
provided subsidies for the purchase by their employees of monthly transit
passes through this program with subsidies ranging from 10% to 100% of the cost
of the transit pass.  The provision of
transit pass subsidies may also offer certain benefits to employers under tax
law.  Landlord encourages all employers
at the Prudential Center to participate in this program and to inform their
employees of the benefits of using monthly transit passes.


 


11.11.                 Any vendors engaged by Tenant to perform
services in or to the Premises including, without limitation, janitorial
contractors and moving contractors shall be coordinated with any work being
performed by or for Landlord and in such manner as to maintain harmonious labor
relations and not to damage the Building or Prudential Center or interfere with
Building construction or operation and shall be performed by vendors first
approved by Landlord, such approval not to be unreasonably withheld,
conditioned or delayed.


 


11.12.                 As an inducement to Landlord to enter into
this Lease, Tenant hereby represents and warrants that: (i) Tenant is not, nor
is it owned or controlled directly or indirectly by, any person, group, entity
or nation named on any list issued by the Office of Foreign Assets Control of
the United States Department of the Treasury (“OFAC”) pursuant to Executive Order 13224 or any similar list
or any law, order, rule or regulation or any 


 


45

















 


Executive Order of the President of the United
States as a terrorist, “Specially Designated National and Blocked Person” or
other banned or blocked person (any such person, group, entity or nation being
hereinafter referred to as a “Prohibited
Person”); (ii) Tenant is not (nor is it owned, controlled, directly
or indirectly, by any person, group, entity or nation which is) acting directly
or indirectly for or on behalf of any Prohibited Person; and (iii) neither
Tenant (nor any person, group, entity or nation which owns or controls Tenant,
directly or indirectly) has conducted or will conduct business or has engaged
or will engage in any transaction or dealing with any Prohibited Person,
including without limitation any assignment of this Lease or any subletting of
all or any portion of the Premises or the making or receiving of any
contribution or funds, goods or services to or for the benefit of a Prohibited
Person. In connection with the foregoing, it is expressly understood and agreed
that (x) any breach by Tenant of the foregoing representations and warranties
shall be deemed an Event of Default by Tenant under Section 15.1(d) of this
Lease and shall be covered by the indemnity provisions of Section 13.1 below,
and (y) the representations and warranties contained in this subsection shall
be continuing in nature and shall survive the expiration or earlier termination
of this Lease.


 


ARTICLE
XII

ASSIGNMENT AND SUBLETTING


 


12.1.                       RESTRICTIONS ON TRANSFER. Except as
otherwise expressly provided herein, Tenant covenants and agrees that it shall
not assign, mortgage, pledge, hypothecate or otherwise transfer this Lease
and/or Tenant’s interest in this Lease or sublet (which term, without
limitation, shall include granting of concessions, licenses or the like) the
whole or any part of the Premises.  Any
assignment, mortgage, pledge, hypothecation, transfer or subletting not
expressly permitted in or consented to by Landlord under this Article XII shall
be void, ab initio; shall be of no force and effect; and shall confer no rights
on or in favor of third parties. In addition, Landlord shall be entitled to
seek specific performance of, and other equitable relief with respect to, the
provisions hereof.


 


12.2.                       EXCEPTIONS. Notwithstanding the
foregoing provisions of Section 12.1 above and the provisions of Section 12.4
below, but subject to the provisions of Sections 12.5, 12.6 and 12.7 below,
Tenant shall have the right to assign this Lease or to sublet the Premises (in
whole or in part) to any parent or subsidiary corporation of Tenant or to any
controlling corporation of Tenant or to any corporation controlled by Tenant or
to any corporation under common control with Tenant (such parent or subsidiary
corporation or corporation under common control with Tenant being hereinafter called
a “Tenant Affiliate”) or to any
corporation, limited liability partnership or limited liability company or
other entity into which Tenant may be converted or with which it may merge, or
to any entity purchasing or leasing all or substantially all of Tenant’s
assets, provided that the entity to which this Lease is so assigned or which so
sublets the Premises has a net worth (e.g. assets on a pro forma basis using
generally accepted accounting principles consistently applied and using the
most recent financial statements) equal to (or more than) the net worth of
Tenant immediately before such transaction. 
If any Tenant Affiliate to which this Lease is assigned or the Premises
sublet (in whole or in part) shall cease to be such a Tenant Affiliate, and if
such cessation was contemplated at the time of the assignment or 


 


46

















 


subletting, such cessation
shall be considered an assignment or subletting requiring Landlord’s consent.


 


12.3.                       LANDLORD’S TERMINATION RIGHT.  Notwithstanding the provisions of Section
12.1 above, in the event Tenant desires to assign this Lease or to sublet the
whole or any part of the Premises, Tenant shall notify Landlord thereof in
writing (“Assignment/Sublease Notice”) and
Landlord shall have the right at its sole option, to be exercised by written
notice (“Recapture Notice”) given within thirty
(30) days after receipt of Tenant’s Assignment/Sublease Notice, to terminate
this Lease (provided however, that if Tenant proposes to sublet less than the
entire Premises and/or such proposed subletting is for less than the balance of
the Term, Landlord shall have the right to terminate the Lease only with
respect to the portion of the Premises proposed to be sublet and for the term
of the proposed subletting) as of a date specified in the Recapture Notice,
which date shall not be earlier than sixty (60) days nor later than one hundred
and twenty (120) days after the date of Landlord’s Recapture Notice; provided,
however, that upon the termination date as set forth in Landlord’s Recapture
Notice, all obligations relating to the period after such termination date (but
not those relating to the period before such termination date) shall cease and
promptly upon being billed therefor by Landlord, Tenant shall make final
payment of all Annual Fixed Rent and Additional Rent due from Tenant through
the termination date.  Notwithstanding
the foregoing, Tenant shall have the right, by written notice to Landlord given
within five (5) business days after receipt of the Recapture Notice, to
withdraw Tenant’s Assignment/Sublease Notice, whereupon Landlord’s Recapture
Notice shall be of no further force and effect, this Lease shall remain in full
force and effect, and Tenant shall not have the right to assign or sublet as
set forth in Tenant’s Assignment/Sublease Notice.  In the event that Landlord shall not exercise
its termination rights as aforesaid, or shall fail to give any or timely notice
pursuant to this Section the provisions of Sections 12.4-12.7 shall be applicable.  This Section 12.3 shall not be applicable to
an assignment or sublease pursuant to Section 12.2.


 


12.4.                       CONSENT OF LANDLORD.  Notwithstanding the provisions of Section
12.1 above, but subject to the provisions of this Section 12.4 and the provisions
of Sections 12.5, 12.6 and 12.7 below, in the event that Landlord shall not
have exercised the termination right as set forth in Section 12.3, or shall
have failed to give any or timely notice under Section 12.3, then for a period
of one hundred fifty (150) days (i) after the receipt of Landlord’s notice
stating that Landlord does not elect the termination right, or (ii) after the
expiration of the thirty (30) day period referred to in Section 12.3 in the
event Landlord shall not give any or timely notice under Section 12.3, as the
case may be, Tenant shall have the right to assign this Lease or sublet the
whole or any part of the Premises in accordance with Tenant’s notice to
Landlord given as provided in Section 12.5 provided that, in each instance,
Tenant first obtains the express prior written consent of Landlord, which
consent shall not be unreasonably withheld or delayed.  Without limiting the foregoing standard,
Landlord shall not be deemed to be unreasonably withholding its consent to such
a proposed assignment or subleasing if:


 


(a)                                  the proposed assignee or subtenant is a tenant in the Building or
elsewhere in the Prudential Center or is (or within the previous sixty (60)
days has been) in active 


 


47

















 


negotiation
with Landlord or Landlord’s affiliate for premises in the Building or elsewhere
in the Prudential Center (and at Tenant’s written request Landlord shall
furnish Tenant with a list of such entities with which Landlord or its
affiliate is (or within 60 days has been) in active negotiation) or is not of a
character consistent with the operation of a first class office building (by
way of example Landlord shall not be deemed to be unreasonably withholding its
consent to an assignment or subleasing to any governmental or
quasi-governmental agency). 
Notwithstanding the foregoing, Landlord will not withhold its consent
solely because the proposed subtenant or assignee is an occupant of the
Building or elsewhere in the Prudential Center, if Landlord or Landlord’s
affiliate does not have space available for lease in the Building or elsewhere
in the Prudential Center that is comparable to the space Tenant desires to
sublet or assign.  For purposes hereof,
Landlord or such affiliate shall be deemed to have comparable space if it has
space available on any floor of the Building or elsewhere in the Prudential
Center that is approximately the same size as the space Tenant desires to
sublet or assign within six (6) months of the proposed commencement of the
proposed sublease or assignment, or


 


(b)                                 the proposed assignee or subtenant is not of good character and
reputation, or


 


(c)                                  the proposed assignee or subtenant does not possess adequate financial
capability to perform the Tenant obligations as and when due or required, or


 


(d)                                 the assignee or subtenant proposes to use the Premises (or part thereof)
for a purpose other than the purpose for which the Premises may be used as
stated in Section 1.2 hereof, or


 


(e)                                  the character of the business to be conducted or the proposed use of the
Premises by the proposed subtenant or assignee shall (i) be likely to increase
Operating Expenses for the Building beyond that which Landlord now incurs for
use by Tenant; (ii) be likely to increase the burden on elevators or other
Building systems or equipment over the burden prior to such proposed subletting
or assignment; or (iii) violate or be likely to violate any provisions or
restrictions contained herein relating to the use or occupancy of the Premises,
or


 


(f)                                    there shall be existing an Event of Default (defined in Section 15.1); or


 


(g)                                 any part of the rent payable under the proposed assignment or sublease
shall be based in whole or in part on the income or profits derived from the
Premises or if any proposed assignment or sublease shall potentially have any
adverse effect on the real estate investment trust qualification requirements
applicable to Landlord and its affiliates.


 


12.5.                       TENANT’S NOTICE. Tenant shall give Landlord
prior notice of any proposed sublease or assignment, and said notice shall
specify the provisions of the proposed assignment or subletting, including (a)
the name and address of the proposed assignee or subtenant, (b) in the case of
a proposed assignment or subletting pursuant to Section 12.4, such 


 


48

















 


information as to the
proposed assignee’s or proposed subtenant’s net worth and financial capability
and standing as may reasonably be required for Landlord to make the
determination referred to in Section 12.4 above (provided, however, that
Landlord shall hold such information confidential having the right to release
same to its officers, accountants, attorneys and mortgage lenders on a
confidential basis), (c) all of the terms and provisions upon which the
proposed assignment or subletting is to be made, (d) in the case of a proposed
assignment or subletting pursuant to Section 12.4, all other information
necessary to make the determination referred to in Section 12.4 above and (e)
in the case of a proposed assignment or subletting pursuant to Section 12.2
above, such information as may be reasonably required by Landlord to determine
that such proposed assignment or subletting complies with the requirements of
said Section 12.2.


 


If Landlord shall consent to the proposed assignment
or subletting, as the case may be, then, in such event, Tenant may thereafter
sublease the whole or any part of the Premises or assign pursuant to Tenant’s
notice, as given hereunder; provided, however, that if such assignment or
sublease shall not be executed and delivered to Landlord within one hundred
fifty (150) days after the date of Landlord’s consent, the consent shall be
deemed null and void and the provisions of Section 12.3 shall be applicable.


 


12.6.                       PROFIT ON SUBLEASING OR ASSIGNMENT. In addition,
in the case of any assignment or subleasing as to which Landlord may consent
(other than an assignment or subletting permitted under Section 12.2 hereof)
such consent shall be upon the express and further condition, covenant and
agreement, and Tenant hereby covenants and agrees that, in addition to the
Annual Fixed Rent, Additional Rent and other charges to be paid pursuant to
this Lease, fifty percent (50%) of the “Assignment/Sublease
Profits” (hereinafter defined), if any shall be paid to Landlord.


 


The “Assignment/Sublease
Profits” shall be the excess, if any, of (a) the “Assignment/Sublease Net Revenues” as hereinafter defined
over (b) the Annual Fixed Rent, Additional Rent and other charges provided in
this Lease (provided, however, that for the purpose of calculating the
Assignment/Sublease Profits in the case of a sublease, appropriate proportions
in the applicable Annual Fixed Rent, Additional Rent and other charges under
this Lease shall be made based on the percentage of the Premises subleased and
on the terms of the sublease).  The “Assignment/Sublease Net Revenues” shall be the fixed rent,
additional rent and all other charges and sums payable either initially or over
the term of the sublease or assignment plus all other profits and increases to
be derived by Tenant as a result of such subletting or assignment, less the
reasonable costs of Tenant incurred in such subleasing or assignment (the
definition of which shall include but not necessarily be limited to rent concessions,
brokerage commissions and alteration allowances) amortized over the term of the
sublease or assignment.


 


All payments of the Assignment/Sublease Profits due
Landlord shall be made within ten (10) days of receipt of same by Tenant.


 


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12.7.                       ADDITIONAL CONDITIONS


 


(A)                              It shall be a condition of the validity of any assignment or subletting
permitted under Section 12.2 above, or consented to under Section 12.4 above,
that both Tenant and the assignee or sublessee agree directly with Landlord in
a separate written instrument reasonably satisfactory to Landlord which
contains terms and provisions reasonably required by Landlord, including,
without limitation, the agreement of the assignee or sublessee to be bound by
all the obligations of Tenant under this Lease (including any amendments or
extensions thereof), including, without limitation, the obligation to pay the
Annual Fixed Rent, Additional Rent, and other amounts provided for under this
Lease (but in the case of a partial subletting pursuant to Section 12.2, such
subtenant shall agree on a pro rata basis to be so bound) including the
provisions of Sections 12.1 through 12.7 hereof, but such assignment or
subletting shall not relieve the Tenant named herein of any of the obligations
of the Tenant hereunder, Tenant shall remain fully and primarily liable
therefor and the liability of Tenant and such assignee (or subtenant, as the
case may be) shall be joint and several. 
Further, and notwithstanding the foregoing, the provisions hereof shall
not constitute a recognition of the assignment or the assignee thereunder or
the sublease or the subtenant thereunder, as the case may be, and at Landlord’s
option, upon the termination of the Lease, the assignment or sublease shall be
terminated.


 


(B)                                As Additional Rent, Tenant shall reimburse Landlord promptly for
reasonable out of pocket legal and other expenses incurred by Landlord in
connection with any request by Tenant for consent to assignment or subletting,
up to the Maximum Cost.  For purposes
hereof, the “Maximum Cost” shall
be $1,500.00 per request in Lease Years 1 through 5; $2,000.00 per request in
Lease Years 6 through 10; and increased by $500.00 per request for each five
(5) year period thereafter.


 


(C)                                If this Lease be assigned, Landlord may upon prior notice to Tenant, at
any time and from time to time, collect Annual Fixed Rent, Additional Rent, and
other charges from the assignee and apply the net amount collected to the
Annual Fixed Rent, Additional Rent and other charges herein reserved, but no
such assignment or collection shall be deemed a waiver of this covenant, or a
waiver of the provisions of Sections 12.1 through 12.6 hereof, or the
acceptance of the assignee as a tenant or a release of Tenant from the further
performance by Tenant of covenants on the part of Tenant herein contained, the
Tenant herein named to remain primarily liable under this Lease.


 


(D)                               If the Premises or any part thereof be sublet or occupied by anyone other
than Tenant, Landlord may upon prior notice to Tenant, at any time after an
Event of Default hereunder and from time to time thereafter while such Event of
Default remains uncured, collect all of the rent and other charges due under
such sublease from the sublessee or occupant and apply the net amount collected
to the Annual Fixed Rent, Additional Rent and other charges herein reserved,
but no such subletting, occupancy or collection shall be deemed a waiver of
this covenant, or a waiver of the provisions of Sections 12.1 through 12.6
hereof, or the acceptance of the sublessee or occupant as a tenant or a release
of Tenant from the further performance by Tenant of covenants on the part of
Tenant herein contained, the Tenant herein named to remain primarily liable
under this Lease.


 


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(E)           No assignment or subletting under any
of the provisions of Sections 12.2 or 12.4 shall in any way be construed to
relieve Tenant from obtaining the express consent in writing of Landlord to any
further assignment or subletting.


 


(F)           Without limiting Tenant’s obligations
under Article IX, Tenant shall be responsible, at Tenant’s sole cost and
expense, for performing all work necessary to comply with Legal Requirements
and Insurance Requirements in connection with any assignment or subletting
hereunder including, without limitation, any work in connection with such
assignment or subletting.


 


ARTICLE XIII

INDEMNITY AND COMMERCIAL GENERAL LIABILITY INSURANCE


 


13.1.                        TENANT’S INDEMNITY.  To the maximum extent this agreement may be
made effective according to law and except as expressly provided in Section 13.2
or 13.5, Tenant agrees to indemnify and save harmless Landlord from and against
all claims of whatever nature arising from or claimed to have arisen from any
breach of Sections 9.5, 11.2(a)(iii), 11.2(b), 11.9 and 16.5 of this Lease by
Tenant or negligence of Tenant, Tenant’s contractors, agents, servants, or
employees; any accident, injury or damage whatsoever caused to any person, or
to the property of any person, occurring in or about the Premises after the
date that possession of the Premises is first delivered to Tenant and until the
end of the Lease Term and thereafter, provided that during any such period
after the Lease Term Tenant or anyone acting by, through or under Tenant is in
occupancy of the Premises or any portion thereof; or any accident, injury or
damage occurring outside the Premises but within the Building, the Garage or on
the Prudential Center, where such accident, injury or damage results, or is
claimed to have resulted, from any negligence on the part of Tenant or Tenant’s
contractors, agents, servants, or employees, except in each case to the extent
caused by the negligence or willful malfeasance of Landlord or Landlord’s
contractors, agents, servants, or employees or to the extent caused by
conditions in the Prudential Center as of the Execution Date.


 


This
indemnity and hold harmless agreement shall include indemnity against all
costs, expenses and liabilities incurred in or in connection with any such
claim or proceeding brought thereon, and the defense thereof.


 


13.2.                        LANDLORD’S INDEMNITY.  Subject to the limitations on Landlord’s
liability set forth in this Lease, Landlord agrees to indemnify, defend and
save harmless Tenant from and against any claim arising from any accident, injury
or damage occurring in the Premises, in the Building or on the Prudential
Center after the date that possession of the Premises is first delivered to
Tenant and until the expiration or earlier termination of the Lease Term, to
the extent that such accident, injury or damage results from any negligence of
Landlord or Landlord’s contractors, agents, servants, or employees.


 


Subject
to the limitations on Landlord’s liability set forth in this Lease, this
indemnity and hold harmless agreement shall include indemnity against all
costs, expenses and liabilities incurred in or in connection with any such
claim or proceeding brought thereon, and the defense thereof.


 


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13.3.                        COMMERCIAL GENERAL LIABILITY INSURANCE.  Tenant agrees to maintain in full force from
the date upon which Tenant first enters the Premises for any reason throughout
the Lease Term of this Lease, and thereafter, so long as Tenant is in occupancy
of any part of the Premises, a policy of commercial general liability or
comprehensive general liability insurance written on an occurrence basis with a
broad form comprehensive liability endorsement under which Landlord and
Landlord’s managing agent (and such other persons as are in privity of estate
with Landlord and Landlord’s managing agent as may be set out in notice from
time to time) are named as additional insured parties and Tenant is named as
insured, and under which the insurer agrees to indemnify and hold Landlord and
Landlord’s managing agent, and those in privity of estate with Landlord and
Landlord’s managing agent, harmless from and against all cost, expense and/or
liability arising out of or based upon any and all claims, accidents, injuries
and damages mentioned in Section 13.1 of this Article XIII, in the
broadest form of such coverage from time to time available in the jurisdiction
in which the Premises are located.  To
the extent that the following is available from Tenant’s insurance issuer, each
such policy shall provide that the issuer thereof shall endeavor to provide at
least thirty (30) days’ prior notice to Landlord before canceling or amending
the same in a manner that materially adversely affects the coverage provided
thereunder to Landlord and Landlord’s said designees.  Upon Landlord’s written request, Tenant shall
provide a duplicate original or certificate of any such policy.  As of the Commencement Date hereof, the
minimum limits of liability of such insurance shall be as specified in Section 1.2
and from time to time during the Lease Term for such higher limits, if any, as
are carried customarily in the Market Area with respect to similar properties,
provided, however, that in no event shall such limits be increased more
frequently than once every five (5) years or during the first five years
of the term hereof. In addition, in the event Tenant hosts a function in the
Premises, Tenant agrees to obtain and maintain, and cause any persons or
parties providing services for such function to obtain, the appropriate
insurance coverages as determined by Landlord (including liquor liability, if
applicable) and provide Landlord with evidence of the same.  All insurance required to be maintained by
Tenant pursuant to this Lease shall be maintained with responsible companies
qualified to do business, and in good standing, in the Commonwealth of
Massachusetts and which have a rating of at least “A-”
and are within a financial size category of not less than “Class VIII”
in the most current Best’s Key Rating Guide or such similar rating as may be
reasonably selected by Landlord if such Guide is no longer published.


 


13.4.                        TENANT’S PROPERTY INSURANCE.  Tenant, at Tenant’s expense, shall maintain
at all times during the Term of the Lease insurance against loss or damage
covered by the so-called “all risk” type insurance coverage with respect to
Tenant’s fixtures, equipment, goods, wares and merchandise, tenant improvements
made by or paid for by Tenant, and other property of Tenant (collectively “Tenant’s Property”). 
Such insurance shall be in an amount at least equal to the full
replacement cost of Tenant’s Property. 
In addition, during such time as Tenant is performing work in or to the
Premises, Tenant, at Tenant’s expense, shall also maintain builder’s risk
insurance for the full insurable value of such work.


 


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13.5.                        WAIVER OF SUBROGATION.  Notwithstanding any other provisions of this
Lease to the contrary, the parties hereto waive and release any and all rights
of recovery against the other, and agree not to seek to recover from the other
or to make any claim against the other, and in the case of Landlord, against
all “Tenant Parties” (hereinafter defined),
and in the case of Tenant, against all “Landlord Parties”
(hereinafter defined), for any loss or damage incurred by the party that
incurred the loss or damage (the “Damaged Party”)
to the extent such loss or damage (i) is insured under any property or
workers’ compensation insurance policy carried by the Damaged Party, or (ii) would
have been so insured had the Damaged Party carried the insurance it was
required to carry hereunder. Tenant shall obtain from its subtenants and other
occupants of the Premises a similar waiver and release of claims against any or
all of Tenant Parties or Landlord Parties. In addition, the parties hereto (and
in the case of Tenant, its subtenants and other occupants of the Premises)
shall procure an appropriate clause in, or endorsement on, any insurance policy
required by this Lease pursuant to which the insurance company waives
subrogation. The insurance policies required by this Lease shall contain no
provision that would invalidate or restrict the parties’ waiver and release of
the rights of recovery in this section. The parties hereto covenant that no insurer
shall hold any right of subrogation against the parties hereto by virtue of
such insurance policy.  In addition to
the foregoing, Tenant agrees that, if Tenant fails to maintain any liability
insurance required to be maintained by Tenant under this Lease or fails to name
Landlord and any Additional Insureds as additional insureds under any such
policy, then Tenant waives and releases any and all rights of recovery against
Landlord and the Additional Insureds for any claims that are or would have been
covered by any such policy.


 


The
term “Landlord Party” or “Landlord Parties” shall mean Landlord, any affiliate of
Landlord, Landlord’s managing agents for the Building, each mortgagee (if any),
each ground lessor (if any), and each of their respective direct or indirect
partners, officers, shareholders, directors, members, trustees, beneficiaries,
servants, employees, principals, contractors, licensees, agents or
representatives. For the purposes of this Lease, the term “Tenant Party”
or “Tenant Parties” shall mean Tenant, any
affiliate of Tenant, any permitted subtenant or any other permitted occupant of
the Premises, and each of their respective direct or indirect partners,
officers, shareholders, directors, members, trustees, beneficiaries, servants,
employees, principals, contractors, licensees, agents or representatives.


 


13.6.                        TENANT’S RISK.  To the maximum extent that this agreement may
be made effective according to law, Tenant agrees to use and occupy the
Premises and to use such other portions of the Building, the Garage or the
Prudential Center as Tenant is herein given the right to use at Tenant’s own
risk; and Landlord shall have no responsibility or liability for any loss of or
damage to fixtures or other personal property of Tenant, unless, subject to Section 13.4
hereof, such damage or loss is due to the negligence or willful misconduct of
Landlord or its agents, employees or contractors, in which case Landlord shall
bear loss or damage only to “ordinary office property”
(as hereinafter defined).  For the
purpose of this Section 13.5, “ordinary office property” shall mean
merchandise, furniture, and other tangible personal property of the kind and
quantity which may customarily be expected to be found within comparable
business offices in the Market Area, and excluding any unusually valuable or
exotic property, works of art, and the like.


 


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ARTICLE XIV

FIRE, CASUALTY AND TAKING


 


14.1.                        REPAIR OF DAMAGE CAUSED BY CASUALTY.  Unless the Lease is terminated pursuant to
the provisions of this Article XIV, if any portion of the Premises, the
Garage or the means of access thereto or egress therefrom, or covered access to
Boylston Street shall be damaged by fire or other casualty, Landlord shall
proceed with diligence, subject to the then applicable statutes, building
codes, zoning ordinances and regulations of any governmental authority, and at
the expense of Landlord, but only to the extent of the proceeds that are
available from the insurance Landlord is required to carry under this Lease or
would have been available if such insurance were obtained, to repair or cause
to be repaired such damage, including any damaged portion of the Tenant
Improvement Work, provided however, that all repairs to and replacements of
Tenant’s property and any other alterations, additions or improvements of
Tenant (except for the Tenant Improvement Work) shall be made by and at the
expense of Tenant.  If the Premises or
any part thereof shall have been rendered unfit for use and occupation
hereunder by reason of such damage, the Annual Fixed Rent, Additional Rent and
other charges or a just and proportionate part thereof, according to the nature
and extent to which the Premises shall have been so rendered unfit, shall be
suspended or abated until the Premises (except as to the property which is to
be repaired by or at the expense of Tenant) shall have been restored as nearly
as practicably may be to the condition in which they were in immediately prior
to such fire or other casualty.  Landlord
shall not be liable for delays in the making of any such repairs nor shall
Landlord be liable for any inconvenience or annoyance to Tenant or injury to
the business of Tenant resulting from delays in repairing such damage.


 


14.2.                        LANDLORD’S TERMINATION RIGHTS.


 


If,
after the Commencement Date, all or any portion of the Building is damaged by
fire or other casualty (i) at any time by an occurrence which is not
covered by the insurance Landlord is required to obtain under this Lease and
the cost to repair such damage exceeds five percent (5%) of the then fair
market value of the Building immediately before such casualty, or (ii) Landlord
elects to demolish the Building and terminate the leases for substantially all
of the space in the Building, or (iii) at any time during the last
eighteen (18) months of the term taking into account any extension option term
which has not lapsed unexercised, if Landlord reasonably estimates that the
time to repair such damage would exceed six (6) months or (iv) such
fire or casualty requires such substantial alteration or reconstruction of the
Building that the damage cannot, in the ordinary course, reasonably be expected
to be repaired within twelve (12) months from the date of such fire or casualty
as reasonably determined by Landlord and Landlord terminates the leases for
substantially all of the space in the Building, then, in any such events, this
Lease and the Term hereof may be terminated at the election of Landlord by a
notice in writing of its election so to terminate which shall be given by
Landlord to Tenant within sixty (60) days following such fire or other
casualty, the effective termination date of which shall be not less than thirty
(30) days after the day on which such termination notice is received by Tenant.


 


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14.3.                        TENANT’S TERMINATION RIGHTS.


 


(A)          If any portion of the Premises or any
portion of the Building shall be damaged or destroyed by fire or other casualty
to the extent that the operation of Tenant’s business in the Premises in the
normal course is materially adversely affected, then, within sixty (60) days of
such fire or other casualty, Landlord shall submit to Tenant a reasonable
engineering estimate as to the estimated length of time to complete such
repairs together with a statement of whether or not Landlord will receive
sufficient proceeds from insurance to repair such damage.  If the time period (“Estimated Restoration Period”) set forth in
such estimate shall exceed ten (10) months from the date of such casualty
or if Landlord advises Tenant in such notice that Landlord will not receive
sufficient proceeds from insurance to repair such damage, Tenant may elect, by
a notice sent within sixty (60) days after notice of such estimate is sent to
Tenant, to terminate this Lease.  If such
estimate shall fall within the ten (10) month limit and if Landlord
advises Tenant in such notice that Landlord will receive sufficient proceeds
from insurance to repair such damage, Tenant shall have no such right to
terminate pursuant to this Paragraph (A).


 


(B)           In the event that the Premises or the
Building are damaged by fire or other casualty to the extent that the operation
of Tenant’s business in the Premises in the normal course is materially adversely
affected and the Lease is not terminated by either Landlord or Tenant pursuant
to Section 14.2 or Paragraph (A) of this Section 14.3, and if
Landlord shall fail to substantially complete said repairs or restoration on or
before the date (“Restoration Deadline Date”)
which is the greater of:  (1) the
end of the Estimated Restoration Period and (2) ten (10) months after
the date of such fire or other casualty (which ten (10) month period shall
be automatically extended for up to an additional two (2) months for such
periods of time as Landlord is prevented from proceeding with or completing the
same by reason of matters beyond Landlord’s reasonable control) for any reason
other than Tenant’s fault, Tenant may terminate this Lease by giving Landlord
written notice as follows:


 


(i)                                     Said notice shall be given after the Restoration Deadline Date.


 


(ii)                                  Said notice shall set forth an effective date which is not earlier than
thirty (30) days after Landlord receives said notice.


 


(iii)                               If said repairs or restoration are substantially complete on or before
the date thirty (30) days (which thirty-(30)-day period shall be extended by
the length of any delays caused by Tenant or Tenant’s contractors) after
Landlord receives such notice, said notice shall have no further force and
effect.


 


(iv)                              If said repairs or restoration are not substantially complete on or
before the date thirty (30) days (which thirty-(30)-day period shall be
extended by the length of any delays caused by Tenant or Tenant’s contractors)
after Landlord receives such notice, the Lease shall terminate as of said
effective date.


 


55

















 


14.4.                        GENERAL PROVISIONS RELATING TO ANY CASUALTY
TERMINATION.  In the
event of any termination under this Article XIV, this Lease and the Term
hereof shall expire as of such effective termination date as though that were
the termination date of the Lease and the Annual Fixed Rent, Additional Rent
and other charges payable under this Lease shall be apportioned as of such
date.


 


14.5.                        RIGHTS OF TERMINATION FOR TAKING.  If the Building, the Garage, or such portion
thereof or access thereto as to render the balance (if reconstructed to the
maximum extent practicable in the circumstances) unsuitable or inadequate for
Tenant’s purposes, shall be taken by condemnation or right of eminent domain,
Landlord or Tenant shall have the right to terminate this Lease by notice to
the other of its desire to do so, provided that such notice is given not later
than thirty (30) days after Tenant has been deprived of possession.  If either party shall give such notice, then
this Lease shall terminate as of the date of such notice with the same force
and effect as if such date were the date originally established as the
expiration date hereof.


 


Further,
if so much of the Building, the Garage, or access to either shall be so taken
that continued operation of the Building would be uneconomic, Landlord shall
have the right to terminate this Lease by giving notice to Tenant of Landlord’s
desire to do so not later than thirty (30) days after Tenant has been deprived
of possession of the Premises (or such portion thereof as may be taken).  If Landlord shall give such notice, then this
Lease shall terminate as of the date of such notice with the same force and effect
as if such date were the date originally established as the expiration date
hereof.


 


Should
any part of the Premises be so taken or condemned during the Lease Term hereof,
and should this Lease not be terminated in accordance with the foregoing provisions,
and the holder of any mortgage which includes the Premises as part of the
mortgaged premises or any ground lessor of any ground lease which includes the
Premises as part of the demised premises allows the net condemnation proceeds
to be applied to the restoration of the Building, Landlord agrees that after
the determination of the net amount of condemnation proceeds available to
Landlord, Landlord shall use due diligence to put what may remain of the
Premises into proper condition for use and occupation as nearly like the
condition of the Premises prior to such taking as shall be practicable
(excluding Tenant’s Property). 
Notwithstanding the foregoing, Landlord shall not be obligated to expend
for such repair and restoration any amount in excess of the net condemnation
proceeds made available to it.


 


If
the Premises shall be affected by any exercise of the power of eminent domain
and neither Landlord nor Tenant shall terminate this Lease as provided above,
then the Annual Fixed Rent, Additional Rent and other charges due under the
Lease shall be justly and equitably abated and reduced according to the nature
and extent of the loss of use thereof suffered by Tenant; and in case of a
taking which permanently reduces the Rentable Floor Area of the Premises, a
just proportion of the Annual Fixed Rent, Additional Rent and other charges due
under the Lease shall be abated for the remainder of the Lease Term.


 


56

















 


14.6.                        AWARD.  Except as otherwise provided in this Section 14.6,
Landlord shall have and hereby reserves and excepts, and Tenant hereby grants
and assigns to Landlord, all rights to recover for damages to the Building, the
Prudential Center, and the Garage and the leasehold interest hereby created,
and compensation accrued or hereafter to accrue by reason of such taking,
damage or destruction, as aforesaid, and by way of confirming the foregoing,
Tenant hereby grants and assigns, and covenants with Landlord to grant and
assign to Landlord, all rights to such damages or compensation.


 


However,
nothing contained herein shall be construed to prevent Tenant from prosecuting
in any such proceedings a claim for its trade fixtures so taken or relocation,
moving and other dislocation expenses, provided that such action shall not
affect the amount of compensation otherwise recoverable by Landlord from the
taking authority.


 


ARTICLE XV

DEFAULT


 


15.1.                        TENANT’S DEFAULT.  This Lease and the term of this Lease are
subject to the limitation that Tenant shall be in default if, at any time
during the Lease Term, any one or more of the following events (herein called
an “Event of Default” a “default of Tenant”
or similar reference) shall occur and not be cured prior to the expiration of
the grace period (if any) herein provided, as follows:


 


(a)                                  Tenant shall fail to pay any installment of the Annual Fixed Rent, or any
Additional Rent or any other monetary amount due under this Lease on or before
the date on which the same becomes due and payable, and such failure continues
for ten (10) days after notice from Landlord thereof; or


 


(b)                                 Landlord having rightfully given the notice specified in (a) above
to Tenant twice in any twelve (12) month period, Tenant shall fail thereafter
to pay the Annual Fixed Rent, Additional Rent or any other monetary amount due
under this Lease on or before the date on which the same becomes due and
payable; or


 


(c)                                  Tenant shall fail to perform or observe some term or condition of this
Lease which, because of its character, would immediately jeopardize Landlord’s
interest (such as, but without limitation, failure to maintain general
liability insurance, or the employment of labor and contractors within the
Premises which interfere with Landlord’s work, in violation of Section 4.3
or Section 9.3), and such failure continues for five (5) days after
notice from Landlord to Tenant thereof; or


 


(d)                                 Tenant shall fail to perform or observe any other requirement, term,
covenant or condition of this Lease (not hereinabove in this Section 15.1
specifically referred to) on the part of Tenant to be performed or observed and
such failure shall continue for thirty (30) days after notice thereof from
Landlord to Tenant, or if said default shall reasonably require longer than
thirty (30) days to cure, if Tenant shall fail to commence to cure said default
within thirty (30) days after notice thereof and/or fail to continuously
prosecute the curing of the same to completion with due diligence; or


 


57

















 


(e)                                  The estate hereby created shall be taken on execution or by other process
of law; or


 


(f)                                    Tenant shall make an assignment or trust mortgage arrangement, so-called,
for the benefit of its creditors; or


 


(g)                                 Tenant shall judicially be declared bankrupt or insolvent according to law;
or


 


(h)                                 a receiver, guardian, conservator, trustee in involuntary bankruptcy or
other similar officer is appointed to take charge of all or any substantial
part of Tenant’s property by a court of competent jurisdiction; or


 


(i)                                     any petition shall be filed against Tenant in any court, whether or not
pursuant to any statute of the United States or of any State, in any
bankruptcy, reorganization, composition, extension, arrangement or insolvency
proceeding, and such proceedings shall not be fully and finally dismissed
within sixty (60) days after the institution of the same; or


 


(j)                                     Tenant shall file any petition in any court, whether or not pursuant to
any statute of the United States or any State, in any bankruptcy,
reorganization, composition, extension, arrangement or insolvency proceeding;
or


 


(k)                                  Tenant otherwise abandons or vacates the Premises.


 


15.2.                        TERMINATION; RE-ENTRY.  Upon the happening of any one or more of the
aforementioned Events of Default (notwithstanding any license of a former
breach of covenant or waiver of the benefit hereof or consent in a former
instance), Landlord or Landlord’s agents or servants may give to Tenant a
notice (hereinafter called “notice of termination”)
terminating this Lease on a date specified in such notice of termination (which
shall be not less than five (5) days after the date of the mailing of such
notice of termination), and this Lease and the Lease Term, as well as any and
all of the right, title and interest of Tenant hereunder, shall wholly cease
and expire on the date set forth in such notice of termination (Tenant hereby
waiving any rights of redemption) in the same manner and with the same force
and effect as if such date were the date originally specified herein for the
expiration of the Lease Term, and Tenant shall then quit and surrender the
Premises to Landlord.


 


In
addition or as an alternative to the giving of such notice of termination,
Landlord or Landlord’s agents or servants may, by any suitable action or
proceeding at law, immediately or at any time thereafter re-enter the Premises
and remove therefrom Tenant, its agents, employees, servants, licensees, and
any subtenants and other persons, and all or any of its or their property
therefrom, and repossess and enjoy the Premises, together with all additions,
alterations and improvements thereto; but, in any event under this Section 15.2,
Tenant shall remain liable as hereinafter provided.


 


The
words “re-enter” and “re-entry”
as used throughout this Article XV are not restricted to their technical legal
meanings.


 


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15.3.                        CONTINUED LIABILITY; RE-LETTING.  If this Lease is terminated or if Landlord
shall re-enter the Premises as aforesaid, or in the event of the termination of
this Lease, or of re- entry, by or under any proceeding or action or any
provision of law by reason of an Event of Default hereunder on the part of
Tenant, Tenant covenants and agrees forthwith to pay and be liable for, on the
days originally fixed herein for the payment thereof, amounts equal to the
several installments of Annual Fixed Rent, all Additional Rent and other
charges reserved as they would, under the terms of this Lease, become due if
this Lease had not been terminated or if Landlord had not entered or
re-entered, as aforesaid, and whether the Premises be relet or remain vacant,
in whole or in part, or for a period less than the remainder of the Lease Term,
or for the whole thereof, but, in the event the Premises be relet by Landlord,
Tenant shall be entitled to a credit in the net amount of rent and other
charges received by Landlord in reletting, after deduction of all reasonable
expenses incurred in reletting the Premises (including, without limitation,
remodeling costs, brokerage fees and the like), and in collecting the rent in
connection therewith, in the following manner:


 


Amounts
received by Landlord after reletting shall first be applied against such
Landlord’s expenses, until the same are recovered, and until such recovery,
Tenant shall pay, as of each day when a payment would fall due under this
Lease, the amount which Tenant is obligated to pay under the terms of this
Lease (Tenant’s liability prior to any such reletting and such recovery not in
any way to be diminished as a result of the fact that such reletting might be
for a rent higher than the rent provided for in this Lease); when and if such
expenses have been completely recovered, the amounts received from reletting by
Landlord as have not previously been applied shall be credited against Tenant’s
obligations as of each day when a payment would fall due under this Lease, and
only the net amount thereof shall be payable by Tenant.  Further, Tenant shall not be entitled to any
credit of any kind for any period after the date when the term of this Lease is
scheduled to expire according to its terms.


 


15.4.                        LIQUIDATED DAMAGES.  Landlord may elect, as an alternative, to
have Tenant pay liquidated damages, which election may be made by notice given
to Tenant at any time after the termination of this Lease under Section 15.2,
above, and whether or not Landlord shall have collected any damages as
hereinbefore provided in this Article XV, and in lieu of all other such
damages beyond the date of such notice. 
Upon such notice, Tenant shall promptly pay to Landlord, as liquidated
damages, in addition to any damages collected or due from Tenant from any
period prior to such notice and all expenses which Landlord may have incurred
with respect to the collection of such damages, such a sum as at the time of
such notice represents the amount of the excess, if any, of (a) the
discounted present value, at a discount rate of 6%, of the Annual Fixed Rent,
Additional Rent and other charges which would have been payable by Tenant under
this Lease for the remainder of the Lease Term if the Lease terms had been
fully complied with by Tenant, over and above (b) the discounted present
value, at a discount rate of 6%, of the Annual Fixed Rent, Additional Rent and
other charges that would be received by Landlord if the Premises were re-
leased at the time of such notice for the remainder of the Lease Term at the
fair market value (including provisions regarding periodic increases in Annual
Fixed Rent if such are applicable) prevailing at the time of such notice as
reasonably determined by Landlord.


 


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For
the purposes of this Article, if Landlord elects to require Tenant to pay
liquidated damages in accordance with this Section 15.4, the total rent
shall be computed by assuming the Tax Excess under Section 6.2 and the
Operating Cost Excess under Section 7.5 to be the same as were payable for
the twelve (12) calendar months (or if less than twelve (12) calendar months
have been elapsed since the date hereof, the partial year) immediately preceding
such termination of re-entry.


 


Nothing
contained in this Lease shall limit or prejudice the right of Landlord to prove
for and obtain in proceedings for bankruptcy or insolvency by reason of the
termination of this Lease, an amount equal to the maximum allowed by any
statute or rule of law in effect at the time when, and governing the
proceeds in which, the damages are to be proved, whether or not the amount be
greater, equal to, or less than the amount of the loss or damages referred to
above.


 


15.5.                        WAIVER OF REDEMPTION.  Tenant, for itself and any and all persons
claiming through or under Tenant, including its creditors, upon the termination
of this Lease and of the term of this Lease in accordance with the terms
hereof, or in the event of entry of judgment for the recovery of the possession
of the Premises in any action or proceeding, or if Landlord shall enter the
Premises by process of law or otherwise, hereby waives any right of redemption
provided or permitted by any statute, law or decision now or hereafter in
force, and does hereby waive, surrender and give up all rights or privileges
which it or they may or might have under and by reason of any present or future
law or decision, to redeem the Premises or for a continuation of this Lease for
the term of this Lease hereby demised after having been dispossessed or ejected
therefrom by process of law, or otherwise.


 


15.6.                        LANDLORD’S DEFAULT; TENANT’S SELF-HELP.  If a Landlord Default, as hereinafter
defined, shall occur, Tenant may, without the need of Landlord’s consent, if
Landlord fails to cure such Landlord Default within the Landlord Cure Period,
as hereinafter defined, perform the same for the account of Landlord.  Landlord shall, within thirty (30) days of
demand therefor, reimburse Tenant the sums so paid by Tenant in curing such
Landlord Default, together with interest on such sums at the rate per annum set
forth in Section 16.17 hereof from the date of demand until the date of
payment.  However, in no event shall
Tenant have the right to offset against, withhold or deduct from Annual Fixed
Rent or Additional Rent payable under this Lease for any reason relating to
this Section 15.6.  For the purposes
of this Section 15.6, a “Landlord Default”
shall be defined as a failure by Landlord to perform Landlord’s obligation to
clean the Premises pursuant to Exhibit C
and/or to perform any of Landlord’s service, maintenance or repair obligations
under the Lease, excluding those maintenance and repair obligations, the cure
or performance of which would adversely affect any other tenant in the Building
or the Prudential Center (e.g., without limitation, Tenant shall have no right
to perform any maintenance or repairs to any common areas or facilities of the
Prudential Center).  For the purposes of
this Section 15.6, the “Landlord Cure Period”
shall be defined as follows:


 


1.                                       In the event of
an emergency threatening life or property, or Tenant’s interest in this Lease,
three (3) days after receipt by Landlord of written


 


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notice from Tenant of such
default.  Notwithstanding the foregoing,
in the event that Landlord has commenced to cure such Landlord Default within
said three (3) day period, and so long as Landlord thereafter diligently
prosecutes such cure to completion, the three (3) day period shall be
extended to such period of time as Landlord reasonably requires to cure such
default;


 


2.                                       In the event of
any other Landlord Default, thirty (30) days after receipt by Landlord of
written notice from Tenant of such Landlord Default.  Notwithstanding the foregoing, in the event
that Landlord has commenced to cure such Landlord Default within said thirty
(30) day period, and so long as Landlord thereafter diligently prosecutes such
cure to completion, the thirty (30) day period shall be extended to such period
of time as Landlord reasonably requires to cure such default.


 


Tenant
shall not assert any right to deduct the cost of repairs or any monetary claim
against Landlord from rent thereafter due and payable, but shall look solely to
Landlord for satisfaction of such claim.


 


ARTICLE XVI

MISCELLANEOUS PROVISIONS


 


16.1.                        WAIVER.  Failure on the part of Landlord or Tenant to
complain of any action or non-action on the part of the other, no matter how
long the same may continue, shall never be a waiver by Tenant or Landlord,
respectively, of any of its rights hereunder.


 


Further,
no waiver at any time of any of the provisions hereof by Landlord or Tenant
shall be construed as a waiver of any of the other provisions hereof, and a waiver
at any time of any of the provisions hereof shall not be construed as a waiver
at any subsequent time of the same provisions. 
The consent or approval of Landlord or Tenant to or of any action by the
other requiring such consent or approval shall not be construed to waive or
render unnecessary Landlord’s or Tenant’s consent or approval to or of any
subsequent similar act by the other.


 


No
payment by Tenant, or acceptance by Landlord, of a lesser amount than shall be
due from Tenant to Landlord shall be treated otherwise than as a payment on
account.  The acceptance by Landlord of a
check for a lesser amount with an endorsement or statement thereon, or upon any
letter accompanying such check, that such lesser amount is payment in full,
shall be given no effect, and Landlord may accept such check without prejudice
to any other rights or remedies which Landlord may have against Tenant.  Further, the acceptance by Landlord of Annual
Fixed Rent, Additional Rent or any other charges paid by Tenant under this Lease
shall not be or be deemed to be a waiver by Landlord of any default by Tenant,
whether or not Landlord knows of such default, except for such defaults as to
which such payment relates.


 


16.2.                        CUMULATIVE REMEDIES.  Except as expressly provided in this Lease,
the specific remedies to which Landlord and Tenant may resort under the terms
of this Lease are


 


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cumulative and are not
intended to be exclusive of any other remedies or means of redress which they
may be lawfully entitled to seek in case of any breach or threatened breach of
any provisions of this Lease.  In
addition to the other remedies provided in this Lease, Landlord shall be
entitled to the restraint by injunction of the violation or attempted or
threatened violation of any of the covenants, conditions or provisions of this
Lease or to seek specific performance of any such covenants, conditions or
provisions, provided, however, that the foregoing shall not be construed as a
confession of judgment by Tenant.


 


16.3.                        QUIET ENJOYMENT.  This Lease is subject and subordinate to all
matters of record.  Landlord agrees that,
upon Tenant’s paying the Annual Fixed Rent, Additional Rent and other charges
herein reserved, and performing and observing the covenants, conditions and
agreements hereof upon the part of Tenant to be performed and observed, Tenant
shall and may peaceably hold and enjoy the Premises during the term of this
Lease, without interruption or disturbance from Landlord or persons claiming
through or under Landlord, subject, however, to the terms of this Lease.  This covenant shall be construed as running
with the land to and against subsequent owners and successors in interest, and
is not, nor shall it operate or be construed as, a personal covenant of
Landlord, except to the extent of Landlord’s interest in the Premises, and this
covenant and any and all other covenants of Landlord contained in this Lease
shall be binding upon Landlord and upon such subsequent owners or successors in
interest of Landlord’s interest under this Lease, including ground or master
lessees, to the extent of their respective interests, as and when they shall
acquire same and then only for so long as they shall retain such interest.


 


16.4.                        SURRENDER.


 


(A)          No act or thing done by Landlord
during the Lease Term shall be deemed an acceptance of a surrender of the
Premises, and no agreement to accept such surrender shall be valid, unless in
writing signed by Landlord.  No employee
of Landlord or of Landlord’s agents shall have any power to accept the keys of
the Premises as an acceptance of a surrender of the Premises prior to the
termination of this Lease; provided, however, that the foregoing shall not
apply to the delivery of keys to Landlord or its agents in its (or their)
capacity as managing agent or for purpose of emergency access.  In any event, however, the delivery of keys
to any employee of Landlord or of Landlord’s agents shall not operate as a
termination of the Lease or a surrender of the Premises.


 


(B)           Upon the expiration or earlier
termination of the Lease Term, Tenant shall surrender the Premises to Landlord
in the condition as required by Sections 8.1 and 9.5, first removing all goods
and effects of Tenant and completing such other removals as may be permitted or
required pursuant to Section 9.5.


 


16.5.                        BROKERAGE.  Tenant warrants and represents that Tenant
has not dealt with any broker in connection with the consummation of this Lease
other than the broker, person or firm designated in Section 1.2 hereof;
and in the event any claim is made against Landlord relative to dealings with
brokers other than the broker designated in Section 1.2 hereof, Tenant
shall defend the claim against Landlord with counsel of Landlord’s selection
and save harmless and indemnify Landlord on account of loss, cost or damage
which may


 


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arise by reason of such
claim.  Landlord agrees that it shall be
solely responsible for the payment of brokerage commissions to the broker, person
or firm designated in Section 1.2 hereof.


 


Landlord
warrants and represents that Landlord has not dealt with any broker in
connection with the consummation of this Lease other than the broker, person or
firm designated in Section 1.2 hereof; and in the event any claim is made
against Tenant relative to Landlord’s dealings with brokers other than the
broker designated in Section 1.2 hereof, Landlord shall defend the claim
against Tenant with counsel of Tenant’s selection and save harmless and
indemnify Tenant on account of loss, cost or damage which may arise by reason
of such claim.


 


16.6.                        INVALIDITY OF PARTICULAR PROVISIONS.  If any term or provision of this Lease,
including but not limited to any waiver of contribution or claims, indemnity
obligations, or limitation of liability or damages, or the application thereof
to any person or circumstance shall, to any extent, be invalid or
unenforceable, the remainder of this Lease, or the application of such term or
provision to persons or circumstances other than those as to which it is held
invalid or unenforceable, shall not be affected thereby, and each term and
provision of this Lease shall be valid and be enforced to the fullest extent
permitted by law.


 


16.7.                        PROVISIONS BINDING, ETC.  The obligations of this Lease shall run with
the land, and except as herein otherwise provided, the terms hereof shall be
binding upon and shall inure to the benefit of the successors and assigns,
respectively, of Landlord and Tenant and, if Tenant shall be an individual, upon
and to his heirs, executors, administrators, successors and assigns.  Each term and each provision of this Lease to
be performed by Tenant shall be construed to be both a covenant and a
condition.  The reference contained to
successors and assigns of Tenant is not intended to constitute a consent to
assignment by Tenant, but has reference only to those instances in which
Landlord may have later given consent to a particular assignment as required by
the provisions of Article XII hereof.


 


16.8.                        RECORDING.


 


Each of Landlord and
Tenant agree not to record the within Lease, but each party hereto agrees, on
the request of the other, to execute a so-called Notice of Lease or short form
lease in form recordable and complying with applicable law and reasonably satisfactory
to Landlord’s and Tenant’s attorneys.  In
no event shall such document set forth the rent or other charges payable by
Tenant under this Lease; and any such document shall expressly state that it is
executed pursuant to the provisions contained in this Lease, and is not
intended to vary the terms and conditions of this Lease.


 


16.9.                        NOTICES AND TIME FOR ACTION.  Whenever, by the terms of this Lease, notice
shall or may be given either to Landlord or to Tenant, such notices shall be in
writing and shall be sent by hand, registered or certified mail, or by
overnight or other commercial courier which obtains a receipt for delivery,
postage or delivery charges, as the case may be, prepaid as follows:


 


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If
intended for Landlord, addressed to Landlord at the address set forth on the
first page of this Lease (or to such other address or addresses as may
from time to time hereafter be designated by Landlord by like notice) with a
copy to Landlord Attention:  Regional
General Counsel.  See also Section 16.14.


 


If
intended for Tenant, addressed to Tenant at the address set forth on the first page of
this Lease except that from and after the Commencement Date the address of
Tenant shall be the Premises, Attn: President with a copy to Tenant at the
Premises, Attn: General Counsel And a copy to Andrew M. Pearlstein, Seyfarth Shaw LLP, World Trade Center
East, Two Seaport Lane, Suite 300, Boston, Ma. 02210 (or to such other
address or addresses as may from time to time hereafter be designated by Tenant
by like notice).


 


Except
as otherwise provided herein, all such notices shall be effective when
received; provided, that (i) if receipt is refused, notice shall be
effective upon the first occasion that such receipt is refused or (ii) if
the notice is unable to be delivered due to a change of address of which no
notice was given, notice shall be effective upon the date such delivery was
attempted, or (iii) if the notice address is a post office box number,
notice shall be effective the day after such notice is sent as provided
hereinabove.


 


Where
provision is made for the attention of an individual or department, the notice
shall be effective only if the wrapper in which such notice is sent is
addressed to the attention of such individual or department.


 


Any
notice given by an attorney on behalf of either party or by Landlord’s managing
agent on behalf of Landlord, shall be considered as given by such party and
shall be fully effective.


 


Time
is of the essence with respect to any and all notices and periods for giving of
notice or taking any action thereto under this Lease.


 


16.10.                  WHEN LEASE BECOMES BINDING.  Employees or agents of Landlord have no
authority to make or agree to make a lease or any other agreement or undertaking
in connection herewith.  The submission
of this document for examination and negotiation does not constitute an offer
to lease, or a reservation of, or option for, the Premises, and this document
shall become effective and binding only upon the execution and delivery hereof
by both Landlord and Tenant.  All
negotiations, considerations, representations and understandings between
Landlord and Tenant are incorporated herein and may be modified or altered only
by written agreement between Landlord and Tenant, and no act or omission of any
employee or agent of Landlord shall alter, change or modify any of the
provisions hereof.


 


16.11.                  PARAGRAPH HEADINGS.  The paragraph headings throughout this
instrument are for convenience and reference only, and the words contained
therein shall in no way be held to explain, modify, amplify or aid in the
interpretation, construction or meaning of the provisions of this Lease.


 


16.12.                  RIGHTS OF MORTGAGEE.  Landlord hereby represents that there is no
mortgage currently encumbering the Building. 
This Lease shall be subject and subordinate to any


 


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mortgage hereafter on the
Building, or any part thereof, and to all renewals, modifications,
consolidations, replacements and extensions thereof and all substitutions
therefor, provided that, unless such mortgage provides by its terms that it is
subordinate to this Lease, Landlord shall cause the holder of such mortgage to
agree, by a written instrument in the customary form of such mortgagee, with
such commercially reasonable changes as Tenant and such mortgagee agree upon,
to recognize the right of Tenant to use and occupy the Premises upon the
payment of rent and other charges payable by Tenant under this Lease and the
performance by Tenant of Tenant’s obligations hereunder.  In confirmation of such subordination and
recognition, Tenant shall execute and deliver promptly such instruments of
subordination as such mortgagee may reasonably request, subject to the delivery
by such mortgagee of the recognition agreement described in the immediately
preceding sentence.  In the event that
any mortgagee or its respective successor in title shall succeed to the
interest of Landlord, then this Lease shall nevertheless continue in full force
and effect and Tenant shall and does hereby agree to attorn to such mortgagee
or successor and to recognize such mortgagee or successor as its landlord.  If any holder of a mortgage which includes
the Premises, executed and recorded prior to the Date of this Lease, shall so
elect, this Lease, and the rights of Tenant hereunder, shall be superior in
right to the rights of such holder, with the same force and effect as if this
Lease had been executed, delivered and recorded, or a statutory Notice hereof
recorded, prior to the execution, delivery and recording of any such
mortgage.  The election of any such
holder shall become effective upon either notice from such holder to Tenant in
the same fashion as notices from Landlord to Tenant are to be given hereunder
or by the recording in the appropriate registry or recorder’s office of an
instrument in which such holder subordinates its rights under such mortgage to
this Lease.


 


16.13.                  RIGHTS OF GROUND LESSOR.  If Landlord’s interest in property (whether
land only or land and buildings) which includes the Premises is acquired by
another party and simultaneously leased back to Landlord herein, the holder of
the ground lessor’s interest in such lease shall enter into a recognition
agreement with Tenant simultaneously with the sale and leaseback, wherein the
ground lessor will agree to recognize the right of Tenant to use and occupy the
Premises upon the payment of Annual Fixed Rent, Additional Rent and other
charges payable by Tenant under this Lease and the performance by Tenant of
Tenant’s obligations hereunder, and wherein Tenant shall agree to attorn to
such ground lessor as its Landlord and to perform and observe all of the tenant
obligations hereunder, in the event such ground lessor succeeds to the interest
of Landlord hereunder under such ground lease.


 


16.14.                  NOTICE OF MORTGAGEE AND GROUND LESSOR.  After receiving notice from any person, firm
or other entity that it holds a mortgage which includes the Premises as part of
the mortgaged premises, or that it is the ground lessor under a lease with
Landlord as ground lessee, which includes the Premises as a part of the leased
premises, no default notice or other notice of a material nature from Tenant to
Landlord shall be effective unless and until a copy of the same is given to
such holder or ground lessor at the address as specified in said notice (as it
may from time to time be changed), and the curing of any of Landlord’s defaults
by such holder or ground lessor within a reasonable time after such notice
(including a reasonable time to obtain possession of the premises if the
mortgagee


 


65

















 


or ground lessor elects to
do so) shall be treated as performance by Landlord.  For the purposes of this Section 16.14,
the term “mortgage” includes a mortgage on a leasehold interest of Landlord
(but not one on Tenant’s leasehold interest).


 


16.15.                  ASSIGNMENT OF RENTS.  With reference to any assignment by Landlord
of Landlord’s interest in this Lease, or the rents payable hereunder,
conditional in nature or otherwise, which assignment is made to the holder of a
mortgage or ground lease on property which includes the Premises, Tenant
agrees:


 


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


 


(b)                                 That, except as aforesaid,
such holder or ground lessor shall be treated as having assumed Landlord’s
obligations hereunder only upon foreclosure of such holder’s mortgage and the
taking of possession of the Premises, or, in the case of a ground lessor, the
assumption of Landlord’s position hereunder by such ground lessor.  In no event shall the acquisition of title to
the Building and the land on which the same is located by a purchaser which,
simultaneously therewith, leases the entire Building or such land back to the
seller thereof be treated as an assumption, by operation of law or otherwise,
of Landlord’s obligations hereunder, but Tenant shall look solely to such
seller-lessee, and its successors from time to time in title, for performance
of Landlord’s obligations hereunder.  In
any such event, this Lease shall be subject and subordinate to the lease to
such purchaser provided that such purchaser-lessor agrees to recognize the
right of Tenant to use and occupy the Premises upon the payment of rent and all
other charges payable by Tenant under this Lease and the performance by Tenant
of Tenant’s obligations under this Lease. 
For all purposes, such seller-lessee, and its successors in title, shall
be the landlord hereunder unless and until Landlord’s position shall have been
assumed by such purchaser-lessor.  In
addition, (i) no rent payable under this Lease or under any sublease made
by Tenant may be based in whole or in part on the income or profits derived
from the Premises or any subleased premises except for percentage rent based on
gross (not net) receipts or sales; (ii) if any lender succeeds to Landlord’s
interests under this Lease and is advised by its counsel that all or any
portion of the rent payable under this Lease is or may be deemed to be
unrelated business income within the meaning of the Internal Revenue Code of
the 1986, as amended, or the regulations issued thereunder, such lender may
elect to amend unilaterally the calculation of rents under this Lease so that
none of the rents payable to such lender under this Lease will constitute
unrelated business income, provided that such amendment will not increase
Tenant’s payment obligations or other liability under this Lease or reduce
Landlord’s obligations under this Lease; and (iii) if such lender
requests, Tenant will be obligated to execute any document lender may deem
necessary to effect the amendment of this Lease in accordance with the
foregoing subsection (ii).  Further, no
Annual Fixed Rent or Additional Rent may be paid by Tenant more than thirty
(30) days in


 


66

















 


advance
except with such lender’s prior written consent, and any such payment without
such consent shall not be binding on lender.


 


16.16.                  STATUS REPORT AND FINANCIAL STATEMENTS.  Recognizing that Landlord may find it
necessary to establish to third parties, such as accountants, banks, potential
or existing mortgagees, potential purchasers or the like, the then current
status of performance hereunder, Tenant, within ten (10) days after the
request of Landlord made from time to time, will furnish to Landlord, or any
existing or potential holder of any mortgage encumbering the Premises, the
Building or the Prudential Center, or any potential purchaser of the Premises,
the Building, or the Prudential Center (each an “Interested
Party”) a statement of the status of any matter pertaining to this
Lease, including, without limitation, acknowledgments that (or the extent to
which) each party is in compliance with its obligations under the terms of this
Lease.  In addition, during any period of
time in which Tenant’s financial information is not available in the public
domain, Tenant shall deliver to Landlord, or any Interested Party designated by
Landlord, financial statements of Tenant, as reasonably requested by Landlord
including, but not limited to, financial statements for the past three (3) years,
provided that (i) in no event shall Landlord request such statements more
often than one (1) time per calendar year, and (ii) such statements
shall be requested by Landlord only in connection with a sale or financing of
the Building.  Such financial statements
shall be treated as confidential and may be disclosed only (i) as required
by court order, (ii) to prospective purchasers and lenders and to
financial advisors, investment bankers, lawyers and accountants, (iii) as
may be required by Legal Requirements, or (iv) in connection with
litigation between the parties.  Any such
status statement or financial statement delivered by Tenant pursuant to this Section 16.16
may be relied upon by any Interested Party.


 


16.17.                  SELF-HELP.  If Tenant shall at any time fail to make any
payment or perform any act which Tenant is obligated to make or perform under
this Lease and (except in the case of emergency) if the same continues unpaid
or unperformed beyond applicable grace periods, then Landlord may, but shall
not be obligated so to do, after ten (10) days’ notice to and demand upon
Tenant, or without notice to or demand upon Tenant in the case of any
emergency, and without waiving, or releasing Tenant from, any obligations of
Tenant in this Lease contained, make such payment or perform such act which
Tenant is obligated to perform under this Lease in such manner and to such
extent as may be reasonably necessary, and, in exercising any such rights, pay
any costs and expenses, employ counsel and incur and pay reasonable attorneys’
fees.  All sums so paid by Landlord and
all reasonable and necessary costs and expenses of Landlord incidental thereto,
together with interest thereon at the annual rate equal to the sum of (a) the
Base Rate from time to time announced by Bank of America or its successor as
its Base Rate and (b) two percent (2%) (but in no event greater than the
maximum rate permitted by applicable law), from the date of the making of such
expenditures by Landlord, shall be deemed to be Additional Rent and, except as
otherwise in this Lease expressly provided, shall be payable to Landlord on
demand, and if not promptly paid shall be added to any rent then due or
thereafter becoming due under this Lease, and Tenant covenants to pay any such
sum or sums with interest as aforesaid, and Landlord shall have (in addition to
any other right or remedy of Landlord) the same rights and remedies in the event
of the


 


67

















 


non-payment thereof by
Tenant as in the case of default by Tenant in the payment of Annual Fixed Rent.


 


16.18.                  HOLDING OVER.  Any holding over by Tenant after the
expiration of the Term of this Lease shall be treated as a tenancy at
sufferance and shall be on the terms and conditions as set forth in this Lease,
as far as applicable except that Tenant shall pay as a use and occupancy charge
an amount equal to the greater of (x) the Annual Fixed Rent and charges
for electricity and Operating Expenses, calculated (on a daily basis) at the
highest rate payable under the terms of this Lease (the “Holdover
Multiplied Expenses”), multiplied by 150%, plus 100% of all
Additional Rent not included in the Holdover Multiplied Expenses, or (y) the
fair market rental value of the Premises, in each case for the period measured
from the day on which Tenant’s hold-over commences and terminating on the day
on which Tenant vacates the Premises. 
Notwithstanding the foregoing, if such holding over continues for more
than sixty (60) days, effective as of the sixty-first (61st) day, holdover rent
shall increase to the greater of (x) 200% of the Holdover Multiplied
Expenses due for the period immediately preceding such holding over, plus 100%
of all Additional Rent not included in the Holdover Multiplied Expenses, or (y) the
fair market rental value of the Premises. 
In addition, if Tenant holds over for sixty (60) days or more, Tenant
shall save Landlord, its agents and employees harmless and will exonerate,
defend and indemnify Landlord, its agents and employees from and against any
and all damages (including, without limitation, reasonable attorneys’ fees)
which Landlord may actually suffer by reason of any holdover by Tenant
following such 60-day period (“Holdover Damages”).  Nothing in the foregoing nor any other term
or provision of this Lease shall be deemed to permit Tenant to retain
possession of the Premises or hold over in the Premises after the expiration or
earlier termination of the Lease Term. 
All property which remains in the Building or the Premises (i) after
the expiration of this Lease or (ii) for more than ten (10) days
after the early termination of this Lease shall, in either case, be
conclusively deemed to be abandoned and may either be retained by Landlord as
its property or sold or otherwise disposed of in such manner as Landlord may
see fit.  If any part thereof shall be
sold, then Landlord may receive the proceeds of such sale and apply the same,
at its option against the expenses of the sale, the cost of moving and storage,
any arrears of rent or other charges payable hereunder by Tenant to Landlord
and any damages to which Landlord may be entitled under this Lease and at law
and in equity.


 


16.19.                  ENTRY BY LANDLORD.  Landlord, and its duly authorized
representatives, shall, upon reasonable prior notice (except in the case of
emergency) and subject to the provisions of Section 2.3, have the right to
enter the Premises at all reasonable times (except at any time in the case of
emergency) for the purposes of inspecting the condition of same and making such
repairs, alterations, additions or improvements thereto as may be necessary if
Tenant fails to do so as required hereunder (but Landlord shall have no duty
whatsoever to make any such inspections, repairs, alterations, additions or
improvements except as otherwise provided in Sections 4.1, 4.3, 7.1 and 7.2),
and, upon reasonable advance notice to Tenant, to show the Premises to
prospective tenants during the twelve (12) months preceding expiration of the
term of this Lease as it may have been extended and at any reasonable time
during the Lease Term to show the Premises to prospective purchasers and
mortgagees.  Landlord acknowledges that
because of the nature of


 


68

















 


Tenant’s operation, certain
limited areas of the Premises require special security arrangements, and in
that regard, Landlord and its agents shall not make entry into such areas
unless accompanied by a representative of Tenant provided that:  (i) Landlord and its agents may make
such entry in the case of an emergency or where such a representative is not
provided by Tenant after timely notice and (ii) Landlord shall not be
required to abide by the special security provisions unless Tenant shall have
notified Landlord in writing as to the special areas.  Upon reasonable advance notice to Landlord,
Tenant may change the location of such areas.


 


16.20.                  TENANT’S PAYMENTS.  Each and every payment and expenditure, other
than Annual Fixed Rent, shall be deemed to be Additional Rent hereunder,
whether or not the provisions requiring payment of such amounts specifically so
state, and shall be payable, unless otherwise provided in this Lease, within ten
(10) days after written demand by Landlord, and in the case of the
non-payment of any such amount, Landlord shall have, in addition to all of its
other rights and remedies, all the rights and remedies available to Landlord
hereunder or by law in the case of non-payment of Annual Fixed Rent.  Unless expressly otherwise provided in this
Lease, the performance and observance by Tenant of all the terms, covenants and
conditions of this Lease to be performed and observed by Tenant shall be at
Tenant’s sole cost and expense.  Except
as may be otherwise specifically provided herein, including, without
limitation, in Section 6.4(E), if Tenant has not objected to any statement
of Additional Rent which is rendered by Landlord to Tenant within ninety (90)
days after Landlord has rendered the same to Tenant, then the same shall be
deemed to be a final account between Landlord and Tenant not subject to any
further dispute.  Except in connection
with requests in connection with Alterations (as to which the fee set forth in Article IX
shall apply) and requests by Tenant to sublet the Premises or assign its
interest in this Lease (as to which the review fee set forth in Article XII
shall apply), in the event that Tenant shall seek Landlord’s consent or
approval under this Lease, then Tenant shall reimburse Landlord, upon demand,
as Additional Rent, for all reasonable costs and expenses, including legal
costs and expenses, incurred by Landlord in processing such request, whether or
not such consent or approval shall be given.


 


16.21.                  LATE PAYMENT.  If any payment or installment of Annual Fixed
Rent or Additional Rent or other amount due hereunder is not paid within ten (10) days
after the date (the “Due Date”) on
which the same first becomes payable under this Lease, the amount of such
payment or installment shall bear interest from the Due Date through and
including the date such payment or installment is received by Landlord, at a
rate equal to the lesser of (i) the rate announced by Bank of America (or
its successor) from time to time as its prime or base rate (or if such rate is
no longer available, a comparable rate reasonably selected by Landlord), plus
two percent (2%), or (ii) the maximum applicable legal rate, if any.  Such interest shall be deemed Additional Rent
and shall be paid by Tenant to Landlord upon demand.


 


16.22.                  COUNTERPARTS.  This Lease may be executed in several
counterparts, each of which shall be deemed an original, and such counterparts
shall constitute but one and the same instrument.


 


69

















 


16.23.                  ENTIRE AGREEMENT.  This Lease constitutes the entire agreement
between the parties hereto, Landlord’s managing agent and their respective
affiliates with respect to the subject matter hereof and thereof and supersedes
all prior dealings between them with respect to such subject matter, and there
are no verbal or collateral understandings, agreements, representations or
warranties not expressly set forth in this Lease.  No subsequent alteration, amendment, change
or addition to this Lease shall be binding upon Landlord or Tenant, unless
reduced to writing and signed by the party or parties to be charged therewith.


 


16.24.                  LANDLORD LIABILITY.  Tenant shall neither assert nor seek to
enforce any claim for breach of this Lease against any of Landlord’s assets
other than Landlord’s interest in the Building, and the uncollected rents,
issues and profits therein, and, subject to the rights of any mortgagee of
Landlord and of Landlord to use such proceeds or awards for reconstruction, the
insurance proceeds and taking awards therefor, Tenant agrees to look solely to
such interest for the satisfaction of any liability of Landlord under this
Lease, it being specifically agreed that neither Landlord, nor any successor
holder of Landlord’s interest hereunder, nor any beneficiary of any Trust of
which any person from time to time holding Landlord’s interest is Trustee, nor
any such Trustee, nor any member, manager, partner, director or stockholder nor
Landlord’s managing agent shall ever be personally liable for any such
liability.  This paragraph shall not
limit any right that Tenant might otherwise have to obtain injunctive relief
against Landlord or Landlord’s successors-in-interest, or to take any other
action which shall not involve the personal liability of Landlord, or of any
successor holder of Landlord’s interest hereunder, or of any beneficiary of any
trust of which any person from time to time holding Landlord’s interest is
Trustee, or of any such Trustee, or of any manager, member, partner, director
or stockholder of Landlord or of Landlord’s managing agent, to respond in
monetary damages from Landlord’s assets other than Landlord’s interest in said
Building, as aforesaid, but, except as may be specifically otherwise herein
provided, in no event shall Tenant have the right to terminate or cancel this
Lease or to withhold rent or to set-off any claim or damages against rent as a
result of any default by Landlord or breach by Landlord of its covenants or any
warranties or promises hereunder, except in the case of a wrongful eviction of
Tenant from the demised premises (constructive or actual) by Landlord
continuing after notice to Landlord thereof and a reasonable opportunity for
Landlord to cure the same.  In no event
shall Landlord ever be liable for any indirect or consequential damages or loss
of profits or the like.  In the event
that Landlord shall be determined to have wrongfully withheld any consent or
approval under this Lease, the sole recourse and remedy of Tenant in respect
thereof shall be to specifically enforce Landlord’s obligation to grant such
consent or approval, and in no event shall Landlord be responsible for any
damages of whatever nature in respect of its failure to give such consent or
approval nor shall the same otherwise affect the obligations of Tenant under
this Lease or act as any termination of this Lease.  Tenant shall not be liable for any indirect
or consequential damages or loss of profits or the like except as set forth in Section 16.18
in the case where Tenant holds over in the Premises after the expiration or
earlier termination of this Lease, as the case may be.


 


16.25.                  NO PARTNERSHIP.  The relationship of the parties hereto is
that of landlord and tenant and no partnership, joint venture or participation
is hereby created.


 


70
















 


16.26.      SECURITY DEPOSIT.  Intentionally omitted.


 


16.27.      GOVERNING LAW; WAIVER OF TRIAL BY JURY.  This Lease shall be governed exclusively by
the provisions hereof and by the law of The Commonwealth of Massachusetts, as
the same may from time to time exist.


 


As
an inducement to both parties entering into this Lease, Landlord and Tenant
hereby each waive any right to trial by jury in any action, proceeding or
counterclaim brought by either Landlord or Tenant on any matters whatsoever
arising out of or any way connected with this Lease, the relationship of
Landlord and Tenant, Tenant’s use or occupancy of the Premises and/or any claim
of injury or damage, including but not limited to, any summary process eviction
action.


 


16.28.      SIGNAGE.  Tenant shall have the right, during the Term
of this Lease, to list Tenant’s name on the Building directory.  The initial listing of Tenant’s name shall be
at Landlord’s cost and expense.  Any
changes, replacements or additions by Tenant to such directory shall be at
Tenant’s sole cost and expense.  In
addition, in the event that Tenant is leasing a partial floor only, Landlord
shall, at Landlord’s cost and expense, install a Building standard tenant
identification sign on Tenant’s entrance door to the Premises listing the name
of Tenant and, if such partial floor premises are not visible from the
elevator, a Building standard directional sign in the elevator lobby of such
floor listing the name of Tenant.


 


16.29.      INTENTIONALLY OMITTED.


 


16.30.      RULES AND REGULATIONS. Tenant will
faithfully observe and comply with the reasonable rules and regulations as
Landlord (or, as to the common areas and facilities of the Prudential Center,
any PruOwner) hereafter at any time or from time to time may make and for which
Landlord provides at least five (5) business days’ prior notice in writing
to Tenant (referred to collectively herein as “Rules and
Regulations”), which in the reasonable judgment of Landlord shall be
necessary for the reputation, safety, care or appearance of the Building and/or
the Prudential Center, or the preservation of good order therein, or the
operation or maintenance of the Building and/or the Prudential Center, or the
equipment thereof, or the comfort of tenants or others in the Prudential
Center, provided, however, that in the case of any conflict between the
provisions of this Lease and any such Rules and Regulations, the
provisions of this Lease shall control, and provided further that nothing
contained in this Lease shall be construed to impose upon Landlord any duty or
obligation to enforce the Rules and Regulations or the terms, covenants or
conditions in any other lease as against any other tenant and Landlord shall
not be liable to Tenant for violation of the same by any other tenant, its
servants, employees, agents, contractors, visitors, invitees or licensees.  All Rules and Regulations shall be of
general applicability to, and non-discriminatorily applied against, all office
tenants in the Building.  Landlord has
designated the entire Building as non-smoking.


 


71

















 


EXECUTED
as a sealed instrument in two or more counterparts by persons or officers
hereunto duly authorized on the Date set forth in Section 1.2 above.


 


	
  WITNESS:

  	
  LANDLORD:

  
	
   

  	
   

  
	
   

  	
  BP
  PRUCENTER ACQUISITION LLC, a

  Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Boston
  Properties Limited Partnership, a

  Delaware limited partnership, its sole

  member

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  Boston
  Properties, Inc., a Delaware

  corporation, its General Partner

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  David Provost

  
	
   

  	
   

  	
  Name:

  	
  David
  C. Provost

  
	
   

  	
   

  	
  Its:

  	
  SVP

  
	
   

  	
   

  	
  Hereunto
  duly authorized

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TENANT:

  
	
   

  	
   

  
	
  ATTEST:

  	
  FEDERAL
  HOME LOAN BANK OF

  BOSTON, a Federal instrumentality

  
	
   

  	
   

  
	
   

  	
   

  
	
  By

  	
  /s/Carol
  H. Pratt

  	
   

  	
  By

  	
  /s/
  Earl Baucom

  
	
  Name:

  	
  Carol
  H. Pratt

  	
  Name:

  	
  Earl
  Baucom

  
	
  Title:

  	
  Secretary

  	
  Title:

  	
  Senior
  Vice President

  
	
   

  	
  Hereunto
  duly authorized

  
										



 


72

















 


EXHIBIT A


 


LEGAL
DESCRIPTION


 


PRUDENTIAL
CENTER


 


PARCEL
1


 


That
certain parcel of registered land located in the City of Boston, Suffolk
County, Massachusetts, shown as Lot 12 on a Plan entitled “Subdivision Plan of
Land in Boston, Massachusetts, Suffolk County, being a subdivision of L.C.C.
28611D Lot 8” (Nine (9) Sheets), dated March 6, 1998 on file with the
Suffolk County Registry District of the Land Court as Land Court Plan No. 28611E.


 


PARCEL
2 and PARCEL 3


 


Those
two certain parcels of unregistered land located in the City of Boston, Suffolk
County, Massachusetts, shown on a Plan entitled “Plan of Land in Boston,
Massachusetts, Suffolk County,” dated June 25, 1998, prepared by Cullinan
Engineering Co., Inc. and recorded with the Suffolk County Registry of
Deeds in Book 22643, Page 112.


 


1

















 


EXHIBIT B-1


 


PRUDENTIAL CENTER


 


TENANT PLAN AND WORKING DRAWING REQUIREMENTS


 


1.             Floor plan indicating
location of partitions and doors (details required of partition and door
types).


 


2.             Location of standard
electrical convenience outlets and telephone outlets.


 


3.             Location and details of
special electrical outlets; (e.g. Xerox), including voltage, amperage, phase
and NEMA configuration of outlets.


 


4.             Reflected ceiling plan
showing layout of standard ceiling and lighting fixtures. Partitions to be
shown lightly with switches located indicating fixtures to be controlled.


 


5.             Locations and details of
special ceiling conditions, lighting fixtures, speakers, etc.


 


6.             Location and heat load in
BTU/Hr. of all special air conditioning and ventilating requirements and all
necessary HVAC mechanical drawings.


 


7.             Location and details of
special structural requirements, e.g., slab penetrations and areas with floor
loadings exceeding a live load of 70 lbs./s.f.


 


8.             Locations and details of all
plumbing fixtures; sinks, drinking fountains, etc.


 


9.             Location and specifications
of floor coverings, e.g., vinyl tile, carpet, ceramic tile, etc.


 


10.           Finish schedule plan
indicating wall covering, paint or paneling with paint colors referenced to
standard color system.


 


11.           Details and specifications
of special millwork, glass partitions, rolling doors and grilles, blackboards,
shelves, etc.


 


12.           Hardware schedule indicating
door number keyed to plan, size, hardware required including butts, latchsets
or locksets, closures, stops, and any special items such as thresholds,
soundproofing, etc. Keying schedule is required.


 


13.           Verified dimensions of all
built-in equipment (file cabinets, lockers, plan files, etc.).


 


14.           Location of any special
soundproofing requirements.


 


15.           All drawings to be uniform
size (30” X 42”) and shall incorporate the standard project electrical and
plumbing symbols and be at a scale of 1/8” = 1’ or larger.


 


1

















 


16.           Drawing submittal shall
include the appropriate quantity required for Landlord to file for permit along
with four half size sets and one full size set for Landlord’s review and use.


 


17.           Provide all other
information necessary to obtain all permits and approvals for Landlord’s Work.


 


18.           Upon completion of the work,
Tenant shall provide Landlord with two hard copies and one CAD file of updated
architectural and mechanical drawings to reflect all project sketches and
changes.


 


2

















 


EXHIBIT B-2


 


PLANS AND CONSTRUCTION SCHEDULE


 


	
  Event

  	
   

  	
  Date

  
	
   

  	
   

  	
   

  
	
  RFP
  Submission Date:

  	
   

  	
  November 1,
  2010

  
	
   

  	
   

  	
   

  
	
  Initial
  Plans Submission Date:

  	
   

  	
  December 1,
  2010

  
	
   

  	
   

  	
   

  
	
  GC
  Selection Date:

  	
   

  	
  December 15,
  2010

  
	
   

  	
   

  	
   

  
	
  Interim
  Plans Submission Date (Design Development):

  	
   

  	
  February 1,
  2011

  
	
   

  	
   

  	
   

  
	
  Final
  Plans Date:

  	
   

  	
  April 1,
  2011

  
	
   

  	
   

  	
   

  
	
  Subcontractor
  Bidding:

  	
   

  	
  Month
  of April, 2011

  
	
   

  	
   

  	
   

  
	
  Long-Lead
  Items Release Date:

  	
   

  	
  May 9,
  2011

  
	
   

  	
   

  	
   

  
	
  Subcontractor
  Selection:

  	
   

  	
  May 2,
  2011 — May 23, 2011

  
	
   

  	
   

  	
   

  
	
  Authorization
  to Proceed Date:

  	
   

  	
  June 1,
  2011

  
	
   

  	
   

  	
   

  
	
  Scheduled
  Delivery Date:

  	
   

  	
  November 1,
  2011

  



 


1

















 


EXHIBIT B-3


 


INITIAL WORK


 


1.  Landlord shall demolish all existing
improvements in the Premises and deliver the Premises to Tenant in “clean shell”
condition, as more fully set forth in Exhibit B-3A.


 


2.  Landlord shall renovate the core restrooms
located within the Premises to Building standard specifications, as more fully
set forth in Exhibit B-3B.


 


1

















 


EXHIBIT B-3A


 


CLEAN SHELL CONDITION


 


Floors:                    Removal of all existing floor
coverings


 


Walls:                     Removal of all existing
tenant improvement walls. Landlord
will be responsible for repairing water leaks in perimeter columns and
performing repairs on perimeter columns prior to completion of demolition.


 


Ceilings:                 Removal of Gypsum Wall Board and ACT ceilings
in the tenant areas.


 


Structure:               Removal of existing staircase and infill
stair opening.


 


Sprinklers:             Will be left in place


 


Plumbing               Any tenant related plumbing will be removed
and cut back to the core. Tenant will
provide direction to Landlord in regards to plumbing that will remain prior to
the start of demolition.


 


HVAC                    Removal of all ceiling
grilles and low pressure duct work back to the box serving the zone. Landlord will verify operation of all fire
dampers at supply and return air locations prior to completion of demolition.
Landlord will be responsible to restore all modified/split induction units.


 


Electrical                Cut all existing circuits back to the base
building closet.


·              Remove all electrical and
low voltage outlets in perimeter columns.


·              Maintain power at stair A &
B door contacts.


·              Landlord to identify and
log all riser wiring to remain in telephone closet and rooms.


·              Remove all wiring out of
walker duct system.


·              If wiring from other tenants exists in premises, landlord will mark
said wiring.


 


Hazardous 


Waste:                                                          Landlord will be responsible for the removal or remediation as required
by law of all hazardous materials from the Premises at its cost.


 


1

















 


Window


Film:                        Landlord and Tenant will agree on the scope of window film replacement
prior to tenant construction; such scope will be installed at Landlord’s cost
prior to tenant occupancy.  Film damaged
during tenant construction will be replaced by Landlord at tenant’s expense.


 


Window


Treatment:             Landlord will be responsible for the removal of existing window blinds
and the re-installation of building standard mini-blinds prior to tenant
occupancy.


 


2

















 


EXHIBIT B-3B


 


BUILDING STANDARD CORE RESTROOM SPECIFICATIONS


 


Floors:                    Thin set ceramic tile and
carpet in vestibules and marble thresholds at door openings.


 


Walls:                     6’ high ceramic tile on wet
walls.


 


Ceilings:                 Gypsum Wall Board ceilings.


 


Lavatory:               Granite or other solid surface material.


 


Specialties             Mirror at Lavatory with wood surround.


Stainless
steel toilet accessories as required


Stainless
steel ceiling hung toilet partitions


 


Sprinklers              Modify and relocate existing sprinklers as required
by code.


 


Plumbing               Under-mount china lavatories with automatic
faucets and soap dispensers.  New water
closets and urinals.  Manufacturers shall
be Toto, Kohler, American Standard, or equal.


 


HVAC                    Modify and relocate existing
toilet exhaust ductwork with new grills.


 


Electrical                New lighting consisting of a combination of
down lights, sconces and concealed linear lighting.  New fire alarm devices as required by code.


 


1
















 


EXHIBIT C


 


PRUDENTIAL TOWER, BOSTON,
MA


 


LANDLORD SERVICES


 


I.                                         CLEANING:


 


Cleaning and janitor services as provided below:


 


A.                                   OFFICE AREAS:


 


Daily:  (Monday
through Friday, inclusive, holidays excepted).


 


1.                                       Empty all waste receptacles and ashtrays
and remove waste material from the Premises; wash receptacles as necessary.


 


2.                                       Sweep and dust mop all uncarpeted areas
using a dust-treated mop.


 


3.                                       Vacuum all rugs and carpeted areas.


 


4.                                       Hand dust and wipe clean with treated
cloths all horizontal surfaces, including furniture, office equipment, window
sills, door ledges, chair rails, and convector tops, within normal reach.


 


5.                                       Wash clean all water fountains and
sanitize.


 


6.                                       Move and dust under all desk equipment
and telephones and replace same (but not computer terminals, specialized
equipment or other materials).


 


7.                                       Wipe clean all chrome and other bright
work.


 


8.                                       Hand dust grill work within normal reach.


 


9.                                       Main doors to premises shall be locked
and lights shut off upon completion of cleaning.


 


Weekly:


 


1.                                       Dust coat racks and the like.


 


2.                                       Spot clean entrance doors, light switches
and doorways.


 


Quarterly:


 


1.                                       Render high dusting not reached in daily
cleaning to include:


 


1

















 


a)                                      dusting all pictures, frames, charts,
graphs and similar wall hangings.


 


b)                                     dusting of all vertical surfaces, such as
walls, partitions, doors and door frames, etc.


 


c)                                      dusting all pipes, ducts and moldings.


 


d)                                     dusting of all vertical blinds.


 


e)                                      dust all ventilating, air conditioning,
louvers and grills.


 


2.                                       Spray buff all resilient floors.


 


B.                                     LAVATORIES:


 


Daily: 
(Monday through Friday, inclusive, holidays excepted).


 


1.                                       Sweep and damp mop.


 


2.                                       Clean all mirrors, powder shelves,
dispensers and receptacles, bright work, flushometers, piping and toilet seat
hinges.


 


3.                                       Wash both sides of all toilet seats.


 


4.                                       Wash all basins, bowls and urinals.


 


5.                                       Dust and clean all powder room fixtures.


 


6.                                       Empty and clean paper towel and sanitary
disposal receptacles.


 


7.                                       Remove waste paper and refuse.


 


8.                                       Refill tissue holders, soap dispensers,
towel dispensers, sanitary dispensers; materials to be furnished by Landlord.


 


Monthly:


 


1.                                       Machine scrub lavatory floors.


 


2.                                       Wash all partitions and tile walls in
lavatories.


 


3.                                       Dust all lighting fixtures and grills in
lavatories.


 


2

















 


C.                                     MAIN LOBBIES, ELEVATORS, STAIRWELLS AND
COMMON CORRIDORS:


 


Daily: 
(Monday through Friday, inclusive, holidays excepted).


 


1.                                       Sweep and damp mop all floors, empty and
clean waste receptacles, dispose of waste.


 


2.                                       Clean elevators, wash or vacuum floors,
wipe down walls and doors.


 


3.                                       Spot clean any metal work inside lobbies.


 


4.                                       Spot clean any metal work surrounding
building entrance doors.


 


5.                                       Sweep all stairwells and dust handrails.


 


Monthly:


 


1.                                       All resilient tile floors in public areas
to be spray buffed.


 


D.                                    WINDOW CLEANING:


 


All exterior windows shall be washed at a frequency
necessary to maintain a first-class appearance.


 


II.                                     HVAC:


 


A.                                   Heating, ventilating and air conditioning
equipment will be provided with sufficient capacity to accommodate a maximum
population density of one (1) person per one hundred fifty (150) square
feet of useable floor area served, and a combined lighting and standard
electrical load of 1.5 watts per square foot of useable floor area for lights
and 5.5 watts per square foot of useable floor area for power.  In the event Tenant introduces into the
Premises personnel or equipment which overloads the system’s ability to
adequately perform its proper functions, Landlord shall so notify Tenant in
writing and supplementary system(s) may be required and installed by
Landlord at Tenant’s expense, if within fifteen (15) days Tenant has not
modified its use so as not to cause such overload.


 


Operating criteria of the basic system are in
accordance with the Massachusetts Energy Code and shall not be less than the
following:


 


i)                                         Cooling season indoor temperatures of not
in excess of 73-79 degrees Fahrenheit when outdoor temperature is 91 degrees
Fahrenheit ambient.


 


ii)                                      Heating season minimum room temperature
of 68-75 degrees Fahrenheit when outdoor temperature is 6 degrees Fahrenheit
ambient.


 


B.                                     Landlord shall provide heating,
ventilating and air conditioning as normal seasonal charges may require during
Normal Building Operating Hours (8:00 a.m. to 6:00 p.m., Monday
through Friday, and legal holidays in all cases excepted).


 


3

















 


If Tenant shall require air conditioning (during the
air conditioning season) or heating or ventilating during any season outside
Normal Building Operating Hours, Landlord shall use best efforts to furnish
such services for the area or areas specified by written request of Tenant
delivered to the Building Superintendent or Landlord before 3:00 p.m. of
the business day preceding the extra usage. 
For such services, Tenant shall pay Landlord, as Additional Rent, upon
receipt of billing, a sum equal to the cost incurred by Landlord.


 


III.                                 ELECTRICAL SERVICES:


 


A.           Landlord shall provide electric power for
a combined load of 1.5 watts per square foot of useable area for lights and 5.5
watts per square foot of useable floor area for power through standard
receptacles for the typical office space.


 


B.             Landlord, at its option, may require
separate metering and direct billing to Tenant for the electric power required
for any special equipment (such as computers and reproduction equipment) in
excess of the wattage set forth above. 
Tenant shall be solely responsible for the cost associated with such meter(s) required
for Tenant’s special equipment, and for the installation thereof.


 


C.             Landlord will furnish and install, at
Tenant’s expense, all replacement lighting tubes, lamps and ballasts required
by Tenant.  Landlord will clean lighting
fixtures on a regularly scheduled basis at Tenant’s expense.


 


IV.                                 ELEVATORS:


 


Provide passenger and freight elevator service.  There is no charge for freight elevator
service except for use by contractors.


 


V.                                     WATER:


 


Provide hot water for lavatory purposes and cold water
for drinking, lavatory and toilet purposes.


 


VI.                                 CARD ACCESS SYSTEM:


 


Landlord will provide a card access system at one
entry door of the building for access when the building is not open for
business.


 


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EXHIBIT D


 


FLOOR PLAN (9TH FLOOR)


 


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EXHIBIT D-1


 


FLOOR PLAN (10TH FLOOR)


 


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EXHIBIT E


 


FORM OF COMMENCEMENT
DATE AGREEMENT


 


Reference is made to that certain Lease by and between
                                                                                  ,
a(n)                                         ,
Landlord and
                                                            ,
a(n)                                             ,
Tenant, and dated
                                  ,
a Notice of which is filed for registration with the [Suffolk Registry District
of the Land Court] as Document No.                                   .


 


Landlord and Tenant hereby confirm and agree that the
Commencement Date under the Lease is
                                                
and that the Lease Term if
                            .


 


This Commencement Date Agreement is executed as a
sealed instrument as of                             ,
20      .


 


 


	
   

  	
  LANDLORD:

  
	
   

  	
  a(n)

  	
   

  
	
   

  	
   

  
	
   

  	
  By:  

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
							



 


	
   

  	
  TENANT:
                                                                                       ,

  
	
   

  	
  a(n)

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name (print):

  	
   

  
						



 


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EXHIBIT F


 


PRUDENTIAL CENTER


 


PROCEDURE FOR ADJUSTMENT
OF COSTS


OF ELECTRIC POWER USAGE
BY TENANTS


 


This memo outlines the procedure for adjusting charges
for electric power to office tenants on Floors 2-18 of the Building.


 


1.                                       Main electric service will be provided by
the local utility company to a central utility metering center. All charges by
the utility will be read from these meters and billed to and paid by Landlord
at rates established by the utility company.


 


2.                                       In order to assure that charges for
electric service are allocated among tenants in relation to the relative
amounts of electricity used by each tenant, meters (known as “check meters”)
will be used to monitor tenant electric usage. On each office floor there shall
be one or more check meter(s) serving all of the floor, and on
multi-tenant floors Landlord may require that the tenants install check meters
relating to their premises. Upon Landlord’s request, Tenant, at its cost, shall
install a check meter in its Premises prior to the Commencement Date in order
to monitor usage as aforesaid.


 


3.                                       Landlord will cause the check meters to
be read periodically by its employees and will perform an analysis of such
information for the purpose of determining whether any adjustments are required
to achieve an allocation of the costs of electric service among the tenants in
relation to the respective amounts of usage of electricity for those tenants. For
this purpose, Landlord shall, as far as possible in each case, read the check
meters to determine usage for periods that include one or more entire periods
used by the utility company for the reading of the meters located within the
central utility metering center (so that Landlord may, in its discretion,
choose periods that are longer than those used by the utility company — for
example, quarterly, semi-annual or annual periods).


 


4.                                       Tenant’s share of electricity shall be
determined by Landlord on the following basis:


 


a.                                       The cost of the total amount of
electricity supplied for usage by tenants during the period being measured
shall be determined by dividing the total cost of electricity through the
central utility metering center as invoiced by the utility company for the same
period by the total amount of kilowatt hour usage as measured by 


 


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the meters located within the central utility metering
center (herein called “Cost Per Kilowatt Hour”).


 


b.                                      Tenant’s allocable share of electricity
costs for the period (“Tenant Electricity”) shall be determined by multiplying
the Cost Per Kilowatt Hour by the number of kilowatt hours utilized by Tenant
for such period as indicated by the check meter(s) for Tenant’s Premises.


 


c.                                       Where a floor is occupied by more than
one tenant, and where all of the tenant spaces on such floor are not separately
check-metered, the cost of Tenant Electricity for tenant spaces that are not
separately check-metered shall first be determined by the same procedure as set
forth in paragraph (b) above (after subtracting out the usage shown on any
check meter that runs off such floor meter), and then the allocable share of
each tenant on that floor whose space is not separately check-metered shall be
determined by multiplying the total costs of Tenant Electricity for that floor
by a fraction, the numerator of which is the rentable area leased to such
tenant and the denominator of which is the total rentable area under lease from
time to time to tenants on said floor (other than those who are separately
check metered); provided, however, that if Landlord shall reasonably determine
that the cost of electricity furnished to Tenant at the Premises exceeds the
amount being paid under this Subsection (d), then Landlord shall charge Tenant
for such excess and Tenant shall promptly pay the same upon billing therefor as
Additional Rent under the Lease.


 


d.                                      Where part or all of the rentable area on
a floor has been occupied for less than all of the period for which adjustments
are being made, appropriate and equitable modifications shall be made to the
allocation formula so that each tenant’s allocable share of costs equitably
reflects its period of occupancy, provided that in no event shall the total of
all costs as allocated to tenants (or to unoccupied space) be less than the
total cost of Tenant Electricity for said period.


 


e.                                       Tenant shall make estimated payments on
account of Tenant Electricity, as reasonably estimated by Landlord, on a
monthly basis at the same time and in the same manner as Tenant’s monthly
installments of Annual Fixed Rent.


 


5.                                       a.                                       Tenant shall pay to Landlord Tenant’s
allocable share of Tenant Electricity costs for the period within thirty (30)
days after billing therefor.


 


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b.                                      In lieu of making payments as provided in
subsection (a) above, at Landlord’s option, Tenant shall pay to Landlord
an amount from time to time reasonably estimated by Landlord to be sufficient
to cover, in the aggregate, a sum equal to Tenant’s allocable share of Tenant
Electricity costs for each calendar year during the Lease Term. No later than
one hundred twenty (120) days after the end of the first calendar year or
fraction thereof ending December 31 and of each succeeding calendar year
during the Lease Term or fraction thereof at the end of the Lease Term,
Landlord shall render Tenant a statement in reasonable detail certified by an
officer of Landlord, showing for the preceding calendar year or fraction
thereof, as the case may be, Tenant’s allocable share of Tenant Electricity
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 Tenant’s allocable share of Tenant Electricity
costs and the amount of Tenant’s allocable share of Tenant Electricity costs
remaining due from, or overpaid by, Tenant for the year or other period covered
by the statement. If such statement shows a balance remaining due to Landlord,
Tenant shall pay same to Landlord on or before the thirtieth (30th) day
following receipt by Tenant of said statement. Any balance shown as due to
Tenant shall be credited against Annual Fixed Rent next due, or refunded to
Tenant if the Lease Term has then expired and Tenant has no further obligation
to Landlord. Payments by Tenant on account of Tenant’s allocable share of
Tenant Electricity costs shall be deemed Additional Rent and shall be made
monthly at the time and in the fashion herein provided for the payment of
Annual Fixed Rent.


 


All costs of electricity billed to Landlord through
the central utility metering center other than the costs of Tenant Electricity
allocated pursuant to the procedures established herein, shall be treated as
part of the Operating Expenses for the Building or the Prudential Center for
purposes of determining the allocation of those costs.


 


Tenant shall be required to maintain any meter located
within its Premises. Further, Tenant agrees that it will not make any material
alteration or material addition to the electrical equipment and/or appliances
in the Premises without the prior written consent of Landlord in each instance
first obtained, which consent will not be unreasonably withheld, and will promptly
advise Landlord of any other alteration or addition to such electrical
equipment and/or appliances.


 


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EXHIBIT G


 


BROKER DETERMINATION OF PREVAILING MARKET RENT


 


Where
in the Lease to which this Exhibit is attached provision is made for a
Broker Determination of Prevailing Market Rent, the following procedures and
requirements shall apply:


 


1.                                      Tenant’s Request.  Tenant shall send a notice to Landlord by the
time set for such notice in the applicable section of the Lease, requesting a
Broker Determination of the Prevailing Market Rent, which notice to be
effective must (i) make explicit reference to the Lease and to the
specific section of the Lease pursuant to which said request is being made, (ii) include
the name of a broker selected by Tenant to act for Tenant, which broker shall
be affiliated with a major commercial real estate brokerage firm selected by
Tenant and which broker shall have at least ten (10) years experience
dealing in properties of a nature and type generally similar to the Building
located in the Market Area, and (iii) explicitly state that Landlord is
required to notify Tenant within thirty (30) days of an additional broker
selected by Landlord.


 


2.                                      Landlord’s
Response.  Within
thirty (30) days after Landlord’s receipt of Tenant’s notice requesting the
Broker Determination and stating the name of the broker selected by Tenant,
Landlord shall give written notice to Tenant of Landlord’s selection of a
broker having at least the affiliation and experience referred to above.


 


3.                                      Selection of
Third Broker.  Within ten (10) days
thereafter the two (2) brokers so selected shall select a third such
broker (the “Third  Broker”)
also having at least the affiliation and experience referred to above,
provided, as a further qualification, that the Third Broker shall not be an
individual who is then under contract to represent either Landlord or Tenant.


 


4.                                      Rental Value
Determination.  Within
thirty (30) days after the selection of the Third Broker, the three (3) brokers
so selected, by majority opinion, shall make a determination of the annual fair
market rental value of the Premises for the period referred to in the
Lease.  Such annual fair market rental
value determination (i) shall require rent to commence upon the
commencement of the period in question, and may include provision for annual
increases in rent during said term if so determined, (ii) shall take into
account the as-is condition of the Premises and the amount, if any, that
Landlord will be making available to Tenant as a leasehold improvements
allowance, as specified in Landlord’s rent quotation as set forth in the Lease,
(iii) shall take account of, and be expressed in relation to, the
applicable tax and operating cost pass-through provisions expressly set forth
in the Lease and provisions for paying for so-called tenant electricity as
contained in the Lease and (iv) shall take into account all relevant
factors as determined by the brokers. 
The brokers shall advise Landlord and Tenant in writing by the
expiration of said thirty (30) day period of the annual fair market rental
value which as so determined shall be referred to as the Prevailing Market
Rent.


 


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5.                                      Resolution of
Broker Deadlock.  If the
Brokers are unable by the expiration of such thirty (30) day period to agree at
least by majority on a determination of annual fair market rental value, then
the brokers designated by Landlord and Tenant shall submit their individual
determinations of fair market rental value to the Third Broker within five (5) days
after the expiration of such thirty (30) day period and the Third Broker shall
select from these two individual determinations the one closest to the Third
Broker’s own individual determination of fair market rental value, and the
determination so selected shall constitute and be referred to as the Prevailing
Market Rent.


 


6.                                      Costs.  Each party shall pay the costs and expenses
of the broker selected by it and each shall pay one half (1/2) of the costs and
expenses of the Third Broker.


 


7.                                      Failure to
Select Broker or Failure of Broker to Serve.  If Tenant shall have requested a Broker
Determination and Landlord shall not have designated a broker within the time
period provided therefor above, then Tenant’s Broker shall alone make the
determination of Prevailing Market Rent in writing to Landlord and Tenant
within thirty (30) days after the expiration of Landlord’s right to designate a
broker hereunder.  If Tenant and Landlord
have both designated brokers but the two brokers so designated do not, within a
period of fifteen (15) days after the appointment of the second broker, agree
upon and designate the Third Broker willing so to act, Tenant, Landlord or
either broker previously designated may request the Greater Boston Real Estate
Board, Inc. (or such organization as may succeed to the Greater Boston
Real Estate Board, Inc.) to designate the Third Broker willing so to act
and a broker so appointed shall, for all purposes, have the same standing and
powers as though he had been seasonably appointed by the brokers first
appointed.  In case of the inability or
refusal to serve of any person designated as a broker, or in case any broker
for any reason ceases to be such, a broker to fill such vacancy shall be
appointed by Tenant, Landlord, the brokers first appointed or the Greater
Boston Real Estate Board, Inc. as the case may be, whichever made the original
appointment, or if the person who made the original appointment fails to fill
such vacancy, upon application of any broker who continues to act or by
Landlord or Tenant such vacancy may be filled by the Greater Boston Real Estate
Board, Inc. and any broker so appointed to fill such vacancy shall have
the same standing and powers as though originally appointed.


 


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EXHIBIT H


 


PARKING PLAN


 


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EXHIBIT I


 


PRE-DATED RIGHTS


 


Portion
of 8th Floor:


Lease
to MCI expiring 5/31/13, 1 — 5 year extension option.


Right
of First Offer to Ropes and Gray.


 


Portion
of 8th Floor:


Lease
to Unicorn expiring 2/28/13 (no extension option).


Right
of First Offer to Ropes and Gray.


 


11th floor:


Lease
to Partners Healthcare expiring 10/31/14, 1 — 5 year extension option.


Right
of First Offer to Ropes and Gray.


 


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EXHIBIT J


 


SPACE PLANS AND SPECIFICATIONS FOR SUBMISSION
TO GENERAL CONTRACTORS WITH RFP


 


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