exv10w11



 






EXHIBIT 10.11




TWO INTERNATIONAL PLACE



Boston, Massachusetts


OFFICE LEASE


THOMAS WEISEL PARTNERS GROUP, LLC



 









 








TABLE OF CONTENTS




	 	 	 	 	 
	ARTICLE I — REFERENCE DATA
	 	 	1	 
	 
	 	 	 	 
	1.1 SUBJECTS REFERRED TO
	 	 	1	 
	 
	 	 	 	 
	ARTICLE II — PREMISES; TERM; RENT; OPERATING EXPENSES; AND ELECTRICITY
	 	 	3	 
	 
	 	 	 	 
	2.1 PREMISES AND EXCLUSIONS
	 	 	3	 
	2.2 APPURTENANT RIGHTS
	 	 	4	 
	2.3 RESERVATIONS
	 	 	4	 
	2.4 TERM
	 	 	4	 
	 
	 	 	 	 
	2.4.1 Extension Option
	 	 	4	 
	 
	 	 	 	 
	2.5 ANNUAL FIXED RENT
	 	 	5	 
	 
	 	 	 	 
	2.5.1 Extension Term
	 	 	6	 
	2.5.2 Fair Market Rent Rate
	 	 	6	 
	 
	 	 	 	 
	2.5.3 Arbitration
	 	 	6	 
	 
	 	 	 	 
	2.6 ADDITIONAL CHARGES — OPERATING EXPENSES
	 	 	7	 
	 
	 	 	 	 
	2.6.1 Additional Charges — General Covenant
	 	 	7	 
	2.6.2 Payments
	 	 	7	 
	 
	 	 	 	 
	2.6.3 “Landlord’s Operating Expenses” — Definition
	 	 	8	 
	 
	 	 	 	 
	2.7 ELECTRICITY
	 	 	9	 
	 
	 	 	 	 
	ARTICLE III — CONSTRUCTION OF IMPROVEMENTS
	 	 	10	 
	 
	 	 	 	 
	3.1 CONSTRUCTION OF PHASE 2 — LANDLORD’S WORK
	 	 	10	 
	 
	 	 	 	 
	3.2 CONSTRUCTION FOR TENANT — FINISH WORK
	 	 	10	 
	 
	 	 	 	 
	ARTICLE IV — LANDLORD’S COVENANTS
	 	 	10	 
	 
	 	 	 	 
	4.1 LANDLORD’S COVENANTS
	 	 	10	 
	 
	 	 	 	 
	4.1.1 Building Services
	 	 	10	 
	 
	 	 	 	 
	4.1.1.1 Water Charges
	 	 	11	 
	4.1.1.2 Elevator Service
	 	 	11	 
	4.1.1.3 Cleaning
	 	 	11	 
	4.1.1.4 Heat and Air-conditioning
	 	 	11	 
	4.1.1.5 Energy Conservation
	 	 	11	 
	 
	 	 	 	 
	4.1.2 Repairs
	 	 	 	 
	4.1.3 Building Directory and Office Identification
	 	 	11	 
	4.1.4 Quiet Enjoyment
	 	 	11	 
	4.1.5 Fire Protection
	 	 	12	 
	4.1.6 Security
	 	 	12	 
	 
	 	 	 	 
	4.2 INTERRUPTION
	 	 	12	 






 









 






	 	 	 	 	 
	ARTICLE V — TENANT’S ADDITIONAL COVENANTS
	 	 	13	 
	 
	 	 	 	 
	5.1 MAINTENANCE AND REPAIR
	 	 	13	 
	5.2 USE, WASTE AND NUISANCE
	 	 	13	 
	5.3 RULES AND REGULATIONS
	 	 	14	 
	5.4 SAFETY APPLIANCES
	 	 	14	 
	5.5 INDEMNIFICATION AND INSURANCE
	 	 	14	 
	5.6 TENANT’S PROPERTY
	 	 	15	 
	5.7 ENTRY FOR REPAIRS AND INSPECTIONS
	 	 	15	 
	5.8 EXPENSES AND ATTORNEYS’FEES
	 	 	15	 
	5.9 ASSIGNMENT, SUBLETTING
	 	 	15	 
	5.10 TENANT WORK
	 	 	17	 
	 
	 	 	 	 
	5.10.1 General
	 	 	17	 
	5.10.2 Construction Documents
	 	 	17	 
	5.10.3 Performance of Tenant Work
	 	 	18	 
	5.10.4 Payment for Tenant Work
	 	 	19	 
	 
	 	 	 	 
	5.11 HEAVY EQUIPMENT
	 	 	19	 
	5.12 SURRENDER AND LIEN FOR RENT
	 	 	19	 
	5.13 PERSONAL PROPERTY TAXES
	 	 	20	 
	 
	 	 	 	 
	ARTICLE VI — CASUALTY AND TAKING
	 	 	20	 
	 
	 	 	 	 
	6.1 DAMAGE BY FIRE OR CASUALTY
	 	 	20	 
	6.2 CONDEMNATION — EMINENT DOMAIN
	 	 	21	 
	6.3 EMINENT DOMAIN AWARD
	 	 	21	 
	6.4 TEMPORARY TAKING
	 	 	22	 
	 
	 	 	 	 
	ARTICLE VII — DEFAULT
	 	 	22	 
	 
	 	 	 	 
	7.1 TERMINATION FOR DEFAULT OR INSOLVENCY
	 	 	22	 
	7.2 REIMBURSEMENT OF LANDLORD’S EXPENSES
	 	 	23	 
	7.3 DAMAGES
	 	 	23	 
	7.4 MITIGATION
	 	 	24	 
	7.5 CLAIMS IN BANKRUPTCY
	 	 	24	 
	7.6 INTEREST ON UNPAID AMOUNTS
	 	 	24	 
	7.7 MINIMUM NET WORTH
	 	 	24	 
	7.8 VACANCY DURING LAST SIX MONTHS
	 	 	24	 
	 
	 	 	 	 
	ARTICLE VIII — MISCELLANEOUS
	 	 	24	 
	 
	 	 	 	 
	8.1 MEASUREMENT OF FLOOR AREA
	 	 	24	 
	8.2 HOLDOVER
	 	 	25	 
	8.3 ESTOPPEL CERTIFICATES
	 	 	25	 
	8.4 NOTICE
	 	 	25	 
	8.5 LANDLORD’S RIGHT TO CURE
	 	 	26	 
	8.6 SUCCESSORS AND ASSIGNS
	 	 	26	 
	8.7 BROKERAGE
	 	 	26	 
	8.8 WAIVER
	 	 	26	 
	8.9 ACCORD AND SATISFACTION
	 	 	26	 
	8.10 REMEDIES CUMULATIVE
	 	 	27	 
	8.11 PARTIAL INVALIDITY
	 	 	27	 
	8.12 WAIVERS OF SUBROGATION
	 	 	27	 






 









 






	 	 	 	 	 
	8.13 ENTIRE AGREEMENT
	 	 	27	 
	8.14 NO AGREEMENT UNTIL SIGNED
	 	 	27	 
	8.15 TENANT’S AUTHORIZED REPRESENTATIVE
	 	 	27	 
	8.16 NOTICE OF LEASE
	 	 	27	 
	8.17 TENANT AS BUSINESS ENTITY
	 	 	28	 
	8.18 RELOCATION
	 	 	28	 
	8.19 ADJACENT PROPERTY
	 	 	28	 
	8.20 MISCELLANEOUS PROVISIONS
	 	 	29	 
	 
	 	 	 	 
	ARTICLE IX — LANDLORD’S LIABILITY AND ASSIGNMENT FOR FINANCING
	 	 	29	 
	 
	 	 	 	 
	9.1 LANDLORD’S LIABILITY
	 	 	29	 
	 
	 	 	 	 
	9.2 ASSIGNMENT OF RENTS
	 	 	29	 
	 
	 	 	 	 
	ARTICLE X — SECURITY DEPOSIT
	 	 	30	 
	 
	 	 	 	 
	ARTICLE XI — SUBORDINATION
	 	 	30	 
	 
	 	 	 	 
	EXHIBIT A — Description of Land
	 	 	 	 
	EXHIBIT B — Plan of Premises
	 	 	 	 
	EXHIBIT C — Work Letter — Finish Work
	 	 	 	 
	EXHIBIT D — Landlord’s Services
	 	 	 	 
	EXHIBIT E — Measurement of Rentable Floor Area and Usable Floor Area
	 	 	 	 
	EXHIBIT F — Statement of Tenant in Re Lease
	 	 	 	 
	EXHIBIT G — Subordination of Mortgage
	 	 	 	 
	EXHIBIT H — Tenant Work and Insurance Schedule
	 	 	 	 







 









 








TWO INTERNATIONAL PLACE




Boston, Massachusetts




LEASE dated June 30, 1999




ARTICLE I




REFERENCE DATA




          1.1 SUBJECTS REFERRED TO




     Each reference in this Lease to any of the following subjects shall be construed to
incorporate the data stated for that subject in this Article. LANDLORD: FORT HILL SQUARE PHASE 2
ASSOCIATES, a Massachusetts general partnership



	 	 	 
	LANDLORD’S ADDRESS:

	 	46th Floor
	 

	 	One International Place
	 

	 	Fort Hill Square
	 

	 	Boston, Massachusetts 02110
	 
	 	 
	TENANT:

	 	Thomas Weisel Partners Group, LLC

a Delaware limited liability company
	 
	 	 
	TENANT’S ORIGINAL ADDRESS:

	 	One Montgomery Street, Suite 3700

San Francisco, CA 94104






	 	 	 
	TENANT’S NOTICE ADDRESS AFTER
TERM
     COMMENCEMENT DATE:

	 	Two International Place
	 

	 	Fort Hill Square Boston,
	 

	 	Massachusetts 02110
	 
	 	 
	 

	 	and
	 
	 	 
	 

	 	One Montgomery Street, Suite 3700
	 

	 	San Francisco, CA 94104
	 	 
	TENANT PLAN DELIVERY DATE:

	 	Not Applicable
	 
	 	 
	TERM COMMENCEMENT DATE:

	 	See Section 2.4
	 
	 	 
	RENT COMMENCEMENT DATE:

	 	July 1, 1999
	 
	 	 
	TERM EXPIRATION DATE:

	 	June 30, 2004
	 
	 	 
	ANNUAL FIXED RENT RATE PER

SQUARE FOOT OF RENTABLE

FLOOR AREA:

	 	 $67.00 
	 
	 	 
	ANNUAL FIXED RENT RATE PER

SQUARE FOOT OF RENTABLE

FLOOR AREA FOR THE

EXTENSION TERM:

	 	As set forth in Section 2.5.1






1









 






	 	 	 
	BASE OPERATING EXPENSES PER

	 	 
	SQUARE FOOT OF RENTABLE

	 	 
	FLOOR AREA:

	 	The amount of Landlord’s Operating Expenses and Landlord’s Taxes per square foot of Rentable Floor
Area actually charged to office tenants in the Building for calendar year 1999 under leases with
definitions of Landlord’s Operating Expenses and Landlord’s Taxes equivalent to those in Section
2.6 of the Lease






	 	 	 
	LAND:

	 	The land described on Exhibit A.
	 
	 	 
	BUILDING:

	 	The entire building and all improvements on the Land constructed by Landlord but excluding the retail space on the lower, ground and second levels and excluding the below-grade parking areas. Such building and improvements comprise the North Tower of the International Place Project, and are known as Two International Place.
	 
	 	 
	PHASE 2:

	 	All of the improvements on the Land constructed by Landlord (including the Building, courtyard areas, retail space, and parking areas thereon). The retail space located on the lower, ground and second levels of Phase 2 is referred to herein as the “Retail Space.” The below-grade parking areas located in Phase 2 are referred to herein as the “Parking Garage.”
	 
	 	 
	PROJECT:

	 	Phase 2 and the improvements now owned and operated by Fort Hill Square Associates consisting of the One International Place office building and appurtenant courtyard and parking areas (“Phase 1”), all known as International Place, a twin office tower complex located in Boston, Massachusetts on the land bounded by Oliver, High and Purchase Streets.






	 	 	 
	TOTAL RENTABLE FLOOR AREA OF BUILDING:

	 	751,172 square feet.
	 
	 	 
	PREMISES:

	 	The space delineated on Exhibit B
	 
	 	 
	RENTABLE FLOOR AREA OF PREMISES:

	 	3,197 square feet located on Floor 18
	 
	 	 
	PERMITTED USES:

	 	Executive, professional or corporate offices, including ancillary uses thereof, but specifically excluding medical or dental offices, utility company offices, employment agency offices (other than executive or professional search firms) and governmental or quasi-governmental offices. For purposes hereof, uses ancillary to the Permitted Uses shall include executive kitchen and dining facilities for use by the employees and business invitees of the Tenant so long as the same are not made available for use by the general public.







	 	 	 
	FINISH WORK ALLOWANCE

PER SQUARE FOOT OF

RENTABLE FLOOR AREA:

	 	 $5.00 
	 
	 	 
	SECURITY DEPOSIT: TENANT’S

	 	Not Applicable
	 
	 	 
	MINIMUM NET WORTH: PUBLIC

	 	Not Applicable
	 
	 	 
	LIABILITY INSURANCE:

	 	 $2,000,000 
	 
	 	 
	LANDLORD’S MANAGING AGENT:

	 	The Chiofaro Company, Inc.






2









 






	 	 	 
	NOTICE ADDRESS FOR
LANDLORD’S MANAGING
AGENT

	 	One International Place

4th Floor

Fort Hill Square


Boston, Massachusetts 02110
	 
	 	 
	BROKER:

	 	Cushman & Wakefield of Massachusetts, Inc.
	 
	 	 
	ELECTRICITY REIMBURSEMENT:

	 	$1.20 per square foot of Rentable Floor Area of Premises






TENANT’S AUTHORIZED REPRESENTATIVE: Frank Driscoll




LANDLORD’S FINISH WORK REPRESENTATIVE: Theodore A. Oatis




     1.2 Exhibits



     The following is a list of Exhibits attached to this Lease.



     Exhibit A. Description of Land.



     Exhibit B. Plan of Premises



     Exhibit C. Work Letter — Finish Work.



     Exhibit D. Landlord’s Services.



     Exhibit E. Measurement of Rentable Floor Area and Usable Floor Area.



     Exhibit F. Tenant Estoppel.



     Exhibit G. Subordination of Mortgage Agreement.



     Exhibit H. Tenant Work Insurance Schedule.



ARTICLE II




PREMISES; TERM; RENT; OPERATING EXPENSES; AND ELECTRICITY




     2.1 PREMISES AND EXCLUSIONS



     Landlord hereby leases to Tenant and Tenant hereby leases from Landlord the Premises. The
Premises exclude common areas and facilities of the Project, including without limitation exterior
faces of exterior walls, the common stairways and stairwells, the Retail Space, the Parking Garage,
entranceways and the ground floor lobby and courtyard areas, elevators and elevator wells, fan
rooms, electric and telephone closets, janitor closets, freight elevator vestibules, and pipes,
ducts, conduits, wires and appurtenant fixtures serving other parts of the Project (exclusively or
in common) and other common areas and facilities. If the Premises include less than the entire
rentable area of any floor, then the Premises also exclude the common corridors, elevator lobby and
toilets located on such floor.



3









 





     This Lease is subject to all easements, restrictions, agreements, and encumbrances of record
to the extent in force and applicable. Landlord represents that none of the easements,
restrictions, agreements or encumbrances of record, to which the Lease is subject, unreasonably
interfere with the use of the Premises for the Permitted Uses.



     2.2 APPURTENANT RIGHTS




     Tenant shall have, as appurtenant to the Premises, rights to use in common (subject to
reasonable rules of general applicability to tenants and other users of the Building from time to
time made by Landlord of which Tenant is given notice): (a) the common lobbies, corridors,
stairways, elevators and loading platform of Phase 2, and the pipes, ducts, conduits, wires and
appurtenant meters and equipment serving the Premises in common with others; (b) common driveways
and walkways 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 on such floor
and serving the Premises; and (d) all other areas or facilities in or about Phase 2 from time to
time intended for general use by Tenant, other Building tenants, and Landlord.



     2.3 RESERVATIONS




     Landlord reserves the right from time to time, without unreasonable (except in emergency)
interruption of Tenant’s use: (a) to install, use, maintain, repair, replace and relocate for
service to the Premises and other parts of the Project, or either, pipes, ducts, conduits, wires
and appurtenant fixtures, wherever located in the Premises or the Project; and (b) to alter or
relocate any other common facility, including without limitation the Retail Space, Parking Garage
and lobby and courtyard areas. Installations, replacements and relocations referred to in clause
(a) above shall be located as far as practicable in the central core area of the Building, above
ceiling surfaces, below floor surfaces or within perimeter walls of the Premises.



     2.4 TERM




     Landlord estimates that the Term will begin on the Estimated Term Commencement Date. Landlord
shall endeavor, in good faith, to cause the Term to begin on or about the Estimated Term
Commencement Date. However, in attempting to accomplish the foregoing, Landlord shall not be
obligated to exercise any efforts or to expend any sums which are out of the ordinary course of
developing or operating Phase 2. Landlord’s failure to cause the Term to begin on or about the
Estimated Term Commencement Date, for any reason, shall not give rise to any liability of Landlord
hereunder, shall not constitute a Landlord’s default, shall not affect the validity of this Lease,
and shall have no effect on the beginning or end of the Term as otherwise determined hereunder or
on Tenant’s obligations associated therewith. The Term Commencement Date shall be the date on which
this Lease is executed, upon which date Landlord shall deliver the Premises to Tenant free of any
occupants and in its as-is-condition.



     Following the Term Commencement Date, Landlord and Tenant shall execute, acknowledge and
deliver an agreement, in recordable form, stating the date on which the Term Commencement Date
occurred.



     2.4.1 Subordinated Extension Option. Tenant shall have one option (the
“Extension Option”) to extend the Term for one five-(5)-year extension term (the “Extension Term”).
Any extension of the Term shall be applicable to the entire Premises. If Tenant fails timely to
exercise the Extension Option, Tenant shall have no further extension rights hereunder. Annual
Fixed Rent for any Extension Term shall be paid in accordance with the terms and conditions of
Section 2.5 at an Annual Fixed Rent Rate equal to the Extension Rent Rate set forth in Section
2.5.1. Tenant’s lease of the Premises during any Extension Term shall be on all of the terms and
conditions of this Lease in effect immediately prior to the extension (except that Tenant shall
have no further option to extend the Term after the end of the Extension Term).



     Tenant’s Extension Option shall be subject and subordinate to Landlord’s right to lease the
Premises to another tenant leasing at least 10,000 square feet of Rentable Area in the Building
(including, without limitation, the Premises) for all or part of the Extension Term (the “Superior
Rights”). Notwithstanding any provision of this Section to the contrary, in the event that Landlord
enters into such a lease, the Extension Option shall be null and



4









 




void and without further force or effect. Landlord shall from time to time, upon request of Tenant,
advise Tenant of the status of such Superior Rights regarding the Premises and in all events in
Landlord’s response under clause (b) below.




     The procedures for Tenant to exercise the Extension Option, and for the applicable Extension
Rent Rate applicable to the Extension Term to be determined, are as follows:



     (a) If Tenant wishes to consider exercising the Extension Option, Tenant shall so notify
Landlord no
more than fifteen (15) months, and no less than twelve (12) months, prior to the date the Term
is then scheduled to
expire. Failure by Tenant timely to send a notice under this Paragraph (a) shall constitute an
irrevocable waiver of
Tenant’s right to extend the Term.



     (b) If Tenant timely delivers a notice under Paragraph (a) above, Landlord shall furnish
Tenant with
Landlord’s estimate of the Extension Rent Rate for the Extension Term no later than ten (10)
months prior to the
date the Term is then scheduled to expire. Such notice shall also advise Tenant whether
Landlord has exercised the
Superior Rights set forth above.



     (c) If Tenant timely notifies Landlord under Paragraph (a) above, on or before the date one
(1) month
after Landlord furnishes its estimate to Tenant under Paragraph (b) above, Tenant shall either
(i) waive the
Extension Option, (ii) exercise the Extension Option by giving Landlord notice to such effect
accepting Landlord’s
estimate of the Extension Rent Rate for the Extension Term, or (iii) exercise the Extension
Option but cause the
matter of the Fair Market Rent Rate to be submitted to arbitration in accordance with Section
2.5.3 hereof by giving
Landlord notice to such effect, which notice under clause (iii) shall state Tenant’s estimate
of the Fair Market Rent
Rate. Failure timely to give a notice exercising the Extension Option as specified under this
Paragraph (c) shall
constitute an irrevocable waiver of Tenant’s right to extend the Term.



     (d) If Tenant shall exercise the Extension Option in accordance with this Section 2.4.1, the
provisions
of this Section shall be self-operative, but upon request by either party after determination
of the Extension Rent
Rate for the Extension Term, the parties shall execute an agreement specifying the Annual
Fixed Rent Rate for the
Extension Term and acknowledging the extension of the Term.



     (e) Notwithstanding any provision of this Section to the contrary, Tenant’s option to extend
the Term
shall be void, at Landlord’s election, if (i) Tenant is in default hereunder, after any
applicable notice and cure
periods have expired, at the time Tenant elects to extend the Term or at the time the Term
would expire but for such
extension, or (ii) any Sublease exists at either such time that results in the Tenant
originally named herein (or any
entity for which Landlord’s consent to a Sublease is not required under Section 5.9) occupying
less than 75% of the
Premises.



     2.5 ANNUAL FIXED RENT



     Tenant covenants and agrees to pay the Annual Fixed Rent in Section 1.1 to Landlord in advance
in equal monthly installments on the first day of each calendar month commencing on the Rent
Commencement Date and continuing through the end of the Term. All payments shall be due without
billing or demand and without deduction, setoff or counterclaim. Tenant shall make payment for any
portion of a month at the beginning or end of the Term. All payments shall be payable to Landlord
at its Address, both as specified in Section 1.1, or to such other entities at such other places as
Landlord may from time to time designate.



     Without limiting the foregoing, Tenant’s obligation so to pay rent, or to pay any additional
charge hereunder, shall not be discharged or otherwise affected by any law or regulation now or
hereafter applicable to the Premises, or any other restriction on Tenant’s use, or (except as
expressly provided herein) any casualty or taking, or any failure by Landlord to perform any
covenant contained herein, or any other occurrence; and Tenant waives all rights now or hereafter
existing to terminate or cancel this Lease or quit or surrender the Premises or any part thereof,
or to assert any defense in the nature of constructive eviction to any action seeking to recover
rent or additional charges.



5









 





     2.5.1 Extension Term. During any Extension Term under Section 2.4.1, Tenant shall pay
Annual Fixed
Rent for the Premises at the rate (“Extension Rent Rate”) equal to the Fair Market Rent Rate
(as defined in Section
2.5.2) determined for the Premises for the Extension Term, but not less than the Annual Fixed
Rent Rate in effect
for the Premises immediately prior to such extension. For purposes of the comparison in the
preceding sentence, the
Fair Market Rent Rate shall be restated in the manner set forth in Section 2.5.2 to use the
same Base Operating
Expenses figure applicable to the Annual Fixed Rent Rate in effect immediately prior to such extension.



     2.5.2 Market Rent Rate.



     The “Fair Market Rent Rate” shall mean the annual fair market rent per square foot for the
Premises, determined for a term coterminous with the Extension Term, under the terms of this Lease,
in the condition then existing in the Premises (or such better condition as the Premises are
required to be maintained under the Lease). In computing such Fair Market Rent Rate, reference
shall be made to lease transactions for comparable office space in the Project with appropriate
adjustments for any relevant factors, such as differences in the timing of the transaction, the
location and condition of the space, and any free rent or comparable concessions, and an adjustment
as provided in the next paragraph shall be made so that the base operating expenses figure for such
comparable space is equal to the reasonably anticipated Base Operating Expenses Per Square Foot of
Rentable Floor Area for the Premises for the first year of the Extension Term).



     In ascertaining the Fair Market Rent Rate, a new Base Operating Expenses Per Square Foot of
Rentable Floor Area shall be determined, which shall represent the reasonably anticipated
Landlord’s Operating Expenses Per Square Foot of Rentable Floor Area in the first year of the
period for which the Fair Market Rent Rate is then being determined. Subject to the following
sentence, such new Base Operating Expenses figure shall be effective for the entire period for
which the Fair Market Rent Rate is then being determined. At Landlord’s election, such Fair Market
Rent Rate may be restated using the Base Operating Expenses figure then in effect for the Premises
(e.g., the rate calculated above shall be reduced by the excess of the new Base Operating Expenses
figure over the Base Operating Expenses figure then in effect for the Premises), in which event the
existing Base Operating Expenses figure shall apply to the space and term in question.



     2.5.3 Arbitration. In the event of a dispute concerning the applicable Fair Market
Rent Rate under
Section 2.5.2, such dispute shall be arbitrated in accordance with the following procedure.
Each of Landlord and
Tenant, within twenty days after notice by Tenant disputing Landlord’s estimate of the Rent
Rate, shall appoint as an
arbitrator a commercial real estate broker with at least ten years experience as a commercial
real estate broker for
leases in first-class high-rise office buildings in the financial district of Boston,
Massachusetts, and shall give notice
of such appointment to the other party. If either Landlord or Tenant shall fail timely to
appoint an arbitrator, the
other may apply to the Boston Office of the American Arbitration Association (“A A A”) for
appointment of such an
arbitrator five business days after notice of such failure to the delinquent party if such
arbitrator has not then been
appointed. The two arbitrators shall, within five business days after appointment of the
second arbitrator, appoint a
third arbitrator who shall be similarly qualified. If the two arbitrators are unable to agree
timely on the selection of
the third arbitrator, then either arbitrator on behalf of both may request such appointment
from the Boston office of
the AAA. The arbitration shall be conducted in accordance with the commercial arbitration
rules of the AAA
insofar as such rules are not inconsistent with the provisions of this Lease (in which case
the provisions of this Lease
shall govern). The arbitrators shall be charged to reach a majority written decision in
accordance with the standards
for Fair Market Rent Rate as provided in Section 2.5.2, within twenty (20) days after the
third arbitrator is
appointed, by selecting either of the final estimates of the Rent Rate provided by Landlord
and Tenant at the
commencement of the hearing. The arbitrators shall have no authority or jurisdiction to make
any other
determination of such amount. The cost of the arbitration (exclusive of each party’s witness
and attorneys fees,
which shall be paid by such party) shall be borne equally by the parties. If the AAA shall
cease to provide
arbitration for commercial disputes in Boston, the second or third arbitrator, as the case may
be, shall be appointed
by any successor organization providing substantially the same services, and in the absence of
such an organization,
by a court of competent jurisdiction under the arbitration act of The Commonwealth of
Massachusetts.



6









 





     If the Extension Term shall commence prior to the determination of the Fair Market Rent Rate,
for any period during which the applicable Rent Rate is in dispute hereunder, Tenant shall make
payment on account of Annual Fixed Rent at the rate estimated by Landlord as the Rent Rate, and the
parties shall adjust for over or underpayments within thirty days after the decision of the
arbitrators is announced.



     2.6 ADDITIONAL CHARGES — OPERATING EXPENSES



     2.6.1 Additional Charges — General Covenant. Tenant covenants and agrees to pay to
Landlord, as
additional charges, an amount equal to the product of (a) the Rentable Floor Area of the
Premises and (b) the excess
(if any) of Landlord’s Operating Expenses per square foot of Rentable Floor Area allocable to
Tenant over Base
Operating Expenses Per Square Foot of Rentable Floor Area. Except as provided in the next
sentence, Landlord’s
Operating Expenses per square foot of Rentable Floor Area allocable to Tenant for any period
shall be the total
amount of Landlord’s Operating Expenses for such period (actual or extrapolated, as described
herein) divided by
95% (or, if greater, the percentage occupied) of the Total Rentable Floor Area of the Building
provided that if less
than 95% of the Total Rentable Floor Area of the Building are occupied at any time during such
period, Landlord
may extrapolate components of Landlord’s Operating Expenses as though the Total Rentable Floor
Area of the
Building had been occupied at all times during such period. If Landlord is not obligated to
furnish cleaning and
janitorial services, or any other item, the costs of which are included in Landlord’s
Operating Expenses, to all
rentable areas of the Building or if Landlord furnishes amounts of any such item to the
Premises in return for direct
reimbursement of the cost thereof (any such item not furnished to all such rentable areas or
furnished to any rentable
areas on a direct reimbursement basis is referred to as a “restricted item”), Landlord’s
Operating Expenses per
square foot allocable to Tenant for any period shall be the sum of the following amounts (x)
and (y):



     (x) For each restricted item included in Landlord’s Operating Expenses and furnished
to the Premises, the cost of such item for the period divided by the total Rentable Floor Area of
all premises to which the item is then furnished, or if such item is a directly reimbursable item
(not payable under another provision of this Lease), the amount of direct reimbursement divided by
the Rentable Floor Area of the Premises.



     (y) For all other items included in Landlord’s Operating Expenses, the amount per
square foot thereof allocable to Tenant in accordance with the second sentence of this Section
2.6.1.



     Appropriate adjustments (including adjustments in Base Operating Expenses Per Square Foot of
Rentable Floor Area, which are quoted on an annual basis in Section 1.1) shall be made for any
portion of a year at the beginning or end of the Term or for any year during which changes occur in
the percentage of occupancy of the Building or in the Rentable Floor Area to which Landlord
furnishes restricted items.



     2.6.2 Payments. Additional charges for Operating Expenses under this Section 2.6 shall
be paid for any
portion of a month at the beginning of the Term and thereafter in monthly installments on the
first day of each
calendar month in amounts (if any) reasonably estimated by Landlord for the then current
calendar year. Landlord
may from time to time revise such estimates based on available information relating to
Landlord’s Operating
Expenses or otherwise affecting the calculation hereunder. Within 120 days after the end of
each calendar year,
Landlord will provide Tenant with a statement, prepared by a representative of Landlord or
Landlord’s Managing
Agent, of the total amount of additional charges for Operating Expenses for such calendar year
prepared in
accordance herewith and otherwise in accordance with generally accepted accounting principles.
Upon issuance of
Landlord’s statement, there shall be an adjustment between Landlord and Tenant for the
calendar year covered by
such statement to the end that Landlord shall have received the exact amount of additional
charges shown on the
statement. Any overpayments by Tenant hereunder shall be credited against the next payments of
Annual Fixed
Rent or additional charges due under this Section 2.6, provided there are no outstanding
amounts due Landlord
under this Lease at such time. Any underpayments by Tenant shall be due and payable within
thirty (30) days of
delivery of Landlord’s statement. With respect to the calendar year in which the Term ends,
the adjustment shall be
pro rated for the portion of the year included in the Term, but shall take place nevertheless
at the times provided in
the preceding sentences. Landlord’s statement with respect to Operating Expenses shall be
binding upon, and may
not be disputed by, Tenant unless the statement is incorrect and is disputed by Tenant (within
90 days of Tenant’s
receipt of Landlord’s statement) by a notice to Landlord specifically stating the grounds for
dispute. Tenant’s





7









 







failure so to dispute Landlord’s statement shall constitute a waiver of Tenant’s right to dispute
the statement. Notwithstanding any dispute concerning Landlord’s statement, payments shall be made
by the parties in accordance with Landlord’s statement at the time and in the manner set forth
above, and if necessary there shall be a further adjustment between the parties at the time the
dispute is resolved.




     2.6.3 “Landlord’s Operating Expenses” — Definition. “Landlord’s Operating
Expenses” means all costs of Landlord in owning, servicing, operating, managing, maintaining, and
repairing the Building, and providing services to tenants including, without limitation, the costs
of the following: (i) supplies, materials and equipment purchased or rented, total wage and salary
costs paid to, and all contract payments made on account of, all persons engaged in the operation,
maintenance, security, cleaning and repair of the Building and Land, including Social Security, old
age and unemployment taxes and so-called “fringe benefits”; (ii) building services furnished to
tenants of the Building at Landlord’s expense (including the types of services provided to Tenant
pursuant to Section 4.1 hereof) and maintenance and repair of and services provided to or on behalf
of the Building performed by Landlord’s employees or by other persons under contract with Landlord
or Landlord’s Managing Agent; (iii) utilities consumed and expenses incurred in the operation,
maintenance and repair of the Building including, without limitation, oil, gas, electricity (other
than electricity to tenants in their Premises if Tenant is directly responsible for payment under
this Lease on account of electricity consumed by Tenant), water, sewer and snow removal; (iv)
casualty, liability and other insurance in such amounts and insuring such risks as Landlord may
from time to time reasonably decide, and unreimbursed costs incurred by Landlord which are subject
to an insurance deductible; (v) costs in the nature of common area and facilities costs of the
Project allocated to the Building including without limitation, operation, maintenance and
servicing of the lobby and courtyard areas, snow plowing and removal, grounds maintenance and the
like (The expenses of portions of the courtyard and of other similar common areas constructed
contemporaneously with Phase 2 and used in connection with the Project shall be combined with the
costs of the courtyard and other similar common areas constructed contemporaneously with Phase 1
and such combined costs shall be allocated to Phase 2 in the ratio which the Total Rentable Floor
Area of Phase 2 bears to the total Rentable Floor Area of Phase 1 in the absence of circumstances
dictating a special allocation); (vi) fees and costs of management and building services (or an
allowance therefor) plus an imputed cost of any space in the Project occupied without charge by
entities providing management services or building services for the Building; and (vii) “Landlord’s
Taxes” as defined below. To the extent that any component of Landlord’s Operating Expenses is
attributable in part to the Building and in part to the Retail Space, to Phase 1, or to both, the
amount attributable to the Building shall be allocated based on the ratio which the rentable floor
area of the Building bears to the total rentable floor area of the Building and the Retail Space,
Phase 1, or both, as the case may be. If Landlord, in its sole discretion, installs a new or
replacement capital item for the purpose of reducing or conserving the use of energy in the
Building, complying with any building code or other law, regulation, or legal requirement,
complying with requirements of any insurer of Phase 2, or otherwise relating to the operation of
the Building in accordance with standards for comparable first-class high-rise office buildings in
the financial district of Boston, the cost of such item amortized in accordance with generally
accepted accounting principles over the useful economic life of such item as reasonably determined
by Landlord, with interest at the so-called base rate or prime rate from time to time announced by
The First National Bank of Boston (or any comparable financial institution) at its head office in
Boston, Massachusetts shall be included in Landlord’s Operating Expenses. If Landlord, in its sole
discretion, from time to time, borrows operating funds in anticipation of receipts under this
Section 2.6, interest and other costs of such borrowings shall also be included in Landlord’s
Operating Expenses. Landlord’s Operating Expenses shall not include any costs or expenses incurred
by Landlord in the original construction and development of the Building; payments of principal,
interest or other charges on mortgages; costs for which Landlord is reimbursed under insurance
policies, condemnation awards, or otherwise by third parties (including other tenants); any rent
paid on any ground or underlying lease; taxes (other than Landlord’s Taxes) imposed on Landlord;
costs of leasing other rentable areas in the Building, including advertising, leasing commissions,
public relations expenses, legal and accounting expenses related to lease negotiations and
enforcement of leases; costs of improvements in other tenant space; any items furnished to other
tenants in the Building but not furnished to Tenant hereunder; the cost of capital items or
depreciation, except to the extent amortized costs of capital items may be charged under this
paragraph; and salaries of executives or principals of Landlord above the level of Building manager
(except as the same may be reflected in any management or building services fees for the Building
(or an allowance therefor) or attributable to actual Building management or operations).



8









 





     “Landlord’s Taxes” means all taxes, assessments and similar charges assessed or imposed on the
Land and Phase 2 for the then current calendar year by any governmental authority attributable to
the Building (including personal property associated therewith) which shall be all such charges
imposed on Phase 2 (including the Land) less the amount of such charges allocable to the Retail
Space and Parking Garage as provided hereunder, and reduced by any net amounts received as an
abatement or reduction of taxes for such year. (If for any period the Parking Garage is not
assessed or itemized separately from the balance of Phase 2, Landlord’s Taxes attributable to the
portions of Phase 2 other than the Parking Garage shall be 98.22% of any tax attributable to Phase
2.) The amount of any special taxes, special assessments and agreed or governmentally imposed “in
lieu of tax” or similar charges (including so-called “linkage payments” paid by Landlord) shall be
included in Landlord’s Taxes for any year but shall be limited to the amount of the installment
(plus any interest, other than penalty interest, payable thereon) of such special tax, special
assessment or such charge required to be paid during or with respect to the year in question.
Commencing in the year following the year in which the final installment of so-called “linkage
payments” is paid, the Base Operating Expenses figure in Section 1.1 shall be reduced by an amount
equal to the amount of the installment per rentable square foot included in such base. Landlord’s
Taxes include expenses, including reasonable fees of attorneys, appraisers and other consultants,
incurred in connection with any efforts to obtain abatements or reduction or to assure maintenance
of Landlord’s Taxes for any year wholly or partially included in the Term, whether or not
successful and whether or not such efforts involved filing of actual abatement applications or
initiation of formal proceedings. Landlord’s Taxes exclude income taxes of general application and
all estate, succession, inheritance and transfer taxes. If at any time during the Term there shall
be assessed on Landlord, in addition to or lieu of the whole or any part of the ad valorem tax on
real or personal property, a capital levy or other tax on the gross rents or other measures of
building operations, or a governmental income, franchise, excise or similar tax, assessment, levy,
charge or fee measured by or based, in whole or in part, upon Building valuation, gross rents or
other measures of building operations or benefits of governmental services furnished to the
Building, then any and all of such taxes, assessments, levies, charges and fees, to the extent so
measured or based, shall be included within the term Landlord’s Taxes, but only to the extent that
the same would be payable if the Building and Land were the only property of Landlord.



     2.7 ELECTRICITY



     Except as provided in this Section, Landlord shall furnish to Tenant throughout the Term (and
as more particularly set forth in Exhibit D) electricity for the operation of lighting fixtures,
and 120 volt current for the operation of normal office fixtures and equipment (including desk-top
computers), but excluding any high energy consumption equipment. Tenant covenants and agrees to
pay, as an additional charge, an annual amount equal to the product of the Electricity
Reimbursement specified in Section 1.1 and the number of square feet in the Rentable Floor Area of
the Premises. Such amount shall be paid in equal monthly installments (pro-rated for any partial
month) on the Term Commencement Date and the first day of each subsequent calendar month during the
Term. At any time and from time to time, Landlord may increase the per square foot amount of
Electricity Reimbursement provided that such increase (i) results in a rate fairly reflecting
Landlord’s then actual cost of supplying such electricity and/or (ii) is based on Landlord’s
reasonable judgment that Tenant’s electricity consumption exceeds the permitted level of
consumption as described in the first sentence of this Section 2.7. Any such increases shall become
effective as of the dates of notification thereof by Landlord to Tenant.



     Landlord may, at any time, at its sole election, discontinue the furnishing of electric
current upon not less than two month’s notice (or such longer time as may be required to make
arrangements with the electric utility for direct service provided Tenant exercises its best
efforts to complete said arrangements as soon as possible), whereupon Tenant’s obligation to pay
additional charges under this Section shall cease. In electing to discontinue furnishing electric
current, Landlord shall not discriminate between Tenant and other Tenants of the Building similarly
situated with respect to the reason for discontinuance of electric service. If Landlord elects to
discontinue electric service, Tenant shall contract directly with the utility company supplying
electric current and Landlord shall, at its expense, bear all capital costs associated with
converting the Premises to utility company service and shall furnish and install, in the Premises
or other location, necessary transmission lines and metering equipment used in connection with
measuring Tenant’s consumption of electric current. Tenant shall be responsible for maintenance and
repair of such transmission and metering equipment during the balance of the Term.



9









 





     If Tenant requires electricity in excess of that supplied by Landlord or if Tenant, pursuant
to this Section, obtains its electricity directly from the utility company, Landlord shall, upon
request, cooperate with Tenant in the installation of any equipment, wiring, conduits, and the like
required for such electricity to the Premises provided that Tenant shall reimburse Landlord for all
additional costs incurred and further provided that Landlord shall not be required to take any
action which is inconsistent with applicable law, insurance regulation, or that entails excessive
or unreasonable alterations or repairs to the Project or interference with other tenants or
occupants of the Project.



ARTICLE III CONSTRUCTION OF




IMPROVEMENTS




     3.1 CONSTRUCTION OF PHASE 2 — LANDLORD’S WORK



     Landlord has constructed the following elements of Phase 2 which are referred to as
“Landlord’s Work”: foundations, floor slabs, roofs, exterior walls and windows, core walls,
columns, all central mechanical and electrical systems serving Phase 2 generally, any other
mechanical and electrical systems located within core walls, ground floor lobby and courtyard
areas, bathrooms and elevator lobbies on multi-tenant floors, and the Parking Garage. Landlord’s
Work does not include Finish Work under Section 3.2 and the provision of similar finish work to
other occupants. Tenant shall be deemed to have accepted all elements of Landlord’s Work in “as is”
condition on the date of this Lease. Landlord makes no warranty or covenant, express or implied,
concerning the construction of Phase 1.



     3.2 CONSTRUCTION FOR TENANT — FINISH WORK



     “Finish Work” shall mean all Tenant Work (as defined in Section 5.10.1) performed, or to be
performed, in or about the Premises which is required initially to put the Premises in condition
suitable for Tenant’s use and occupancy. Finish Work shall be provided in accordance with, and
subject to, the provisions of Exhibit C. Finish Work shall include one half of the demising walls
separating the Premises from other tenant spaces, common areas, and facilities. All Finish Work
shall be performed by Tenant subject to the terms, conditions and requirements of Section 5.10 to
the extent so provided in Exhibit C.



ARTICLE IV




LANDLORD’S COVENANTS




     4.1 LANDLORD’S
COVENANTS



     4.1.1 Building Services. Landlord shall furnish services, utilities, facilities
and supplies set forth in this Section 4.1.1 and in Exhibit D. Exhibit D is intended to add detail
to the provisions of the main body of the Lease, and in case of conflict, the provisions of the
main body of the Lease shall control. Tenant may obtain additional services, utilities, facilities
and supplies from time to time upon reasonable advance request or Landlord may furnish the same
without request if Landlord determines that Tenant’s use or occupancy of the Premises necessitates
the same to maintain the Premises in the condition required under this Lease (for example where the
condition of the Premises necessitates additional cleaning services), and, in either case, the cost
of the same (including related expenses such as costs for meter installation and maintenance) at
reasonable rates from time to time established by Landlord shall constitute a restricted item
allocable to the Premises under Section 2.6.1. Tenant covenants to pay, as additional charges, any
amounts billed for restricted items, payable within thirty (30) days after billing. If Landlord
provides any services, utilities, facilities or supplies the usage of which is measured by a meter,
Landlord may estimate usage based on prior consumption during any period in which such meter is
inoperative, subject to adjustment when said meter is fixed.



10









 





          4.1.1.1 Water Charges. Landlord shall furnish hot and cold water for ordinary office
cleaning,
toilet, lavatory and drinking purposes. If Tenant requires, uses or consumes water for any
other purpose, Landlord
may either assess on Tenant reasonable charges for additional water, or install a water meter
to measure Tenant’s
consumption. (The cost of installation and maintenance of any such meter shall be borne by
Tenant.) If Tenant’s
water consumption is measured by a separate meter, Tenant shall pay for all water so consumed
above the normal
office amount together with the sewer charges based on said meter charges as and when bills
are rendered. All
piping and other equipment and other facilities for use of water outside the Building core
will be installed and
maintained by Landlord at Tenant’s cost and expense.




          4.1.1.2 Elevator Service. Landlord shall provide necessary passenger elevator facilities on
Mondays through Fridays excepting legal holidays from 8:00 a.m. to 6:00 p.m. and on Saturdays
from 8:00 a.m. to
1:00 p.m. (such hours on such days being referred to as “business days”) and have at least one
elevator serving the
Premises in operation available for Tenant’s non-exclusive use at all other times.




          4.1.1.3 Cleaning. Landlord shall cause the common areas of Phase 2 and the office
areas of the
Premises to be kept reasonably clean provided the same are maintained and kept in good order
by Tenant. Cleaning
standards shall be in accordance with Exhibit D.




          4.1.1.4 Heat and Air-conditioning. Landlord shall through the Building heating and air-
conditioning system, furnish to and distribute in the Premises heat during the normal heating
season on business
days and air-conditioning as normal seasonal changes may require on business days when
air-conditioning may
reasonably be required for the comfortable occupancy of the Premises by Tenant. If Tenant
requires additional air-
conditioning for business machines, meeting rooms or other purposes, or because of occupancy
or unusual electrical
loads, any additional air-conditioning units, chillers, condensers, compressors, ducts, piping
and other equipment
and facilities will be installed and maintained by Landlord at Tenant’s sole cost, but only to
the extent that the same
are compatible with the Project and its mechanical systems.




          4.1.1.5 Energy Conservation. Tenant agrees to cooperate with Landlord and to abide by all
Building regulations which Landlord may, from time to time, reasonably prescribe for the
proper functioning and
protection of the heating, air-conditioning, lighting, and electrical systems and in order to
maximize the effect
thereof and to conserve heat, air-conditioning, and electricity. Notwithstanding anything to
the contrary in this
Section 4.1.1 or otherwise in this Lease, Landlord may institute such policies, programs and
measures as may be in
Landlord’s judgment reasonably necessary, required or expedient for the conservation or
preservation of energy or
energy services, or as may be necessary to comply with applicable codes, rules, regulations or
standards.




     4.1.2 Repairs. Except as otherwise provided in this Lease, and except for repairs to
items referred to
below necessitated by Tenant’s act or neglect (which shall be Tenant’s repair obligation under
Section 5.1),
Landlord shall make such repairs to Landlord’s Work (as defined in Section 3.1) as may be
necessary to keep it in
good condition consistent with a first class office building.



     4.1.3 Building Directory and Office Identification. Landlord shall maintain a reasonable form of
Building directory in or on which Tenant will be allowed a number of listings based on the
Rentable Floor Area of
the Premises compared to the Total Rentable Floor Area of the Building. Tenant’s initial
Building directory listings
shall be made at Landlord’s expense. Landlord shall thereafter change Tenant’s Building
directory listings, at
Tenant’s expense, as requested by Tenant. Landlord shall provide and install at Tenant’s
expense, if requested,
signage on entry doors to the Premises to identify Tenant’s official name; all such signage
shall be in the Building
standard graphics and materials and no other sign or identification shall be used or permitted
on any door, window
or wall on the exterior of the Premises.



     4.1.4 Quiet Enjoyment. Landlord covenants that Tenant, on paying the rent and
performing the tenant
obligations in this Lease within the applicable notice and cure periods, shall peacefully and
quietly have, hold and
enjoy the Premises, free from any claim by Landlord or persons claiming under Landlord, but
subject to all of the
terms and provisions hereof, provisions of law and rights of record to which this Lease is or
may become
subordinate. This covenant is in lieu of any other so-called quiet enjoyment covenant, either
express or implied.



11









 





     4.1.5 Fire Protection, Landlord will furnish and maintain a central fire protection
system for the
operation of the concealed head, flat-plate sprinklers located in Phase 2. Such system shall
contain water flow
alarms which are electrically connected to an emergency control station where monitoring and
rescue controls will
also be located. Voice communication to all floors in the Building and to all elevator cabs
shall also be activated
from an emergency control station. The heating, ventilating and air conditioning system will
be coordinated with
the fire protection system in order that it automatically shut off all air handlers and
immediately activate exhaust
fans for smoke removal in floors where a fire is located. Throughout the Term, Landlord may,
from time to time, in
accordance with applicable law, substitute for the foregoing fire protection system or its
components, reasonable
equivalents or substitutes.



     4.1.6 Security. Landlord will furnish a security system for the Building, including Building security
officers and monitoring method, all to be effective at all times when the Building is not
generally open to the public.
During such hours, Landlord will employ a system of monitoring and limiting access to the
office floors in the
Building based on reasonable systems of identification. Landlord may, from time to time
throughout the Term,
substitute for any of the foregoing specific components of security, reasonable equivalents to
assure Tenant and
other tenants of the Building the same level of security provided by the foregoing.



     4.2 INTERRUPTION



     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 of the purposes authorized in this Lease or for repairing the
Premises or from repairs by Landlord of any portion of the Project however the necessity may occur.
In case Landlord is prevented or delayed from diligent construction of all or any part of Phase 2
or 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, Landlord shall not be liable to Tenant therefor, nor, except as
otherwise provided in Section 6.1, shall Tenant be entitled to any abatement or reduction of rent
by reason thereof, nor shall the beginning of the Term be delayed under Section 2.4(b) (once
Substantial Completion has occurred), 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.
In no event shall Landlord be liable for indirect or consequential damages arising out of any
default by Landlord.



     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 and to minimize interference with the operation of Tenant’s business. Except in case of
emergency repairs, Landlord will give Tenant reasonable advance notice of any contemplated stoppage
and will use reasonable efforts to avoid unnecessary interruption of Tenant’s use of the Premises
by reason thereof.



     Landlord shall use reasonable efforts to limit the duration of any such interruptions. If
Tenant is prevented, on account of Landlord’s failure to perform any of its obligations under this
Lease where the failure is caused by matters within Landlord’s reasonable control, from using all
or a substantial portion of the Premises for more than ten (10) business days following notice to
Landlord, then from and after the end of such ten (10) business day period until the Premises (or
such portion ) is rendered usable, Annual Fixed Rent and additional charges for Operating Expenses
allocable to the Premises, or a just and proportionate part thereof, shall be abated. This Section
shall not apply to matters arising as the result of a fire, casualty, taking or other event as to
which Article VI applies.



12









 








ARTICLE V TENANT’S ADDITIONAL




COVENANTS




     5.1 MAINTENANCE AND REPAIR



     Except for damage by fire or other casualty and reasonable wear, Tenant shall at all times
keep the Premises clean, neat and in as good repair, order and condition as the same are at the
beginning of the Term or may be put in thereafter. The foregoing shall include without limitation
Tenant’s obligation to maintain floors and floor coverings, to paint and repair walls and doors, to
replace and repair ceiling tiles, lights and light fixtures, drains and the like, and clean the
Premises to the extent such cleaning is not to be performed by Landlord under Exhibit D. Tenant
shall also maintain and repair all Building Standard window blinds in the Premises, such blinds to
be installed in all exterior windows in the Premises by Landlord as Finish Work at Tenant’s
expense. Repairs and replacements shall be equivalents of original work and shall be performed in
accordance with the terms, conditions and requirements of Section 5.10.



     5.2 USE, WASTE AND NUISANCE



     Throughout the Term, Tenant shall continuously occupy the Premises in their entirety, shall
use the Premises for the Permitted Uses only, and shall not use the Premises for any other purpose.
Tenant shall not injure, overload, deface or commit waste in the Premises or any part of the
Project, nor permit the emission therefrom of any objectionable noise, light or odor, nor use or
permit any use of the Premises which is improper, offensive, contrary to law or ordinance or which
is liable to invalidate or increase the premium (unless Tenant reimburses Landlord for the
additional cost) for any insurance on the Project or its contents or which is liable to render
necessary any alterations or additions in the Project, nor obstruct in any manner any portion of
the Project. Tenant shall not, directly or indirectly, cause any labor disharmony and, if Tenant
does so cause any disharmony, shall be responsible for all costs incurred to restore labor harmony.
If Tenant’s use of the Premises results in an increase in the premium for any insurance on the
Project or the contents thereof, Landlord shall notify Tenant of such increase and Tenant shall pay
same as additional charges. Tenant may not without Landlord’s consent install in the Premises any
pay telephones, vending machines, water fountains, refrigerators, sinks or cooking equipment
provided that Landlord’s consent will not be unreasonably withheld with respect to items designed
for the convenience of Tenant’s employees which are customary for office employees if Landlord
determines that special venting or other matters are not required in connection therewith. Landlord
may require that Tenant obtain maintenance, other services, and supplies for such items at
competitive rates from Landlord or from an independent vendor designated by Landlord, the cost
thereof to constitute a restricted item under Section 2.6.1 for any such item obtained from
Landlord.



     Tenant shall not (either with or without negligence) cause or permit the escape, disposal or
release of any biologically or chemically active or other hazardous substances, or materials.
Tenant shall not allow the storage or use of such substances or materials in any manner not
sanctioned by law or by the highest standards prevailing in the industry for the storage and use of
such substances or materials, nor allow to be brought into the Project any such materials or
substances except to use in the ordinary course of Tenant’s business, and then only after written
notice is given to Landlord of the identity of such substances or materials. Without limitation,
hazardous substances and materials shall include those described in the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. §§ 9601 et seq.,
the Resource Conservation and Recovery Act, as amended, 42 U.S.C. §§ 6901 et seq., the
Massachusetts Hazardous Waste Management Act, as amended, M.G.L. Chapter 21C, and the Massachusetts
Oil and Hazardous Material Release Prevention Act, as amended, M.G.L. Chapter 21E, and the
regulations adopted under these acts. If any lender or governmental agency shall ever require
testing to ascertain whether or not there has been any release of hazardous materials, then the
reasonable costs thereof shall be reimbursed by Tenant to Landlord upon demand as additional
charges if such requirement applies to the Premises, and if the requirement applies to the Building
generally, then such costs shall be included in Landlord’s Operating Expenses. In addition, Tenant
shall execute affidavits, representations and the like from time to time at Landlord’s request
concerning Tenant’s best knowledge and belief regarding the presence of hazardous substances or
materials on the Premises. In all events, Tenant shall indemnify Landlord in the manner elsewhere



13









 




provided from any release of hazardous materials on the Premises occurring during the Term or while
Tenant or any Subtenant (as defined in Section 5.9 hereof) of Tenant or any other party claiming
under Tenant is in possession of the Premises, or from a release of hazardous materials elsewhere
if caused by Tenant or persons acting under Tenant.




     5.3 RULES AND REGULATIONS



     Tenant shall, after notice thereof from Landlord, conform to all reasonable non-discriminatory
rules and regulations now or hereafter promulgated by Landlord for the care and use of the Premises
and the Project.



     5.4 SAFETY APPLIANCES



     Tenant shall keep the Premises equipped with all safety appliances and permits which, as a
result of Tenant’s particular activities, are required by law or ordinance or any order or
regulation of any public authority, shall keep the Premises equipped at all times with adequate
fire extinguishers and other such equipment reasonably required by Landlord, and, subject to
Section 5.10, shall make all repairs, alterations, replacements, or additions so required as a
result of Tenant’s particular activities.



     5.5 INDEMNIFICATION AND INSURANCE



     Tenant shall save Landlord, its partners, partners of Landlord’s partners, mortgagees, ground
lessors, agents, employees, independent contractors, invitees, and any other parties designated by
Landlord from time to time (collectively, the “Indemnitees”) harmless and indemnified (and shall
defend the Indemnitees with counsel reasonably approved by the Indemnitees) against any claim, loss
or cost arising in whole or in part out of any injury, loss, theft or damage to any person or
property while on or in the Premises, or in transit thereto or therefrom, or out of any condition
within or around the Premises, to the extent not due to the negligence or willful misconduct of the
Indemnitees, and to any person or property anywhere occasioned by any act, omission, neglect or
default of Tenant or of employees, agents, independent contractors or invitees of Tenant or any
person acting under Tenant. In addition to the foregoing, Landlord may make all repairs and
replacements to the Project and Premises resulting from acts or omissions of Tenant’s employees,
agents, independent contractors or invitees or any other persons acting under Tenant (including
damage and breakage occurring as a result of Work performed by or for Tenant and when Tenant’s
property is being moved into or out of the Project) and Landlord may recover all costs and expenses
thereof from Tenant as additional charges. Throughout the Term (and such further time as Tenant or
any person claiming through Tenant occupies any part of the Premises) Tenant shall maintain in a
responsible company or companies approved by Landlord, liability insurance in form reasonably
satisfactory to Landlord, written on an occurrence basis, insuring the Indemnitees and other
parties designated by Landlord, and Tenant, as their respective interests may appear, against all
claims, demands or actions for injury, death, and property damage in amounts not less than those
specified in Section I.I (as such amounts may, from time to time, be reasonably increased by
Landlord). Throughout the Term (and such further time as Tenant or any person claiming through
Tenant occupies any part of the Premises), Tenant shall also maintain in a responsible company or
companies approved by Landlord insurance against loss or damage to all Tenant Work located in the
Premises by fire or any of the risks covered by so-called “all-risk coverage” which shall contain a
so-called “Replacement Cost Endorsement.” Tenant hereby authorizes Landlord, at Landlord’s option,
to collect, adjust and compromise any claim under such insurance with respect to loss or damage to
Tenant Work located in the Premises. All insurance to be maintained by Tenant under this Section
5.5 shall provide that it will not be subject to cancellation, termination, or change except after
at least 30 days’ prior written notice to the Indemnitees and other parties designated by Landlord.
The policy or policies or a duly executed certificate or certificates for the same (together with
satisfactory evidence of the payment of the premium thereon if requested by Landlord) shall be
deposited with Landlord and other parties designated by Landlord at the beginning of the Term and,
upon renewals of such policies, not less than 30 days prior to the expiration of the term of such
coverage. If Tenant fails to comply with any of the foregoing requirements, Landlord may obtain
such insurance on behalf of Tenant and may keep the same in effect, and Tenant shall pay Landlord,
as additional charges, the premium cost thereof upon demand. The covenants of this Section 5.5
shall survive the expiration of the Term or earlier termination of this Lease.



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     5.6 TENANT’S PROPERTY



     All furnishings, fixtures, equipment, effects and property of Tenant and of all persons
claiming through Tenant which from time to time may be on the Premises or elsewhere in the Project
or in transit thereto or therefrom shall be at the sole risk of Tenant and shall be kept insured by
Tenant throughout the term at Tenant’s expense and in prudent amounts, and if the whole or any part
thereof shall be destroyed or damaged by fire, water or otherwise, or by the leakage or bursting of
water pipes, steam pipes, or other pipes, by theft or from any other cause, no part of said loss or
damage is to be charged to or be borne by Landlord. The parties acknowledge that damage or
destruction may result from acts of cleaning personnel and employees of other independent
contractors of Landlord working in and around the Premises and that Tenant shall bear the risk and
cost thereof unless Landlord has been negligent in the selection of such persons.



     5.7 ENTRY FOR REPAIRS AND INSPECTIONS



     Tenant shall permit Landlord and its agents to enter and examine the Premises at reasonable
times and, if Landlord shall so elect, to make any repairs or replacements Landlord may deem
necessary or desirable, to remove at Tenant’s expense any Tenant Work, including any alterations,
additions, signs, curtains, blinds, shades, awnings, aerials, flagpoles, or the like not consented
to in writing, and to show the Premises to prospective tenants during the eighteen months preceding
expiration of the Term and to prospective purchasers and mortgagees at all times.



     5.8 EXPENSES AND ATTORNEYS’ FEES



     Tenant shall pay as additional charges Landlord’s expenses, including reasonable attorneys’
fees, incurred in enforcing any obligations of Tenant under this Lease with which Tenant has failed
to comply.



     5.9 ASSIGNMENT, SUBLETTING



     Tenant shall not assign this Lease, or sublet or license the Premises or any portion thereof,
or permit the occupancy of all or any portion of the Premises by anybody other than Tenant (all or
any of the foregoing actions are referred to as “Subleases” and all or any of assignees,
subtenants, licensees, and other such parties are referred to as “Subtenants”) without obtaining,
on each occasion, the prior consent of the Landlord. Landlord’s consent to a proposed sublease
shall not be unreasonably withheld, it being understood that (i) Landlord may consider, among other
things, whether the proposed subtenant is a reputable organization that will not detract from the
first-class character of the Building and Project, and (ii) the proposed sublease must comply with
all other provisions of this Lease (including, without limitation, this Section 5.9), must not
alter Landlord’s rights under the Lease, and must not impose any additional obligation on Landlord.
A Sublease shall include, without limitation, any transfer of Tenant’s interest in this Lease by
operation of law, merger or consolidation of Tenant into any other firm or corporation, and the
transfer or sale of a controlling interest in Tenant, whether by sale of its capital stock or
otherwise. Unless Landlord’s consent specifically provides otherwise with respect to a particular
proposed Subtenant, Tenant shall not offer to make or make a Sublease to any of the following: (i)
a tenant in the Project; (ii) any party with whom Landlord, the landlord of Phase 1, or any other
affiliate of Landlord is then negotiating (or has negotiated within the previous nine (9) months)
with respect to space in the Project; (iii) any entity owned by, owning, or affiliated with,
directly or indirectly, any tenant or party described in clauses (i) and (ii) hereof; or (iv) any
party which would be of such type, character or condition as to be inappropriate, in Landlord’s
judgment, as a tenant for a first class office building. Tenant shall not, without Landlord’s
approval, enter into any Sublease of all or any portion of the Premises unless the aggregate rent
and other charges payable to Tenant under such Sublease equal or exceed the then prevailing fair
market rent rate for such space. Tenant’s request for consent to a Sublease shall include a copy of
the proposed Sublease instrument, if available, or else a statement of the proposed Sublease in
detail satisfactory to Landlord, together with reasonably detailed financial, business and other
information about the proposed Subtenant. Landlord shall have the option (but not the obligation)
to terminate the Lease with respect to the portion of the Premises which Tenant proposes to
Sublease effective upon the date of the proposed Sublease and continuing for the proposed term
thereof by giving Tenant notice of such termination within 30 days after Landlord’s receipt of
Tenant’s request. If Landlord exercises such option, Tenant shall be released from all obligations
and liabilities under the Lease with respect to said portion of the Premises effective as of the
termination



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date and for the proposed term of the proposed Sublease. If Tenant does make a Sublease hereunder,
and if 95% of the aggregate rent and other amounts payable to Tenant under and in connection with
such Sublease (including without limitation any amounts for leasehold improvements or on account of
Tenant’s costs associated with such Sublease) exceed the effective rent and other charges due
hereunder with respect to the space and time period in question, Tenant shall pay to Landlord upon
receipt by Tenant, as an additional charge, the amount of such excess. (“Effective rent” shall mean
the Annual Fixed Rent due hereunder for such space and time period after reduction for free rent
amounts, rent holidays, rent concessions, special tenant inducements and the like allocated over
the Term on a straight-line basis.) If the amount of rent and other charges payable under a
Sublease is not readily ascertainable, such amount may, at Landlord’s option, be deemed to equal
the fair market rent then obtainable for the space in question.




     The following transactions shall not require the consent of Landlord provided that Landlord
shall receive prior notice thereof plus reasonable evidence upon closing that the transaction is in
fact one of the following (and provided further that the proposed Sublease complies with all other
provisions of this Lease, including, without limitation, this Section 5.9, does not alter
Landlord’s rights under the Lease, and does not impose any additional obligation on Landlord):



     (a) Any Sublease to an entity succeeding to the business and assets of Tenant, whether by way
of
merger, consolidation or otherwise;



     (b) Any Sublease to an entity directly or indirectly controlled and beneficially owned by
Tenant. For
purposes of this clause (b), control shall mean possession of more than 50 percent ownership
of the shares of
beneficial interest of the entity in question together with the power to control and manage
the affairs thereof either
directly or by election of directors and/or officers.



     Tenant shall pay to Landlord, as an additional charge, Landlord’s reasonable legal fees and
other expenses incurred in connection with any proposed Sublease, including fees for review of
documents and investigations of proposed Subtenants. Notwithstanding any such Sublease, the
original Tenant named herein shall remain directly and primarily obligated under this Lease.



     If Tenant enters into any Sublease with respect to the Premises (or any part thereof),
Landlord may, at any time and from time to time, require that such Subtenant agree directly with
Landlord to be liable, jointly and severally with Tenant, to the extent of the obligation
undertaken by or attributable to such Subtenant, for the performance of Tenant’s agreements under
this Lease (including payment of rent and other charges under the Sublease), and every Sublease
shall so provide. Landlord may collect rent and other charges from the Subtenant and apply the net
amount collected to the rent and other charges hereunder, but no such assignment or collection
shall be deemed a waiver of the provisions of Section 5.9, or the acceptance of the Subtenant, as a
tenant, or a release of Tenant from direct and primary liability for the further performance of
Tenant’s covenants hereunder. The consent by Landlord to a particular Sublease shall not relieve
Tenant from the requirement of obtaining the consent of Landlord to any further Sublease.



     Anything contained in the foregoing provisions of this section to the contrary
notwithstanding, neither Tenant nor any Subtenant nor any other person having an interest in the
possession, use, occupancy or utilization of the Premises shall enter into any lease, sublease,
assignment, license, concession or other agreement for use, occupancy or utilization of space in
the Premises which provides for rental or other payment for such use, occupancy or utilization
based, in whole or in part, on the net income or profits derived by any person from the Premises
leased, used, occupied or utilized (other than an amount based on a fixed percentage or percentages
of receipts or sales), and any such purported lease, sublease, assignment, license, concession or
other agreement shall be absolutely void and ineffective as a conveyance of any right or interest
in the possession, use, occupancy or utilization of any part of the Premises.



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     5.10 TENANT WORK



     5.10.1 General. “Tenant Work” shall mean all work in or to the Premises, including all
work performed
initially to put the Premises in condition suitable for Tenant’s use and occupancy, demolition
and the installation,
maintenance or repair of improvements, additions and alterations therein and thereto, as well
as (where the context
requires) such improvements, additions and alterations themselves. Tenant Work excludes (i)
Landlord’s Work (as
defined in Section 3.1), (ii) repairs performed by Landlord under Section 4.1.2, and (iii) the
installation,
maintenance and repair of Tenant’s decorations, movable furnishings and business fixtures and
equipment
(including computer, telephone and telecommunications equipment) as well as (where the context
requires) such
decorations, movable furnishings and business fixtures. Without limiting the generality of the
foregoing, Tenant
Work shall specifically include all attached carpeting, all signs visible from the exterior of
the Premises, and any
change in the exterior appearance of the windows in the Premises (including shades, curtains,
perimeter lighting,
and the like). All Tenant Work shall be subject to Landlord’s prior approval, which shall not
be unreasonably
withheld subject to the next sentence, and shall be arranged and paid for by Tenant as
provided herein. Tenant shall
not perform any work in or to the Premises which would in Landlord’s reasonable judgment (i)
in any manner affect
any structural component of the Project (including, without limitation, exterior walls,
exterior windows, core walls,
columns, roofs, or floor slabs), (ii) in any respect be incompatible with the electrical or
mechanical components or
systems of the Project, (iii) affect in any respect space or areas in and around the Project
other than the Premises
(including the exterior of the Project), (iv) change the uniform exterior appearance of the
Project (including the
windows therein), (v) diminish the value of the Premises for any general purpose office use,
(vi) or require any
unusual expense to re-adapt the Premises for any general purpose office use. In addition, with
respect to any floor
not occupied entirely by Tenant, Tenant shall neither propose nor effect any Tenant Work
consisting of
improvements, additions, or alterations to the entranceway to the Premises or any adjoining
elevator lobby, corridor,
or common area. All Tenant Work shall conform to a floor loading limit of live load: 50 pounds
per square foot
and allowance for partitions of 20 pounds per square foot.



     5.10.2 Construction Documents. No Tenant Work shall be effected except in accordance
with complete,
consistent, final construction drawings and specifications (“Construction Documents”) approved
in advance by
Landlord. The Construction Documents shall be prepared by an architect retained by Tenant and
approved by
Landlord in advance (“Tenant’s Architect”), which approval shall not be unreasonably withheld.
Tenant’s Architect
shall be experienced in the construction of tenant space improvements in first-class office
buildings in the
downtown Boston area. Tenant shall also retain the services of the mechanical, electrical and
structural engineers
engaged by Landlord for the Project to assist in the preparation of the Construction Documents
if any proposed
Tenant Work shall in any way affect, respectively, the mechanical, electrical or structural
systems, facilities or
equipment in the Project. Tenant shall be solely responsible for the liabilities of and
expenses of all architectural
and engineering services relating to the Tenant Work. Tenant shall also be responsible for the
adequacy, accuracy,
and completeness of the Construction Documents, notwithstanding that such Construction
Documents have been
approved by Landlord, even if Tenant’s Architect or engineers have been otherwise engaged by
Landlord in
connection with the Project. The Construction Documents shall set forth in detail the
requirements for construction
of the Tenant Work (including all architectural, mechanical, electrical and structural
drawings and detailed
specifications), shall be fully coordinated with one another and with field conditions as they
exist in the Premises
and elsewhere in the Project, and shall show all work necessary to complete the Tenant Work
including all cutting,
fitting, and patching and all connections to the mechanical and electrical systems and
components of the Project. At
Tenant’s request, Landlord shall provide, at Tenant’s expense, copies of existing
architectural, mechanical,
electrical and structural drawings pertaining to the Premises. However, Tenant’s Architect
shall ascertain all field
dimensions and conditions which may be different from those shown on such drawings.



     Submission of the Construction Documents to Landlord for approval shall be deemed a warranty
by Tenant and Tenant’s Architect, jointly and severally, that all Tenant Work described in the
Construction Documents (i) complies with all applicable laws, regulations, building codes, and
reasonable and prudent design standards for a first-class office building, (ii) does not in any
manner affect any structural component of the Project (including, without limitation, exterior
walls, exterior windows, core walls, columns, roofs or floor slabs), (iii) is in all respects
compatible with the mechanical, electrical and structural components and systems of the Project,
(iv) does not affect any space or area in or around the Project other than the Premises (including
the exterior of the Project),



17









 




(v) conforms to a floor loading limit of live load: 50 pounds per square foot and allowance for
partitions of 20 pounds per square foot, (vi) and with respect to all materials, equipment and
special designs, processes, or products, does not infringe on any patent or other proprietary
rights of others. Landlord’s approval of Construction Documents shall signify Landlord’s consent to
the Tenant Work shown thereon only and shall not result in any responsibility of Landlord
concerning compliance of the Tenant Work with laws, regulations, or codes, coordination of any
aspect of the Tenant Work with any other aspect of the Tenant Work or any component or system of
the Project, or the feasibility of constructing the Tenant Work without damage or harm to the
Project, all of which shall be the sole responsibility of Tenant.




     Tenant and Tenant’s Architect hereby grant an irrevocable license to Landlord to use the
Construction Documents for any purpose related or unrelated to the Tenant Work without incurring
any liability to Tenant, Tenant’s Architect, or any other person or entity who assisted in the
preparation of, or who may have an interest in, the Construction Documents.



     5.10.3 Performance of Tenant Work. The identity of any person or entity other than
Landlord, Landlord’s Managing Agent, or any contractor employed by Landlord or Landlord’s Managing
Agent, but including any employee or agent of Tenant, performing any Tenant Work (“Tenant
Independent Contractor”) shall be subject to Landlord’s prior approval obtained in connection with
each instance of Tenant Work, which approval shall not be unreasonably withheld, provided that the
contractor is experienced in the construction of comparable construction projects in first-class
high-rise office towers in downtown Boston and complies with the provisions of Article V.



     Except for Finish Work performed by Landlord for Tenant under Exhibit C, Tenant shall adhere
to the following requirements in performing all Tenant Work. Tenant shall procure all necessary
governmental permits, licenses and approvals before undertaking any Tenant Work. All Tenant Work
shall be performed at Tenant’s risk in compliance with all applicable laws, codes and regulations
and in a good and workmanlike manner employing new materials of good quality and producing a result
at least equal in quality to the other parts of the Premises. When any Tenant Work is in progress,
Tenant shall cause to be maintained (i) insurance as described in the Tenant Work Insurance
Schedule attached hereto as Exhibit H and such other insurance as may be required by Landlord
covering any additional hazards due to such Tenant Work, and (ii) a statutory lien bond pursuant to
M.G.L. c.254, § 12 or any successor statute (or such other protection of Landlord’s interest in the
Project against liens as Landlord or Landlord’s mortgagee may reasonably require), in each case for
the benefit of Landlord and any mortgagee of the Project or any part of it. It shall be a condition
of Landlord’s approval of any Tenant Work that certificates of such insurance and a lien bond in
recordable form, both issued by responsible insurance companies qualified to do business in
Massachusetts and reasonably approved by Landlord, shall have been deposited with Landlord, that
Tenant has provided Tenant’s certification of the insurable value of the work in question for
casualty insurance purposes, and that all of the other conditions of the Lease have been satisfied.
Tenant shall reimburse Landlord’s reasonable costs of reviewing proposed Tenant Work and inspecting
installation of the same as an additional charge. At all times while performing Tenant Work, Tenant
and each Tenant Independent Contractor shall not discriminate against any individual because of
race, color, sex, religion or national origin, and will, as may be required by the City of Boston
or any other public authority having jurisdiction, comply with all applicable laws, regulations and
equal opportunity policies, including any applicable City of Boston Ordinances and the requirements
of the Sale and Construction Agreement dated May 30, 1984, as now and hereafter amended from time
to time, recorded at the Suffolk County Registry of Deeds in Book 11349, Page 2.



     In performing Tenant Work, each Tenant Independent Contractor shall comply with Landlord’s
requirements relating to the time and methods for such work, use of delivery elevators and other
Project facilities; and no Tenant Independent Contractor shall ever interfere with, or disrupt, any
other tenant or other person using the Project. Each Tenant Independent Contractor shall in all
events work on the Premises without causing labor disharmony or coordination difficulties, and
without causing any delays to, or impairing any guaranties, warranties or obligations of, any
contractors of Landlord or any other tenant. Tenant and Tenant’s Independent contractors shall
manage all labor relations, trade disputes and employment-related matters concerning Tenant Work
with a view toward maintaining labor harmony and the efficient and timely progress of Tenant Work.
Without limitation, Tenant and Tenant’s Independent Contractors shall employ labor that will make
reasonable efforts to work in harmony with each other and with all other trades and individuals
performing work at the adjoining Central



18









 




Artery/Third Harbor Tunnel Project of the Massachusetts Department of Public Works (“Artery
Project”) and shall use due diligence to resolve any job actions and/or labor disputes that may
arise with construction contractors on the Artery Project. In addition, if the site of any job
action and/or labor dispute, such as picketing, concerning the Tenant Work occurs where the
presence of pickets at an entrance to the Project interferes with construction of those segments of
the Artery Project adjoining the Project, then Tenant and Tenant’s Independent Contractors, in
consultation with Landlord, shall identify and designate other entrances to the Project as those to
be used by persons who are the subject of the job action and/or labor dispute. If any Tenant
Independent Contractor uses any Project services or facilities, such persons, jointly and severally
with Tenant, shall agree to reimburse Landlord for the cost thereof based on Landlord’s schedule of
charges established from time to time (and if no such charges have been established, then based on
Landlord’s reasonable charge established at the time). Each Tenant Independent Contractor shall, by
its entry into the Project, be deemed to have agreed to indemnify and hold the Indemnitees harmless
from any claim, loss or expense arising in whole or in part out of any act or neglect committed by
such person while in the Project, to the same extent as Tenant has so agreed in Section 5.5 of the
Lease to indemnify the Indemnitees, the indemnities of Tenant and each Tenant Independent
Contractor to be joint and several.




     5.10.4 Payment for Tenant Work. Tenant shall pay within 10 days after request from
time to time the entire cost of all Tenant Work (except for Finish Work performed by Landlord, for
which payment shall be made as provided in Exhibit C) so that the Premises shall always be free of
liens for labor or materials. If any mechanic’s lien (which term shall include all similar liens
relating to the furnishing of labor and materials) is filed against the Project (or any part
thereof) which is claimed to be attributable to Tenant, its agents, employees or contractors,
Tenant shall give immediate notice of such lien to Landlord and shall promptly discharge the same
by payment or filing any necessary bond within ten (10) days after Tenant has notice (from any
source) of such mechanic’s lien.



     5.11 HEAVY EQUIPMENT



     Tenant will not bring into or install in the Premises any safes, or bulky or heavy
furnishings, equipment, or machines without the prior approval of Landlord as to methods and
scheduling of transportation and installation (Landlord may prohibit installation if the weight of
any such item will exceed a floor loading limit of live load: 50 pounds per square foot and
allowance for partitions of 20 pounds per square foot, or if Landlord decides that the same will
cause vibration, odor or noise to be transmitted to the Project structure or to areas outside the
Premises), nor shall Tenant move any furniture, furnishings, equipment or machines into or out of
the Project except by prior arrangement with and approval of Landlord and by reimbursing Landlord
for any expenses incurred in connection therewith (including costs of supervision, and the like).



     5.12 SURRENDER AND LIEN FOR RENT



     At the expiration of the Term or earlier termination of this Lease, without the requirement of
any notice, Tenant shall peaceably surrender the Premises including all Tenant Work (such Tenant
Work to be in conformity with the provisions hereof) and all replacements thereof, including
carpeting, any water or electricity meters, and all fixtures, partitions, or other portions of
Tenant Work in any way bolted or otherwise attached to the Premises (which shall become the
property of Landlord) except such portions of Tenant Work as Landlord shall direct Tenant to
remove, the Premises and improvements to be in the condition in which the same are required to be
maintained under Section 5.1. Upon Tenant’s request Landlord shall advise Tenant as to which
improvements or alterations are to be removed by Tenant at the expiration or earlier termination of
the Lease. Tenant hereby grants to Landlord a lien and security interest in all equipment and
furnishings from time to time situated on the Premises, and proceeds thereof, securing Landlord
against any claims by Landlord against Tenant including claims arising under Article VII and all
claims for rent and other charges. Upon request by Landlord from time to time, Tenant will execute,
acknowledge and deliver such financing statements and other instruments as are appropriate to
perfect Landlord’s security interest and lien (the foregoing lien and security interest shall be in
addition to, and cumulative with, any Landlord’s liens provided by law). Tenant shall, at the time
of termination, remove the goods, effects and fixtures which Tenant is directed or permitted to
remove in accordance with the provisions of this Section, making any repairs to the Premises and
other areas necessitated by such removal and leaving the Premises clean and tenantable. Should
Tenant fail to remove any of such goods, effects, and fixtures, Landlord may have them removed
forcibly, if necessary, and store any of Tenant’s property in a public warehouse at the risk of
Tenant. If such items are not



19









 




removed from storage within thirty (30) days, such items may be sold by any customary methods in
order to pay storage costs and other expenses of Landlord. The expense of such removal, storage and
reasonable repairs necessitated by such removal shall be borne by Tenant or reimbursed by Tenant to
Landlord.




     5.13 PERSONAL PROPERTY TAXES



     Tenant shall pay promptly when due all taxes (and charges in lieu thereof) imposed upon
personal property in the Premises, no matter to whom assessed (including, without limitation,
fixtures, equipment and all Tenant Work).



ARTICLE VI




CASUALTY AND TAKING




     6.1 DAMAGE BY FIRE OR CASUALTY



     If the Premises or any part thereof shall be damaged by fire or other insured casualty, then,
subject to the last paragraph of this Section 6.1, Landlord shall proceed with diligence, subject
to 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 insurance proceeds made
available to Landlord by any mortgagee of the Building and any ground lessor) to repair or cause to
be repaired such damage, including such Tenant Work as shall have been so damaged. All such repairs
made necessary by any act or omission of Tenant shall be made at the Tenant’s expense to the extent
that the cost of such repairs are less than the deductible amount in Landlord’s insurance policy.
All repairs to Tenant Work shall be performed by Landlord at Tenant’s expense. The cost of all
repairs performed under this Section 6.1 by Landlord at Tenant’s expense (including costs of design
fees, financing, and reasonable charges for administration, overhead and construction management
services by Landlord and Landlord’s contractor) shall constitute an additional charge hereunder.
All repairs to and replacements of property which Tenant is entitled to remove 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 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 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 practicable to
the condition in which they were immediately prior to such fire or other casualty, provided,
however, that if Landlord or any mortgagee of the Building or any ground lessor shall be unable to
collect the insurance proceeds (including rent insurance proceeds) applicable to such damage
because of some action or inaction on the part of Tenant, or the employees, licensees or invitees
of Tenant, the cost of repairing such damage shall be paid by Tenant and there shall be no
abatement of rent. Landlord shall not be liable for delays in the making of any such repairs which
are due to government regulation, casualties and strikes, unavailability of labor and materials,
delays in obtaining insurance proceeds, and other causes beyond the reasonable control of Landlord,
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.



     If (i) the Premises are so damaged by fire or other casualty (whether or not insured) at any
time during the last thirty months of the Term that the cost to repair such damage is reasonably
estimated to exceed one-third of the total Annual Fixed Rent payable hereunder for the period from
the estimated completion date of repair until the end of the Term, (ii) at any time the Project (or
any portion thereof, whether or not including any portion of the Premises) is so damaged by fire or
other casualty (whether or not insured) that substantial alteration or reconstruction or demolition
of the Project (or a portion thereof) shall in Landlord’s judgment be required, or (iii) at any
time damage to the Project occurs by fire or other insured casualty and any mortgagee or ground
lessor shall refuse to permit insurance proceeds to be utilized for the repair or replacement of
such property and Landlord determines not to repair such damage, then and in any of such events,
this Lease and the term hereof may be terminated at the election of Landlord by a notice from
Landlord to Tenant within sixty (60) days, or such longer period as is required to complete
arrangements with any mortgagee or ground lessor regarding such situation, following such fire or
other casualty; the effective termination date pursuant to such notice shall be not less than



20









 




thirty (30) days after the day on which such termination notice is received by Tenant. In the event
of any termination, the term shall expire as though such effective termination date were the date
originally stipulated in Section 1.1 for the end of the Term and the Annual Fixed Rent and
additional charges for Operating Expenses shall be apportioned as of such date.




     If any portion (other than a portion which, if not repaired, would not unreasonably affect
Tenant’s use of the Premises for the Permitted Uses) of the Premises or Phase 2 is damaged by fire
or other casualty. Landlord shall give notice to Tenant within sixty (60) days after such fire or
casualty of Landlord’s estimate of the time required to substantially complete (subject only to
punchlist items, the completion of which does not unreasonably interfere with Tenant’s use of the
Premises) repair of such damage. If in Landlord’s estimate the Premises cannot so be repaired
within twelve months after the date of such fire or casualty (subject only to punchlist items, as
described above), then Tenant may elect in writing sixty (60) days following the date of such
notice from Landlord to terminate this Lease effective on the thirtieth (30th) day after
Tenant’s notice is given.



     If any portion (other than a portion which, if not repaired, would not unreasonably affect
Tenant’s use of the Premises for the Permitted Uses) of the Premises or Phase 2 is damaged by fire
or other casualty and Landlord has not within twelve months after such casualty substantially
completed (subject only to punchlist items, the completion of which does not unreasonably interfere
with Tenant’s use of the Premises) repair of such damage, then within ten (10) days after such
twelve-month period has expired, Tenant may terminate this Lease by notice to Landlord effective on
the 30th day after such notice is given, provided that such termination notice shall be
effective only if repair of the damage in question has not been substantially completed before the
date of termination. If Tenant fails timely to exercise its right to terminate under this Section
6.1, Tenant shall not have any further such right.



     6.2 CONDEMNATION — EMINENT DOMAIN



     In case during the Term all or any substantial part of the Premises or Phase 2 or the common
areas of the Project are taken by eminent domain or Landlord receives compensable damage by reason
of anything lawfully done in pursuance of public or other authority, this Lease shall terminate at
Landlord’s election, which may be made (notwithstanding that Landlord’s entire interest may have
been divested) by notice given to Tenant within 90 days after the election to terminate arises,
specifying the effective date of termination. The effective date of termination specified by
Landlord shall not be less than 15 nor more than 30 days after the date of notice of such
termination. Unless terminated pursuant to the foregoing provisions, this Lease shall remain in
full force and effect following any such taking, subject, however, to the following provisions. If
in any such case the Premises are rendered unfit for use and occupation and this Lease is not
terminated, Landlord shall use due diligence (following the expiration of the period in which
Landlord may terminate this Lease pursuant to the foregoing provisions of this Section) to put the
Premises, or what may remain thereof (excluding any items installed or paid for by Tenant which
Tenant may be required to remove pursuant to Section 5.12), into proper condition for use and
occupation and a just proportion of the Annual Fixed Rent and additional charges for Operating
Expenses according to the nature and extent of the injury shall be abated until the Premises or
such remainder shall have been put by Landlord in such condition; and in case of a taking which
permanently reduces the area of the Premises, a just proportion of the Annual Fixed Rent and
additional charges for Operating Expenses shall be abated for the remainder of the Term.



     6.3 EMINENT DOMAIN AWARD



     Except for Tenant’s relocation expenses (specifically so designated by the court or authority
having jurisdiction over the matter) Landlord reserves to itself any and all rights to receive
awards made for damages to the Premises, the Project or the leasehold hereby created, or any one or
more of them, accruing by reason of exercise of eminent domain or by reason of anything lawfully
done in pursuance of public or other authority. Tenant hereby releases and assigns to Landlord all
Tenant’s rights to such awards, and covenants to deliver such further assignments and assurances
thereof as Landlord may from time to time request, hereby irrevocably designating and appointing
Landlord as its attorney-in-fact to execute and deliver in Tenant’s name and behalf all such
further assignments thereof.



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     6.4 TEMPORARY TAKING



     In the event of any taking of the Premises or any part thereof for temporary use for a period
of one year or less, (i) this Lease shall be and remain unaffected thereby and rent shall not
abate, and (ii) Tenant shall be entitled to receive for itself such portion or portions of any
award made for such use with respect to the period of the taking which is within the Term, provided
that if such taking shall remain in force at the expiration or earlier termination of this Lease,
Tenant shall then pay to Landlord a sum equal to the reasonable cost of performing Tenant’s
obligations under Section 5.12 with respect to surrender of the Premises and upon such payment
shall be excused from such obligations.



ARTICLE VII




DEFAULT




     7.1 TERMINATION FOR DEFAULT OR INSOLVENCY



     This Lease is upon the condition that (1) if Tenant shall fail to perform or observe any of
Tenant’s covenants, and if such failure shall continue, (a) in the case of rent or payment of
additional charges or any sum due Landlord hereunder, for more than ten (10) days after notice, or
(b) in any other case, after notice, for more than thirty (30) days (provided that if correction of
any such matter reasonably requires longer than 30 days and Tenant so notifies Landlord within 20
days after Landlord’s notice is given together with an estimate of time required for such cure,
Tenant shall be allowed such longer period, but only if cure is begun within such 30-day period and
such delay does not cause increased risk of damage to person or property), or (2) if three or more
notices under clause (1) hereof are given in any twelve month period (failure to pay rent or any
other sum for more than 5 days after the particular due date shall have the same effect under this
clause (2) as such a notice); (3) if Tenant shall (for more than 30 days) fail to occupy or shall
vacate all or any portion of the Premises (provided, however, that this clause (3) shall not apply
so long as the Premises shall be arranged, and furnishing, lighting and cleaning provided, in a
manner such that the Premises appear, from all points exterior to the Premises from which the
interior of the Premises are visible, to be continuously occupied in their entirety for the
Permitted Uses); (4) if the leasehold hereby created shall be taken on execution, or by other
process of law, or if any assignment shall be made of Tenant’s property or the property of any
guarantor of Tenant’s obligations hereunder (“Guarantor”) for the benefit of creditors; or (5) if a
receiver, guardian, conservator, trustee in bankruptcy or similar officer shall be appointed by a
court of competent jurisdiction to take charge of all or any part of Tenant’s or the Guarantor’s
property and such appointment is not discharged within 90 days thereafter or if a petition
including, without limitation, a petition for reorganization or arrangement is filed by Tenant or
the Guarantor under any bankruptcy law or is filed against Tenant or the Guarantor and, in the case
of a filing against Tenant only, the same shall not be dismissed within 90 days from the date upon
which it is filed, then, and in any of said cases, Landlord may, immediately or at any time
thereafter, elect to terminate this Lease by notice of termination, by entry, or by any other means
available under law and may recover possession of the Premises as provided herein. Upon termination
by notice, by entry, or by any other means available under law, Landlord shall be entitled
immediately, in the case of termination by notice or entry, and otherwise in accordance with the
provisions of law to recover possession of the Premises from Tenant and those claiming through or
under the Tenant. Such termination of this Lease and repossession of the Premises shall be without
prejudice to any remedies which Landlord might otherwise have for arrears of rent or for a prior
breach of the provisions of this Lease. Tenant waives any statutory notice to quit and equitable
rights in the nature of further cure or redemption, and Tenant agrees that upon Landlord’s
termination of this Lease Landlord shall be entitled to re-entry and possession in accordance with
the terms hereof. Landlord may, without notice, store Tenant’s personal property (and those of any
person claiming under Tenant) at the expense and risk of Tenant or, if Landlord so elects, Landlord
may sell such personal property at public auction or auctions or at private sale or sales after
seven days notice to Tenant and apply the net proceeds to the earliest of installments of rent or
other charges owing Landlord. Tenant agrees that a notice by Landlord alleging any default shall,
at Landlord’s option (the exercise of such option shall be indicated by the inclusion of the words
“notice to quit” in such notice), constitute a statutory notice to quit. If Landlord exercises its
option to designate a notice of default hereunder as a statutory notice to quit, any grace periods
provided for herein shall run concurrently with any statutory notice periods.



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Landlord and Tenant waive trial by jury in any action to which they are parties. Tenant further
agrees that it shall not interpose any counterclaim or set-off in any summary proceeding or in any
action based in whole or in part on non-payment of rent unless Tenant has no right to commence an
independent proceeding to seek to recover on account of such claim.




     7.2 REIMBURSEMENT OF LANDLORD’S EXPENSES



     In the case of termination of this Lease pursuant to Section 7.1, Tenant shall reimburse
Landlord for all expenses arising out of such termination, including without limitation, all costs
incurred in collecting amounts due from Tenant under this Lease (including reasonable attorneys’
fees, costs of litigation and the like); all expenses incurred by Landlord in attempting to relet
the Premises or parts thereof (including advertisements, brokerage commissions, Tenant’s
allowances, costs of preparing space, and the like); all of Landlord’s then unamortized costs of
Finish Work in the Premises in excess of Building Standard Finish Work offered to tenants under
Landlord’s form lease at the date hereof; and all Landlord’s other reasonable expenditures
necessitated by the termination. The reimbursement from Tenant shall be due and payable immediately
from time to time upon notice from Landlord that an expense has been incurred, without regard to
whether the expense was incurred before or after the termination.



     7.3 DAMAGES



     Landlord may elect by written notice to Tenant within one year following such termination to
be indemnified for loss of rent by a lump sum payment representing the then present value of the
amount of rent and additional charges which would have been paid in accordance with this Lease for
the remainder of the Term minus the then present value of the aggregate fair market rent and
additional charges payable for the Premises for the remainder of the Term (if less than the rent
and additional charges payable hereunder), estimated as of the date of the termination, and taking
into account reasonable projections of vacancy and time required to re-lease the Premises. (For the
purposes of calculating the rent which would have been paid hereunder for the lump sum payment
calculation described herein, the last full year’s additional charges under Section 2.6 is to be
deemed constant for each year thereafter. The Federal Reserve discount rate (or equivalent) shall
be used in calculating present values.) Should the parties be unable to agree on a fair market
rent, the matter shall be submitted, upon the demand of either party, to the Boston, Massachusetts
office of the American Arbitration Association, with a request for arbitration in accordance with
the rules of the Association by a single arbitrator who shall be an MAI appraiser with at least ten
years experience as an appraiser of major office buildings in downtown Boston. The parties agree
that a decision of the arbitrator shall be conclusive and binding upon them. If, at the end of the
Term, the rent which Landlord has actually received from the Premises is less than the aggregate
fair market rent estimated as aforesaid, Tenant shall thereupon pay Landlord the amount of such
difference. Should Landlord fail to make the election provided for in this Section 7.3, Tenant
shall indemnify Landlord for the loss of rent by a payment at the end of each month which would
have been included in the Term, representing the difference between the rent which would have been
paid in accordance with this Lease (Annual Fixed Rent under Section 2.5, and additional charges
which would have been payable under Section 2.6 to be ascertained monthly) and the rent actually
derived from the Premises by Landlord for such month (the amount of rent deemed derived shall be
the actual amount less any portion thereof attributable to Landlord’s reletting expenses described
in Section 7.2 which have not been reimbursed by Tenant thereunder).



     Free rent amounts, rent holidays, rent waivers, rent forgivenesses and the like (collectively
“Free Rent Amounts”), if any, have been agreed to by Landlord as inducements for Tenant to enter
into and faithfully to perform all of its obligations contained in this Lease. For all purposes
under this Lease, upon the occurrence of any event under Section 7.1 and the lapse of any
applicable grace or notice period, any Free Rent Amounts set forth in this Lease shall be deemed
void as of the date of execution hereof as though such Free Rent Amounts had never been included in
this Lease, and calculations of amounts due hereunder, damages and the like shall be determined
accordingly. The foregoing shall occur automatically without the requirement of any further notice
or action by Landlord not specifically required by Section 7.1, whether or not this Lease is then
or thereafter terminated on account of the event in question, and whether or not Tenant thereafter
corrects or cures any such event.



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     In lieu of any other damages or indemnity and in lieu of full recovery by Landlord of all sums
payable under all the foregoing provisions of this Section 7.3, Landlord may by written notice to
Tenant within 6 months after termination under any of the provisions contained in Section 7.1 and
before such full recovery, elect to recover, and Tenant shall thereupon pay, as liquidated damages
under this Section 7.3, an amount equal to the lesser of (i) the aggregate of the Fixed Rent under
Section 2.5 and additional charges under Section 2.6 for the balance of the Term had it not been
terminated or (ii) the aggregate thereof for the 12 months ending one year after the termination
date, plus in either case (iii) the amount of Annual Fixed Rent and additional charges of any kind
accrued and unpaid at the time of termination and minus (iv) the amount of any recovery by Landlord
under the foregoing provisions of this Section 7.3 up to the time of payment of such liquidated
damages (but reduced by any amounts of reimbursement under Section 7.2). Liquidated damages
hereunder shall not be in lieu of any claims for reimbursement under Section 7.2.



     7.4 MITIGATION



     Any obligation imposed by law upon Landlord to relet the Premises shall be subject to the
reasonable requirements of Landlord to lease to high quality tenants and to develop the Building in
a harmonious manner with an appropriate mix of uses, tenants, floor areas and terms of tenancies,
and the like.



     7.5 CLAIMS IN BANKRUPTCY



     Nothing herein shall limit or prejudice the right of Landlord to prove and obtain in a
proceeding for bankruptcy, insolvency, arrangement or reorganization, by reason of the termination,
an amount equal to the maximum allowed by a statute of law in effect at the time when, and
governing the proceedings in which, the damages are to be proved, whether or not the amount is
greater to, equal to, or less than the amount of the loss or damage which Landlord has suffered.



     7.6 INTEREST ON UNPAID AMOUNTS



     If any payment of Annual Fixed Rent, additional charges, or other payment due from Tenant to
Landlord is not paid when due, then without notice and in addition to all other remedies hereunder,
Tenant shall pay to Landlord interest on such unpaid amount equal to 1.5% of the amount in question
for each month and for each part thereof during which said delinquency continues; provided,
however, in no event shall such interest exceed the maximum amount permitted to be charged by
applicable law.



     7.7 [Intentionally Omitted.]



     7.8 VACANCY DURING LAST SIX MONTHS



     If Tenant vacates substantially all of the Premises at any time within the last 6 months of
the Term, Landlord may enter the Premises (or such portion) and commence demolition work or
construction of leasehold improvements for future tenants. The exercise of such right by Landlord
will not affect Tenant’s obligations to pay Annual Fixed Rent or additional charges with respect to
the Premises (or such portion), which obligations shall continue without abatement until the end of
the Term.



ARTICLE VIII




MISCELLANEOUS




     8.1 MEASUREMENT OF FLOOR AREA



     The Rentable Floor Area of the Premises originally leased to Tenant shall be conclusively
deemed to be as specified in Section 1.1. Any change in the Rentable Floor Area of the Premises on
account of expansion, casualty, or the like shall be determined in accordance with Exhibit E. The
Rentable Floor Area of the Building as specified



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in Section 1.1 is an estimate only, may change from time to time, and shall be determined from time
to time by Landlord based on area computations supplied by the Architect in accordance with Exhibit
E, which determinations shall be conclusive unless disputed by Tenant within 10 days of receipt.
References in this Lease to floor area measurements shall mean Rentable Floor Area unless the
reference explicitly provides otherwise.




     8.2 HOLDOVER



     If Tenant remains in the Premises after the termination or expiration of the Term, such
holding over shall be, except as Landlord may elect pursuant to the next sentence, as a tenant at
will or tenant by the month (requiring 30 days’ notice of termination by either party to the other)
at a monthly fixed rent (“Holdover Rent”) equal to the greater of 150% of the Annual Fixed Rent due
hereunder for the last month of the Term or 150% of the rent being quoted by Landlord for
comparable space in Phase 2 at the time of the termination or expiration of the Term, and otherwise
subject to all the covenants and conditions (including obligations to pay additional charges under
Section 2.6) of this Lease as though it had originally been a monthly tenancy. If Landlord so
elects by notice to Tenant during any holdover period which has continued for more than 60 days,
Tenant shall lease the Premises for one additional year commencing upon the date of such notice at
the Holdover Rent and otherwise subject to all the covenants and conditions (including obligations
to pay additional charges under Section 2.6) of this Lease. Notwithstanding the foregoing, if
Landlord desires to regain possession of the Premises promptly after the termination or expiration
hereof and prior to acceptance of rent for any period thereafter, Landlord may, at its option,
forthwith re-enter and take possession of the Premises or any part thereof without process or by
any legal process in force in The Commonwealth of Massachusetts.



     Notwithstanding the establishment of any holdover tenancy following the expiration or earlier
termination of the Term, if Tenant fails promptly to vacate the Premises at the expiration or
earlier termination of the Term, Tenant shall save Landlord harmless and indemnified against any
claim, loss, cost or expense (including reasonable attorneys’ fees) arising out of Tenant’s failure
promptly to vacate the Premises (or any portion thereof).



     8.3 ESTOPPEL CERTIFICATES



     At Landlord’s request, from time to time, Tenant agrees to execute and deliver to Landlord,
within ten (10) business days after such request, a certificate which acknowledges the dates on
which the Term begins and ends, tenancy and possession of the Premises and recites such other facts
concerning any provision of the Lease or payments made under the Lease which Landlord or a
mortgagee or lender or a purchaser or prospective purchaser of the Building or any interest therein
or any other party may from time to time reasonably request. Tenant acknowledges that the execution
and delivery of such certificates in connection with a financing or sale in a prompt manner
constitute requirements of Landlord’s financing and/or property dispositions. Without limitation of
the foregoing, Tenant agrees to execute a document in the form of Exhibit F within ten (10)
business days after Landlord’s request, correcting as appropriate any representations which are not
then correct.



     At Tenant’s request, from time to time, Landlord agrees to execute and deliver to Tenant,
within ten (10) business days after such request, a certificate which acknowledges that the Lease
is unmodified and in full force and effect (or, if there have been any modifications, that the same
is in full force and effect as modified and stating the modifications) and that to the best of
Landlord’s knowledge, Tenant is not in default under the terms of the Lease.



     8.4 NOTICE



     Any notice, approval, consent and other like communication hereunder from Landlord to Tenant
or from Tenant to Landlord shall be effective only if given in writing and shall be deemed duly
served if and when hand delivered or if and when mailed prepaid certified mail (in either case,
whether or not accepted for delivery). Communications to Tenant shall be addressed to Tenant’s
Authorized Representative at the Original Address of Tenant set forth in Section 1.1 prior to the
Term Commencement Date and thereafter at Tenant’s Notice Address set forth in Section 1.1.
Communications to Landlord shall be addressed to the Notice Address for Landlord’s Managing Agent
set forth in Section 1.1. Either party may from time to time designate other addresses within the
continental United States by notice to the other.



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     8.5 LANDLORD’S RIGHT TO CURE



     At any time and without notice, Landlord may, but need not, cure any failure by Tenant to
perform its obligations under this Lease. Whenever Landlord chooses to do so, Tenant shall pay all
costs and expenses incurred by Landlord in curing any such failure, including, without limitation,
reasonable attorneys’ fees together with an administrative charge equal to 15% of such costs and
expenses (or such higher percentage as may then be customary with respect to first-class office
buildings in downtown Boston) and interest from the date each cost or expense was incurred as
provided in Section 7.6.



     8.6 SUCCESSORS AND ASSIGNS



     This Lease and the covenants and conditions herein contained shall inure to the benefit of and
be binding upon Landlord, its successors and assigns, and shall be binding upon Tenant, its
successors and assigns, and shall inure to the benefit of Tenant and only such Subtenants of Tenant
as are permitted hereunder. The term “Landlord” means the original Landlord named herein, its
successors and assigns. The term “Tenant” means the original Tenant named herein and its permitted
successors and assigns. The term “Landlord’s Managing Agent” means the original Landlord’s Managing
Agent, its successors and assigns.



     8.7 BROKERAGE



     Each of Landlord and Tenant warrants that it has had no dealings with any broker or agent in
connection with this Lease or any other space in the Project except for any broker designated in
Section 1.1. Each of Landlord and Tenant covenants to pay, hold harmless and indemnify the other
from and against any and all costs, expense or liability for any compensation, commissions and
charges claimed by any broker or agent other than any such broker designated in Section 1.1 with
respect to this Lease or the negotiation thereof arising from a breach of the foregoing warranty.
Landlord shall be responsible for payment of any brokerage commission to any broker designated in
Section 1.1.



     8.8 WAIVER



     The failure of Landlord or of Tenant to seek redress for violation of, or to insist upon
strict performance of, any covenant or condition of this Lease, or, with respect to such failure of
Landlord, any of the Rules and Regulations referred to in Section 5.3, whether heretofore or
hereafter adopted by Landlord, shall not be deemed a waiver of such violation nor prevent a
subsequent act, which would have originally constituted a violation, from having all the effect of
an original violation, nor shall the failure of Landlord to enforce any of said Rules and
Regulations against any other tenant of the Building be deemed a waiver of any such Rules or
Regulations. The receipt by Landlord of Fixed Rent or additional charges with knowledge of the
breach of any covenant of this Lease shall not be deemed waiver of such breach. No provision of
this Lease shall be deemed to have been waived by Landlord, or by Tenant, unless such waiver be in
writing signed by the party to be charged. No consent or waiver, express or implied, by Landlord or
Tenant to or of any breach of any agreement or duty shall be construed as a waiver or consent to or
of any other breach of the same or any other agreement or duty.



     8.9 ACCORD AND SATISFACTION



     Unless Landlord otherwise notifies Tenant in writing, no acceptance by Landlord of a lesser
sum than all Fixed Rent and additional charges then due shall be applied or deemed to be applied
except as follows: first, to interest due under Section 7.6; and second, to the installments of
Fixed Rent and other charges most recently due. No endorsement or statement by Tenant on or
accompanying any check or payment shall alter the application of such check or payment as set forth
above. No such endorsement or statement shall be deemed an accord and satisfaction, and Landlord
may accept such check or payment without prejudice to Landlord’s right to recover the balance of
all amounts due or pursue any other remedy provided in this Lease. The delivery of keys to Landlord
or to Landlord’s Managing Agent shall not operate as a termination of this Lease or a surrender of
the Premises.



26









 





     8.10 REMEDIES CUMULATIVE



     The specific rights which Landlord possesses and the specific remedies to which Landlord may
resort under this Lease are cumulative and are not intended to be exclusive of any other rights or
remedies to which Landlord may be lawfully entitled in case of any breach or threatened breach by
Tenant of any provisions of this Lease or any violation or threatened violation of law by Tenant.
In addition to the other remedies provided in this Lease, Landlord shall be entitled to the
restraint by court order of the violation or attempted or threatened violation of any of the
provisions of this Lease or of applicable law or to a decree compelling specific performance of any
such provisions.



     8.11 PARTIAL INVALIDITY



     If any term of this Lease, 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 to persons or circumstances other than those as to which it is invalid or unenforceable, shall
not be affected thereby, and each term of this Lease shall be valid and enforceable to the fullest
extent permitted by law.



     8.12 WAIVERS OF SUBROGATION



     Any insurance carried by either party with respect to the Premises or property therein or
occurrences thereon shall, if it can be so written without additional premium or with an additional
premium which the other party agrees to pay, include a clause or endorsement denying to the insurer
rights of subrogation against the other party to the extent rights have been waived by the insured
hereunder prior to occurrence of injury or loss. Each party, notwithstanding any provisions of this
Lease to the contrary, hereby waives any rights of recovery against the other for injury or loss
due to hazards covered by such insurance to the extent of the indemnification received thereunder.



     8.13 ENTIRE AGREEMENT



     This Lease contains all of the agreements between Landlord and Tenant with respect to the
Premises and supersedes all prior writings and dealings between them with respect thereto.



     8.14 NO AGREEMENT UNTIL SIGNED



     The submission of this Lease or a summary of some or all of its provisions for examination
does not constitute a reservation of or option for the Premises or an offer to lease and no legal
obligations shall arise with respect to the Premises or other matters herein until this Lease is
executed and delivered by Landlord and Tenant and approved by the holder of any mortgage on the
Building having the right to approve this Lease.



     8.15 TENANT’S AUTHORIZED REPRESENTATIVE



     Tenant designates the person named from time to time as Tenant’s Authorized Representative to
take all acts of Tenant hereunder. Landlord may rely on the acts of such Authorized Representative
without further inquiry or evidence of authority. Tenant’s Authorized Representative shall be the
person so designated in Section 1.1 and such successors as may be named from time to time by the
then current Tenant’s Authorized Representative or by Tenant’s president.



     8.16 NOTICE OF LEASE



     Landlord and Tenant agree not to record this Lease. If appropriate, both parties will, at the
request of either, execute, acknowledge and deliver a Notice of Lease after the Term Commencement
Date occurs and a Notice of Termination of Lease Term, each in recordable form. Such notices shall
contain only the information required by law for recording. Tenant hereby irrevocably appoints
Landlord as Tenant’s attorney-in-fact (which appointment



27









 




shall survive termination of the Term) with full power of substitution to execute, acknowledge and
deliver a notice of termination of lease in Tenant’s name if Tenant fails to do so within 10 days
after request therefor.




     8.17 TENANT AS BUSINESS ENTITY



     If Tenant is a business entity, then the person or persons executing this Lease on behalf of
Tenant jointly and severally warrant and represent in their individual capacities that (a) Tenant
is duly organized, validly existing and in good standing under the laws of the jurisdiction in
which such entity was organized; (b) Tenant has the authority to own its property and to carry on
its business as contemplated under this Lease; (c) Tenant is in compliance with all laws and orders
of public authorities applicable to Tenant; (d) Tenant has duly executed and delivered this lease;
(e) the execution, delivery and performance by Tenant of this Lease (i) are within the powers of
Tenant, (ii) have been duly authorized by all requisite action, (iii) will not violate any
provision of law or any order of any court or agency of government, or any agreement or other
instrument to which Tenant is a party or by which it or any of its property is bound, and (iv) will
not result in the imposition of any lien or charge on any of Tenant’s property, except by the
provisions of this Lease; and (0 the Lease is a valid and binding obligation of Tenant in
accordance with its terms. Tenant, if a business entity, agrees that breach of the foregoing
warranty and representation shall at Landlord’s election be a default under this Lease for which
there shall be no cure. This warranty and representation shall survive the termination of the Term.



     8.18 RELOCATION



     Landlord reserves the right to relocate the Premises to other space within the Building of
comparable or superior quality on or above Floor 14 (or, with the prior approval of the first
mortgagee of the Building, to such space within Phase 1) by giving Tenant prior notice of such
intention to relocate. If within one month after receipt of such notice Tenant has not agreed with
Landlord on the space to which the Premises are to be relocated, the timing of such relocation and
the terms of such relocation, then Landlord shall have the option either to withdraw its relocation
notice or to terminate this Lease on a date which is at least six months thereafter (such date to
take effect as though the Lease had then expired). Such relocation right shall not apply during the
last year of the Term (as the same may be extended).



     If Landlord and Tenant do so agree on relocation, then, effective on the date of such
relocation, this Lease shall be amended by deleting the description of the original Premises and
the Rentable Floor Area of Premises set forth in Section 1.1 and substituting therefor information
relating to such relocation space. Landlord agrees to pay the reasonable cost of such relocation of
the Premises, including the cost of moving Tenant to such other space, finishing such space to a
condition comparable to the then condition of the Premises, and replacing any stationery rendered
incorrect as a result of such relocation.



     8.19 ADJACENT PROPERTY



     Landlord makes no warranty or covenant, express or implied, concerning the operation or
condition of Phase 1. Landlord shall have the right, in connection with the development,
redevelopment, alteration, improvement, operation, maintenance or repair of Phase 1, to subject the
Land and Phase 2 to easements for the construction, reconstruction, alteration, improvement,
operation, repair or maintenance of Phase 1, for access and egress to and from Phase 1, for
parking, for the installation, maintenance, repair, replacement or relocation of utilities serving
Phase 1 and to subject the Land and Phase 2 to such other rights, agreements, and covenants for
such purposes as Landlord may determine. Tenant hereby agrees that this Lease shall be subject and
subordinate to any such matters which do not unreasonably interrupt Tenant’s use of the Premises.
The foregoing sentence shall be self-operative, but Tenant hereby irrevocably appoints Landlord as
Tenant’s attorney-in-fact to execute, acknowledge and deliver any documents appropriate to
accomplish or confirm the same if Tenant fails to do so within ten (10) days after request
therefor.



     Landlord and its agents, employees, licensees and contractors shall also have the right to
enter on the Land or Phase 2 to undertake work pursuant to any easement granted pursuant to the
above paragraph; to shore up the foundations and/or walls of Phase 2; to erect scaffolding and
protective barricades around, within or adjacent to



28









 




Phase 2; and to do any other act necessary for the safety of Phase 2 or the expeditious completion
of such work. 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 resulting from any act by Landlord
pursuant to this Section 8.19. Landlord shall use reasonable efforts to minimize the extent and
duration of any inconvenience, annoyance or disturbance to Tenant resulting from any work pursuant
to this Section 8.19 in or about Phase 2, consistent with accepted construction practice.




     8.20 MISCELLANEOUS PROVISIONS



     This Lease may be executed in counterparts and shall constitute the agreement of Landlord and
Tenant whether or not their signatures appear in a single copy hereof. This Lease shall be
construed as a sealed instrument and shall be governed exclusively by the provisions hereof and by
the laws of The Commonwealth of Massachusetts as the same may from time to time exist. The titles
are for convenience only and shall not be considered a part of the Lease. Where the phrases
“persons acting under Tenant” or “persons claiming under Tenant” or similar phrases are used, such
persons shall include Subtenants and all employees, agents, independent contractors and invitees of
Tenant or of any Subtenant. The enumeration of specific examples of or inclusions in a general
provision shall not be construed as a limitation of the general provision. If Tenant is granted any
extension option, expansion option or other right or option, the exercise of such right or option
(and notice thereof) must be unconditional to be effective, time always being of the essence to the
exercise of such right or option; and if Tenant purports to condition the exercise of any option or
to vary its terms in any manner, then the option granted shall be void and the purported exercise
shall be ineffective. Unless otherwise stated herein, any consent or approval required hereunder
may be given or withheld in the sole absolute discretion of the party whose consent or approval is
required. Nothing herein shall be construed as creating the relationship between Landlord and
Tenant of principal and agent, or of partners or joint venturers or any relationship other than
landlord and tenant. This Lease and all consents, notices, approvals and all other documents
relating hereto may be reproduced by any party by photographic, microfilm, microfiche or other
reproduction process and the originals thereof may be destroyed; and each party agrees that any
reproductions shall be admissible in evidence as the original itself in any judicial or
administrative proceeding (whether or not the original is in existence and whether or not
reproduction was made in the regular course of business) and that any further reproduction of such
reproduction shall likewise be admissible in evidence. This Lease may be amended only by a writing
signed by all of the parties hereto.



ARTICLE IX LANDLORD’S LIABILITY AND ASSIGNMENT FOR




FINANCING




     9.1 LANDLORD’S LIABILITY



     Tenant agrees from time to time to look only to Landlord’s interest in Phase 2 for
satisfaction of any claim against Landlord hereunder or under any other instrument related to the
Lease (including any separate agreements among the parties and any notices or certificates
delivered by Landlord) and not to any other property or assets of Landlord. If Landlord from time
to time transfers its interest in Phase 2 (or part thereof which includes the Premises), then from
and after each such transfer Tenant shall look solely to the interests in Phase 2 of each of
Landlord’s transferees for the performance of all of the obligations of Landlord hereunder (or
under any related instrument). The obligations of Landlord shall not be binding on any partners (or
trustees or beneficiaries) of Landlord or of any successor, individually, but only upon Landlord’s
or such successor’s interest described above.



     9.2 ASSIGNMENT OF RENTS



     If, at any time and from time to time, Landlord assigns this Lease or the rents payable
hereunder to the holder of any mortgage on the Premises or the Building, or to any other party for
the purpose of securing financing (the holder of any such mortgage and any other such financing
party are referred to herein as the “Financing Party”), whether such assignment is conditional in
nature or otherwise, the following provisions shall apply:



29









 





     (i) Such assignment to the Financing Party shall not be deemed an assumption by the
Financing Party
of any obligations of Landlord hereunder unless such Financing Party shall, by written notice to
Tenant, specifically otherwise elect;



     (ii) Except as provided in (i) above and (iii) below, the Financing Party shall be treated
as having
assumed Landlord’s obligations hereunder (subject to Section 9.1) only upon foreclosure of its
mortgage (or voluntary conveyance by deed in lieu thereof) and the taking of possession of the
Premises from and after foreclosure and, with respect to obligations regarding return of the
security deposit, only upon receipt of the funds constituting such security deposit;



     (iii) Subject to Section 9.1, the Financing Party shall be responsible for only such breaches
under the Lease by Landlord which occur during the period of ownership by the Financing Party after
such foreclosure (or voluntary conveyance by deed in lieu thereof) and taking of possession, as
aforesaid;



     (iv) In the event Tenant alleges that Landlord is in default under any of Landlord’s
obligations under this lease, Tenant agrees to give the holder of any mortgage, by registered mail,
a copy of any notice of default which is served upon the Landlord, provided that prior to such
notice, Tenant has been notified, in writing, (whether by way of notice of an assignment of lease,
request to execute an estoppel letter, or otherwise) of the address of any such holder. Tenant
further agrees that if Landlord shall have failed to cure such default within the time provided by
law or such additional time as may be provided in such notice to Landlord, such holder shall have
thirty (30) days after the last date on which Landlord could have cured such default within which
such holder will be permitted to cure such default. If such default cannot be cured within such
thirty day period, then such holder shall have such additional time as may be necessary to cure
such default, if within such thirty day period such holder has commenced and is diligently pursuing
the remedies necessary to effect such cure (including, but not limited to, commencement of
foreclosure proceedings, if necessary, to effect such cure), in which event Tenant shall have no
right with respect to such default while such remedies are being diligently pursued by such holder.



     Tenant hereby agrees to enter into such agreements or instruments as may, from time to time,
be requested in confirmation of the foregoing.



ARTICLE X




SECURITY DEPOSIT




[Intentionally Omitted.]




ARTICLE XI




SUBORDINATION




     This Lease shall be subject and subordinate to any first mortgage and to any junior mortgage
that has been approved by the first mortgagee that may now or hereafter be placed upon the Building
and/or the Land and to any and all advances to be made under such mortgages and to the interest
thereon, and all renewals, extensions and consolidations thereof; provided that any first mortgagee
and any junior mortgagee that has been approved by the first mortgagee may elect to give this Lease
priority to its mortgage, in which case this Lease shall be deemed prior in lien to such mortgage.
In either of the foregoing situations, this Lease shall not have priority to (a) the prior right,
claim and lien of such mortgagees in, to and upon any award or other compensation heretofore or
hereafter to be made for any taking by eminent domain of any part of the Premises, and to the right
of disposition thereof in accordance with the provisions of the said mortgages, (b) the prior
right, claim and lien of such mortgagees in, to and upon any proceeds payable under all policies of
fire and rent insurance upon the Premises and to the right of disposition thereof in accordance
with the terms of the said mortgages, and (c) any lien, right, power or interest, if any, which may
have arisen or intervened in the period between the recording of the mortgages and the execution of



30









 




this Lease, or any lien or judgment which may arise any time under the terms of this Lease. This
Section shall be self-operative, but in confirmation thereof, Tenant shall execute and deliver the
Subordination of Mortgage Agreement attached as Exhibit G or whatever other instruments may be
required by the first mortgagee or junior mortgagee to acknowledge such subordination or priority
in recordable form.




     Executed to take effect as a sealed instrument.



	 	 	 	 	 
	 	FORT HILL SQUARE PHASE 2 ASSOCIATES

Landlord

 	 
	 	 	By:  	BC Phase 2 Associates Limited Partnership, Managing Partner
 



	 	 	 	 	 
	 	By:  	                 International Place Phase 2, Inc.,
 	 
	 	 	its sole general partner 	 



	 	 	 	 	 
	 	By:  	/s/ Donald J. Chiofaro
 	 
	 	 	Donald J. Chiofaro 	 
	 	 	Its President and Treasurer 	 



	 	 	 	 	 
	 	THOMAS WEISEL PARTNERS GROUP, LLC 

Tenant

 	 
	 	By:  	/s/ Shaugn Stanley
 	 
	 	 	Name:  	Shaugn Stanley 	 
	 	 	Title:  	CFO/Partner 	 




31









 






TWO INTERNATIONAL PLACE

Boston, Massachusetts



FIRST AMENDMENT TO LEASE

THOMAS WEISEL PARTNERS GROUP. LLC



     First Amendment to Lease (“First Amendment”) dated as of October 25, 1999 between Fort Hill
Square Phase 2 Associates, a Massachusetts general partnership (“Landlord”), and Thomas Weisel
Partners Group, LLC, a Delaware limited liability company (“Tenant”).


Background



     Reference is made to a lease dated June 30,1999 from Landlord to Tenant for certain premises
on the 18th floor of Two International Place, Boston, Massachusetts (the “Lease”).
Capitalized terms used but not defined in this First Amendment shall have this meanings set forth
in the Lease.



     Landlord and Tenant desire to provide for Tenant’s lease of a storage room on a lower level of
the Building, on the terms set forth in this First Amendment.


Agreement 



     FOR VALUE RECEIVED, Landlord and Tenant hereby agree as follows:



     1. Storage Room P3. Landlord agrees to lease to Tenant and Tenant agrees to
lease from Landlord the space known as Storage Room P3 on Lower Level 3 of the: Building and shown
on Exhibit A hereto (“Storage Space”), in its “as is” condition, subject to the following terms.
The term of the lease of the Storage Space shall commence on November 1, 1999 and shall end on the
last day of the Term for the Premises under the Lease (as the same may be extended under Section
2.4.1 of the Lease). The area of the Storage Space is 560 square feet of Rentable Floor Area.
During the portion of the term for the Storage Space that is within the initial Term under the
Lease, Tenant shall pay additional charges for the Storage Space (“Storage Space Rent”) at the
annual rate of $16.00 per square foot of Rentable Floor Area in the Storage Space (payable in
monthly installments of $746.66). The Storage Space Rent during the Extension Term(s), if any,
under the Lease shall be payable at the fair market rent rate for the Storage Space for such
Extension Term (determined in connection with the extension in question),, but not less than the
prior rent rate for the Storage Space.



     Payments of Storage Space Rent shall be paid to Landlord and made at the places and times and
subject to the conditions specified for payments of Annual Fixed Rent in Section 2.5 of the Lease.
To the extent applicable to Tenant’s use of and conduct in the Storage Space, the provisions



 









 




of the Lease shall apply, including, without limitation, all provisions of Articles V and VII of
the Lease and any rules and regulations from time to time promulgated by Landlord. All expenses
associated with the Storage Space (including, without limitation, Landlord’s costs associated with
changing the lock on the Storage Space and brokerage commission, if any) shall be payable by
Tenant.




     2. Brokerage. Tenant represents and warrants that it has had no dealings with
any broker or agent in connection with this First Amendment or any other space in the
Project. Tenant covenants to pay, hold harmless and indemnify Landlord from and
against any and all costs, expense or liability for any compensation, commissions and
charges claimed by any broker or agent other than the broker referred to in the
preceding
sentence with respect to this First Amendment or the negotiation thereof arising from a
breach of the foregoing warranty.



     3. Ratification. Except as set forth herein, the terms of the Lease are
hereby
ratified and confirmed, including without limitation the provisions of Section. 9.1
of the
Lease concerning Landlord’s liability, which are expressly incorporated herein.



     Executed as a sealed Massachusetts instrument as of the date first written above.



	 	 	 	 	 	 	 
	 	 	FORT HILL SQUARE PHASE, 2 ASSOCIATES,

Landlord
	 
	 	 	 	 	 	 
	 	 	By:	 	BC Phase 2 Associates Limited
	 	 	 	 	Partnership, its Managing Partner
	 
	 	 	 	 	 	 
	 

	 	 	 	By:
	 	International Place Phase 2, Inc., 
	 

	 	 	 	 	 	its General Partner
	 
	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Donald J. Chiofaro
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	Donald J. Chiofaro
	 

	 	 	 	 	 	Its President and Treasurer
	 
	 	 	 	 	 	 
	 	 	THOMAS WEISEL PARTNERS GROUP, LLC,

Tenant
	 
	 	 	 	 	 	 
	 	 	By:	 	/s/ Shaugn Stanley
	 	 	 	 	 
	 	 	 	 	Name: Shaugn Stanley
	 	 	 	 	Title: CFO/Partner







 









 








TWO INTERNATIONAL PLACE

Boston, Massachusetts

THOMAS WEISEL PARTNERS GROUP. LLC




     Second Amendment to Lease (“Second Amendment”) dated as of June 12, 2000 between Fort Hill
Square Phase 2 Associates, a Massachusetts general partnership (“Landlord”), and Thomas Weisel
Partners Group, LLC, a Delaware limited liability company (“Tenant”).


Background



     Landlord and Tenant have entered into a lease dated June 30, 1999, as amended by a
First Amendment to Lease dated as of October 25, 1999 (as so amended, the “Lease”) for
certain premises on the 18th floor of the Building known as Two International Place,
Boston, Massachusetts. The Premises currently leased by Tenant consist of 3,197 square
feet of Rentable Floor Area (the “18th Floor Premises”).



     Landlord and Tenant desire to enter into this Second Amendment to expand the Premises to
include the 26th floor of the Building, on the terms more particularly set forth in this
Second Amendment.


Agreement 



     FOR VALUE RECEIVED, Landlord and Tenant hereby agree as follows:



     1. Expansion of Premises. Tenant currently leases the 18th
Floor Premises through June 30, 2004. The space on the 26th floor of the Building
outlined on Exhibit B-l attached to this Second Amendment is hereinafter referred to as
the “26th Floor Premises.”



     (a) Term for the 26th Floor Premises: Possible Early Surrender
of 18th Floor Premises.



     Effective as of the Delivery Date (as defined below), the Premises shall be expanded
to include the 26th Floor Premises on the terms set forth herein. The initial
Term for the 26th Floor Premises shall commence on the Delivery Date and shall
terminate on the Term Expiration Date as set forth below. If the Rent Commencement Date
(as hereinafter defined) occurs on the first day of a calendar month, the Term Expiration
Date for the 26th Floor Premises shall be the day preceding the tenth
(10th)



 









 




anniversary of the Rent Commencement Date. If the Rent Commencement Date does not occur on the
first day of a calendar month, the Term Expiration Date shall be the last day of the month in which
the tenth (10th) anniversary of the Rent Commencement Date occurs. Except as set forth
herein, Tenant’s lease of the 26th Floor Premises shall be on all of the terms and
conditions of the Lease.




     The Delivery Date is currently expected to occur on or about July 1, 2000 (“Estimated Delivery
Date”). As used herein, the “Delivery Date” shall be the date on which the 26th Floor Premises are
delivered to Tenant in accordance with this Second Amendment. Landlord shall provide Tenant with
ten (10) days prior notice of the Delivery Date (the “Delivery Notice”). Landlord shall endeavor,
in good faith, and use reasonable efforts to deliver the 26th Floor Premises to Tenant
on or about the Estimated Delivery Date and shall from time to time, upon request, advise Tenant by
written notice as to any changes in the then expected Estimated Delivery Date. Landlord’s failure
to cause the 26th Floor Premises to be delivered to Tenant on or about the Estimated Delivery Date,
for any reason, shall not give rise to any liability of Landlord hereunder, shall not constitute a
Landlord’s default, shall not affect the validity of the Lease (as amended hereby), and shall have
no effect on the beginning or end of the Term as otherwise determined hereunder or on Tenant’s
obligations associated therewith. Following the Delivery Date, Landlord and Tenant shall execute,
acknowledge and deliver an agreement, in recordable form, stating the date on which the Delivery
Date occurred, but the failure to deliver such agreement will not affect the validity of the Lease.



     Notwithstanding the foregoing, if the 26th Floor Premises are not so delivered to
Tenant by the date three (3) months after the Estimated Delivery Date, then Tenant may, by thirty
(30) days’ prior notice to Landlord given within thirty (30) days after such date, terminate this
Second Amendment. Such termination shall be effective, however, only if the 26th Floor
Premises are not so delivered to Tenant on or before the 30th day following Tenant’s notice. If
Tenant fails timely to exercise its rights to terminate the Second Amendment under this paragraph,
Tenant shall not have any further such right. Tenant’s termination right under this paragraph shall
be Tenant’s sole remedy for any delay in the delivery of the 26th Floor Premises.



     After the Delivery Date and through the earlier to occur of (x) the Surrender Date (as
defined below) or (y) the Term Expiration Date for the 18th Floor Premises originally
set forth in the Lease, Tenant shall continue to lease the 18th Floor Premises on the
terms set forth in the Lease and shall pay Annual Fixed Rent, additional charges for Landlord’s
Operating Expenses, and all other sums due and payable with respect to the 18th Floor
Premises in accordance with the terms of the original Lease.



     In the event that Tenant leases the First Offer Space under Section 2.1.2 of the Lease (as set
forth below) effective as of a date before the Term Expiration Date for the 18th Floor
Premises, Tenant shall have the right to surrender the 18th Floor Premises





-2-









 




effective as of the date (the “Surrender Date”) that is ninety (90) days after the date that
the First Offer Space is added to the Premises. Such surrender right may be exercised only
(1) in Tenant’s notice to Landlord under clause (iii) of the first paragraph of Section 2.1.2
of the Lease accepting Landlord’s offer of the First Offer Space as set forth in Section
2.1.2 or (2) in Tenant’s notice to Landlord offering to lease the First Offer Space on
alternative terms under clause (ii) of the first paragraph of Section 2.1.2 of the Lease
(provided that Tenant’s exercise of such surrender right shall be deemed to be rescinded if
Landlord thereafter declines or is deemed to decline Tenant’s offer to lease the First Offer
Space as set forth in Section 2.1.2). Failure by Tenant to timely exercise such election
shall constitute Tenant’s waiver of its right to surrender the 18th Floor
Premises. In the event that Tenant so elects to surrender the 18th Floor Premises
as set forth above, Tenant shall vacate and surrender the 18th Floor Premises to
Landlord in accordance with Section 5.12 of the Lease on the Surrender Date.




     To confirm the foregoing changes to the Premises and the Term, effective as of the Delivery
Date (i) Exhibit B to the Lease shall be supplemented by adding Exhibit B-l to this Second
Amendment, (ii) the description of Rentable Floor Area of Premises in Section 1.1 of the Lease
shall be amended by supplementing the reference to “3,197 square feet located on Floor 18” with the
additional phrase “and 19,177 square feet located on Floor 26”, (iii) the Premises leased by Tenant
shall consist of the 18th Floor Premises and the 26th Floor Premises and (iv) the
definition of “Term Expiration Date” in Section 1.1 of the Lease shall be amended by deleting “June
30, 2004” and inserting in its place “ for the 18th Floor Premises: June 30, 2004” and
adding thereto “for the 26th Floor Premises: the day preceding the tenth
(10th) anniversary of the Rent Commencement Date (if the Rent Commencement Date occurs
on the first day of a calendar month) and otherwise the last day of the month in which the tenth
(10th) anniversary of the Rent Commencement Date occurs”. In the event that Tenant
exercises its right to an early surrender of the 18th Floor Premises as set forth above,
effective as of the end of the day on the Surrender Date the Premises shall cease to include the
18th Floor Premises, and Rentable Floor Area of the Premises shall be adjusted
accordingly.



     (b) Annual Fixed Rent for the 26th Floor Premises. The Rent
Commencement Date for the 26th Floor Premises shall be the earlier of (i) the date that
is ninety (90) days after the Delivery Date or (ii) the date on which Tenant occupies the
26th Floor Premises for the conduct of its regular business (which shall not be deemed
to have occurred by virtue of Tenant performing alterations in the space pursuant to Paragraph l(d)
below or installing furniture or equipment). Commencing on the Rent Commencement Date, Tenant shall
pay Annual Fixed Rent for the 26th Floor Premises in equal monthly installments of
one-twelfth of the product of (x) the Rentable Floor Area of the 26th Floor Premises and
(y) an Annual Fixed Rent Rate Per Square Foot of Rentable Floor Area per annum equal to:




	 	(i)	 	$65 for the first and second Rent Years (hereinafter defined);
	 
	 	(ii)	 	$66 for the third and fourth Rent Years;
	 
	 	(iii)	 	$67 for the fifth and sixth Rent Years;





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	 	(iv)	 	$68 for the seventh and eighth Rent Years;
	 
	 	(v)	 	$69 for the ninth Rent Year through the Term Expiration
Date for the 26th Floor Premises.





          “Rent Year” shall mean, (i) with respect to the first Rent Year, the period commencing on the
Rent Commencement Date and ending on the last day of the twelfth (12th) full calendar
month thereafter, and (ii) with respect to each succeeding Rent Year, the twelve (12) month period
commencing on the first (1st) day of the month immediately following the expiration of
the previous Rent Year.



     (c) Operating Expenses. With respect to the 26th Floor Premises, Tenant
shall pay additional charges for Landlord’s Operating Expenses under Section 2.6 of the Lease, which
shall be calculated using a Base Operating Expenses Per Square Foot of Rentable Floor Area
for the 26th Floor Premises equal to the 2000 Base. The term “2000 Base” shall mean
the amount of Landlord’s Operating Expenses per square foot of Rentable Floor Area actually
charged to office tenants in the Building for calendar year 2000 under leases with definitions
of Landlord’s Operating Expenses and Landlord’s Taxes equivalent to those in Section 2.6 of
the Lease (excluding “restricted items” that are provided on a direct reimbursement basis,
such as after-hours HVAC).



     All payments of Annual Fixed Rent and additional charges for the 26th Floor
Premises (including, without limitation, additional charges for electricity under Section 2.7 of
the Lease) shall be paid at the times and in the manner set forth in Sections 2.5,2.6 (as amended
by this Paragraph l(c)), and 2.7 of the Lease. Notwithstanding the foregoing to the contrary,
Tenant shall not be responsible for any additional charges for Landlord’s Operating Expenses for
the 26th Floor Premises (other than restricted items that are provided on a direct
reimbursement basis, such as after-hours HVAC) for the first Rent Year.



     (d) Acceptance of Existing Work. Tenant has inspected, and is satisfied with, the
“as is” condition of the 26th Floor Premises and the elements of Landlord’s Work and Finish
Work now located therein. Tenant shall be deemed to have accepted all elements of
Landlord’s Work and Finish Work in the Premises on the Delivery Date. Any Finish Work
constructed by Tenant in the 26th Floor Premises shall be performed in accordance
with, and
subject to, the provisions of Section 5.10 of the Lease. Landlord has approved, and Tenant
shall install as part of the Tenant Work in the 26th Floor Premises prior to the
date six (6)
months after the Delivery Date, the enhancements of the electrical power service to the
Premises described on Exhibit C-l to this Second Amendment (including a new riser serving
the Premises), the modifications to the restrooms on floor 26 described on Exhibit C-2 to this
Second Amendment, and the installation of a supplemental condenser water system described
on Exhibit C-3 to this Second Amendment (including the supplemental unit, the riser, all
plumbing and electrical work, and related equipment [but excluding the Tenant Supplemental
HVAC Equipment, as defined below], the “Supplemental Condenser Water System”), all of
which shall be performed by Tenant in accordance with, and subject to, Section 5.10 of the
Lease (including preparation by Tenant and approval by Landlord of final construction plans,



-4-









 




to the extent not previously approved by Landlord prior to the date of this Second Amendment).
Tenant’s installation of the Supplemental Condenser Water System shall include, without limitation,
the costs of purchasing the unit specified on Exhibit C-3, installing the unit on the roof level of
the Building, and building the riser from the rooftop level of the Building to the 26th
Floor Premises. Access to portions of the Building outside the Premises reasonably required for the
performance of such work shall be coordinated through Landlord. Landlord shall cooperate with
Tenant in permitting such access and in obtaining permits and approvals for the Supplemental
Condenser Water System, at Tenant’s expense. Use of the condenser water from the Supplemental
Condenser Water System is addressed in Section l(n) below




     As used herein, the term “Supplemental Condenser Water System” shall not include the Tenant’s
supplemental HVAC equipment on the floor on which the Premises are located (e.g., air conditioning
units) or piping extending to the Premises from the supplementary cooling riser shutoff valves on
the floor (collectively, the “Tenant Supplemental HVAC Equipment”). Tenant shall install, maintain,
operate, and repair all Tenant Supplemental HVAC Equipment in accordance with and subject to the
terms of the Lease. Installation of the Tenant Supplemental HVAC Equipment shall be deemed Tenant
Work.



     Landlord shall not be responsible for any aspects of the design or construction of Finish
Work, the correction of any defects therein, or any delays in the completion thereof. If and to the
extent Landlord so requests, Tenant shall remove all or part of the alterations and equipment
installed pursuant to Exhibits C-l and C-2 to this Second Amendment (and, if Landlord so elects,
for the Supplemental Condenser Water System and/or the Tenant Supplemental HVAC Equipment) at the
expiration or earlier termination of the Term and restore the affected areas to the condition
existing prior to the installation of such alterations and equipment.



     (e) Finish Work Allowance. Landlord shall provide an allowance of up to
$572,910.00 (the “Finish Work Allowance”) for costs incurred by Tenant associated with the design,
engineering, and construction of Tenant Work in the 26th Floor Premises (“Allowance
Costs”). The Finish Work Allowance shall be disbursed as requisitioned by Tenant, but in no more
than three disbursements. For each disbursement, Tenant shall submit a requisition package to
Landlord prior to the first day of the month, with an itemization of the costs being requisitioned,
a certificate by an officer of Tenant that all such costs are Allowance Costs and have been
incurred and paid for by Tenant, and appropriate back-up documentation including, without
limitation, lien releases (in a form reasonably approved by Landlord), paid invoices, and bills.
The final requisition package shall further include an executed estoppel letter under the Lease and
an original certificate of occupancy. Landlord shall have no obligation to disburse any amounts
under this Section l(e) at any time (i) when Tenant is in default under the Lease (continuing
beyond any applicable notice and cure period) or (ii) when, after notice from Landlord, there
exists an event or condition which with the passage of time would give rise to a default.



-5-









 





     (f) Security Deposit. Within five (5) days after Tenant’s receipt of the
Delivery Notice, Tenant shall deliver to Landlord, as security for the performance of the
obligations of Tenant hereunder, subject to the terms and conditions set forth in this
Section l(f) the sum of $500,000.00 (the “Security Deposit”). The Security Deposit shall
be held in an account in the name of Landlord at Dreyfus and invested in a money market
account, United States Treasury securities or such other investment reasonably acceptable
to Landlord and designated by Tenant at the time such Security Deposit is delivered to
Landlord. Interest, dividends, distributions and other earnings on the Security Deposit
shall be paid to Tenant as and when earned. For so long as no default has occurred under
the Lease (and no event has occurred or condition exists which with notice and/or the
passage of time would give rise to such a default), on the second anniversary of the Rent
Commencement Date, and on each of the third through the ninth anniversaries of the Rent
Commencement Date, the amount of the Security Deposit shall be reduced by $50,00.00.
If Tenant shall default in any of its obligations under this Lease, beyond the expiration of
any applicable notice or cure period, Landlord may draw on the Security Deposit and
apply same to any or all amounts owed by Tenant to Landlord (whether as rent or
damages hereunder), and Tenant shall, within five days after receipt of notice of any such
draw by Landlord, restore the Security Deposit to the full amount on deposit immediately
prior to such draw.



     (g) Extension Term for the 26th Floor Premises. Effective as of the
Delivery Date, Section 2.4.1 of the Lease is hereby deleted in its entirety and replaced with the
following:




          “2.4.1 Extension Option. Tenant shall have one option (the “Extension Option”) to
extend the Term for one five-(5)-year extension term (the “Extension Term”). Any extension of the
Term shall be applicable to the entire 26th Floor Premises(the “Extension Premises”). If
Tenant fails timely to exercise the Extension Option, Tenant shall have no further extension rights
hereunder. Annual Fixed Rent for any Extension Term shall be paid in accordance with the terms and
conditions of Section 2.5 at an Annual Fixed Rent Rate equal to the Extension Rent Rate set forth
in Section 2.5.1. Tenant’s lease of the Extension Premises during any Extension Term shall be on
all of the terms and conditions of this Lease in effect immediately prior to the extension (except
that Tenant shall have no further option to extend the Term after the end of the Extension Term).




          The procedures for Tenant to exercise the Extension Option, and for the applicable Extension
Rent Rate applicable to the Extension Term to be determined, are as follows:



-6-









 





          (i) If Tenant wishes to consider exercising the Extension Option, Tenant shall so notify
Landlord no more than eighteen (18) months, and no less than fifteen (15) months, prior to the date
the Term is then scheduled to expire. Failure by Tenant timely to send a notice under this
Paragraph (i) shall constitute an irrevocable waiver of Tenant’s right to extend the Term.



          (ii) If Tenant timely delivers a notice under Paragraph (i) above, Landlord shall furnish
Tenant with Landlord’s estimate of the Extension Rent Rate for the Extension Term no later than
twelve (12) months prior to the date the Term is then scheduled to expire.



          (iii) If Tenant timely notifies Landlord under Paragraph (i) above, on or before the date
one (1) month after Landlord furnishes its estimate to Tenant under Paragraph (ii) above, Tenant
shall either (a) waive the Extension Option, (b) exercise the Extension Option by giving Landlord
notice to such effect accepting Landlord’s estimate of the Extension Rent Rate for the Extension
Term, or (c) exercise the Extension Option but cause the matter of the Fair Market Rent Rate to be
submitted to arbitration in accordance with Section 2.5.3 hereof by giving Landlord notice to such
effect, which notice under clause (c) shall state Tenant’s estimate of the Fair Market Rent Rate.
Failure timely to give a notice exercising the Extension Option as specified under this Paragraph
(iii) shall constitute an irrevocable waiver of Tenant’s right to extend the Term.



          (iv) If Tenant shall exercise the Extension Option in accordance with this Section 2.4.1,
the provisions of this Section shall be self-operative, but upon request by either party after
determination of the Extension Rent Rate for the Extension Term, the parties shall execute an
agreement specifying the Annual Fixed Rent Rate for the Extension Term and acknowledging the
extension of the Term.



          (v) Notwithstanding any provision of this Section to the contrary, Tenant’s option to
extend the Term shall be void, at Landlord’s election, if (a) Tenant is in default hereunder, after
any applicable notice and cure periods have expired, at the time Tenant elects to extend the Term
or at the time the Term would expire but for such extension, or (b) any Sublease exists at either
such time that results in the Tenant originally named herein (or any entity for which Landlord’s
consent to a Sublease is not required under Section 5.9) occupying less than 75% of the
26th Floor Premises.”



     (h) Freight Elevator. Landlord will provide nonexclusive freight elevator service
to Tenant for the construction period for Tenant’s initial Tenant Work in the 26th Floor
Premises (and for the performance and installation of all other work referenced in Paragraph l(d)
above) and during the move from the 18th Floor Premises to the 26th Floor
Premises, in each case without charge for use during normal business hours. After hours freight
elevator service shall be provided at Landlord’s standard charges.



-7-









 





     (i) Rooftop Antenna. If the Tenant originally named herein hereafter
desires to install a rooftop satellite dish on the roof the Building for use in connection
with its normal business operations in the 26th Floor Premises, Landlord shall review with
Tenant the potential availability and location of any such rooftop space, if any such space
is then available, and the charges and other terms and conditions under which Landlord would
then be willing to allow such use of a rooftop space by Tenant. Without limiting the
generality of the preceding sentence, the location of any such space, if any, and the use of
any riser for cabling between the 26th Floor Premises and such space, if any,
shall be as designated by Landlord, and all costs associated with installing any such
satellite dish, and of obtaining any governmental approvals therefore, shall be borne solely
by Tenant. Nothing in this Paragraph l(i) shall be construed to require Landlord to reserve
any space on the roof of the Building for Tenant or to obligate Landlord to provide any
particular rooftop space or to provide such space on any particular terms or conditions.



     (j) Building Directory and Office Identification. Supplementing the provisions
of Section 4.1.3 of the Lease, from and after the Delivery Date, Landlord shall provide, at
Landlord’s initial cost and expense, up to twenty (20) lines of listings on the directory board in
the lobby of the Building.



     (k) Relocation. The provisions of Section 8.18, as set forth in the
original Lease, shall continue to apply to the 18th Floor Premises, without
regard to the modifications set forth in the next paragraph for the 26th
Floor Premises.



     In addition, the provisions of Section 8.18 of the original Lease shall also apply
separately to the 26th Floor Premises with the modifications set forth in this
paragraph below. Effective as of the Delivery Date, Section 8.18 of the Lease is hereby
amended by changing the reference to “Floor 14” to “Floor 22” and the reference to “one month
after receipt of such notice” to “three (3) months after receipt of such notice.” Landlord’s
notice shall include a floor plan identifying the new premises, which premises shall have a
Rentable Floor Area equal to or greater than 19,000 square feet of Rentable Floor Area (it
being agreed that if the Rentable Floor Area of the replacement premises is greater, the
Annual Fixed Rent with respect to the replacement premises shall not be increased above the
Annual Fixed Rent from time to time payable for the original Premises) and shall be similar
thereto in configuration and lay-out. Any such relocation under Section 8.18 shall occur on
only one occasion after the fifth (5th) Rent Year. In addition to Landlord’s
obligations associated with a relocation under Section 8.18, prior to relocation, Landlord,
at Landlord’s cost and expense, shall perform the work necessary to construct in the
replacement premises the Tenant Work and Finish Work previously made in the Premises, and
including, without limitation, all risers, wiring, cabling, wiring for computers and
telecommunications equipment and installation of all related equipment (it being understood
that such work shall be of similar quality and quantity to that then existing in the
Premises). Landlord agrees that it shall use contractors reasonably satisfactory to Tenant
for the installation in the replacement premises of Tenant Work and Finish Work, fixtures,
telecommunications equipment, computers and related wiring and



-8-









 




equipment. Tenant shall have the right to have a representative of Tenant present to supervise the
work in the replacement premises. Landlord shall be responsible for all reasonable out-of-pocket
expenses incurred by Tenant associated with such relocation. Effective as of the date, if any, that
Tenant shall become obligated to expand the Premises to include an aggregate area of at least two
(2) floors in the Building (whether by exercise of the right of first offer set forth in Section
2.1.2 herein or otherwise), Section 8.18 of the Lease shall be deemed deleted in its entirety, and
Landlord shall have no right to relocate Tenant under Section 8.18 of the Lease.




     (1) Assignment. Subletting. Effective as of the Delivery Date, the first
paragraph of Section 5.9 of the Lease is hereby deleted in its entirety and replaced with the
following:




     “Tenant shall not assign this Lease, or sublet or license the Premises or any portion
thereof, or permit the occupancy of all or any portion of the Premises by anybody other
than Tenant (all or any of the foregoing actions are referred to as “Subleases” and all or
any of assignees, subtenants, licensees, and other such parties are referred to as
“Subtenants”) without obtaining, on each occasion, the prior consent of the Landlord.
Landlord’s consent to a proposed sublease shall not be unreasonably withheld or delayed, it
being understood that (i) Landlord may consider, among other things, whether the proposed
subtenant is a reputable organization that will not detract from the first-class character
of the Building and Project, and (ii) the proposed sublease must comply with all other
provisions of this Lease (including, without limitation, this Section 5.9), must not alter
Landlord’s rights under the Lease, and must not impose any additional obligation on
Landlord. A Sublease shall include, without limitation, any transfer of Tenant’s interest
in this Lease by operation of law, merger or consolidation of Tenant into any other firm or
corporation, and the transfer or sale of a controlling interest in Tenant, whether by sale
of its capital stock or otherwise. Unless Landlord’s consent specifically provides
otherwise with respect to a particular proposed Subtenant, Tenant shall not offer to make
or make a Sublease to any of the following: (i) a tenant in the Project; (ii) any party
with whom Landlord, the landlord of Phase 1, or any other affiliate of Landlord is then
negotiating (or has negotiated within the previous six (6) months) with respect to space in
the Project; (iii) any entity owned by, owning, or affiliated with, directly or indirectly,
any tenant or party described in clauses (i) and (ii) hereof; or (iv) any party which would
be of such type, character or condition as to be inappropriate, in Landlord’s judgment, as
a tenant for a first class office building. Tenant shall not, without Landlord’s approval,
publicly offer or advertise any Sublease of all or any portion of the Premises unless the
aggregate rent and other charges payable to Tenant under such Sublease equal or exceed the
then prevailing fair market rent rate for such space. Tenant’s request for consent to a
Sublease shall include a copy of the proposed Sublease instrument, if available, or else a
statement of the proposed Sublease in detail satisfactory to Landlord, together with
reasonably detailed



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financial, business and other information about the proposed Subtenant. Landlord shall have
the option (but not the obligation) to terminate the Lease with respect to the portion of
the Premises which Tenant proposes to Sublease effective upon the date of the proposed
Sublease and continuing for the proposed term thereof by giving Tenant notice of such
termination within 30 days after Landlord’s receipt of Tenant’s request. If Landlord
exercises such option, Tenant shall be released from all obligations and liabilities under
the Lease with respect to said portion of the Premises effective as of the termination date
and for the proposed term of the proposed Sublease. If Tenant does make a Sublease
hereunder, and if 95% of the aggregate rent and other amounts payable to Tenant under and
in connection with such Sublease (including without limitation any amounts for leasehold
improvements or on account of Tenant’s costs associated with such Sublease) exceed the
effective rent and other charges due hereunder with respect to the space and time period in
question, Tenant shall pay to Landlord upon receipt by Tenant, as an additional charge, the
amount of such excess. (“Effective rent” shall mean the Annual Fixed Rent due hereunder for
such space and time period after reduction for free rent amounts, rent holidays, rent
concessions, special tenant inducements and the like allocated over the Term on a
straight-line basis.) If the amount of rent and other charges payable under a Sublease is
not readily ascertainable, such amount may, at Landlord’s option, be deemed to equal the
fair market rent then obtainable for the space in question.”



     (m) Right of First Offer. Effective as of the Delivery Date, the following
Section 2.1.2 shall be added to the Lease:



          “2.1.2 Right of First Offer. The term “First Offer Space” shall mean whichever of the
25th floor or the 24th floor (but not both floors) of the Building first
becomes available for lease to Tenant under this Section 2.1.2. If both of such floors
simultaneously become available for lease to Tenant under this Section 2.1.2, the “First Offer
Space” shall mean the 25th floor of the Building. Before hereafter entering into an
initial lease for the First Offer Space with a third party (other than any current tenant or
occupant of such space or a prospective tenant that will lease at least two (2) floors of the
Building, including the First Offer Space), Landlord shall notify Tenant of the terms on which
Landlord intends to lease the space (“Landlord’s Notice”). Within fifteen (15) business days after
receipt of Landlord’s Notice, Tenant may, by written notice delivered to Landlord, (i) reject
Landlord’s Notice, or (ii) reject Landlord’s Notice but unconditionally and irrevocably offer to
lease the First Offer Space from Landlord for its own use on specific economic and other material
terms proposed in Tenant’s response, or (iii) unconditionally and irrevocably agree to lease such
space from Landlord for its own use on the terms set forth in Landlord’s Notice (the failure by
Tenant to timely respond as aforesaid being deemed Tenant’s rejection of Landlord’s Notice).



-10-









 





     “If Landlord’s Notice is rejected under clause (i) above (or deemed rejected by Tenant’s
failure to timely respond), then Landlord may enter into any lease for such space.



     “If Tenant timely offers to lease the First Offer Space on alternative terms as set forth in
clause (ii) above, then Landlord may, by written notice delivered within thirty days of receipt
thereof, accept or decline such offer (the failure to so respond being deemed Landlord’s election
to decline Tenant’s offer). If such offer under clause (ii) is declined (or deemed declined), then,
for a period of one year after Landlord’s receipt of Tenant’s offer, Landlord may enter into any
lease for such space at an effective rent (after taking into account any tenant improvement
allowance) greater than and on such other material terms no less favorable to Landlord than those
set forth in Tenant’s offer. If, during such one-year period, Landlord desires to enter into a
third-party lease at an effective rent less than or equal to the effective rent and on such other
material terms less favorable to Landlord than those set forth in Tenant’s offer, Landlord shall
deliver to Tenant a new Landlord’s Notice. If Landlord does not enter into any such lease within
such one-year period, Landlord shall re-commence the process under this Section 2.1.2 before
entering into a lease for the First Offer Space.



     “If Landlord timely accepts an offer by Tenant under clause (ii) above, or if Tenant timely
agrees to lease the space as set forth in clause (iii) above, the First Offer Space shall, subject
to the following paragraph below and without further action by the parties, be leased by Tenant on
the accepted terms and otherwise on all of the terms of the Lease in effect immediately prior to
such expansion, provided that, at the request of either party, Landlord and Tenant shall promptly
execute and deliver an agreement confirming such expansion of the Premises and the estimated date
the Premises are to be expanded pursuant to this Paragraph with a provision for establishing the
effective date of such expansion based on actual delivery. Landlord’s failure to deliver all or any
part of the First Offer Space within three (3) months after the estimated delivery date for such
space, for any reason, shall not give rise to any liability of Landlord, shall not alter Tenant’s
obligation to accept such space when delivered, shall not constitute a default of Landlord, and
shall not affect the validity of the Lease. Notwithstanding the foregoing, if the First Offer Space
is not delivered to Tenant by the date three (3) months after the estimated delivery date for such
space, then Tenant may, by thirty (30) days’ prior notice to Landlord given within thirty (30) days
after such date, terminate its offer to lease such space. Such termination shall be effective,
however, only if the First Offer Space is not delivered to Tenant on or before the 30* day
following Tenant’s notice of such termination. If Tenant fails timely to exercise its rights to
terminate its offer under this paragraph, Tenant shall not have any further such right. Tenant’s
termination right under this paragraph shall be Tenant’s sole remedy for any delay in the delivery
of the First Offer Space.



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     “Notwithstanding any provision of this Section to the contrary, Tenant’s rights under this
Section shall be void, at Landlord’s election, if (i) Tenant is in default hereunder, after any
applicable notice and cure periods have expired, at the time Landlord would have given the
Landlord’s Notice under this Section 2.1.2, at the time Tenant makes any election with respect to
the First Offer Space under this Section, or at the time the First Offer Space would be added to
the Premises, or (ii) any Sublease exists at any such time which requires Landlord’s consent under
Section 5.9. Nothing in this Section 2.1.2 shall be construed to grant to Tenant any rights or
interest in any space in the Building other than the First Offer Space, and any claims by Tenant
alleging a failure of Landlord to comply herewith shall be limited to claims for monetary damages.
Tenant may not assert any rights in any space other than the First Offer Space nor file any lis
pendens or similar notice with respect to any space.”



     (n) Supplemental
Condenser Water System. Upon Tenant’s completion of
installation of the Supplemental Condenser Water System under paragraph l(d) above, including final
testing of the installed system reasonably satisfactory to Landlord and commencement of regular
operations of such system (“System Completion”), the Supplemental Condenser Water System shall be
the property of Landlord and become part of the Building’s base building systems. Upon System
Completion, Tenant shall be deemed to have assigned to Landlord all warranties for the Supplemental
Condenser Water System (including warranties for the supplemental unit, the riser, all plumbing and
electrical work, and related equipment), shall reasonably cooperate with Landlord in the
enforcement of such warranties, and shall deliver to Landlord such documents in Tenant’s possession
as Landlord may from time to time request confirming such assignment of warranties.



     After System Completion, Landlord shall repair, maintain, and operate the Supplemental
Condenser Water System as part of the Building’s base building systems, subject to and in
accordance with the terms of the Lease, including without limitation Section 5.2, and shall be
responsible for allocating the capacity of the system among Building users. Landlord shall use
reasonable efforts to provide Tenant with at least thirty (30) days prior notice of any shutdown of
the Supplemental Condenser Water System for routine preventative maintenance work, provided that
such prior notice shall not be required in cases of emergency, unexpected system repairs, or other
nonroutine situations. Landlord shall not be responsible for the repair, maintenance, or operation
of the Tenant Supplemental HVAC Equipment, nor have any obligation or liability with respect
thereto.



     In consideration of Tenant’s installation of the Supplemental Condenser Water System, Tenant
shall be entitled to use during the Term, without additional charge by Landlord, not more than 160
GPM of supplemental condenser water (or, if lesser, an amount of supplemental condenser water not
more than fifty percent (50%) of the actual total capacity of the Supplemental Condenser Water
System, which is designed to produce a total of 320 GPM). Upon request from time to time, Landlord
shall provide



-12-









 




Tenant with reasonable information concerning the capacity of and allocation of water from
the Supplemental Condenser Water System. Tenant acknowledges that Landlord shall be entitled
to use, for its own use or for other tenants or other parties, the remaining capacity of the
Supplemental Condenser Water System, or such greater amount of supplemental condenser water
as Tenant from time to time does not actually use. Subject to the foregoing requirements,
Landlord may use the non-exclusive riser installed by Tenant as part of the Supplemental
Condenser Water System to supply supplemental condenser water for such other uses and may, at
no cost to Tenant, extend such riser to other portions of the Building.




     (o) Enhanced Electrical Power Service. The enhancements to the electrical power
service described in Paragraph l(d) above shall be for the exclusive use of the Tenant (Tenant
having the sole right to use the new riser capacity up to the size of the riser disconnect),
provided that Landlord may connect additional power to the new switchboard located in the main
electrical switchgear room that does not exceed the capacity of the switchboard. Tenant shall pay
all costs of electricity used in the 26th Floor Premises during the Term for the
26th Floor Premises (including, without limitation, the additional electrical usage
arising from the enhancements to the electric service installed pursuant to Paragraph l(d) above)
in accordance with and subject to the terms of Section 2.7 of the Lease. Such usage shall be
measured by a submeter installed by Tenant as part of the Finish Work for the 26th Floor
Premises.



     2. Brokerage. Each of Landlord and Tenant represents and warrants to the
other that it has had no dealings with any broker or agent in connection with this
Second Amendment or any other space in the Project, except for Cushman & Wakefield of
Massachusetts, Inc. Each of Landlord and Tenant covenants to pay, hold harmless and
indemnify the other from and against any and all costs, expense or liability for
any compensation, commissions and charges claimed by any broker or agent other than the
broker referred to in the preceding sentence with respect to this Second Amendment
or the negotiation thereof arising from its breach of the foregoing warranty.



     3. Ratification. Except as set forth herein, the terms of the Lease are
hereby ratified and confirmed, including without limitation the provisions of Section 9.1
of the Lease concerning Landlord’s liability, which are expressly incorporated herein.




-13-









 





     Executed as a sealed Massachusetts instrument as of the date first written above.



	 	 	 	 	 	 	 
	 	 	FORT HILL SQUARE PHASE 2 ASSOCIATES,

Landlord
	 
	 	 	 	 	 	 
	 	 	By:	 	BC Phase 2 Associates Limited

Partnership, its Managing Partner
	 
	 	 	 	 	 	 
	 

	 	 	 	By:
	 	International Place Phase 2,
	 

	 	 	 	 	 	Inc., its General Partner
	 
	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Donald J. Chiofaro
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	Donald J. Chiofaro

Its President and Treasurer
	 
	 	 	 	 	 	 
	 	 	THOMAS WEISEL PARTNERS GROUP, LLC,

Tenant
	 
	 	 	 	 	 	 
	 	 	By:	 	/s/ Shaugn Stanley
	 	 	 	 	 
	 	 	 	 	Name: Shaugn Stanley
	 	 	 	 	Title: CFO/Partner






-14-









 




TWO INTERNATIONAL PLACE

Boston, Massachusetts



THOMAS WEISEL PARTNERS GROUP. LLC




     This Third Amendment to Lease (the “Third Amendment”) is made as of January 8, 2002, by and
between Fort Hill Square Phase 2 Associates, a Massachusetts general partnership (the “Landlord”)
and Thomas Weisel Partners Group, LLC, a Delaware limited liability company (the “Tenant”).


Background



     A. Landlord and Tenant have entered into a lease dated June 30, 1999, as
amended by a First Amendment to Lease dated as of October 25,1999 and a Second
Amendment to Lease dated as of June 12, 2000 (the “Second Amendment”) between
Landlord and Tenant (as so amended, the “Lease”) for certain premises comprised of (a)
3,197 square feet of Rentable Floor Area on the 18th floor (the “18th
Floor Premises”), (b) 19,117 square feet of Rentable Floor Area on the 26th floor (the “26th
Floor Premises”) (the 18th Floor Premises and the 26th Floor Premises collectively being
known as the “Premises”), and (c) 560 square feet of Rentable Floor Area of storage space on Lower
Level 3 (the “Storage Space”) of Two International Place, Boston, Massachusetts.
Capitalized terms used and not defined herein shall have the meanings ascribed to them in
the Lease.



     B. The Term of the Lease for the 18th Floor Premises is currently scheduled to
expire on June 30, 2004 (the “Term Expiration Date for the 18th Floor Premises”).



     C. Landlord and Tenant desire to enter into this Third Amendment to provide
for the surrender of the 18th Floor Premises by Tenant to Landlord prior to the
Term Expiration Date for the 18th Floor Premises, subject to the terms and conditions
set forth in this Third Amendment.



 









 




Agreement



     In consideration of the mutual covenants herein contained, Landlord and Tenant hereby agree
and confirm as follows.



     1. Early Termination Date for 18th Floor Premises. The Term of the
Lease with respect to the 18th Floor Premises shall expire at 12:00 midnight on January 31, 2002
(the “Early Termination Date”) as though such date were the Term Expiration Date for the 18th Floor
Premises originally set forth in Section 1.1 of the Lease. From and after the Early Termination
Date, all rights and obligations of Landlord and Tenant solely with respect to the 18th
Floor Premises shall terminate as though the Early Termination Date were the Term Expiration Date
for the 18th Floor Premises except for (a) the obligations under the Lease with respect
to the 18th Floor Premises that arise during or are otherwise attributable to the period
prior to the Early Termination Date (including without limitation the annual reconciliations of
Landlord’s Operating Expenses under Section 2.6 of the Lease with respect to the period prior to
the Early Termination Date, which will occur after the Early Termination Date), (b) the obligations
that are specified in the Lease to survive the Term Expiration Date for the 18th Floor
Premises, and (c) the obligations that are to be performed under this Third Amendment before or
after the Early Termination Date.



     2. Surrender of 18th Floor Premises. Tenant shall vacate and surrender
the
18th Floor Premises to Landlord on the Early Termination Date in the condition required
in Section 5.12 of the Lease. For the portion of the Term commencing on the day immediately
following the Early Termination Date, (a) the Premises shall consist of the 26th Floor
Premises only, (b) all references in the Lease to the portion of the Premises on the
18th Floor shall be deemed to have been deleted and to be without further force or
effect, including without limitation, the fourth and fifth paragraphs and the last sentence of the
sixth paragraph of Paragraph l(a) of the Second Amendment, which deal with the surrender of the
18th Floor Premises in the event of the lease of First Offer Space and which shall be
deleted in their entirety, and (c) Tenant shall continue to lease the 26th Floor
Premises and the Storage Space in accordance with the terms and conditions set forth in the Lease.



     3. Additional Rent Payments. Commencing on February 1, 2002 and
continuing through June 30, 2004 (the “Additional Rent Period”), Tenant shall pay to
Landlord additional rent payments in the monthly amount of $4,795.50 (the “Additional
Rent Payments”). The Additional Rent Payments (a) shall constitute additional rent for
the 26th Floor Premises, (b) shall be in addition to all payments of Annual Fixed
Rent and
other additional charges set forth in the Lease (as previously amended) for the
26th Floor
Premises and the Storage Space, and (c) shall have no effect on Tenant’s obligations for




-2-









 







the 18th Floor Premises with respect to the period ending on the Early Termination
Date under Paragraph 1 above. Such Additional Rent Payments shall be paid on the first day of each
calendar month of the Additional Rent Period and otherwise in the manner set forth in Section 2.5
of the Lease. Notwithstanding anything to the contrary in the Lease, Tenant’s obligation to pay
Additional Rent Payments shall not be affected in any way by any abatement of rent for the
26th Floor Premises under Section 4.2 or Article VI of the Lease, by any termination of
the Lease under Article VI of the Lease, or by any other reason giving rise to any abatement or
suspension of rent for the 26th Floor Premises. In the event of a Tenant default under
Section 7.1 (continuing beyond applicable notice and cure periods), at Landlord’s election, all
remaining Additional Rent Payments shall become immediately due and payable.




     4. General. Except as set forth herein, the Lease as originally executed and
previously amended is hereby ratified and confirmed in all respects.



     Executed as a sealed Massachusetts instrument as of the date first set forth above.



	 	 	 	 	 	 	 
	 	 	FORT HILL SQUARE PHASE 2 ASSOCIATES, a

Massachusetts general partnership, Landlord
	 
	 	 	 	 	 	 
	 	 	By:	 	BC Phase 2 Associates Limited Partnership, a

Massachusetts limited partnership, managing partner
	 
	 	 	 	 	 	 
	 

	 	 	 	By:
	 	 International Place Phase 2, Inc., a
	 

	 	 	 	 	 	Massachusetts corporation, sole general
	 

	 	 	 	 	 	partner
	 
	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Donald J. Chiofaro
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	Donald J. Chiofaro

President and Treasurer
	 
	 	 	 	 	 	 
	 	 	THOMAS WEISEL PARTNERS GROUP, LLC,

Tenant
	 
	 	 	 	 	 	 
	 	 	By:	 	/s/ Shaugn Stanley
	 	 	 	 	 
	 	 	 	 	Name: Shaugn Stanley
	 	 	 	 	Title: CFO/Partner
	 	 	 	 	Hereunto duly authorized