Exhibit 10.27


 


PRUDENTIAL
CENTER


 


INDEX
TO LEASE


 


FROM


 


BP
PRUCENTER ACQUISITION LLC


 


TO


 


THE
FIRST MARBLEHEAD CORPORATION


 

















 


TABLE
OF CONTENTS


 


	
   

  	
   

  	
  PAGE

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  I

  	
  BASIC
  LEASE PROVISIONS AND ENUMERATIONS OF EXHIBITS

  	
   

  
	
   

  	
   

  	
   

  
	
  1.1

  	
  INTRODUCTION

  	
  1

  
	
  1.2

  	
  BASIC
  DATA

  	
  1

  
	
  1.3

  	
  ENUMERATION
  OF EXHIBITS

  	
  4

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  II

  	
  PREMISES

  	
  5

  
	
   

  	
   

  	
   

  
	
  2.1

  	
  DEMISE
  AND LEASE OF PREMISES

  	
  5

  
	
  2.2

  	
  APPURTENANT
  RIGHTS AND RESERVATIONS

  	
  6

  
	
  2.3

  	
  RIGHT
  OF FIRST OFFER

  	
  7

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  III

  	
  LEASE
  TERM AND EXTENSION OPTIONS

  	
  10

  
	
   

  	
   

  	
   

  
	
  3.1

  	
  TERM

  	
  10

  
	
  3.2

  	
  EXTENSION
  OPTION

  	
  10

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  IV

  	
  CONDITION
  OF PREMISES; ALTERATIONS

  	
  12

  
	
   

  	
   

  	
   

  
	
  4.1

  	
  SUBSTANTIAL
  COMPLETION

  	
  12

  
	
  4.2

  	
  TENANT’S
  COMPLETION REMEDIES

  	
  19

  
	
  4.3

  	
  QUALITY
  AND PERFORMANCE OF WORK

  	
  19

  
	
  4.4

  	
  SPECIAL
  ALLOWANCE

  	
  20

  
	
  4.5

  	
  PAYMENT
  OF TENANT PLAN EXCESS COSTS

  	
  21

  
	
  4.6

  	
  COMPLIANCE
  WITH LAW

  	
  22

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  V

  	
  ANNUAL
  FIXED RENT AND ELECTRICITY

  	
  23

  
	
   

  	
   

  	
   

  
	
  5.1

  	
  FIXED
  RENT

  	
  23

  
	
  5.2

  	
  ALLOCATION
  OF ELECTRICITY CHARGES

  	
  24

  
	
  5.3

  	
  LANDLORD’S
  RECAPTURE RIGHT

  	
  24

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  VI

  	
  TAXES

  	
  25

  
	
   

  	
   

  	
   

  
	
  6.1

  	
  DEFINITIONS

  	
  25

  
	
  6.2

  	
  TENANT’S
  SHARE OF REAL ESTATE TAXES

  	
  26

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  VII

  	
  LANDLORD’S
  REPAIRS AND SERVICES

  	
  27

  
	
   

  	
   

  	
   

  
	
  7.1

  	
  STRUCTURAL
  REPAIRS

  	
  27

  
	
  7.2

  	
  OTHER
  REPAIRS TO BE MADE BY LANDLORD

  	
  28

  
	
  7.3

  	
  SERVICES
  TO BE PROVIDED BY LANDLORD

  	
  28

  
	
  7.4

  	
  OPERATING
  COSTS DEFINED

  	
  28

  
	
  7.5

  	
  TENANT’S
  ESCALATION PAYMENTS

  	
  34

  
	
  7.6

  	
  NO
  DAMAGE

  	
  36

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  VIII

  	
  TENANT’S
  REPAIRS

  	
  38

  
	
   

  	
   

  	
   

  
	
  8.1

  	
  TENANT’S
  REPAIRS AND MAINTENANCE

  	
  38

  



 


i

















 


	
  ARTICLE
  IX

  	
  ALTERATIONS

  	
  38

  
	
   

  	
   

  	
   

  
	
  9.1

  	
  LANDLORD’S
  APPROVAL

  	
  38

  
	
  9.1.1

  	
  CERTAIN
  ALTERATIONS

  	
  39

  
	
  9.2

  	
  CONFORMITY
  OF WORK

  	
  40

  
	
  9.3

  	
  PERFORMANCE
  OF WORK, GOVERNMENTAL PERMITS AND INSURANCE

  	
  40

  
	
  9.4

  	
  LIENS

  	
  41

  
	
  9.5

  	
  NATURE
  OF ALTERATIONS

  	
  41

  
	
  9.6

  	
  INCREASES
  IN TAXES

  	
  43

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  X

  	
  PARKING

  	
  43

  
	
   

  	
   

  	
   

  
	
  10.1

  	
  PARKING
  PRIVILEGES

  	
  43

  
	
  10.2

  	
  PARKING
  CHARGES

  	
  44

  
	
  10.3

  	
  GARAGE
  OPERATION

  	
  44

  
	
  10.4

  	
  LIMITATIONS

  	
  45

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  XI

  	
  CERTAIN
  TENANT COVENANTS

  	
  45

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  XII

  	
  ASSIGNMENT
  AND SUBLETTING

  	
  49

  
	
   

  	
   

  	
   

  
	
  12.1

  	
  RESTRICTIONS
  ON TRANSFER

  	
  49

  
	
  12.2

  	
  EXCEPTIONS
  FOR AFFILIATED ENTITIES

  	
  50

  
	
  12.3

  	
  LANDLORD’S
  TERMINATION RIGHT

  	
  50

  
	
  12.4

  	
  CONSENT
  OF LANDLORD

  	
  51

  
	
  12.5

  	
  TENANT’S
  NOTICE

  	
  53

  
	
  12.6

  	
  PROFIT
  ON SUBLEASING OR ASSIGNMENT

  	
  54

  
	
  12.7

  	
  ADDITIONAL
  CONDITIONS

  	
  54

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  XIII

  	
  INDEMNITY
  AND COMMERCIAL GENERAL LIABILITY INSURANCE

  	
  56

  
	
   

  	
   

  	
   

  
	
  13.1

  	
  TENANT’S
  INDEMNITY

  	
  56

  
	
  13.1A

  	
  LANDLORD’S
  INDEMNITY OF TENANT

  	
  56

  
	
  13.2

  	
  COMMERCIAL
  GENERAL LIABILITY INSURANCE

  	
  56

  
	
  13.3

  	
  TENANT’S
  PROPERTY INSURANCE

  	
  57

  
	
  13.4

  	
  NON-SUBROGATION

  	
  57

  
	
  13.5

  	
  TENANT’S
  RISK

  	
  58

  
	
  13.6

  	
  LANDLORD’S
  INSURANCE

  	
  58

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  XIV

  	
  FIRE,
  CASUALTY AND TAKING

  	
  58

  
	
   

  	
   

  	
   

  
	
  14.1

  	
  DAMAGE
  RESULTING FROM CASUALTY

  	
  58

  
	
  14.2

  	
  UNINSURED
  CASUALTY

  	
  59

  
	
  14.3

  	
  RIGHTS
  OF TERMINATION FOR TAKING

  	
  60

  
	
  14.4

  	
  AWARD

  	
  61

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  XV

  	
  DEFAULT

  	
  61

  
	
   

  	
   

  	
   

  
	
  15.1

  	
  TENANT’S
  DEFAULT

  	
  61

  



 


ii

















 


	
  15.2

  	
  TERMINATION;
  RE-ENTRY

  	
  63

  
	
  15.3

  	
  CONTINUED
  LIABILITY; RE-LETTING

  	
  63

  
	
  15.4

  	
  LIQUIDATED
  DAMAGES

  	
  64

  
	
  15.5

  	
  WAIVER
  OF REDEMPTION

  	
  65

  
	
  15.6

  	
  LANDLORD’S
  DEFAULT

  	
  65

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  XVI

  	
  MISCELLANEOUS
  PROVISIONS

  	
  66

  
	
   

  	
   

  	
   

  
	
  16.1

  	
  WAIVER

  	
  66

  
	
  16.2

  	
  CUMULATIVE
  REMEDIES

  	
  66

  
	
  16.3

  	
  QUIET
  ENJOYMENT

  	
  67

  
	
  16.4

  	
  SURRENDER

  	
  67

  
	
  16.5

  	
  BROKERAGE

  	
  67

  
	
  16.6

  	
  INVALIDITY
  OF PARTICULAR PROVISIONS

  	
  68

  
	
  16.7

  	
  PROVISIONS
  BINDING, ETC.

  	
  68

  
	
  16.8

  	
  RECORDING

  	
  8

  
	
  16.9

  	
  NOTICES
  AND TIME FOR ACTION

  	
  69

  
	
  16.10

  	
  WHEN
  LEASE BECOMES BINDING

  	
  69

  
	
  16.11

  	
  PARAGRAPH
  HEADINGS

  	
  70

  
	
  16.12

  	
  RIGHTS
  OF MORTGAGEE

  	
  70

  
	
  16.13

  	
  RIGHTS
  OF GROUND LESSOR

  	
  71

  
	
  16.14

  	
  NOTICE
  TO MORTGAGEE AND GROUND LESSOR

  	
  71

  
	
  16.15

  	
  ASSIGNMENT
  OF RENTS

  	
  71

  
	
  16.16

  	
  STATUS
  REPORT AND FINANCIAL STATEMENTS

  	
  73

  
	
  16.17

  	
  SELF-HELP

  	
  73

  
	
  16.18

  	
  HOLDING
  OVER

  	
  74

  
	
  16.19

  	
  ENTRY
  BY LANDLORD

  	
  74

  
	
  16.20

  	
  TENANT’S
  PAYMENTS

  	
  75

  
	
  16.21

  	
  LATE
  PAYMENT

  	
  75

  
	
  16.22

  	
  COUNTERPARTS

  	
  75

  
	
  16.23

  	
  ENTIRE
  AGREEMENT

  	
  75

  
	
  16.24

  	
  LANDLORD
  LIABILITY

  	
  76

  
	
  16.25

  	
  NO
  PARTNERSHIP

  	
  76

  
	
  16.26

  	
  SECURITY
  DEPOSIT

  	
  76

  
	
  16.27

  	
  GOVERNING
  LAW

  	
  79

  
	
  16.28

  	
  WAIVER
  OF TRIAL BY JURY

  	
  79

  
	
  16.29

  	
  ROOFTOP
  ANTENNA

  	
  79

  
	
  16.30

  	
  SIGNAGE

  	
  83

  
	
  16.31

  	
  STORAGE
  SPACE; GENERATOR SPACE

  	
  83

  



 


iii














 


PRUDENTIAL CENTER


 


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


 


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


 


ARTICLE I


BASIC LEASE PROVISIONS AND ENUMERATIONS OF
EXHIBITS


 


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


 


1.2                                BASIC DATA.


 


	
  Execution
  Date:

  	
   

  	
  September
  5, 2003

  
	
   

  	
   

  	
   

  
	
  Landlord:

  	
   

  	
  BP
  Prucenter Acquisition LLC

  
	
   

  	
   

  	
   

  
	
  Present
  Mailing Address of Landlord:

  	
   

  	
  c/o
  Boston Properties Limited Partnership 

  111
  Huntington Avenue - Suite 300 

  Boston,
  Massachusetts 02199-7610

  
	
   

  	
   

  	
   

  
	
  Landlord’s
  Construction Representative:

  	
   

  	
  Jon
  Randall or Gretchen McGill

  
	
   

  	
   

  	
   

  
	
  Tenant:

  	
   

  	
  The
  First Marblehead Corporation, a Delaware corporation

  
	
   

  	
   

  	
   

  
	
  Present
  Mailing Address of Tenant:

  	
   

  	
  30
  Little Harbor

  Marblehead, Massachusetts 01945

  
	
   

  	
   

  	
   

  
	
  Tenant’s
  Construction Representative:

  	
   

  	
  Robert
  Campbell

  
	
   

  	
   

  	
   

  
	
  Design
  and Construction Schedule:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Authorization to Proceed Date:

  	
   

  	
  September
  15, 2003

  



 


1

















 


	
  Estimated
  Commencement Date:

  	
   

  	
  December
  1, 2003

  
	
   

  	
   

  	
   

  
	
  Outside
  Damages Date:

  	
   

  	
  June
  1, 2004

  
	
   

  	
   

  	
   

  
	
  Outside
  Completion Date:

  	
   

  	
  September
  1, 2004

  
	
   

  	
   

  	
   

  
	
  Term
  or Lease Term:

  (sometimes called the “Original Lease Term”)

  	
   

  	
  One
  hundred twenty-four (124) calendar months (plus the partial month, if any, immediately
  following the Commencement Date), unless extended or sooner terminated as hereinafter
  provided.

  
	
   

  	
   

  	
   

  
	
  Extension
  Option:

  	
   

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

  
	
   

  	
   

  	
   

  
	
  Lease
  Year:

  	
   

  	
  A
  period of twelve (12) consecutive calendar months, commencing on the Rent Commencement
  Date and on each succeeding anniversary of the Rent Commencement Date.

  
	
   

  	
   

  	
   

  
	
  Commencement
  Date:

  	
   

  	
  As
  defined in Section 3.1 hereof.

  
	
   

  	
   

  	
   

  
	
  Rent
  Commencement Date:

  	
   

  	
  Subject
  to the provisions of Section 5.1(B), the date four (4) months after the Commencement
  Date

  
	
   

  	
   

  	
   

  
	
  Premises:

  	
   

  	
  The
  entirety of the thirty-fourth (34th) floor of the Building, in accordance with
  the floor plan annexed hereto as Exhibit D and incorporated herein by reference,
  as further defined and limited in Section 2.1 hereof.

  
	
   

  	
   

  	
   

  
	
  Rentable
  Floor Area of the Premises:

  	
   

  	
  26,296
  square feet

  
	
   

  	
   

  	
   

  
	
  Annual
  Fixed Rent:

  	
   

  	
   

  
	
   

  	
   

  	
  (a)
  During the Initial Term:

  



 


2

















 


	
  Lease Year

  	
   

  	
  Rent psf

  	
   

  	
  Annual Fixed Rent

  	
   

  	
  Monthly Payment

  	
   

  
	
  1-3

  	
   

  	
  $

  	
  34.00

  	
   

  	
  $

  	
  894,064.00

  	
   

  	
  $

  	
  74,505.33

  	
   

  
	
  4-6

  	
   

  	
  $

  	
  36.00

  	
   

  	
  $

  	
  946,656.00

  	
   

  	
  $

  	
  78,888.00

  	
   

  
	
  7-expiration of Initial Term

  	
   

  	
  $

  	
  38.00

  	
   

  	
  $

  	
  999,248.00

  	
   

  	
  $

  	
  83,270.67

  	
   

  



 


	
   

  	
   

  	
  (b)
  During the extension option period(s) (if any and if exercised), as determined
  pursuant to Section 3.2.

  
	
   

  	
   

  	
   

  
	
  Tenant
  Electricity: 

  	
   

  	
  See
  Section 5.2

  
	
   

  	
   

  	
   

  
	
  Additional
  Rent: 

  	
   

  	
  All
  charges and other sums payable by Tenant to Landlord or its affiliates or agents
  as set forth in this Lease, other than the Annual Fixed Rent.

  
	
   

  	
   

  	
   

  
	
  Initial
  Minimum Limits of Tenant’s Commercial General Liability Insurance:

  	
   

  	
  $4,000,000
  combined single limit per occurrence on a per location basis. provided however,
  that Tenant may satisfy this requirement with a $2,000,000 base commercial general
  liability policy with a $2,000,000 umbrella insurance policy.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Total
  Rentable Floor Area of the Building:

  	
   

  	
  1,226,539
  square feet

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Building:

  	
   

  	
  For
  the purposes of this Lease, the Building shall mean the building commonly known
  as The Prudential Tower located in the Prudential Center (as hereinafter defined)
  as the same may be altered, expanded, reduced or otherwise changed by Landlord
  from time to time.

  
	
   

  	
   

  	
   

  
	
  Prudential
  Center:

  	
   

  	
  For
  purposes of this Lease, the Prudential Center shall mean the land described on
  Exhibit A and the buildings, garages and other improvements thereon, commonly
  known as Prudential Center, as depicted on the plan attached hereto as
  Exhibit A-1, as

  



 


3

















 


	
   

  	
   

  	
  the
  same may be altered, expanded, reduced or otherwise changed from time to time.

  
	
   

  	
   

  	
   

  
	
  Permitted
  Use:

  	
   

  	
  General
  office use.

  
	
   

  	
   

  	
   

  
	
  PruOwner:

  	
   

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

  
	
   

  	
   

  	
   

  
	
  Broker:

  	
   

  	
  Trammell
  Crow Company

  
	
   

  	
   

  	
   

  
	
  Security
  Deposit:

  	
   

  	
  Five
  Hundred Thousand and 00/100 ($500,000.00) Dollars, subject to reduction in accordance
  with Section 16.26

  



 


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


 


	
  Exhibit
  A

  	
  —

  	
  Legal Description of the Prudential Center

  
	
   

  	
   

  	
   

  
	
  Exhibit
  A-1

  	
  —

  	
  Plan Depicting the Prudential Center

  
	
   

  	
   

  	
   

  
	
  Exhibit
  B

  	
  —

  	
  Tenant Plan and Working Drawing Requirements

  
	
   

  	
   

  	
   

  
	
  Exhibit
  B-1

  	
  —

  	
  Plans and Construction Schedule

  
	
   

  	
   

  	
   

  
	
  Exhibit
  C

  	
  —

  	
  Landlord’s Services

  
	
   

  	
   

  	
   

  
	
  Exhibit
  D

  	
  —

  	
  Floor Plan

  
	
   

  	
   

  	
   

  
	
  Exhibit
  E

  	
  —

  	
  Form of Commencement Date Agreement

  
	
   

  	
   

  	
   

  
	
  Exhibit
  F

  	
  —

  	
  Location of Reserved Parking Stalls

  
	
   

  	
   

  	
   

  
	
  Exhibit
  G

  	
  —

  	
  Intentionally Omitted

  
	
   

  	
   

  	
   

  
	
  Exhibit
  H

  	
  —

  	
  Broker Determination of Prevailing Market Rent

  
	
   

  	
   

  	
   

  
	
  Exhibit
  I

  	
  —

  	
  List of Mortgagees

  



 


4

















 


ARTICLE II


PREMISES


 


2.1                                DEMISE AND LEASE
OF PREMISES. Landlord hereby demises and leases to Tenant, and Tenant hereby hires
and accepts from Landlord, the Premises in the Building, excluding exterior faces
of exterior walls, the common stairways and stairwells, elevators and elevator walls,
mechanical rooms, electric and telephone closets, janitor closets, and pipes, ducts,
shafts, conduits, wires and appurtenant fixtures serving exclusively or in common
other parts of the Building, and if the Premises includes less than the entire rentable
area of any floor, excluding the common corridors, elevator lobbies and toilets
located on such floor. Tenant hereby agrees with Landlord that, upon not less than
ninety (90) days’ notice from Landlord made after the third anniversary of the Commencement
Date, Tenant shall relocate from the Premises then demised to Tenant under this
Lease (the “Original Premises”) to other premises (the “Relocated Premises”) within
the Building and upon such relocation the Relocated Premises shall become the premises
demised under this Lease and wherever the term “Premises” is used herein the same
thereafter shall mean and refer to the Relocated Premises. The Relocated Premises
shall (i) be on a floor in the Building higher than the floor containing the Original
Premises, and (ii) contain similar finishes as the Premises and the same level of
fit-out, and approximately the same Rentable Square Footage as the Premises and
the same number of work stations, offices, breakrooms and reception areas as are
contained in the Premises as of the date Tenant receives Landlord’s notice of relocation.
In no event shall Tenant be required to pay more Annual Fixed Rent or Additional
Rent for the Relocated Premises than it would have had to pay for the Original Premises.
Landlord, at its sole cost and expense, shall perform the partitioning of the Relocated
Premises and shall place the same into substantially equivalent condition to that
in which the Original Premises were in prior to such relocation, including all telecommunications
wiring and cabling. Landlord shall also reimburse Tenant for Tenant’s reasonable
out-of-pocket moving expenses in so relocating to the Relocated Premises including
all costs for moving Tenant’s furniture, equipment, supplies and other personal
property, as well as the cost of printing and distributing change of address notices
to Tenant’s customers and one month’s supply of stationery showing the new address,
upon billing therefor from Tenant (which billing shall include reasonable evidence
thereof in the form of paid invoices, receipts and the like). Landlord shall cooperate
with Tenant to minimize the disruption to Tenant’s business caused by the relocation..
Landlord shall also reimburse Tenant for the reasonable cost of the time spent by
Tenant’s employees in connection with the construction of and relocation to the
Relocated Premises. Tenant shall not be required to vacate the Original Premises
and to relocate to the Relocated Premises until the Relocated Premises shall be
demonstrated, to Tenant’s reasonable satisfaction, to be substantially complete
subject to punch list


 


5

















 


items and items of long lead time. Only one such
relocation request may be made during the term of this Lease. Upon any such relocation
the Tenant shall enter into an amendment to this Lease confirming such relocation,
but the Tenant’s failure to enter into such amendment shall not affect in any manner
the relocation of the Premises demised under this Lease from the Original Premises
to the Relocated Premises.


 


2.2                                APPURTENANT RIGHTS
AND RESERVATIONS.


 


(A)                              Subject to Landlord’s
or any other PruOwner’s right to change or alter any of the following in Landlord’s
discretion as herein provided, Tenant shall have, as appurtenant to the Premises,
the non-exclusive right to use in common with others, but not in a manner or extent
that would materially interfere with the normal operation and use of the Building
as a multi-tenant office building and subject to reasonable rules of general applicability
to tenants of the Building from time to time made by Landlord or any other PruOwner
of which Tenant is given reasonable prior notice: (i) the common lobbies, corridors,
stairways, and elevators of the Building, and the pipes, ducts, shafts, conduits,
wires and appurtenant meters and equipment serving the Premises in common with others,
(ii) the loading areas serving the Building and the common walkways and driveways
necessary for access to the Building, (iii) if the Premises include less than the
entire rentable floor area of any floor, the common toilets, corridors and elevator
lobby of such floor and (iv) the plazas and other common areas of the Prudential
Center as Landlord or any other PruOwner makes the same available from time to time;
and no other appurtenant rights and easements. Notwithstanding anything to the contrary
herein, Landlord has no obligation to allow any particular telecommunication service
provider to have access to the Building or to the Premises, but Landlord agrees
not to unreasonably withhold its consent to particular providers. If Landlord permits
such access, Landlord may condition such access upon the payment to Landlord by
the service provider of fees assessed by Landlord in its sole discretion, provided
that no such fees shall be assessed unless such service provider provides telecommunication
service to more than one tenant in the Building. Landlord agrees that any of the
following providers are acceptable to Landlord, and will not be required to pay
any such access fees: BellAtlantic; Shared Technologies, Inc., MFS, Comcast, Teleport
Communications and Cablevision of Boston.


 


(B)                                Landlord reserves
for its benefit and the benefit of any other PruOwner the right from time to time,
without unreasonable interference with Tenant’s use: (i) to install, use, maintain,
repair, replace and relocate for service to the Premises and other parts of the
Building, or either, pipes, ducts, conduits, wires and appurtenant fixtures, wherever
located in the Premises or the Building, and (ii) to alter or relocate any other
common facility, provided that substitutions are substantially equivalent or better.
Installations, replacements and relocations


 


6

















 


referred to in clause (i) above shall be located
so far as practicable in the central core area of the Building, above ceiling surfaces,
below floor surfaces or inside the perimeter walls of the Premises. Except in the
case of emergencies, Landlord agrees to use all reasonable efforts to give, or cause
such PruOwner to give, Tenant reasonable advance notice of any of the foregoing
activities which require work in the Premises. In making any entry into the Premises,
Landlord shall use reasonable efforts to minimize interference with the Tenant’s
use and enjoyment of the Premises.


 


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


 


2.3                                RIGHT OF FIRST
OFFER.


 


(A)                              Subject to the
provisions of Sections 2.3(C) and 2.3(D) below, provided that at the time that any
separately demised portion of the thirty-fifth (35th) floor of the Building (each
such portion being referred to as an “RFO Space”) first becomes available for reletting
(i) there exists no “Event of Default” (defined in Section 15.1), (ii) this Lease
is still in full force and effect, and (iii) Tenant has neither assigned this Lease
nor sublet more than twenty percent (20%) of the Rentable Floor Area of the Premises
(except for an assignment or subletting permitted without Landlord’s consent under
Section 12.2 hereof), Landlord agrees not to enter into a lease to relet the RFO
Space without first giving to Tenant an opportunity to lease such space for the
RFO Annual Fixed Rent as determined by Landlord. An RFO Space shall be deemed to
be available for reletting when Landlord, in its sole judgment, determines that:
(x) such RFO Space will be vacated by the tenant of such RFO Space, (y) Landlord
intends to offer such area


 


7

















 


for lease, and (z) all rights to lease such RFO Space
which are superior to Tenant’s rights under this Section 2.3 have lapsed unexercised
in accordance with this Section 2.3 or have been irrevocably waived. When the RFO
Space becomes so available for reletting, Landlord shall notify Tenant of the availability
of such space and shall advise Tenant of the RFO Annual Fixed Rent and other business
terms upon which Landlord is willing to lease the RFO Space (“Landlord’s Notice”).
If Tenant wishes to exercise Tenant’s right of first offer, Tenant shall do so,
if at all, by giving Landlord notice (“Tenant’s RFO Exercise Notice”) of Tenant’s
desire to lease the entire amount of such space (it being agreed that Tenant has
no right to lease less than the entire amount of the RFO Space) on the terms provided
herein within fifteen (15) days after receipt of Landlord’s Notice to Tenant of
the availability of such space and Landlord’s quotation of the RFO Annual Fixed
Rent and business terms, time being of the essence. If Tenant shall timely give
such notice the same shall constitute an agreement to enter into an instrument in
writing to lease such space within thirty (30) days thereafter upon all of the same
terms and conditions in this Lease except for the provisions of this Section, the
Annual Fixed Rent which shall be equal to the RFO Annual Fixed Rent as quoted by
Landlord, such other business terms set forth in Landlord’s Notice and those provisions
hereof which are inappropriate to the business agreement. If Tenant shall fail to
timely give Tenant’s RFO Exercise Notice with respect to an RFO Space, time being
of the essence in respect to such exercise, Landlord shall be free for two hundred
seventy (270) days after the date of Landlord’s Notice to Lease such RFO Space,
upon economic terms, taken as a whole, not less than ninety percent (90%) of the
economic terms, taken as a whole, contained in Landlord’s Notice, and without again
offering such space to Tenant for lease (it being agreed that if Landlord does not
so lease such space during such two hundred seventy (270) day period or if Landlord
proposes to lease such space upon economic terms, taken as a whole, less than ninety
percent (90%) of the economic terms, taken as a whole contained in Landlord’s Notice
during such two hundred seventy (270) day period, the terms of this Section shall
continue to apply to the RFO Space).


 


(B)                                If Tenant shall
exercise any such right of first offer and if, thereafter, the then occupant of
the RFO Space wrongfully fails to deliver possession of such premises at the time
when its tenancy is scheduled to expire, commencement of the term of Tenant’s occupancy
and lease of such additional space shall, in the event of such holding over by such
occupant, be deferred until possession of the additional space is delivered to Tenant.
The failure of the then occupant of such premises to so vacate shall not constitute
or default or breach by Landlord and shall not give Tenant any right to terminate
this Lease or to deduct from, offset against or withhold Annual Fixed Rent or additional
rent (or any portions thereof). However, Landlord agrees to use good faith efforts
(which shall be limited to the commencement and prosecution of eviction proceedings
but shall not require the


 


8

















 


taking of any appeal) to cause the then occupant
of the RFO Space to vacate such space when its tenancy expires.


 


(C)                                As of the date
hereof, the entire thirty-fifth (35th) floor of the Building as well as other premises
in the Building are leased to The Gillette Company (The Gillette Company, as well
as any successor to The Gillette Company which holds the tenant’s interest under
The Gillette Company’s lease with Landlord, as such lease may be extended, amended
or renewed, being hereinafter referred to as the “Existing Tenant”). Such existing
lease and the term thereof, including, but not limited to, the original term thereof,
options to extend the term thereof, any expansion options and any amendments thereto
is hereinafter called the “Existing Lease”. Notwithstanding anything to the contrary
herein contained, Tenant’s rights to lease the RFO Space shall be subject and subordinate
(i) to the Existing Lease and the rights of the Existing Tenant thereunder, and
(ii) to any other rights which Landlord may grant to the Existing Tenant in the
future, pursuant to amendments to the Existing Lease or otherwise, all of which
rights are prior to the rights of Tenant under this Section.


 


(D)                               Notwithstanding
anything to the contrary herein contained, and in addition to the prior rights of
the Existing Tenant as set forth in the preceding paragraph, Tenant’s rights to
lease the RFO Space shall be subject and subordinate to (i) the rights, as of the
Execution Date of this Lease, of any existing tenants (“Other RFO Tenants”) under
existing leases with Landlord (“Other RFO Tenant Leases”) for space in the Building
to lease the RFO Space, and to Landlord’s right to grant to any Other RFO Tenants
a grace period (for the purpose of exercising such rights) of up to an additional
thirty (30) days beyond the last day which such Other RFO Tenant has to exercise
such rights. Other RFO Tenants include any entity which becomes the holder of the
tenant’s interest under an Other RFO Tenant Lease; and (ii) the right of any tenant
of the RFO Space (“RFO Existing Tenant”) to exercise any right which it has under
its lease to extend or renew the term of its lease of the RFO Space. If any Other
RFO Tenants or any RFO Existing Tenants lease the RFO Space pursuant to the Prior
RFO Rights, Tenant shall have no right to lease such RFO Space pursuant to this
Section 2.3 until such space again becomes available for relet, subject to, and
in accordance with the provisions of this Section 2.3. Landlord represents that
as of the Execution Date hereof, to the actual knowledge of David Provost, Vice
President, Leasing, without further inquiry, the only Other RFO Tenants are the
Existing Tenant and Digitas LLC.


 


(E)                                 Tenant’s rights
under this Section 2.3 shall expire on, and Landlord shall have no obligation to
deliver a Landlord’s Notice to Tenant after, the date that is twelve (12) months
prior to the scheduled termination date of this Lease.


 


9














 


ARTICLE III


LEASE TERM AND EXTENSION OPTIONS


 


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


 


(a)                                  The day on which
the Premises are delivered by Landlord to Tenant; or


 


(b)                                 The date upon
which Tenant commences use of the Premises for business purposes (the parties hereby
agreeing that the installation of Tenant’s furniture, fixtures and equipment shall
not be considered to be business purposes).


 


Where the Landlord is to perform work to the Premises
as provided in Article IV, the Premises shall be considered delivered by the Landlord
to the Tenant on the day when the Premises are deemed to be substantially complete,
as defined in Section 4.1 hereof.


 


As soon as may be convenient after the Commencement
Date has been determined, Landlord and Tenant agree to join with each other in the
execution, in the form of Exhibit E hereto, of a written Commencement Date Agreement
in which the Commencement Date and specified Lease Term of this Lease shall be stated.
If Tenant shall fail to execute such Agreement (or notify Landlord in writing of
its objections thereto) within fifteen (15) days after Tenant’s receipt of Landlord’s
request to Tenant to enter into such Agreement, the Commencement Date and Lease
Term shall be as reasonably determined by Landlord in accordance with the terms
of this Lease.


 


3.2                                EXTENSION OPTION.


 


(A)                              On the conditions
(which conditions Landlord may waive by written notice to Tenant) that at the time
of exercise of the herein described option to extend (i) there exists no “Event
of Default” (defined in Section 15.1), (ii) this Lease is still in full force and
effect, and (iii) Tenant has neither assigned this Lease nor sublet more than twenty
percent (20%) of the Rentable Floor Area of the Premises (except for an assignment
or subletting permitted without Landlord’s consent under Section 12.2 hereof), Tenant
shall have the right to extend the Term hereof upon all the same terms, conditions,
covenants and agreements herein contained (except for the Annual Fixed Rent which
shall be adjusted during the option period as hereinbelow set forth and except that
there shall be no further option to


 


10

















 


extend beyond the two (2) Extended Terms referenced
in this Section 3.2(A)) for two (2) periods of five (5) years as hereinafter set
forth. Each option period is sometimes herein referred to as the “Extended Term.”
Notwithstanding any implication to the contrary Landlord has no obligation to make
any additional payment to Tenant in respect of any construction allowance or the
like or to perform any work to the Premises as a result of the exercise by Tenant
of any such option.


 


(B)                                No earlier than
ninety (90) days prior to the Extension Notice Date, as hereinafter defined, Tenant
may request that Landlord designate the Annual Fixed Rent payable in respect of
the Extended Term in question, and Landlord shall designate the Annual Fixed Rent
payable during the Extended Term in question (“Landlord’s Rent Quotation”) within
thirty (30) days thereafter but Landlord shall not be required to make such designation
more than seventeen (17) months prior to the commencement of the Extended Term in
question. If at the expiration of thirty (30) days after the date when Landlord
provides such quotation to Tenant (the “Negotiation Period”), Landlord and Tenant
have not reached agreement on a determination of an Annual Fixed Rent for such Extended
Term and executed a written instrument extending the Term of this Lease pursuant
to such agreement, then the provisions of Section 3.2(C) below shall apply.


 


(C)                                If Tenant desires
to exercise an option to extend the Term, then Tenant shall give notice (“Tenant’s
Extension Exercise Notice”) to Landlord, not earlier than fifteen (15) months nor
later than twelve (12) months prior to the expiration of the then Term of this Lease
(as it may have been previously extended) (the Extension Notice Date”) exercising
such option to extend. If Tenant shall not have timely given Tenant’s Extension
Exercise Notice on or before the date twelve (12) months prior to the expiration
of the then Term of this Lease (as it may have been previously extended), then such
option shall be void and of no further force and effect. If Tenant does not agree
with Landlord’s Rent Quotation, then Tenant shall have the right, for thirty (30)
days following the expiration of the Negotiation Period but not later than the date
twelve (12) months prior to the expiration of the then Term of this Lease (as it
may have been previously extended), to make a request to Landlord for a broker determination
(the “Broker Determination”) of the Prevailing Market Rent (as defined in Exhibit
H) for such Extended Term, which Broker Determination shall be made in the manner
set forth in Exhibit H. If Tenant shall have timely given Tenant’s Extension Exercise
Notice and shall timely have requested the Broker Determination, then the Annual
Fixed Rent for such Extended Term shall be ninety-five percent (95%) of the Prevailing
Market Rent as determined by the Broker Determination. If Tenant shall have timely
given Tenant’s Extension Exercise Notice but shall not have timely requested the
Broker Determination, then the Annual Fixed Rent during the applicable Extended
Term shall be equal to Landlord’s Rent Quotation.


 


11

















 


(D)                               Upon the giving
of the Exercise Notice by Tenant to Landlord exercising Tenant’s applicable option
to extend the Lease Term in accordance with the provisions of Section 3.2 (C) above,
then this Lease and the Lease Term hereof shall automatically be deemed extended,
for the applicable Extended Term, without the necessity for the execution of any
additional documents, except that Landlord and Tenant agree to enter into an instrument
in writing setting forth the Annual Fixed Rent for the applicable Extended Term
as determined in the relevant manner set forth in this Section 3.2; and in such
event all references herein to the Lease Term or the Term of this Lease shall be
construed as referring to the Lease Term, as so extended, unless the context clearly
otherwise requires, and except that there shall be no further option to extend the
Lease Term. Notwithstanding anything contained herein to the contrary, in no event
shall Tenant have the right to exercise more than one extension option at a time
and, further, Tenant shall not have the right to exercise its second extension option
unless it has duly exercised its first extension option and in no event shall the
Lease Term hereof be extended for more than ten (10) years after the expiration
of the Original Lease Term hereof.


 


ARTICLE IV


CONDITION OF PREMISES; ALTERATIONS


 


4.1                                SUBSTANTIAL COMPLETION.


 


(A)                              PLANS AND CONSTRUCTION
PROCESS.


 


(1)                                  PREPARATION OF
THE PLANS. No later than dates set forth in Exhibit B-1, Tenant shall submit the
specified plans to Landlord, or otherwise take the action specified. Landlord hereby
acknowledges receipt and approval of the Permit/GMP Plans for the work to be performed
by Landlord to prepare the Premises for Tenant’s occupancy (“Landlord’s Work”),
provided, however, that the Landlord shall have no responsibility for the installation
or connection of Tenant’s computer, telephone, other communication equipment, systems
or wiring, unless otherwise agreed by Landlord in writing. By not later than the
date set forth in Exhibit B-1, Tenant shall also submit full construction drawings
for Landlord’s Work, which plans and specifications (the “Construction Plans”) shall
contain at least the information required by, and shall conform to the requirements
of, Exhibit B. Landlord shall have no obligation to perform Landlord’s Work until
the Construction Plans shall have been presented to it and approved by it. Provided
that the Construction Plans shall contain at least the information required by,
and shall conform to the requirements of, Exhibit B, Landlord shall not unreasonably
withhold or delay its approval of the Construction Plans. However, Landlord’s determination
of matters relating to material aesthetic issues relating to alterations or changes
visible from the common areas, or from the exterior of the Building at street level,
shall be in Landlord’s sole discretion.


 


12

















 


Within five (5) days after Landlord’s receipt of
Tenant’s request for approval of the Construction Plans (as well as receipt of the
plans to be approved), Landlord shall notify Tenant as to whether Landlord approves
the Construction Plans. If Landlord disapproves such plans, such notice shall state
the grounds for such disapproval with reasonable specificity.


 


(1A)                        COST OF LANDLORD’S
WORK. Landlord shall engage Shawmut Design & Construction, or another contractor
reasonably acceptable to Tenant, to perform Landlord’s Work. Landlord shall be paid
a fee, equal to four percent (4%) of the “Cost of the Work.” (as hereinafter defined)
to compensate Landlord for the construction management services which Landlord provides
with respect to the performance of Landlord’s Work. As used herein, “Cost of the
Work” shall be defined as the total project costs for Landlord’s Work, including
both hard and soft costs. The costs of Landlord’s Work shall be paid as set forth
in Section 4.1(A)(2) below.


 


(2)                                  TENANT PLAN EXCESS
COSTS. To the extent such costs exceed the Tenant Allowance set forth in Section
4.4, such excess costs are hereinafter referred to as “Tenant Plan Excess Costs”
and shall be paid by Tenant in accordance with Section 4.5. Tenant shall notify
Landlord in writing, within three (3) business days of receipt by Tenant of Landlord’s
statement of Tenant Plan Excess Costs, of either its approval thereof and its authorization
to Landlord to proceed with Landlord’s Work in accordance with the Construction
Plans in the event Landlord had no objection to the Construction Plans, or changes
in the Construction Plans prepared by Tenant’s architect which shall be responsive
to any objections raised by Landlord. In the event of the latter modification, Landlord
shall, as soon as practicable after Landlord obtains price quotations for any changes
in the Construction Plans, quote to Tenant all changes in Tenant Plan Excess Costs
resulting from said plan modifications and whether Landlord approves the revised
Construction Plans. Tenant shall, within three (3) business days after receipt of
Landlord’s revised quotation of Tenant Plan Excess Costs submit to Landlord any
revisions to the Construction Plans required by Landlord.


 


(3)                                  AUTHORIZATION
TO PROCEED DATE. Tenant shall, on or before the Authorization to Proceed Date, give
Landlord written authorization to proceed with Landlord’s Work in accordance with
Tenant’s approved Construction Plans (“Notice to Proceed”). In addition, Tenant
shall, on or before the Authorization to Proceed Date, execute and deliver to Landlord
any applications or other documentation required in order to obtain all permits
and approvals necessary for Landlord to commence and complete Landlord’s Work on
a timely basis (“Permit Documentation”). The Authorization to Proceed Date shall
be extended on a day for day basis for each day of Landlord Delay. For purposes
hereof, “Landlord Delay” shall mean a failure by Landlord to respond to plan submissions
within the time frames or to the reasonableness standards set forth in Section 4.1(A)(1).


 


13

















 


(4)                                  CHANGE ORDERS.
Tenant shall have the right, in accordance herewith, to submit for Landlord’s approval
change proposals subsequent to Landlord’s approval of the Construction Plans and
Tenant’s approval of the Tenant Plan Excess Costs, if any (each, a “Change Proposal”).
Landlord agrees to respond to any such Change Proposal within such time as is reasonably
necessary (taking into consideration the information contained in such Change Proposal)
after the submission thereof by Tenant, advising Tenant of any anticipated costs
(“Change Order Costs”) associated with such Change Proposal, as well as an estimate
of any delay which would likely result in the completion of the Landlord’s Work
if a Change Proposal is made pursuant thereto (“Landlord’s Change Order Response”).
Tenant shall have the right to then approve or withdraw such Landlord’s Change Order
Response within three(3) days after receipt of such Landlord’s Change Order Response.
If Tenant fails to respond to Landlord’s Change Order Response within such three
(3) day period, such Change Proposal shall be deemed withdrawn. If Tenant approves
such Change Proposal, then such Change Proposal shall be deemed a “Change Order”
hereunder and if the Change Order is made, then the Change Order Costs associated
with the Change Order, if any, shall be deemed additions to the Tenant Plan Excess
Costs and shall be paid in the same manner as Tenant Plan Excess Costs are paid
as set forth in Section 4.5.


 


(5)                                  TENANT RESPONSE
TO REQUESTS FOR INFORMATION AND APPROVALS. Except to the extent that another time
period is expressly herein set forth, Tenant shall respond to any reasonable request
from Landlord, Landlord’s architect, Landlord’s contractor and/or Landlord’s Construction
Representative for approvals or information in connection with Landlord’s Work,
within two (2) business days of Tenant’s receipt of such request, except that if
the information requested is not readily available, Tenant shall so inform Landlord
within two (2) business days of Tenant’s receipt of such request, whereupon Tenant
shall respond to such request as soon as possible, but in no event more than ten
(10) days after Tenant’s receipt of such request.


 


(6)                                  TIME OF THE ESSENCE.
Time is of the essence in connection with Tenant’s obligations under this Section
4.1.


 


(B)                                TENANT DELAY.


 


(1)                                  A “TENANT DELAY”
shall be defined as the following:


 


(a)                                  Tenant’s failure
to timely comply with the Plans and Construction Schedule set forth in Exhibit B-1
attached hereto, including without limitation Tenant’s failure to give authorization
to Landlord to proceed with Landlord’s Work on or before the Authorization to Proceed
Date (as the same may be


 


14

















 


extended as provided above) or to provide all required
Permit Documentation to Landlord on or before the Authorization to Proceed Date;
or


 


(b)                                 Tenant’s failure
timely to respond to any reasonable request from Landlord, Landlord’s architect,
Landlord’s contractor and/or Landlord’s Construction Representative within the time
periods set forth in this Article IV (including, without limitation, Section 4.1(A)(5)
above);


 


(c)                                  Tenant’s failure
to pay the Tenant Plan Excess Costs in accordance with Section 4.5;


 


(d)                                 Any delay due
to items of work for which there is a long lead time in obtaining the materials
therefor or which are specially or specifically manufactured, produced or milled
for the work in or to the Premises and require additional time for receipt or installation,
but only with respect to items as to which Landlord notifies Tenant in writing at
the time that Landlord approves Tenant’s plans and/or change orders related thereto
that such items are long lead time items;


 


(e)                                  Any delay due
to changes, alterations or additions required or made by Tenant after Landlord approves
Tenant’s Construction Plans including, without limitation, Change Orders. With respect
to any Tenant Delay under this clause (e), no period of time prior to the date that
Landlord notifies Tenant of a Tenant Delay shall be considered to be a Tenant Delay;
or


 


(f)                                    Any other delays
caused by Tenant, Tenant’s contractors, architects, engineers or anyone else engaged
by Tenant in connection with the preparation of the Premises for Tenant’s occupancy,
including, without limitation, utility companies and other entities furnishing communications,
data processing or other service, equipment, or furniture. With respect to any Tenant
Delay under this clause (f), no period of time prior to the date that Landlord notifies
Tenant of a Tenant Delay shall be considered to be a Tenant Delay.


 


The Tenant Delays defined in clauses (a), (b) and
(c) of this Section 4.1(B)(1) are sometimes hereinafter referred to as “Accelerated
Rent Tenant Delays”, the Tenant Delays defined in clauses (d), (e), and (f) of this
Section 4.1(B)(1) are sometimes hereinafter referred to as “Other Tenant Delays”.
Landlord agrees to give Tenant status reports from time to time upon Tenant’s written
request of the status of any of the items set forth in this Section 4.1(B)(1).


 


(2)                                  TENANT OBLIGATIONS
WITH RESPECT TO TENANT DELAYS.


 


(a)                                  Tenant covenants
that no Tenant Delay shall delay commencement of the Term or the obligation to pay
Annual Fixed Rent or Additional Rent,


 


15

















 


regardless of the reason for such Tenant Delay or
whether or not it is within the control of Tenant or any such employee. Landlord’s
Work shall be deemed substantially completed as of the date when Landlord’s Work
would have been substantially completed but for any Tenant Delays, as certified
by the project architect or Landlord’s architect, in the exercise of its professional
judgment.


 


(b)                                 If any Accelerated
Rent Tenant Delays occur: (i) Tenant shall, for the purpose of reimbursing Landlord
for lost rent due to Landlord’s inability to proceed with Landlord’s Work as scheduled,
pay to Landlord an amount (“Accelerated Rent Payment”) equal to one day of Annual
Fixed Rent and Additional Rent for each day of Accelerated Rent Tenant Delay, (ii)
the Estimated Commencement Date shall be extended by each day of Accelerated Rent
Tenant Delay, and (iii) if the Commencement Date occurs before the Estimated Commencement
Date, then any Accelerated Rent Payment paid by Tenant shall be credited against
the Annual Fixed Rent and Additional Rent payable by Tenant in respect of the period
commencing as of the Commencement Date and ending as of the Estimated Commencement
Date.


 


(c)                                  Tenant shall
reimburse Landlord the amount, if any, by which the cost of Landlord’s Work is increased
as the result of any Tenant Delay in excess of the amounts paid under Section 4.1(B)(2)(b)
above and not otherwise credited to Tenant under said Section 4.1(B)(2)(b). Notwithstanding
the foregoing, no amounts shall be due from Tenant pursuant to this Section 4.1(B)(2)(c)
unless and until the total cost of Landlord’s Work, including any increases therein
due to Tenant Delay, exceeds the Tenant Allowance, as defined in Section 4.4 hereof.


 


(d)                                 Any amounts due
from Tenant to Landlord under this Section 4.1(B)(2) shall be due and payable within
thirty (30) days of billing therefor, and shall be considered to be Additional Rent.
Nothing contained in this Section 4.1(B)(2) shall limit or qualify or prejudice
any other covenants, agreements, terms, provisions and conditions contained in this
Lease.


 


(C)                                SUBSTANTIAL COMPLETION
OF LANDLORD’S WORK.


 


(1)                                  LANDLORD’S OBLIGATIONS.
Subject to Tenant Delays and delays due to Force Majeure, as defined in Section
14.1, Landlord shall use reasonable speed and diligence to have Landlord’s Work
substantially completed on or before the Estimated Commencement Date, but Tenant
shall have no claim against Landlord for failure so to complete construction of
Landlord’s Work in the Premises, except for the right to terminate this Lease, without
further liability to either party, in accordance with the provisions hereinafter
specified in Section 4.2.


 


(2)                                  DEFINITION OF
SUBSTANTIAL COMPLETION. The Premises shall be treated as having been substantially
completed on the date that Landlord notifies Tenant


 


16

















 


(which notice may be by facsimile) that both of the
following have occurred:


 


(a)                                  Landlord’s Work,
together with common facilities for access and services to the Premises, has been
completed (or would have been completed except for Tenant Delays, as determined
in accordance with Section 4.1(B)(2)(a)) except for Punch List Items, as hereinafter
defined, and


 


(b)                                 Permission has
been obtained (or would have been obtained except for Tenant Delays) from the applicable
governmental authority, to the extent required by law, for occupancy by Tenant of
the Premises for the Permitted Use.


 


In the event of any dispute as to the date on which
Landlord’s Work has been substantially completed, the reasonable determination of
Landlord’s architect as to such date shall be deemed conclusive and binding on both
Landlord and Tenant.


 


Landlord agrees to notify Tenant, from time to time
upon Tenant’s written request, of Landlord’s estimate of when Landlord’s Work will
be substantially completed.


 


(3)                                  PUNCH LIST ITEMS
AND INCOMPLETE WORK.


 


(a)                                  “Punch List Items”
shall be defined as those items of work and adjustment of equipment and fixtures
in the Premises, the incompleteness of which does not cause material interference
with Tenant’s use of the Premises, or access thereto, and which can be completed
after Tenant commences its occupancy of the Premises without causing material interference
with Tenant’s use of the Premises or access thereto. The Punch List Items shall
be set forth in a so-called punch list prepared and signed by Tenant and Landlord
(provided, however, that Landlord and Tenant shall use good faith efforts to arrange
for a mutually acceptable time to walk through the Premises and compile the punch
list. If despite such good faith efforts Landlord and Tenant are unable to agree
upon a mutually acceptable time, Landlord shall give Tenant reasonable advance notice
of the time when Landlord intends to walk through the Premises and compile the punch
list, and if Tenant does not accompany Landlord on such walk-through, Tenant shall
be bound by the punch list compiled by Landlord).


 


(b)                                 Landlord shall
complete as soon as conditions practically permit the Punch List items and any long-lead
time items which were not complete as of the substantial completion of the Premises,
and Tenant shall cooperate with Landlord in providing access as may be required
to complete such work in a normal manner. Landlord agrees to perform such completion
work in a manner so as not to unreasonably interfere with Tenant’s use of the Premises,
provided, however, that such work shall be performed during normal business hours
unless Tenant elects to pay the excess cost for performing such work after normal


 


17

















 


business hours.


 


(4)                                  EARLY ACCESS
BY TENANT. Landlord shall permit Tenant access for installing Tenant’s trade fixtures
in portions of the Premises prior to substantial completion when it can be done
without material interference with remaining work or with the maintenance of harmonious
labor relations. Any such access by Tenant shall be at upon all of the terms and
conditions of the Lease (other than the payment of Annual Fixed Rent) and shall
be at Tenant’s sole risk, and Landlord shall not be responsible for any injury to
persons or damage to property resulting from such early access by Tenant.


 


(5)                                  PROHIBITION ON
ACCESS BY TENANT PRIOR TO ACTUAL SUBSTANTIAL COMPLETION. If, prior to the date that
the Premises are in fact actually substantially complete, the Premises are deemed
to be substantially complete pursuant to the provisions of this Section 4.1 (i.e.
and the Commencement Date has therefore occurred), Tenant shall not (except with
Landlord’s consent) be entitled to take possession of the Premises for the Permitted
Use until the Premises are in fact actually substantially complete. Notwithstanding
the foregoing, Landlord agrees to permit such occupancy of the Premises by Tenant
provided that, in Landlord’s reasonable opinion, such occupancy will not materially
interfere with or delay the completion of Landlord’s Work, nor will such occupancy
endanger the safety of persons or property.


 


(6)                                  SPECIAL PROVISION
CONCERNING POTENTIAL VERIZON STRIKE. The parties acknowledge that the employees
of Verizon, a major provider of telecommunication services in the greater Boston
area, are threatening to strike imminently. Notwithstanding anything to the contrary
herein contained, the parties agree as follows:


 


(i)                                     If Tenant submits
a work order for Tenant’s telecommunication services reasonably satisfactory to
Landlord on or before September 5, 2003; and


 


(ii)                                  The installation
and/or connection of Tenant’s telecommunication services is delayed due to an actual
Verizon strike; and


 


(iii)                               As a result,
Tenant is unable to use the Premises for the Permitted Use because it lacks telecommunication
services; then


 


(iv)                              There shall be
no Annual Fixed Rent due hereunder during the period, not to exceed seventy-five
(75) days, after the Commencement Date and before Tenant has sufficient telecommunications
services to be able to use the Premises for the Permitted Use.


 


18














 


4.2                                 TENANT’S
COMPLETION REMEDIES.


 


(A)                              TENANT’S
TERMINATION RIGHT. If the Commencement Date shall not have occurred on or
before the Outside Completion Date as set forth in Section 1.2 hereof
(which date shall be extended automatically for such periods of time as
Landlord is prevented from proceeding with or completing the same by reason of
Force Majeure as defined in Section 14.1, as well as for any Tenant Delay,
without limiting Landlord’s other rights on account thereof), Tenant shall have
the right to terminate this Lease by giving notice to Landlord of Tenant’s
desire to do so at any time before such completion and within the time period
from the Outside Completion Date (as so extended) until the date which is
thirty (30) days subsequent to the Outside Completion Date (as so extended);
and, upon the giving of such notice, the Term of this Lease shall cease and
come to an end without further liability or obligation on the part of either
party unless, within thirty (30) days after receipt of such notice, the
Commencement Date occurs. Each day of Tenant Delay shall be deemed conclusively
to cause an equivalent day of delay by Landlord in substantially completing
Landlord’s Work, and thereby automatically extend for each such equivalent day
of delay the date of the Outside Completion Date.


 


(B)                                LIQUIDATED
DAMAGES. Notwithstanding anything to the contrary herein contained, if the
Commencement Date does not occur on or before the Outside Damages Date as set
forth in Section 1.2 hereof (which date shall be extended automatically
for such periods of time as Landlord is prevented from proceeding with or
completing the same by reason of Force Majeure as defined in Section 14.1,
as well as for any Tenant Delay, without limiting Landlord’s other rights on
account thereof), then Tenant shall be entitled, as liquidated damages which
are payable as the result of such delay in the Commencement Date, to a rent
credit (“Rent Credit”), against the first installment(s) of Annual Fixed
Rent and other charges payable under the Lease, equal to Two Thousand Four
Hundred Eighty-Three and 51/00 Dollars ($2,483.51) times the number of days in
the period commencing as of the Outside Damages Date (as it may be extended in
accordance with this Paragraph (B)) and terminating on the Commencement Date
(determined as set forth in Section 3. hereof). At Landlord’s sole
election, in lieu of giving Tenant the Rent Credit, Landlord may, on or before
the date on which Tenant would have been entitled to receive such Rent Credit,
pay to Tenant a cash payment in the amount of such Rent Credit. Tenant shall
have no right to the Rent Credit or any payments pursuant to this Paragraph
(B), if Tenant exercises its right to terminate the Lease pursuant to Section 4.1(A).


 


(C)                                The remedies
set forth in this Section 4.2 are Tenant’s sole and exclusive rights and
remedies based upon any delay in the performance of Landlord’s Work.


 


4.3                                 QUALITY AND
PERFORMANCE OF WORK. All construction work required or permitted by this Lease
shall be done in a good and workmanlike manner and


 


19

















 


in
compliance with all applicable laws, ordinances, rules, regulations, statutes,
by-laws, court decisions, and orders and requirements of all public authorities
(“Legal Requirements”) and all Insurance Requirements (as defined in Section 9.1
hereof). All of Tenant’s work shall be coordinated with any work being
performed by or for Landlord and in such manner as to maintain harmonious labor
relations. Each party may inspect the work of the other at reasonable times and
shall promptly give notice of observed defects. Each party authorizes the other
to rely in connection with design and construction upon approval and other
actions on the party’s behalf by any Construction Representative of the party
named in Section 1.2 or any person hereafter designated in substitution or
addition by notice to the party relying. Except to the extent to which Tenant
shall have given Landlord notice of respects in which Landlord has not
performed Landlord’s construction obligations under this Article IV (if
any) not later than the end of the eleventh (11th) full calendar month next
beginning after the Commencement Date, Tenant shall be deemed conclusively to
have approved Landlord’s construction and shall have no claim that Landlord has
failed to perform any of Landlord’s obligations under this Article IV (if
any). Landlord agrees to correct or repair at its expense items which are then
incomplete or do not conform to the work contemplated under the Construction
Plans and as to which, in either case, Tenant shall have given notice to
Landlord, as aforesaid.


 


4.4                                 SPECIAL
ALLOWANCE


 


(A)                              Landlord
shall provide to Tenant a special allowance equal to $1,709,240.00, being the
product of (i) $65.00 and (ii) the Rentable Floor Area of the Premises
(the “Tenant Allowance”), in accordance with and subject to the provisions of
this Section 4.4. The Tenant Allowance shall be used and applied by
Landlord solely on account of the cost of Landlord’s Work. In no event shall
Landlord’s obligations to pay or reimburse Tenant for any of the costs of
Landlord’s Work which exceed the total Tenant Allowance. Notwithstanding the
foregoing, Landlord shall be under no obligation to apply any portion of the
Tenant Allowance for any purposes other than as provided in this Section 4.4.


 


(B)                                In addition,
in the event that (i) Tenant is in default under this Lease, or (ii) there
are any liens against Tenant’s interest in the Lease or against the Building or
the Site arising out of any work performed by Tenant or any litigation in which
Tenant is a party which are not bonded to the reasonable satisfaction of
Landlord, then, from and after the date of such event (“Event”), Landlord shall
have no further obligation to fund any portion of the Tenant Allowance until
such default has been cured or waived in writing or such lien has been released
or bonded over to Landlord’s reasonable satisfaction.


 


(C)                                Further, in
no event shall Landlord be required to make application of any portion of the
Tenant Allowance on account of any supervisory fees, overhead,


 


20

















 


management
fees or other payments to Tenant, or any partner or affiliate of Tenant. In the
event that the costs of Landlord’s Work are less than the Tenant Allowance,
Tenant shall not be entitled to any payment or credit nor shall there be any
application of the same toward Annual Fixed Rent or Additional Rent owed by
Tenant under this Lease.


 


(D)                               In addition
to the foregoing Tenant Allowance, Landlord shall also provide Tenant with an
allowance (“Initial Fit Allowance”) of up to $2,629.60, being the product of (i) $0.10
and (ii) the Rentable Floor Area of the Premises, toward the cost of
initial fit plans.


 


(E)                                 Provided
that no Event of Default has occurred hereunder at the time that Tenant
requests any requisition on account of the Initial Fit Allowance, Landlord
shall pay the cost of the work shown on each requisition (as hereinafter
defined) submitted by Tenant to Landlord within twenty (20) days of submission
thereof by Tenant to Landlord.


 


For the purposes hereof, a “requisition” shall
mean written documentation showing in reasonable detail the costs of the
initial fit plans prepared for Tenant. Each requisition shall be accompanied by
evidence reasonably satisfactory to Landlord that (if applicable) all work
covered by previous requisitions has been fully paid by Tenant.


 


(F)                                 Notwithstanding
anything to the contrary herein contained:


 


(i)                                     Landlord
shall have no obligation to advance funds on account of the Initial Fit
Allowance unless and until Landlord has received the requisition in question.


 


(ii)                                  Landlord
shall have no obligation to pay the Initial Fit Allowance in respect of any
requisition submitted after the date six (6) months after substantial
completion of the Premises.


 


(iii)                               Tenant shall
not be entitled to any unused portion of the Tenant Allowance of Initial Fit
Allowance.


 


4.5                                 PAYMENT OF
TENANT PLAN EXCESS COSTS. To the extent, if any, that there are Tenant Plan
Excess Costs, Tenant shall pay Landlord the Monthly Improvement Cost Payment
(as hereinafter defined), as Additional Rent, in order to repay Landlord for
the amount of such Tenant Plan Excess Costs up to the Maximum Amount, as
hereinafter defined (the “Amortization Amount”) as provided herein. However, in
the event that the Tenant Plan Excess Costs exceed $525,920.00 (being the
product of (i) $20.00 and (ii) the Rentable Floor Area of the
Premises) (“Maximum Amount”), then Tenant shall pay to Landlord, as


 


21

















 


Additional
Rent, prior to the commencement of Landlord’s Work, all such Tenant Plan Excess
Costs in excess of the Maximum Amount.


 


Tenant
shall reimburse Landlord, as Additional Rent, for the Amortization Amount
amortized on a direct reduction basis over one hundred twenty-three (123)
months at an interest rate of nine percent (9%) per annum in one hundred
twenty-three (123) monthly payments (“Monthly Improvement Cost Payments”)
payable on the first day of each month following the Commencement Date
(provided that if the Commencement Date is the first day of a month such
payments shall commence on the Commencement Date) in the same manner as
provided in the Lease for the payment of Annual Fixed Rent. By way of example,
if the Amortization Amount equals $262,960.00, Tenant shall make 123 Monthly
Improvement Cost Payments of $3,280.96 each.


 


Neither
the Amortization Amount nor the Monthly Improvement Cost Payments shall be
abated or reduced for any reason whatsoever (including, without limitation,
untenantability of the Premises or termination of the Lease). Without limiting
the foregoing, the rent abatement provisions of Article XIV of the Lease
shall not apply to the Amortization Amount or the Monthly Improvement Cost
Payments. Since the payment of the Amortization Amount represents a
reimbursement to Landlord of costs which Landlord will incur in connection with
the construction of the Premises, if there is any default (beyond the
expiration of any applicable grace periods) of any of Tenant’s obligations
under the Lease (including, without limitation, its obligation to pay the
Monthly Improvement Cost Payments) or if the term of this Lease is terminated
for any reason whatsoever prior to the termination of the term of the Lease,
Tenant shall pay to Landlord, immediately upon demand, the unamortized balance
of the Amortization Amount. Tenant’s obligation to pay the unamortized balance
of the Amortization Amount shall be in addition to all other rights and
remedies which Landlord has based upon any default of Tenant under the Lease,
and Tenant shall not be entitled to any credit or reduction in such payment
based upon amounts collected by Landlord from reletting the Premises after the
default of Tenant.


 


4.6                                 COMPLIANCE
WITH LAW. Landlord represents to Tenant that, to the best of Landlord’s actual
knowledge, the Building was constructed in accordance with the provisions of
the Legal Requirements applicable to the Building as of the construction of the
Building, and Landlord has not received any notices from any governmental
authorities alleging that the Building is currently in violation of any Legal
Requirement (except to the extent, if any, that Landlord may have received any
such notice and corrected the violation claimed therein). Landlord shall use
reasonable efforts to make the common areas of the Building and the “Base
Building” (as hereinafter defined) (including the Base Building areas in the
Premises) comply with Legal Requirements, provided that the foregoing shall not
apply to (i) requirements of such Legal Requirements resulting from the
use of, or


 


22

















 


additions,
alterations or improvements in, any tenant space in the Building, including the
Premises, and (ii) any additions, alterations and improvements (including
the Landlord’s Work, as more fully set forth below) in any tenant space in the
Building, including the Premises. For purposes of this Section 4.6, “Base
Building” shall mean the structural elements of the Building and the heating,
ventilating and air conditioning, electrical and plumbing systems and equipment
bringing primary service to the tenant spaces in the Building. Landlord agrees
that to the extent that Landlord receives notice that the common areas and/or
the Base Building are not in compliance with Legal Requirements, Landlord
shall, when, if and in the manner permitted or required by Legal Requirements,
remedy such non-compliance at its sole cost and expense, except to the extent
that the cost of such compliance may be properly included in Operating
Expenses..


 


Tenant
acknowledges that it is preparing the Construction Plans, and that Landlord has
no responsibility whatsoever for the compliance of the Construction Plans with
Applicable Laws. Landlord agrees to perform Landlord’s Work in accordance with
the Construction Plans. Except to the extent due to Landlord’s failure to
perform Landlord’s Work in accordance with the Construction Plans, Landlord
shall have no responsibility for the compliance of Landlord’s Work with
Applicable Laws.


 


Tenant
at Tenant’s expense shall be responsible for (i) the compliance of any
addition, alterations or improvements performed by or for Tenant or any
assignee or subtenant of Tenant, including the Landlord’s Work except to the
extent set forth in the preceding paragraph (“Tenant Improvements”) with the
Federal Americans With Disabilities Act (the “ADA”), and (ii) compliance
with the ADA required because of “Tenant’s Specific Use of the Premises” (as
defined below) or Tenant Improvements. The term “Tenant’s Specific Use of the
Premises” as used herein shall not refer to the general office use of the
Premises, but shall refer to the specific products and operations Tenant and
any assignee or subtenant of Tenant use in the Premises and the manner in which
Tenant and any assignee or subtenant of Tenant use such products and conduct
such operations.


 


4.7                                 DISPUTES.Any
dispute between the parties with respect to the provisions of this Article IV
shall be submitted to arbitration in accordance with Section 16.32.


 


ARTICLE
V


ANNUAL
FIXED RENT AND ELECTRICITY


 


5.1                                 FIXED RENT.
Tenant agrees to pay to Landlord, or as directed by Landlord at such place as
Landlord shall from time to time designate by notice, on the Rent Commencement
Date, and thereafter monthly, in advance, on the first day of each and every
calendar month during the Original Lease Term, a sum equal to one-twelfth
(1/12) of the Annual Fixed Rent specified in Section 1.2 hereof and on the


 


23

















 


first
day of each and every calendar month during each Extended Term (if exercised),
a sum equal to one-twelfth of the Annual Fixed Rent as determined in Section 3.2
for the applicable Extended Term. Until notice of some other designation is
given, Annual Fixed Rent and all other charges for which provision is herein
made shall be paid by remittance to or to the order of BOSTON PROPERTIES
LIMITED PARTNERSHIP, Agents at P.O. Box 3557, Boston, Massachusetts
02241-3557, and all remittances received by BOSTON PROPERTIES LIMITED
PARTNERSHIP, as Agents as aforesaid, or by any subsequently designated
recipient, shall be treated as a payment to Landlord.


 


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


 


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


 


Notwithstanding
that the payment of Annual Fixed Rent payable by Tenant to Landlord shall not
commence until the Rent Commencement Date, Tenant shall be subject to, and
shall comply with, all other provisions of this Lease as and at the times
provided in this Lease.


 


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


 


5.2                                 ALLOCATION
OF ELECTRICITY CHARGES.   The Premises
shall be separately metered for electricity, at Landlord’s expense, and Tenant
shall pay for all electricity charges directly to the supplier of the same.


 


5.3                                 LANDLORD’S
RECAPTURE RIGHT. Notwithstanding anything to the contrary in the Lease
contained, if Tenant shall abandon or vacate the Premises for a period of no
less than three hundred sixty-five (365) days, then Landlord shall have the
right to terminate this Lease upon written notice to Tenant.


 


24

















 


ARTICLE
VI


TAXES


 


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


 


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


 


(b)                                 “Landlord’s
Tax Expenses Allocable to the Premises” means the same proportion of Landlord’s
Tax Expenses as Rentable Floor Area of Tenant’s Premises bears to 100% of the
Total Rentable Floor Area of the Building.


 


(c)                                  “Landlord’s
Tax Expenses” with respect to any Tax Year means the aggregate “real estate
taxes” (hereinafter defined) with respect to that Tax Year, reduced by any net
abatement receipts with respect to that Tax Year; provided, however, that if in
any Tax Year an abatement has been obtained on account of vacancies in the
Building, or if the real estate taxes had initially been assessed in an amount
to reflect such vacancies then Landlord’s Tax Expenses shall be determined to
be an amount equal to the taxes which would normally be expected to have been
assessed had occupancy been ninety-five percent (95%) as of the reference date
or period on which or in relation to which such assessment was made. For this
purpose, taxes on properties comparable to the Building may be used as a
reference if such properties were occupied at ninety-five percent (95%) more or
less during the relevant period.


 


(d)                                 “Real estate
taxes” means all taxes and special assessments of every kind and nature and
user fees and other like fees assessed by any Governmental authority on, or
allocable to (i) the Building or (ii) the land, open areas, public
areas and amenities, plazas, common areas and other non-leasable areas of the
Prudential Center (for the purposes of this Subsection (d) “Common Areas”)
which the Landlord shall be obligated to pay because of or in connection with
the ownership, leasing or operation of the Building and reasonable expenses of
and fees for any formal or informal proceedings for negotiation or abatement of
taxes (collectively, Abatement Expenses”), which Abatement Expenses shall be
excluded from Base Taxes. The amount of special taxes or special assessments to
be included shall be limited to the amount of the installment (plus any
interest other than penalty interest payable thereon) of such special tax or
special assessment required to be paid during the year in respect of which such
taxes are being determined. There shall be excluded from such taxes all income,
estate, succession, inheritance and transfer taxes; provided, however, that if
at any time during the Lease Term the present system of ad valorem taxation of
real property shall be changed so that in lieu of, or


 


25

















 


in
addition to, the whole or any part of the ad valorem tax on real property,
there shall be assessed on Landlord a capital levy or other tax on the gross
rents received with respect to the Building, or a Federal, State, County,
Municipal, or other local income, franchise, excise or similar tax, assessment,
levy or charge (distinct from any now in effect in the jurisdiction in which
the Prudential Center is located) measured by or based, in whole or in part,
upon any such gross rents, then any and all of such taxes, assessments, levies
or charges, to the extent so measured or based, shall be deemed to be included
within the term “real estate taxes” but only to the extent that the same would
be payable if the Building, were the only property of Landlord. To the extent
that the Building is not separately assessed for real estate tax purposes, but
is assessed as part of a larger parcel, then the Landlord shall make a
reasonable allocation as to the amount of the real estate taxes that should be
allocated to the Building for the purposes of determination of the Tenant’s
share of increases in real estate taxes under this Lease. The Landlord’s
allocation, if made in good faith and for which Landlord has a reasonable basis
shall be final, absent manifest error, provided that such allocation is consistently
applied throughout the Lease. For the purposes of this Lease, real estate taxes
shall include any payment in lieu of taxes or any payments made under Chapter
121A of the Massachusetts General Laws or any similar law.


 


(e)                                  “Base Taxes”
means Landlord’s Tax Expenses (hereinbefore defined) for fiscal tax year 2004
(that is the period beginning July 1, 2003 and ending June 30, 2004).


 


(f)                                    “Base Taxes
Allocable to the Premises” means the same proportion of Base Taxes as the
Rentable Floor Area of Tenant’s Premises bears to 100% of the Total Rentable
Floor Area of the Building.


 


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


 


6.2                                 TENANT’S
SHARE OF REAL ESTATE TAXES. If with respect to any full Tax Year or fraction of
a Tax Year falling within the Lease Term Landlord’s Tax Expenses Allocable to
the Premises for a full Tax Year exceed Base Taxes Allocable to the Premises or
for any such fraction of a Tax Year exceed the corresponding fraction of Base
Taxes Allocable to the Premises (such amount being hereinafter referred to as
the “Tax Excess”), then Tenant shall pay to Landlord, as Additional Rent, the
amount of such Tax Excess. Payments by Tenant on account of the Tax Excess
shall be made monthly at the time and in the fashion herein provided for the
payment of Annual Fixed Rent. The amount so to be paid to Landlord shall be an
amount from time to time reasonably estimated by


 


26

















 


Landlord
to be sufficient to provide Landlord, in the aggregate, a sum equal to the Tax
Excess, ten (10) days at least before the day on which tax payments by
Landlord would become delinquent. Not later than ninety (90) days after
Landlord’s Tax Expenses Allocable to the Premises are determinable for the
first such Tax Year or fraction thereof and for each succeeding Tax Year or
fraction thereof during the Lease Term, Landlord shall render Tenant a
statement in reasonable detail certified by a representative of Landlord
showing for the preceding year or fraction thereof, as the case may be, real
estate taxes allocated to the Building, abatements and refunds, if any, of any
such taxes and assessments, expenditures incurred in obtaining such abatement
or refund, the amount of the Tax Excess, the amount thereof already paid by
Tenant and the amount thereof overpaid by, or remaining due from, Tenant for
the period covered by such statement. Within thirty (30) days after the receipt
of such statement, Tenant shall pay any sum remaining due. Any balance shown as
due to Tenant shall be credited against Annual Fixed Rent next due, or promptly
refunded to Tenant if the Lease Term has then expired and Tenant has no further
obligation to Landlord. Expenditures for legal fees and for other expenses
incurred in obtaining an abatement or refund may be charged against the
abatement or refund before the adjustments are made for the Tax Year.


 


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


 


ARTICLE
VII


 


LANDLORD’S
REPAIRS AND SERVICES


AND
TENANT’S ESCALATION PAYMENTS


 


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


 


27

















 


7.2                                 OTHER
REPAIRS TO BE MADE BY LANDLORD. Except for (a) normal and reasonable wear
and use and (b) damage caused by fire or casualty and by eminent domain, and
except as otherwise provided in this Lease, and subject to provisions for
reimbursement by Tenant as contained in Section 7.5, Landlord agrees to
keep and maintain, or cause to be kept and maintained, in good order, condition
and repair the common areas and facilities of the Building, including heating,
ventilating, air conditioning, plumbing and other Building systems equipment
servicing the Premises, except that Landlord shall in no event be responsible
to Tenant for (a) the condition of glass in and about the Premises (other
than for glass in exterior walls for which Landlord shall be responsible unless
the damage thereto is attributable to Tenant’s negligence or misuse, in which
event the responsibility therefor shall be Tenant’s), or (b) any condition
in the Premises or the Building caused by any act or neglect of Tenant or any
agent, employee, contractor, assignee, subtenant, licensee, concessionaire or
invitee of Tenant. Without limitation, Landlord shall not be responsible to
make any improvements or repairs to the Building or the Premises other than as
expressly provided in this Lease (including, without limitation, in Article IV,
Section 7.1 and Section 7.2 hereof).


 


7.3                                 SERVICES TO
BE PROVIDED BY LANDLORD. In addition, and except as otherwise provided in this
Lease and subject to provisions for reimbursement by Tenant as contained in Section 7.5
and Tenant’s responsibilities in regard to electricity as provided in Section 5.2,
Landlord agrees to furnish services, utilities, facilities and supplies as set
forth in Exhibit C hereto equal in quality comparable to those customarily
provided by landlords in high quality Class A office buildings in Boston.
In addition, Landlord agrees to furnish, at Tenant’s expense, reasonable
additional Building operation services which are usual and customary in similar
buildings in Boston, and such additional special services as may be mutually
agreed upon by Landlord and Tenant, upon reasonable and equitable rates from
time to time established by Landlord. Tenant agrees to pay to Landlord, as
Additional Rent, the cost of any such additional Building services requested by
Tenant and for the cost of any additions, alterations, improvements or other
work performed by Landlord in the Premises at the request of Tenant within
thirty (30) days after being billed therefor.


 


7.4                                 OPERATING
COSTS DEFINED. “Operating Expenses Allocable to the Premises” means the same
proportion of the Operating Expenses for the Building (as hereinafter defined)
as Rentable Floor Area of the Premises bears to 100% of the Total Rentable
Floor Area of the Building. “Base Operating Expenses” means Operating Expenses
for the Building for calendar year 2004 (that is the period beginning January 1,
2004 and ending December 31, 2004). Base Operating Expenses shall not
include market-wide cost increases due to extraordinary circumstances,
including but not limited to, Force Majeure (as defined in Section


 


28

















 


14.1),
boycotts, strikes, conservation surcharges, embargoes or shortages. “Base
Operating Expenses Allocable to the Premises” means the same proportion of Base
Operating Expenses as the Rentable Floor Area of Tenant’s Premises bears to
100% of the Total Rentable Floor Area of the Building. “Operating Expenses for
the Building” means the cost of operation of the Building and the Building’s
share of the cost of operating other areas of the Prudential Center as more
specifically provided below in Section 7.4, including those incurred in
discharging the obligations under Sections 7.2 and 7.3; however there shall be
excluded from the Operating Expenses for the Building the cost of operation of (x) the
Garage, and (y) any retail areas of the Prudential Center which are
outside the Building, except to the extent the costs attributable to the retail
areas may be included in Operating Expenses pursuant to Section 7.4(i). In
addition, such costs shall exclude payments of debt service and any other
mortgage charges, brokerage commissions, salaries of executives and owners not
directly employed in the management or operation of the Building, the general
overhead and administrative expenses of the home office of Landlord or Landlord’s
managing agent, and costs of special services rendered to tenants (including
Tenant) for which a separate charge is made, but shall include, without
limitation:


 


(a)                                  compensation,
wages and all fringe benefits, workmen’s compensation insurance premiums and
payroll taxes paid to, for or with respect to all persons for their services in
the operating, maintaining, managing, insuring or cleaning of the Building or
the Prudential Center, up to and including the level of general manager;


 


(b)                                 payments
under service contracts with independent contractors for operating, maintaining
or cleaning of the Building or the Prudential Center;


 


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


 


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


 


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


 


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


 


29














 


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


 


(h)                                 management
fees at reasonable rates consistent with the type of occupancy and the services
rendered, provided that the amount of such fees included in Operating Expenses
shall not exceed four percent (4%) of the gross receipts of the Building;


 


(i)                                     the Building’s
share (as reasonably determined by Landlord) of Operating Expenses for the
Building (as herein defined in this Section 7.4) related to the operation
of the open areas, public areas and amenities, plazas, common areas, facilities
and other non-leasable areas of the Prudential Center and other mixed use
common area maintenance costs incurred by Landlord or any other PruOwner and
allocated to the Building and any shuttle buses and other like amenities, for
use of tenants of the Building either alone or in common with tenants of other
buildings in the Prudential Center (“Common PruCenter Costs”). Landlord agrees
that it will not change the procedures which it is presently (i.e. as of the
Execution Date of this Lease) using to allocate Common PruCenter Costs, unless
there are changes in the uses in the Prudential Center or other changes in the
operation of the Prudential Center which constitute, in Landlord’s reasonable
judgment, a basis for changing such allocation procedures;


 


(j)                                     depreciation
for capital improvements (x) to reduce Operating Expenses if Landlord
reasonably shall have determined that the annual reduction in Operating
Expenses shall exceed depreciation therefor plus Imputed Interest (as defined
below) or (y) to comply with Legal Requirements first enacted or
promulgated and in effect after the Commencement Date (plus, in the case of
both (x) and (y), an interest factor (“Imputed Interest”), reasonably
determined by Landlord, as being the interest rate then charged for long term
mortgages by institutional lenders on like properties within the general
locality in which the Building is located), and in the case of both (x) and
(y) depreciation shall be determined by dividing the original cost of such
capital expenditure by the number of years of useful life of the capital item
acquired, which useful life shall be determined reasonably by Landlord in
accordance with generally accepted accounting principles and practices in
effect at the time of acquisition of the capital item, consistently applied;
provided, however, if Landlord reasonably concludes


 


30

















 


on
the basis of engineering estimates that a particular capital expenditure will effect
savings in other Operating Expenses, including, without limitation, energy
related costs, and that such projected savings will, on an annual basis (“Projected
Annual Savings”), exceed the annual depreciation and Imputed Interest therefor,
then and in such event the amount of depreciation for such capital expenditure
shall be increased to an amount equal to the Projected Annual Savings; and in
such circumstance, the increased depreciation (in the amount of the Projected
Annual Savings) shall be made for such period of time as it would take to fully
amortize the cost of the item in question, together with Imputed Interest, in
equal monthly payments, each in the amount of 1/12th of the Projected Annual
Savings, with such payment to be applied first to interest and the balance to
principal; and


 


(k)                                  all other
reasonable and necessary expenses paid in connection with the operating,
cleaning and maintenance of the Building or the Prudential Center or said
common areas and facilities and properly chargeable against income.


 


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


 


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


 


(i)                                     repair costs
in connection with other buildings in the Prudential Center (provided that this
clause (i) shall not be deemed to exclude costs associated with the
Arcade);


 


(ii)                                  All capital
expenditures and depreciation, except as otherwise explicitly provided in this Section 6.2;


 


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


 


31

















 


(iv)                              Interest on
indebtedness, debt amortization, ground rent, and refinancing costs for any
mortgage or ground lease of the Building or the Prudential Center, provided
however, that the foregoing shall not exclude the inclusion of the amortization
and interest permitted to be included in Operating Expenses on account of
capital improvements under Section 6.2(j) above;


 


(v)                                 Legal,
auditing, consulting and professional fees and other costs, (other than those
legal, auditing, consulting and professional fees and other costs incurred in
connection with the normal and routine maintenance and operation of the
Building and/or the Prudential Center), including, without limitation, those: (i) paid
or incurred in connection with financings, refinancings or sales of any
Landlord’s interest in the Building or the Prudential Center, (ii) relating
to specific disputes with tenants, and (iii) relating to any special
reporting required by securities laws


 


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


 


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


 


(viii)                        Landlord’s
general corporate overhead, including costs relating to accounting, payroll,
legal and computer services to the extent rendered in locations outside the
Building or Prudential Center;


 


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


 


(x)                                   Any costs
expressly excluded from Operating Expenses or real estate taxes elsewhere in
this Lease or included as real estate taxes;


 


(xi)                                Overhead and
profit increment paid to Landlord, to affiliates or partners of Landlord,
partners or affiliates of such partners, or affiliates of Landlord


 


32

















 


for
goods and/or services in the Building or Prudential Center to the extent the
same exceeds the costs or the overhead profit increment, as the case may be, of
such goods and/or services rendered by unaffiliated third parties on a
competitive basis in comparable buildings (provided however, that this clause
(xi) shall not apply to the management fee);


 


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


 


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


 


(xiv)                         Contributions
to charitable organizations;


 


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


 


(xvi)                         The cost of
testing, remediation or removal of “Hazardous Materials” (as defined in Section 11.2)
in the Building or on the Prudential Center required by “Hazardous Materials
Laws” (as defined in Section 11.2), provided however, that with respect to
the testing, remediation or removal of any material or substance which, as of
the Commencement Date, was not considered, as a matter of law, to be a
Hazardous Material, but which is subsequently determined to be a Hazardous
Material as a matter of law, the costs thereof shall be included in Operating
Expenses, subject, however, to Section 6.2(j) to the extent that such
cost is treated as a capital expenditure;


 


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


 


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


 


33

















 


(xix)                           Costs,
including permit, license and inspection costs, incurred in renovating or otherwise
improving, decorating, painting or redecorating space for tenants or other
occupants of the Building or Prudential Center;


 


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


 


(xxi)                           The cost of
installation of, space preparation for and subsidizing the operation of any
amenities of the Prudential Center (the parties hereby agreeing that this
clause (xxi) shall not be deemed to exclude the cost of subsidizing the
operation of the shuttle bus service as described above); or


 


(xxii)                        Costs of
mitigation or impact fees or subsidies (however characterized), imposed or
incurred prior to the date of this Lease or imposed or incurred solely as a
result of another tenant’s or tenants’ use of their Premises.


 


7.5                                 TENANT’S
ESCALATION PAYMENTS. (A) If with respect to any calendar year falling
within the Lease Term, or fraction of a calendar year falling within the Lease
Term at the beginning or end thereof, the Operating Expenses Allocable to the
Premises (as defined in Section 7.4) for a full calendar year exceed Base
Operating Expenses Allocable to the Premises (as defined in Section 7.4)
or for any such fraction of a calendar year exceed the corresponding fraction
of Base Operating Expenses Allocable to the Premises (such amount being
hereinafter referred to as the “Operating Cost Excess”), then Tenant shall pay
to Landlord, as Additional Rent, on or before the thirtieth (30th) day following
receipt by Tenant of the statement referred to below in this Section 7.5,
the amount of such excess.


 


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


 


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


 


34

















 


be,
the amounts already paid by Tenant on account of Operating Cost Excess and the
amount of Operating Cost Excess remaining due from, or overpaid by, Tenant for
the year or other period covered by the statement.


 


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


 


Any
payment by Tenant for the Operating Cost Excess shall not be deemed to waive
any rights of Tenant to claim that the amount thereof was not determined in
accordance with the provisions of this Lease.


 


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


 


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


 


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


 


3.                                       Any request for
examination in respect of any calendar year may be made no more than one
hundred eighty (180) days after Landlord advises Tenant of the actual amount of
Operating Expenses for the Building in respect of such calendar year and
provides to Tenant the year-end statement required under Paragraph C of this Section 7.5,
provided, however, if such examination results in a determination that Tenant
was overcharged with respect to a calendar year, then Tenant shall have the
right to review Landlord’s books as to the erroneous items for the two calendar
years immediately prior to the calendar year in question.


 


4.                                       Such
examination may be made only by an independent certified public accounting firm
approved by Landlord, which approval shall not be unreasonably withheld.
Without limiting Landlord’s approval rights, Landlord may withhold its approval
of any examiner of Tenant who is being paid by Tenant on a contingent fee
basis. Notwithstanding the foregoing, Landlord agrees that Tenant may retain a
third party agent to review Landlord’s books and records which is not a CPA
firm, so long as the third party agent retained by Tenant shall have expertise
in and familiarity with general industry practice with respect to the


 


35

















 


operation
of and accounting for a first class office building and whose compensation
shall in no way be contingent upon or correspond to the financial impact on
Tenant resulting from the review.


 


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


 


6.                                       If the
results of such examination, as verified by Landlord’s accountant, show that
Operating Expense Excess for the year in question was overstated by more than
four percent (4%), then Landlord shall reimburse Tenant for the reasonable
costs of performing such examination.


 


7.6                                 NO DAMAGE.


 


(A)                              NO
LIABILITY. Landlord shall give Tenant reasonable advance notice (except in an
emergency and except for normal cleaning and maintenance operations) prior to
exercising any right which Landlord has to enter the Premises and Landlord
shall use reasonable efforts to avoid material interference with Tenant’s use
and enjoyment of the Premises; however, Landlord shall not be liable to Tenant
for any compensation or reduction of rent by reason of inconvenience or
annoyance or for loss of business arising from the necessity of Landlord or its
agents entering the Premises for any purposes in this Lease authorized, or for
repairing the Premises or any portion of the Building or Prudential Center
however the necessity may occur. In case Landlord is prevented or delayed from
making any repairs, alterations or improvements, or furnishing any services or
performing any other covenant or duty to be performed on Landlord’s part, by
reason of any cause reasonably beyond Landlord’s control, including, without
limitation, strike, lockout, breakdown, accident, order or regulation of or by
any Governmental authority, or failure of supply, or inability by the exercise
of reasonable diligence to obtain supplies, parts or employees necessary to
furnish such services, or because of war or other emergency, or for any cause
due to any act or negligence of Tenant or Tenant’s servants, agents, employees,
licensees or any person claiming by, through or under Tenant,


 


36

















 


Landlord
shall not be liable to Tenant therefor, nor, except as expressly otherwise
provided in this Lease, shall Tenant be entitled to any abatement or reduction
of rent by reason thereof, nor shall the same give rise to a claim in Tenant’s
favor that such failure constitutes actual or constructive, total or partial,
eviction from the Premises.


 


(B)                                STOPPAGE OF
SERVICE. Landlord reserves the right to stop any service or utility system,
when necessary by reason of accident or emergency, or until necessary repairs
have been completed; provided, however, that in each instance of stoppage,
Landlord shall exercise reasonable diligence to eliminate the cause thereof as
soon as reasonably practicable. 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 inconvenience to Tenant by
reason thereof.


 


(C)                                RENT
ABATEMENT. Notwithstanding anything to the contrary in this Lease contained, if
due to Landlord’s failure to make any repairs, alterations, or improvements
required to be made by Landlord hereunder, or to provide any service required
to be provided by Landlord hereunder, any portion of the Premises becomes
untenantable so that for the Premises Untenantability Cure Period, as
hereinafter defined, the continued operation in the ordinary course of Tenant’s
business is materially adversely affected, then, provided that Tenant ceases to
use the affected portion of the Premises during the entirety of the Premises
Untenantability Cure Period by reason of such untenantability, and that such
untenantability and Landlord’s inability to cure such condition is not caused
by the fault or neglect of Tenant or Tenant’s agents, employees or contractors,
Annual Fixed Rent, Tax Excess and Operating Cost Excess shall thereafter be
abated in proportion to such untenantability and its impact on the continued
operation in the ordinary course of Tenant’s business until the day such
condition is completely corrected. For the purposes hereof, the “Premises
Untenantability Cure Period” shall be defined as five (5) consecutive
business days after Landlord’s receipt of written notice from Tenant of the
condition causing untenantability in the Premises, provided however, that the
Premises Untenantability Cure Period shall be ten (10) consecutive
business days after Landlord’s receipt of written notice from Tenant of such
condition causing untenantability in the Premises if either the condition was
caused by causes beyond Landlord’s control or Landlord is unable to cure such
condition as the result of causes beyond Landlord’s control. The provisions of
this Section 7.6(C) shall not apply in the event of untenantability
caused by fire or other casualty, or taking.


 


37

















 


ARTICLE
VIII


TENANT’S
REPAIRS


 


8.1                                 TENANT’S
REPAIRS AND MAINTENANCE. Tenant covenants and agrees that, from and after the
date that possession of the Premises is delivered to Tenant and until the end
of the Lease Term, Tenant will keep neat and clean and maintain in good order,
condition and repair the Premises and every part thereof, excepting only for (i) those
repairs for which Landlord is responsible under the terms of Article VII
of this Lease, and (ii) damage by fire or casualty, and (iii) as a
consequence of the exercise of the power of eminent domain, and (iv) reasonable
wear and tear. Tenant shall not permit or commit any waste, and Tenant shall be
responsible for the cost of repairs which may be made necessary by reason of
damages to common areas in the Building or Prudential Center by Tenant, Tenant’s
agents, employees, contractors, sublessees, licensees, concessionaires or
invitees. Tenant shall maintain all its equipment, furniture and furnishings in
good order and repair, reasonable wear and tear excepted.


 


If
repairs are required to be made by Tenant pursuant to the terms hereof, Landlord
may demand that Tenant make the same forthwith, and if Tenant refuses or
neglects to commence such repairs and complete the same with reasonable
dispatch after such demand, Landlord may (but shall not be required to do so)
make or cause such repairs to be made and shall not be responsible to Tenant
for any loss or damage that may accrue to Tenant’s stock or business by reason
thereof, except (subject to the provisions of Section 13.4) to the extent
caused by Landlord’s gross negligence or willful malfeasance. If Landlord makes
or causes such repairs to be made, Tenant agrees that Tenant will forthwith on
demand, pay to Landlord as Additional Rent the cost thereof together with
interest thereon at the rate specified in Section 16.21, and if Tenant
shall default in such payment, Landlord shall have the remedies provided for
non-payment of rent or other charges payable hereunder.


 


ARTICLE
IX


ALTERATIONS


 


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


 


38

















 


(a)                                  for
withholding approval of any alterations, additions or improvements which (i) in
Landlord’s reasonable opinion might affect any structural or exterior element
of the Building, any area or element outside of the Premises or any facility or
base building mechanical system serving any area of the Building outside of the
Premises, or (ii) involve or affect the exterior design, size, height or
other exterior dimensions of the Building, or (iii) enlarge the Rentable
Floor Area of the Premises, or (iv) are inconsistent, in Landlord’s
judgment, with alterations satisfying Landlord’s standards for new alterations
in the Building, or (v) will require unusual expense to readapt the
Premises to normal office use on Lease termination or increase the cost of
construction or of insurance or taxes on the Building or of the services called
for by Section 7.3 unless Tenant first gives assurance acceptable to
Landlord for payment of such increased cost and that such readaptation will be
made prior to such termination without expense to Landlord.


 


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


 


Landlord’s
review and approval of any such plans and specifications or under Section 4.1
and consent to perform work described therein shall not be deemed an agreement
by Landlord that such plans, specifications and work conform with applicable
Legal Requirements and requirements of insurers of the Building and the other
requirements of the Lease with respect to Tenant’s insurance obligations
(herein called “Insurance Requirements”) nor deemed a waiver of Tenant’s
obligations under this Lease with respect to applicable Legal Requirements and
Insurance Requirements nor impose any liability or obligation upon Landlord
with respect to the completeness, design sufficiency or compliance of such
plans, specifications and work with applicable Legal Requirements and Insurance
Requirements. Within 30 days after receipt of an invoice from Landlord, Tenant
shall pay to Landlord, as a fee for Landlord’s review of any plans or work
(excluding any review respecting initial improvements performed pursuant to Section 4.1
hereof for which a fee had previously been paid), as Additional Rent, an amount
equal to the sum of : (i) $1,000.00, plus (ii) third party expenses
incurred by Landlord to review Tenant’s plans and Tenant’s work.


 


9.1.1                        CERTAIN
ALTERATIONS. Notwithstanding the terms of Section 9.1, Tenant shall have
the right, without obtaining the prior consent of Landlord, but upon at least
five (5) business days’ prior written notice to Landlord, to make
alterations, additions or improvements to the Premises where:


 


39














 


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


 


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


 


(iii)                               the cost of
any individual alteration, addition or improvement shall not exceed $50,000.00
in each instance; and


 


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


 


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


 


9.3                                 PERFORMANCE
OF WORK, GOVERNMENTAL PERMITS AND INSURANCE. All of Tenant’s alterations and
additions and installation of furnishings shall be coordinated with any work
being performed by or for Landlord and in such manner as to maintain harmonious
labor relations and not to damage the Building or Prudential Center or
interfere with Building construction or operation and, except for installation
of furnishings, shall be performed by Landlord’s general contractor or by
contractors or workers first approved by Landlord, such approval not to be
unreasonably withheld or delayed. Except for work by Landlord’s general
contractor, Tenant shall procure all necessary governmental permits before
making any repairs, alterations, other improvements or installations. Tenant
agrees to save harmless and indemnify Landlord from any and all injury, loss,
claims or damage to any person or property occasioned by or arising out of the
doing of any such work whether the same be performed prior to or during the
Term of this Lease. At Landlord’s election, unless Landlord acts as Tenant’s
general contractor or construction manager, Tenant shall cause its contractor
to maintain a payment and performance bond in such amount and with such
companies as Landlord shall reasonably approve. In addition, Tenant shall cause
each contractor to carry workmen’s compensation insurance in statutory amounts
covering the employees of all contractors and subcontractors, and commercial
general liability insurance or comprehensive general liability


 


40

















 


insurance
with a broad form comprehensive liability endorsement with such limits as
Landlord may require reasonably from time to time during the Term of this
Lease, but in no event less than the minimum amount of commercial general
liability insurance or comprehensive general liability insurance Tenant is
required to maintain as set forth in Section 1.2 hereof and as the same
may be modified as provided in Section 13.2 hereof (all such insurance to
be written in companies approved reasonably by Landlord and insuring Landlord,
Landlord’s managing agent and Tenant as additional insureds as well as
contractors) and to deliver to Landlord certificates of all such insurance.
Tenant shall also prepare and submit to Landlord a set of as-built plans, in
both print and electronic forms, showing such work performed by Tenant to the
Premises promptly after any such alterations, improvements or installations are
substantially complete and promptly after any wiring or cabling for Tenant’s
computer, telephone and other communications systems is installed by Tenant or
Tenant’s contractor. Without limiting any of Tenant’s obligations hereunder,
Tenant shall be responsible, as Additional Rent, for the costs of any
alterations, additions or improvements in or to the Building that are required
in order to comply with Legal Requirements as a result of any work performed by
Tenant. Landlord shall have the right to provide such rules and
regulations relative to the performance of any alterations, additions,
improvements and installations by Tenant hereunder and Tenant shall abide by
all such reasonable rules and regulations and shall cause all of its
contractors to so abide including, without limitation, payment for the costs of
using Building services.


 


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


 


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


 


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


 


41

















 


shall
repair any damage to the Premises occasioned by the removal by Tenant or any
person claiming under Tenant of any such property from the Premises.
Notwithstanding the foregoing, Tenant shall have the right to grant security
interests and/or to lease its business equipment and personal property in the
Premises, provided that such lessor or secured party agrees (or to such other
commercially reasonable terms as may be mutually agreed upon by Landlord and
such lessor or secured party):


 


1.                                       That it will
repair any damage to the Building or the Premises caused by the installation or
removal of any such equipment or personal property;


 


2.                                       That it will
give Landlord not less than five (5) days’ advance written notice prior to
making any entry into the Premises;


 


3.                                       That it will
not hold any auction or foreclosure sale on the Premises; and


 


4.                                       That it will
have the right to remove such equipment or property only during the term of
this Lease, if the term of this Lease expires in the normal course, or within
five (5) days after the earlier termination of the term of this Lease.


 


(b)                                 At the
expiration or earlier termination of the Lease Term, Tenant shall remove: (i) any
wiring, cables or other installations appurtenant thereto for Tenant’s
computer, telephone and other communication systems and equipment whether
located in the Premises or in any other portion of the Building, including all
risers (collectively, “Cable”), unless Landlord notifies Tenant in writing that
such Cable shall remain in the Premises, and (ii) any alterations,
additions and improvements made with Landlord’s consent during the Lease Term
for which such removal was made a condition of such consent under Section 9.1(b).
Upon such removal Tenant shall restore the Premises to their condition prior to
such alterations, additions and improvements and repair any damage occasioned
by such removal and restoration. Tenant shall have the right, upon written
request to Landlord at any time on or after the date which is three (3) months
prior to the expiration of the Lease Term, to ask Landlord if Tenant shall be
required to remove such Cable at the termination of the Lease Term. Landlord
shall respond to Tenant within fifteen (15) days of such request as to whether
Tenant shall be required to remove such Cable at the expiration or earlier
termination of the Lease Term and Landlord shall be bound by such response. If
Landlord has not responded within such 15-day period, then Tenant may send
Landlord a second notice, which shall state at the top, in all-capital
bold-face print at least 10 points


 


42

















 


large,
“WARNING: FAILURE TO RESPOND TO THIS NOTICE WITHIN FIVE (5) BUSINESS DAYS
SHALL CONSTITUTE A WAIVER OF THE RIGHT TO REQUIRE TENANT TO REMOVE CABLE”. If
Landlord does not respond to such second notice within five (5) business
days, then Landlord shall be deemed to have waived its right to require Tenant
to remove such Cable.


 


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


 


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


 


ARTICLE
X


PARKING


 


10.1                           PARKING
PRIVILEGES. Landlord shall provide to Tenant monthly parking privileges in the
Prudential Center Garage (the “Garage”) for eighteen (18) passenger automobiles
for the parking of motor vehicles, sixteen (16) in unreserved stalls and two (2) in
reserved stalls, in the Garage by Tenant’s employees commencing on the
Commencement Date of the Term. Tenant’s reserved parking stalls shall initially
be as shown on Exhibit F attached hereto. Landlord reserves the right to
relocate such reserved stalls to another location, provided that (i) the
stall numbered 1 on Exhibit F can only be relocated to a stall numbered 2
through 45 as shown on Exhibit F or another location which is
approximately equally proximate to the entrance from the Garage to the
Building, and (ii) the stall numbered 49 on Exhibit F can only be
relocated to a space within the area reserved for reserved parking for tenants
of the Building, as Landlord may designate such area from time to time. Tenant
acknowledges that Landlord has advised Tenant that stall numbered 1 is not
located within the reserved gate of the other reserved spaces in the Garage
and, notwithstanding signs indicating that such stall is reserved, such space
is often utilized by others. Therefore, Tenant


 


43

















 


acknowledges
and agrees that Landlord shall have no obligation to police such stall and that
Landlord’s only obligation with respect to such stall is to maintain reserved
signage as is in place on the date of this Lease.


 


10.2                           PARKING
CHARGES. Tenant shall pay for such parking privileges at the prevailing monthly
rates from time to time charged by the operator or operators of the Garage,
whether or not such operator is an affiliate of Landlord, for unreserved and,
if applicable, reserved stalls. Such monthly parking charges for parking
privileges shall be payable monthly as directed by Landlord upon billing
therefor by Landlord or such operator. Tenant acknowledges that said monthly
charges to be paid under this Section are for the use by the Tenant of the
parking privileges referred to herein, and not for any other service. Tenant
shall have the right to cease using any such parking privileges upon thirty
(30) days’ notice to Landlord and such operator, whereupon Tenant shall no
longer have any rights to use the relinquished privileges nor any obligation to
pay any charges for such privileges accruing after the end of such 30-day
period.


 


10.3                           GARAGE
OPERATION. Unless otherwise determined by Landlord or the operator of such
garage (the “Garage Operator”), the Garage is to be operated on a self-parking
basis, and Tenant shall be obligated to park and remove its own automobiles,
and Tenant’s parking shall be on an unreserved basis, Tenant having the right
to park in any available stalls. Without limiting the foregoing, Landlord shall
have the right to operate portions of the Garage, except for Tenant’s reserved
stalls, on an attendant-managed basis, and Tenant shall cooperate with such
attendants in parking and removing its automobiles, recognizing that Tenant may
be required to leave keys for its vehicles with such attendants while such
vehicles are in the Garage. Tenant’s access and use privileges with respect to
the Garage shall be in accordance with regulations of uniform applicability to
the users of the Garage from time to time established by the Landlord or the
Garage Operator. Tenant shall receive one (1) identification sticker or
pass and one (1) magnetic card so-called, or other suitable device providing
access to the Garage, for each parking privilege paid for by Tenant. Tenant
shall supply Landlord with an identification roster listing, for each
identification sticker or pass, the name of the employee and the make, color
and registration number of the vehicle to which it has been assigned, and shall
provide a revised roster to Landlord monthly indicating changes thereto. Any
automobile found parked in the Garage during normal business hours without
appropriate identification will be subject to being towed at said automobile
owner’s expense. The parking privileges granted herein are non-transferable
(other than to a permitted assignee or subtenant pursuant to the applicable
provisions of Article XII hereof). Landlord or the Garage Operator may
institute a so-called valet parking program for the Garage, and in such event
Tenant shall cooperate in all respects with such program. Landlord reserves for
itself and any other PruOwner the right to alter the Garage as it sees fit and
in such case to change the Garage including the reduction in area of the same,
Tenant


 


44

















 


acknowledging
that in connection with the potential expansion of buildings in the Prudential
Center or the addition of other buildings thereto, it may be necessary to make
significant changes to the Garage which may result in the reduction of the
amount of parking available in the Garage and the change of location of such
parking or may change the access to or egress from the Garage, all of which
Landlord or any other PruOwner may perform in its sole and exclusive
discretion, without limitation to its other rights in respect thereof.


 


10.4                           LIMITATIONS.
Tenant agrees that it and all persons claiming by, through and under it, shall
at all times abide by all reasonable rules and regulations promulgated by
Landlord or the Garage Operator with respect to the use of the Garage. Except
to the extent of gross negligence or willful acts, neither the Landlord nor the
Garage Operator assumes any responsibility whatsoever for loss or damage due to
fire or theft or otherwise to any automobile or to any personal property
therein, however caused, and Tenant agrees, upon request from the Landlord,
from time to time, to notify its officers, employees and agents then using any
of the parking privileges provided for herein, of such limitation of liability.
Tenant further acknowledges and agrees that a license only is hereby granted,
and no bailment is intended or shall be created.


 


ARTICLE
XI


CERTAIN
TENANT COVENANTS


 


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


 


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


 


11.2                           (A)                              To use and
occupy the Premises for the Permitted Use only, and not to injure or deface the
Premises or the Building or Prudential Center and not to permit in the Premises
any auction sale, vending machine or flammable fluids or chemicals, or
nuisance, or the emission from the Premises of any objectionable noise or odor
and not to use or devote the Premises or any part thereof for any purpose other
than the Permitted Use, nor any use thereof which is inconsistent with the
maintenance of the Building as an office building of the first-class in the quality
of its maintenance, use and occupancy, or which is improper, offensive,
contrary to law or ordinance or liable to invalidate or increase the premiums
for any insurance on the Building or its contents or liable to render necessary
any alteration or addition to the Building.


 


45

















 


(B)                                Further, (i) Tenant
shall not, nor shall Tenant permit its employees, invitees, agents, independent
contractors, contractors, assignees or subtenants to, keep, maintain, store or
dispose of (into the sewage or waste disposal system or otherwise) or engage in
any activity which might produce or generate any substance which is or may
hereafter be classified as a hazardous material, waste or substance
(collectively “Hazardous Materials”), under federal, state or local laws, rules and
regulations, including, without limitation, 42 U.S.C. Section 6901 et
seq., 42 U.S.C. Section 9601 et seq., 42 U.S.C. Section 2601 et seq.,
49 U.S.C. Section 1802 et seq. and Massachusetts General Laws, Chapter 21E
and the rules and regulations promulgated under any of the foregoing, as
such laws, rules and regulations may be amended from time to time
(collectively “Hazardous Materials Laws”), (ii) Tenant shall immediately
notify Landlord of any incident in, on or about the Premises, the Building or
the Prudential Center that would require the filing of a notice under any
Hazardous Materials Laws, (iii) Tenant shall comply and shall cause its
employees, invitees, agents, independent contractors, contractors, assignees
and subtenants to comply with each of the foregoing and (iv) Landlord
shall have the right to make such inspections (including testing) as Landlord
shall elect from time to time to determine that Tenant is complying with the
foregoing.


 


(C)                                Landlord
represents and warrants that, to its actual knowledge and as of the Date of
this Lease, there are no Hazardous Materials in, on, under or emanating from
the Prudential Center, including its interior, systems or structure, which are
required to be assessed, reported, removed or remediated pursuant to applicable
Hazardous Materials Laws, except as disclosed in the following reports have
been provided to Tenant:


 


Phase
I Environmental Site Assessment


Prudential
Center


800
Boylston Street


Boston,
MA


Dated
July 11, 1997 prepared for Prudential Real Estate by


Levine-Fricke-Recon


 


and


 


Report
of Phase I Environmental Site Assessment


Prudential
Center


760 &
800 Huntington Avenue


Boston,
Massachusetts


By
Haley & Aldrich, Inc., Boston, Massachusetts


For
Boston Properties Limited Partnership dated March, 1998


 


and


 


46

















 


Report
on Phase I Environmental Site Assessment


Prudential
Center


111
Huntington Avenue


Boston,
Massachusetts


By
Haley & Aldrich, Inc., Boston, Massachusetts


For
Boston Properties dated July, 1999


 


Landlord
shall indemnify Tenant and hold it harmless against any claims, damages, losses
or liabilities (including reasonable attorneys’ and expert consultants’ fees)
arising from any breach of the representations and warranties made by Landlord
as set forth in this Paragraph (C) and from claims, damages, losses or
liabilities arising in the event that Landlord, Landlord’s agents, employees or
contractors release Hazardous Materials onto the Building or the Prudential
Center; provided however, the foregoing indemnity shall not apply to: (i) any
material or substance existing on the Prudential Center as of the Execution
Date of this Lease which, as of the Date of this Lease, was not considered, as
a matter of law, to be a Hazardous Material, but which is subsequently
determined to be a Hazardous Material as a matter of law or (ii) any
material or substance released or installed or placed on the Prudential Center
after the Execution Date of this Lease which, as of the date of such release,
installation or placement, was not considered, as a matter of law, to be a
Hazardous Material but which is later determined, as a matter of law, to be a
Hazardous Material. In addition, if Hazardous Materials are discovered in the
Building or the Premises which are not caused by Tenant, its employees,
invitees, agents, independent contractors, contractors, assignees or
subtenants, then Landlord shall, if and as required by law, assess, remediate
or remove the same, or cause the same to be assessed, remediated or removed.


 


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


 


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


 


47

















 


by
Landlord, to do any work so required because of such use, it being understood
that the foregoing provisions shall not be construed to broaden in any way
Tenant’s Permitted Use.


 


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


 


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


 


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


 


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


 


11.9                           To comply
with all applicable Legal Requirements now or hereafter in force which shall
impose a duty on Landlord or Tenant relating to or as a result of the Tenant’s
use or occupancy of the Premises; provided that Tenant shall not be required to
make any capital improvements to the Building or the Premises or any
alterations or additions to the structure, roof, exterior and load bearing
walls, foundation, structural floor slabs and other structural elements of the
Building unless the same are required by such Legal Requirements as a result of
or in connection with Tenant’s use or occupancy of the Premises other than for
general business office purposes. Tenant shall promptly pay all fines,
penalties and damages that may arise out of or be imposed because of its
failure to comply with the provisions of this Section 11.9.


 


11.10                     The word “Prudential”
alone or in any combination other than “Prudential Center” shall not be used by
the Tenant for any purpose whatsoever. Tenant shall not use


 


48

















 


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


 


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


 


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


 


ARTICLE
XII


ASSIGNMENT
AND SUBLETTING


 


12.1                           RESTRICTIONS
ON TRANSFER. Except as otherwise expressly provided herein, Tenant covenants
and agrees that it shall not assign, mortgage, pledge, hypothecate or otherwise
transfer this Lease and/or Tenant’s interest in this Lease or sublet (which
term, without limitation, shall include granting of concessions, licenses or
the like) the whole or any part of the Premises. Any assignment,


 


49

















 


mortgage,
pledge, hypothecation, transfer or subletting not expressly permitted in or
consented to by Landlord under this Article XII shall be void, ab initio;
shall be of no force and effect; and shall confer no rights on or in favor of
third parties. In addition, Landlord shall be entitled to seek specific
performance of, and other equitable relief with respect to, the provisions
hereof.


 


12.2                           EXCEPTIONS
FOR AFFILIATED ENTITIES. Notwithstanding the foregoing provisions of Section 12.1
above and the provisions of Section 12.4 below, BUT subject to the provisions
of Sections 12.5 and 12.7 below, Tenant shall have the right to assign this
Lease or to sublet the Premises (in whole or in part) to any controlling entity
of Tenant or to any entity controlled by Tenant or to any entity under common
control with Tenant (such parent or subsidiary entity or entity under common
control with Tenant being hereinafter called a “Tenant Affiliate”) or to any
corporation, limited liability partnership or limited liability company into
which Tenant may be converted or with which it may merge, or to any entity
purchasing all or substantially all of Tenant’s assets (each, a “Permitted
Tenant Successor”), provided that (i) in the case of a Permitted Tenant
Successor, the entity to which this Lease is so assigned or which so sublets
the Premises has a net worth (e.g. assets on a pro forma basis using generally
accepted accounting principles consistently applied and using the most recent
financial statements) equal to the net worth of the Tenant immediately before
such transaction, and (ii) in the case of an assignment to a Tenant
Affiliate or a Permitted Tenant Successor, such Tenant Affiliate or a Permitted
Tenant Successor shall execute an assumption agreement in form and substance
reasonably acceptable to Landlord whereby such entity agrees to assume and be
bound by all of Tenant’s obligations under this Lease. If any Tenant Affiliate
to which this Lease is assigned or the Premises sublet (in whole or in part)
shall cease to be such a Tenant Affiliate within one (1) year after such
assignment or sublease, and if such cessation was contemplated at the time of
the assignment or subletting, such cessation shall be considered an assignment
or subletting requiring Landlord’s consent, except to the extent that such
cessation leads to the assignee or sublessee becoming a Permitted Tenant
Successor, or otherwise being a Permitted Tenant Successor, satisfying the
requirements for waiver of Landlord’s consent set forth above.


 


12.3                           LANDLORD’S
TERMINATION RIGHT. Notwithstanding the provisions of Section 12.1 above,
but subject to the exceptions set forth in Section 12.2 above, in the
event Tenant desires to assign this Lease or to sublet the whole or any part of
the Premises, Tenant shall give Landlord a Recapture Offer, as hereinafter defined.


 


For
the purposes hereof a “Recapture Offer” shall be defined as a notice in writing
from Tenant to Landlord which:


 


50














 


	
   

  	
  (a)

  	
  States
  that Tenant desires to sublet the Premises, or a portion thereof, or to
  assign its interest in this Lease.

  
	
   

  	
   

  	
   

  
	
   

  	
  (b)

  	
  Identifies
  the affected portion of the Premises (“Recapture Premises”).

  
	
   

  	
   

  	
   

  
	
   

  	
  (c)

  	
  Identifies
  the period of time (“Recapture Period”) during which Tenant proposes to
  sublet the Recapture Premises or to assign its interest in the Lease.

  
	
   

  	
   

  	
   

  
	
   

  	
  (d)

  	
  Identifies
  the rental rate of the proposed subletting or assignment.

  
	
   

  	
   

  	
   

  
	
   

  	
  (e)

  	
  Offers
  to Landlord to terminate the Lease in respect of the Recapture Premises (in
  the case of a proposed assignment of Tenant’s interest in the Lease or a
  subletting for the remainder of the Term of the Lease) or to suspend the Term
  of the Lease PRO TANTO in respect of the Recapture Period (i.e. the Term of
  the Lease in respect of the Recapture Premises shall be terminated during the
  Recapture Period and Tenant’s rental obligations shall be reduced in
  proportion to the ratio of the Rentable Floor Area of the Recapture Premises
  to the Rentable Floor Area of the Premises then demised to Tenant and at the
  expiration of the Recapture Period the Recapture Premises will be returned to
  Tenant under the terms of the Lease).

  
	
   

  	
   

  	
   

  
	
   

  	
  Landlord
  shall have thirty (30) days from Landlord’s receipt of the Recapture Offer to
  accept a Recapture Offer (the “Acceptance Period”). In the event that
  Landlord shall not timely exercise its termination rights as aforesaid, or
  shall fail to give any or timely notice pursuant to this Section, the
  provisions of Sections 12.4-12.7 shall be applicable. This Section 12.3
  shall not be applicable to an assignment or sublease pursuant to
  Section 12.2.

  
	
   

  	
   

  	
   

  
	
  12.4

  	
  CONSENT OF LANDLORD.
  Notwithstanding the provisions of Section 12.1 above, BUT subject to the
  provisions of this Section 12.4 and the provisions of Sections 12.5,
  12.6 and 12.7 below, in the event that Landlord shall not have exercised the
  termination or suspension right as set forth in Section 12.3, or shall
  have failed to give any or timely notice under Section 12.3, then for a
  period of ninety (90) days (i) after the receipt of Landlord’s notice
  stating that Landlord does not elect the termination or suspension right, or
  (ii) after the expiration of the thirty (30) day period referred to in
  Section 12.3 in the event Landlord shall not give any or timely notice
  under Section 12.3, as the case may be, Tenant shall have the right to
  assign this Lease or sublet the whole or any part of the Premises in
  accordance with Tenant’s notice to Landlord given as provided in
  Section 12.5 provided that, in each instance, Tenant first obtains the
  express prior written consent of Landlord, which consent shall not be
  unreasonably withheld or delayed. Without limiting the foregoing standard,
  Landlord shall not be deemed

  



 


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  to
  be unreasonably withholding its consent to such a proposed assignment or
  subleasing if:

  
	
   

  	
   

  	
   

  
	
   

  	
  (a)

  	
  the
  proposed assignee or subtenant is a Restricted Complex Occupant, as
  hereinafter defined, or is (or within the previous sixty (60) days has been)
  in active negotiation (evidenced by (i) a proposal from Landlord or a
  PruOwner to the Tenant, or vice versa, or (ii) a letter of intent
  executed by Landlord or a PruOwner and/or such proposed assignee or
  subtenant)with Landlord for premises in the Building or elsewhere in the
  Prudential Center or is not of a character consistent with the operation of a
  first class office building (by way of example Landlord shall not be deemed
  to be unreasonably withholding its consent to an assignment or subleasing to
  any governmental or quasi-governmental agency), or

  
	
   

  	
   

  	
   

  
	
   

  	
  (b)

  	
  in
  Landlord’s reasonable judgment, the proposed assignee or subtenant is not of
  good character and reputation, or

  
	
   

  	
   

  	
   

  
	
   

  	
  (c)

  	
  the
  proposed assignee or subtenant does not possess adequate financial capability
  to perform the Tenant obligations as and when due or required (recognizing
  that Tenant remains liable under this Lease), or

  
	
   

  	
   

  	
   

  
	
   

  	
  (d)

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

  
	
   

  	
   

  	
   

  
	
   

  	
  (e)

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

  
	
   

  	
   

  	
   

  
	
   

  	
  (f)

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

  
	
   

  	
   

  	
   

  
	
   

  	
  (g)

  	
  intentionally
  omitted, or

  
	
   

  	
   

  	
   

  
	
   

  	
  (h)

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

  



 


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  (i)

  	
  the
  holder of any mortgage or ground lease on property which includes the
  Premises, which holder has approval rights over the proposed assignment or
  sublease, does not so approve the proposed assignment or sublease (Landlord
  agreeing to use good faith efforts to obtain such approval before Landlord
  refuses its consent based on this Section 12.4(i)); or

  
	
   

  	
   

  	
   

  
	
   

  	
  (j)

  	
  due
  to the identity or business of a proposed subtenant, such approval would
  cause Landlord to be in violation of any covenant or restriction contained in
  another lease or other agreement affecting space in the Building or elsewhere
  in the Prudential Center.

  
	
   

  	
   

  	
   

  
	
   

  	
  For
  the purposes hereof a “Restricted Complex Occupant” shall be defined as any
  tenant or subtenant of the Building or any other building in the Prudential
  Center Complex (which other building is then owned by Landlord or an affiliate
  of Landlord) other than one who satisfies all three of the following
  criteria: (i) such tenant or subtenant desires to sublease the Recapture
  Premises for expansion purposes only, and (ii) such tenant or subtenant
  will not, either directly or indirectly, cause a vacancy in the premises
  which it then occupies in the Building or elsewhere in the Prudential Center
  Complex, and (iii) such tenant or subtenant’s need, as to size of
  premises and length of term cannot then (i.e. at the time that Tenant requests
  Landlord’s consent to a sublease or assignment to such tenant or subtenant)
  be satisfied by Landlord or its affiliates in the Prudential Center Complex.

  
	
   

  	
   

  	
   

  
	
  12.5

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

  
	
   

  	
   

  	
   

  
	
   

  	
  If Landlord shall consent
  to the proposed assignment or subletting, as the case may be, then, in such
  event, Tenant may thereafter sublease or assign the whole or

  



 


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  any
  part of the Premises pursuant to Tenant’s notice, as given hereunder;
  provided, however, that if such assignment or sublease shall not be executed
  and delivered to Landlord within ninety (90) days after the date of
  Landlord’s consent, the consent shall be deemed null and void and the
  provisions of Section 12.3 shall be applicable.

  
	
   

  	
   

  	
   

  
	
  12.6

  	
  PROFIT
  ON SUBLEASING OR ASSIGNMENT. In addition, in the case of any assignment or
  subleasing as to which Landlord may consent (other than an assignment or
  subletting permitted under Section 12.2 hereof or an assignment in
  conjunction with a bona fide transfer of either a significant portion of
  Tenant’s assets or a significant portion of the assets of Tenant’s business
  division located at the Premises) such consent shall be upon the express and
  further condition, covenant and agreement, and Tenant hereby covenants and
  agrees that, in addition to the Annual Fixed Rent, Additional Rent and other
  charges to be paid pursuant to this Lease, fifty percent (50%) of the
  “Assignment/Sublease Profits” (hereinafter defined), if any shall be paid to
  Landlord.

  
	
   

  	
   

  	
   

  
	
   

  	
  The
  “Assignment/Sublease Profits” shall be the excess, if any, of (a) the
  “Assignment/Sublease Net Revenues” as hereinafter defined over (b) the
  Annual Fixed Rent, Additional Rent and other charges provided in this Lease
  (provided, however, that for the purpose of calculating the Assignment/Sublease
  Profits in the case of a sublease, appropriate proportions in the applicable
  Annual Fixed Rent, Additional Rent and other charges under this Lease shall
  be made based on the percentage of the Premises subleased and on the terms of
  the sublease). The “Assignment/Sublease Net Revenues” shall be the fixed
  rent, additional rent and all other charges and sums payable either initially
  or over the term of the sublease or assignment plus all other profits and
  increases to be derived by Tenant as a result of such subletting or
  assignment, less the reasonable costs of Tenant incurred in such subleasing
  or assignment (the definition of which shall be limited to rent concessions,
  brokerage commissions, marketing costs, legal fees, Landlord review fees, permitting
  costs and alteration allowances, in each case actually paid) as set forth in
  a statement certified by an appropriate officer of Tenant and delivered to
  Landlord within thirty (30) days of the full execution of the sublease or
  assignment document, amortized over the term of the sublease or assignment.

  
	
   

  	
   

  	
   

  
	
   

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

  
	
   

  	
   

  	
   

  
	
  12.7

  	
  ADDITIONAL
  CONDITIONS.

  
	
   

  	
   

  	
   

  
	
   

  	
  (A) It
  shall be a condition of the validity of any assignment or subletting
  permitted under Section 12.2 above, or consented to under
  Section 12.4 above, that both Tenant and the assignee or sublessee agree
  directly with Landlord in a separate written instrument reasonably satisfactory
  to Landlord which contains

  



 


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  terms and provisions
  reasonably required by Landlord, including, without limitation, the agreement
  of the assignee or sublessee to be bound by all the obligations of the Tenant
  hereunder, including, without limitation, the obligation to pay the Annual
  Fixed Rent, Additional Rent, and other amounts provided for under this Lease
  (but in the case of a partial subletting, such subtenant shall agree on a pro
  rata basis to be so bound) including the provisions of Sections 12.1 through
  12.7 hereof, but such assignment or subletting shall not relieve the Tenant
  named herein of any of the obligations of the Tenant hereunder, Tenant shall
  remain fully and primarily liable therefor and the liability of Tenant and
  such assignee (or subtenant, as the case may be) shall be joint and several.
  Further, and notwithstanding the foregoing, the provisions hereof shall not
  constitute a recognition of the assignment or the assignee thereunder or the
  sublease or the subtenant thereunder, as the case may be, and at Landlord’s
  option, upon the termination or expiration of the Lease (whether such
  termination is based upon a cause beyond Tenant’s control, a default of
  Tenant, the agreement of Tenant and Landlord or any other reason), the
  assignment or sublease shall be terminated.

  
	
   

  	
   

  
	
   

  	
  (B)           As Additional Rent, Tenant shall reimburse Landlord
  promptly for reasonable out of pocket legal and other expenses incurred by
  Landlord in connection with any request by Tenant for consent to assignment
  or subletting.

  
	
   

  	
   

  
	
   

  	
  (C)           If this Lease be assigned, or if the Premises or any
  part thereof be sublet or occupied by anyone other than Tenant, Landlord may
  upon prior notice to Tenant, at any time and from time to time, collect
  Annual Fixed Rent, Additional Rent, and other charges from the assignee,
  sublessee or occupant and apply the net amount collected to the Annual Fixed
  Rent, Additional Rent and other charges herein reserved, but no such
  assignment, subletting, occupancy or collection shall be deemed a waiver of
  this covenant, or a waiver of the provisions of Sections 12.1 through 12.7
  hereof, or the acceptance of the assignee, sublessee or occupant as a tenant
  or a release of Tenant from the further performance by Tenant of covenants on
  the part of Tenant herein contained, the Tenant herein named to remain
  primarily liable under this Lease.

  
	
   

  	
   

  
	
   

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

  
	
   

  	
   

  
	
   

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

  



 


55

















 


ARTICLE
XIII


INDEMNITY
AND COMMERCIAL GENERAL LIABILITY INSURANCE


 


	
  13.1

  	
  TENANT’S
  INDEMNITY. To the maximum extent this agreement may be made effective
  according to law, Tenant agrees to indemnify and save harmless Landlord from
  and against all claims of whatever nature arising from or claimed to have
  arisen from any breach of this Lease by Tenant or any act, omission or
  negligence of Tenant, or Tenant’s contractors, licensees, invitees, agents,
  servants, independent contractors or employees; any accident, injury or
  damage whatsoever caused to any person, or to the property of any person,
  occurring in or about the Premises after the date that possession of the
  Premises is first delivered to Tenant and until the end of the Lease Term and
  thereafter, provided that during any such period after the Lease Term Tenant
  or anyone acting by, through or under Tenant is in occupancy of the Premises
  or any portion thereof; or any accident, injury or damage occurring outside
  the Premises but within the Building, the Garage or on the Prudential Center,
  where such accident, injury or damage results, or is claimed to have
  resulted, from an act, omission or negligence on the part of Tenant or
  Tenant’s contractors, licensees, invitees, agents, servants, independent
  contractors or employees.

  
	
   

  	
   

  
	
   

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

  
	
   

  	
   

  
	
  13.1A.

  	
  LANDLORD’S
  INDEMNITY OF TENANT .. Landlord, subject to the limitations on Landlord’s
  liability contained elsewhere in this Lease, agrees to hold Tenant harmless
  and to defend, exonerate and indemnify Tenant from and against any and all
  claims, liabilities, or penalties asserted by or on behalf of any third party
  for damage to property or injuries to persons sustained or occurring in the
  Building to the extent arising from the negligence or willful misconduct of
  Landlord or Landlord’s agents, employees or contractors.

  
	
   

  	
   

  
	
   

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

  
	
   

  	
   

  
	
  13.2

  	
  COMMERCIAL GENERAL
  LIABILITY INSURANCE. Tenant agrees to maintain in full force from the date
  upon which Tenant first enters the Premises for any reason, throughout the
  Lease Term of this Lease, and thereafter, so long as Tenant is in occupancy
  of any part of the Premises, a policy of commercial general liability written
  on an occurrence basis with a broad form comprehensive liability endorsement
  under which Landlord and Landlord’s managing agent (and such other persons as
  are in privity of estate with Landlord and Landlord’s managing agent as may
  be set out in notice from time to time) and Tenant are

  



 


56

















 


	
   

  	
  named
  as insureds, and under which the insurer agrees to indemnify and hold
  Landlord and Landlord’s managing agent, and those in privity of estate with
  Landlord and Landlord’s managing agent, harmless from and against all cost,
  expense and/or liability arising out of or based upon any and all claims,
  accidents, injuries and damages mentioned in Section 13.1 of this
  Article XIII, in the broadest form of such coverage from time to time
  available in the jurisdiction in which the Premises are located. Tenant shall
  use reasonable efforts to cause the issuer of each such policy to include a
  provision therein stating that the policy shall be non-cancelable and
  non-amendable with respect to Landlord and Landlord’s said designees without
  thirty (30) days’ prior notice to Landlord, and a duplicate original or
  certificate thereof shall be delivered to Landlord. As of the Commencement
  Date hereof, the minimum limits of liability of such insurance shall be as
  specified in Section 1.2 and from time to time during the Lease Term for
  such higher limits, if any, as are carried customarily in the Greater Boston
  Area with respect to similar properties identified in writing to Tenant. In
  addition, in the event Tenant hosts a function in the Premises, Tenant agrees
  to obtain and maintain, and cause any persons or parties providing services
  for such function to obtain, the appropriate insurance coverages as
  determined by Landlord (including liquor liability, if applicable) and
  provide Landlord with evidence of the same. All insurance required to be
  maintained by Tenant pursuant to this Lease shall be maintained with
  responsible companies qualified to do business, and in good standing, in the
  Commonwealth of Massachusetts and which have a rating of at least “A-” and
  are within a financial size category of not less than “Class VIII” in
  the most current Best’s Key Rating Guide or such similar rating as may be
  reasonably selected by Landlord if such Guide is no longer published.

  
	
   

  	
   

  
	
  13.3

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

  
	
   

  	
   

  
	
  13.4

  	
  NON-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 prior to occurrence of injury or loss. Each party,
  notwithstanding any provisions of this Lease to the contrary, hereby waives
  any rights of recovery

  



 


57

















 


	
   

  	
  against
  the other for injury or loss due to hazards covered by such insurance (or
  which would have been covered had such party carried the insurance required
  to be carried by it under the Lease) the to the extent of the indemnification
  received thereunder. This waiver of rights by Tenant shall apply to, and be
  for the benefit of, Landlord’s managing agent.

  
	
   

  	
   

  
	
  13.5

  	
  TENANT’S
  RISK. To the maximum extent that this agreement may be made effective
  according to law, Tenant agrees to use and occupy the Premises and to use
  such other portions of the Building, the Garage or the Prudential Center as
  Tenant is herein given the right to use at Tenant’s own risk; and Landlord
  shall have no responsibility or liability for any loss of or damage to
  fixtures or other personal property of Tenant.

  
	
   

  	
   

  
	
  13.6

  	
  LANDLORD’S
  INSURANCE. Landlord shall maintain so called All Risk property insurance on
  the Building at full replacement cost value and Commercial General Liability
  Insurance providing, on an occurrence basis, a minimum combined single limit
  of $5,000,000.00.

  



 


ARTICLE
XIV


FIRE,
CASUALTY AND TAKING


 


	
  14.1

  	
  DAMAGE
  RESULTING FROM CASUALTY. In case during the Lease Term the Building is
  damaged by fire or casualty, and such fire or casualty damage cannot, in the
  ordinary course, reasonably be expected to be repaired within one hundred
  twenty (120) days from the time that repair work would commence as reasonably
  determined by Landlord, Landlord may, at its election, terminate this Lease
  by notice given to Tenant within sixty (60) days after the date of such fire
  or other casualty, specifying the effective date of termination. The
  effective date of termination specified by Landlord shall not be less than
  thirty (30) days nor more than forty-five (45) 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 damage
  subject, however, to the following provisions.

  
	
   

  	
   

  
	
   

  	
  If during the last
  eighteen (18) months of the Lease Term (as it may have been extended), the
  Building shall be damaged by fire or casualty and such fire or casualty
  damage to the Premises cannot reasonably be expected to be repaired or
  restored within one hundred twenty (120) days from the time that repair or
  restoration work would commence as reasonably determined by Landlord, then
  Tenant shall have the right, by giving notice to Landlord not later than
  thirty (30) days after such damage, to terminate this Lease, whereupon this
  Lease shall terminate as of the date of such notice with the same force and
  effect as if such date were the date originally established as the expiration
  date hereof.

  



 


58

















 


	
   

  	
  If
  the Building or any part thereof is damaged by fire or casualty and this
  Lease is not so terminated, or Landlord has no right to terminate this Lease,
  and in either such case the holder of any mortgage which includes the
  Building as a part of the mortgaged premises or any ground lessor of any
  ground lease which includes the Building as part of the demised premises
  allows the net insurance proceeds to be applied to the restoration of the
  Building, Landlord, promptly after such damage and the determination of the
  net amount of insurance proceeds available shall use due diligence to restore
  the Premises and the Building in the event of damage thereto (excluding
  Tenant’s Property ) into proper condition for use and occupation and a just
  proportion of the Annual Fixed Rent, the Operating Cost Excess and the Tax
  Excess according to the nature and extent of the injury to the Premises shall
  be abated from the date of casualty until the Premises shall have been put by
  Landlord substantially into such condition. Notwithstanding the foregoing,
  Landlord shall not be obligated to expend for such repairs and restoration
  any amount in excess of the net insurance proceeds.

  
	
   

  	
   

  
	
   

  	
  Where
  Landlord is obligated or otherwise elects to effect restoration of the
  Premises, unless such restoration is completed within ten (10) months
  from the date of the casualty, such period to be subject, however, to
  extension where the delay in completion of such work is due to Force Majeure,
  as defined hereinbelow (but in no event beyond eighteen (18) months from the
  date of the casualty or taking), Tenant, as its sole and exclusive remedy, shall
  have the right to terminate this Lease at any time after the expiration of
  such one-year (as extended) period until the restoration is substantially
  completed, such termination to take effect as of the thirtieth (30th) day
  after the date of receipt by Landlord of Tenant’s notice, with the same force
  and effect as if such date were the date originally established as the
  expiration date hereof unless, within such thirty (30) day period such
  restoration is substantially completed, in which case Tenant’s notice of
  termination shall be of no force and effect and this Lease and the Lease Term
  shall continue in full force and effect. The term “Force Majeure” shall mean
  any prevention, delay or stoppage due to governmental regulation,
  strikes, lockouts, acts of God, acts of war, terrorists acts, civil
  commotions, unusual scarcity of or inability to obtain labor or materials,
  labor difficulties, casualty or other causes reasonably beyond Landlord’s
  control or attributable to Tenant’s action or inaction.

  
	
   

  	
   

  
	
  14.2

  	
  UNINSURED CASUALTY.
  Notwithstanding anything to the contrary contained in this Lease, if the
  Building or the Premises shall be substantially damaged by fire or casualty
  as the result of a risk not covered by the forms of casualty insurance at the
  time maintained by Landlord and such fire or casualty damage cannot, in the
  ordinary course, reasonably be expected to be repaired within thirty (30)
  days from the time that repair work would commence, Landlord may, at its
  election, terminate the Term of this Lease by notice to Tenant given within
  thirty (30) days after such loss. If Landlord shall give such notice, then
  this Lease shall

  



 


59

















 


	
   

  	
  terminate
  as of the date of such notice with the same force and effect as if such date
  were the date originally established as the expiration date hereof.

  
	
   

  	
   

  
	
   

  	
  If
  the Building is damaged by fire or other casualty, and if (x) the holder
  of any mortgage which includes the Building as a part of the mortgaged
  premises or any ground lessor of any ground lease which includes the Building
  as part of the demised premises refuses to allow the net insurance proceeds
  to be applied to the restoration of the Building or (y) Landlord
  reasonably determines that the net proceeds of insurance shall be
  insufficient to pay for the cost of restoring the Building, then unless
  Landlord elects to supply the necessary funds to restore the Premises (which
  Landlord shall have no obligation to do), Landlord shall notify Tenant of
  such refusal or insufficiency in writing, whereupon Tenant may, at its
  election, terminate this Lease by notice given to Landlord within 30 days
  receiving such notification from Landlord, which notice shall specify the
  effective date of termination.

  
	
   

  	
   

  
	
  14.3

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

  
	
   

  	
   

  
	
   

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

  
	
   

  	
   

  
	
   

  	
  Should any part of the
  Premises be so taken or condemned during the Lease Term hereof, and should
  this Lease not be terminated in accordance with the foregoing provisions, and
  the holder of any mortgage which includes the Premises as part of the mortgaged
  premises or any ground lessor of any ground lease which includes the Premises
  as part of the demised premises allows the net condemnation proceeds to be
  applied to the restoration of the Building, Landlord agrees that after the
  determination of the net amount of condemnation proceeds available to
  Landlord, Landlord shall use due diligence to put what may remain of the
  Premises into proper condition for use and occupation as nearly like the
  condition

  



 


60

















 


	
   

  	
  of
  the Premises prior to such taking as shall be practicable (excluding Tenant’s
  Property). Notwithstanding the foregoing, Landlord shall not be obligated to
  expend for such repair and restoration any amount in excess of the net
  condemnation proceeds made available to it.

  
	
   

  	
   

  
	
   

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

  
	
   

  	
   

  
	
  14.4

  	
  AWARD.
  Except as otherwise provided in this Section 14.4, Landlord shall have
  and hereby reserves and excepts, and Tenant hereby grants and assigns to
  Landlord, all rights to recover for damages to the Building, the Prudential
  Center, and the Garage and the leasehold interest hereby created, and
  compensation accrued or hereafter to accrue by reason of such taking, damage
  or destruction, as aforesaid, and by way of confirming the foregoing, Tenant
  hereby grants and assigns, and covenants with Landlord to grant and assign to
  Landlord, all rights to such damages or compensation.

  
	
   

  	
   

  
	
   

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

  



 


ARTICLE
XV


DEFAULT


 


	
  15.1

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

  
	
   

  	
   

  	
   

  
	
   

  	
  (a)

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

  



 


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


 


(c)           Tenant shall
assign its interest in this Lease or sublet any portion of the Premises in
violation of the requirements of Article XII of this Lease; or


 


(d)           Tenant shall
fail to perform or observe some term or condition of this Lease which, because
of its character, would immediately jeopardize Landlord’s interest (such as,
but without limitation, failure to maintain general liability insurance, or the
employment of labor and contractors within the Premises which interfere with
Landlord’s work, in violation of Sections 4.3, 9.3, 11.2 or 11.11) or a failure
to observe the requirements of Section 11.2), and such failure continues
for three (3) business days after notice from Landlord to Tenant thereof;
or


 


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


 


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


 


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


 


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


 


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


 


(j)            any petition
shall be filed against Tenant in any court, whether or not pursuant to any
statute of the United States or of any State, in any bankruptcy, reorganization,
composition, extension, arrangement or


 


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insolvency
proceeding, and such proceedings shall not be fully and finally dismissed
within sixty (60) days after the institution of the same; or


 


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


 


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


 


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


 


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


 


15.3         CONTINUED
LIABILITY; RE-LETTING. If this Lease is terminated or if Landlord shall
re-enter the Premises as aforesaid, or in the event of the termination of this
Lease, or of re- entry, by or under any proceeding or action or any provision
of law by reason of an Event of Default hereunder on the part of Tenant, Tenant
covenants and agrees forthwith to pay and be liable for, on the days originally
fixed herein for the payment thereof, amounts equal to the several installments
of Annual Fixed Rent, all Additional Rent and other charges reserved as they
would, under the terms of this Lease, become due if this Lease had not been
terminated or if Landlord had not entered or re-entered, as aforesaid, and
whether the Premises be relet or remain vacant, in whole or in part, or for a
period less than the remainder of the Lease Term, or for the whole thereof,
but, in the


 


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event
the Premises be relet by Landlord, Tenant shall be entitled to a credit in the
net amount of rent and other charges received by Landlord in reletting, after
deduction of all reasonable expenses incurred in reletting the Premises
(including, without limitation, remodeling costs, brokerage fees and the like),
and in collecting the rent in connection therewith, in the following manner:


 


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


 


Landlord
agrees to use reasonable efforts to relet the Premises after Tenant vacates the
Premises in the event that the Lease is terminated based upon a default by
Tenant hereunder. Marketing of Tenant’s Premises in a manner similar to the
manner in which Landlord markets other premises within Landlord’s control in
the Prudential Center shall be deemed to have satisfied Landlord’s obligation
to use “reasonable efforts.” In no event shall Landlord be required to (i) solicit
or entertain negotiations with any other prospective tenants for the Premises
until Landlord obtains full and complete possession of the Premises including,
without limitation, the undisputed legal right to re-let the Premises free of
any claim of Tenant, (ii) relet the Premises before leasing other vacant
space in the Building, or (iii) lease the Premises for a rental less than
the current fair market rental then prevailing for similar office space in the
Building.


 


15.4         LIQUIDATED
DAMAGES. Landlord may elect, as an alternative, to have Tenant pay liquidated
damages, which election may be made by notice given to Tenant at any time after
the termination of this Lease under Section 15.2, above, and whether or
not Landlord shall have colleced any damages as hereinbefore provided in this Article XV,
and in lieu of all other such damages beyond the date of such notice. Upon such
notice, Tenant shall promptly pay to Landlord, as liquidated damages, in
addition to any damages collected or due from Tenant from any period prior to
such notice and all expenses which Landlord may have incurred with respect to
the collection of such damages, such a sum as at the time of such notice
represents the amount of the excess, if any, of (a) the discounted present
value, at a discount rate of 6%, of the Annual Fixed Rent, Additional Rent


 


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and
other charges which would have been payable by Tenant under this Lease for the
remainder of the Lease Term if the Lease terms had been fully complied with by
Tenant, over and above (b) the discounted present value, at a discount
rate of 6%, of the Annual Fixed Rent, Additional Rent and other charges that
would be received by Landlord if the Premises were re- leased at the time of
such notice for the remainder of the Lease Term at the fair market value
(including provisions regarding periodic increases in Annual Fixed Rent if such
are applicable) prevailing at the time of such notice as reasonably determined
by Landlord.


 


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


 


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


 


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


 


15.6         LANDLORD’S
DEFAULT. Landlord shall in no event be in default in the performance of any of
Landlord’s obligations hereunder unless and until Landlord shall have failed to
perform such obligations within thirty (30) days, or such additional time as is
reasonably required to correct any such default, after notice by Tenant to
Landlord properly specifying wherein Landlord has failed to perform any such
obligation.


 


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


 


ARTICLE
XVI


MISCELLANEOUS
PROVISIONS


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


16.5         BROKERAGE.


 


(A)          Tenant
warrants and represents that Tenant has not dealt with any broker in connection
with the consummation of this Lease other than the broker, person or firm
designated in Section 1.2 hereof; and in the event any claim is made
against the Landlord relative to Tenant’s dealings with brokers other than the
broker designated in Section 1.2 hereof, Tenant shall defend the claim
against Landlord with counsel of Tenant’s selection, subject to Landlord’s
reasonable approval, and save harmless and indemnify


 


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Landlord
on account of loss, cost or damage which may arise by reason of such claim.


 


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


 


(C)           Landlord
agrees that it shall be solely responsible for the payment of brokerage
commissions to the broker, person or firm designated in Section 1.2
hereof.


 


16.6         INVALIDITY
OF PARTICULAR PROVISIONS. If any term or provision 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 or provision to persons or circumstances other than those as to which
it is held invalid or unenforceable, shall not be affected thereby, and each
term and provision of this Lease shall be valid and be enforced to the fullest
extent permitted by law.


 


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


 


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


 


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


 


If
intended for Landlord, addressed to Landlord at the address set forth on the
first page of this Lease (or to such other address or addresses as may
from time to time hereafter be designated by Landlord by like notice).


 


If
intended for Tenant, addressed to Tenant at the address set forth on the first page of
this Lease except that from and after the Commencement Date the address of
Tenant shall be the Premises (or to such other address or addresses as may from
time to time hereafter be designated by Tenant by like notice).


 


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


 


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


 


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


 


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


 


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


 


69

















 


employee
or agent of Landlord shall alter, change or modify any of the provisions
hereof.


 


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


 


16.12       RIGHTS OF
MORTGAGEE.


 


(A)          This Lease
shall be subject and subordinate to any mortgage now or hereafter on the
Building (or any part thereof), and to all renewals, modifications,
consolidations, replacements and extensions thereof and all substitutions
therefor, provided that in the case of a future mortgage the holder of such
mortgage agrees to recognize the right of Tenant to use and occupy the Premises
and Tenant’s other rights hereunder, subject to such holder’s commercially
reasonable limitations thereon which are commonly imposed or agreed to by
institutional mortgagees of commercial real estate, upon the payment of rent
and other charges payable by Tenant under this Lease and the performance by
Tenant of Tenant’s obligations hereunder. In confirmation of such subordination
and recognition, Tenant shall execute and deliver promptly such instruments of
subordination as such mortgagee may reasonably request, subject to receipt of
such instruments of recognition from such mortgagee as Tenant may reasonably
request. In the event that any mortgagee or its respective successor in title
shall succeed to the interest of Landlord, then this Lease shall nevertheless
continue in full force and effect and Tenant shall and does hereby agree to
attorn to such mortgagee or successor and to recognize such mortgagee or
successor as its landlord.


 


(B)           If any holder
of a mortgage which includes the Premises, executed and recorded prior to the
Date of this Lease, shall so elect, this Lease, and the rights of Tenant
hereunder, shall be superior in right to the rights of such holder, with the
same force and effect as if this Lease had been executed, delivered and
recorded, or a statutory Notice hereof recorded, prior to the execution,
delivery and recording of any such mortgage. The election of any such holder
shall become effective upon either notice from such holder to Tenant in the
same fashion as notices from Landlord to Tenant are to be given hereunder or by
the recording in the appropriate registry or recorder’s office of an instrument
in which such holder subordinates its rights under such mortgage to this Lease.


 


(C)           Notwithstanding
the foregoing, Landlord will use reasonable efforts to obtain a
non-disturbance, subordination and attornment agreement from the Mortgagee(s) listed
on Exhibit I, on such Mortgagee’s current standard form of agreement, with
such commercially reasonable changes as Tenant may request and otherwise
reasonably satisfactory to Tenant. “Reasonable efforts” of Landlord


 


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shall
not require Landlord to incur any cost, expense or liability to obtain such
agreement, it being agreed that Tenant shall be responsible for any fee or
review costs charged by the Mortgagee. Upon request of Landlord, Tenant will
execute the Mortgagee’s form of non-disturbance, subordination and attornment
agreement with such commercially reasonable changes as Tenant may request and
return the same to Landlord for execution by the Mortgagee. Landlord’s failure
to obtain a non-disturbance, subordination and attornment agreement for Tenant shall
have no effect on the rights, obligations and liabilities of Landlord and
Tenant or be considered to be a default by Landlord hereunder.


 


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


 


16.14       NOTICE TO
MORTGAGEE AND GROUND LESSOR. After receiving notice from any person, firm or
other entity that it holds a mortgage which includes the Premises as part of
the mortgaged premises, or that it is the ground lessor under a lease with
Landlord as ground lessee, which includes the Premises as a part of the leased
premises, no notice from Tenant to Landlord shall be effective as against such
holder or ground lessor unless and until a copy of the same is given to such
holder or ground lessor at the address as specified in said notice (as it may
from time to time be changed), and the curing of any of Landlord’s defaults by
such holder or ground lessor within a reasonable time after such notice
(including a reasonable time to obtain possession of the premises if the
mortgagee or ground lessor elects to do so) shall be treated as performance by
Landlord. For the purposes of this Section 16.14, the term “mortgage”
includes a mortgage on a leasehold interest of Landlord (but not one on Tenant’s
leasehold interest). If any mortgage is listed on Exhibit I then the same
shall constitute notice from the holder of such mortgage for the purposes of
this Section 16.14.


 


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


 


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


 


(b)           That, except
as aforesaid, such holder or ground lessor shall be treated as having assumed
Landlord’s obligations hereunder only upon foreclosure of such holder’s
mortgage or the taking of possession of the Premises, or, in the case of a
ground lessor, the assumption of Landlord’s position hereunder by such ground
lessor. In no event shall the acquisition of title to the Building and the land
on which the same is located by a purchaser which, simultaneously therewith,
leases the entire Building or such land back to the seller thereof be treated
as an assumption, by operation of law or otherwise, of Landlord’s obligations
hereunder, but Tenant shall look solely to such seller-lessee, and its
successors from time to time in title, for performance of Landlord’s
obligations hereunder. In any such event, this Lease shall be subject and
subordinate to the lease to such purchaser provided that such purchaser-lessor
agrees to recognize the right of Tenant to use and occupy the Premises upon the
payment of rent and all other charges payable by Tenant under this Lease and
the performance by Tenant of Tenant’s obligations under this Lease. For all
purposes, such seller-lessee, and its successors in title, shall be the
landlord hereunder unless and until Landlord’s position shall have been assumed
by such purchaser-lessor. Tenant acknowledges that it has been informed by Landlord
that Landlord has entered into certain agreements with its lenders (“Lenders”)
which require it to include in this Lease (and requires Tenant to include in
any sublease which may be permitted hereunder) the following provisions: (i) no
rent payable under this Lease or under any such sublease may be based in whole
or in part on the income or profits derived from the Premises or any subleased
premises except for percentage rent based on gross (not net) receipts or sales;
(ii) if Lenders succeed to the Landlord’s interests under this Lease and
are advised by Lenders’ counsel that all or any portion of the rent payable
under this Lease is or may be deemed to be unrelated business income within the
meaning of the Internal Revenue Code of the 1986, as amended, or the
regulations issued thereunder, Lenders may elect to amend unilaterally the
calculation of rents under this Lease so that none of the rents payable to
Lenders under this Lease will constitute unrelated business income, provided
that such amendment will not increase the Tenant’s payment obligations or other
liability under this Lease or reduce the Landlord’s obligations under this
Lease; and (iii) if Lenders request, Tenant will be obligated to execute
any


 


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document
Lenders may deem necessary to effect the amendment of this Lease in accordance
with the foregoing subsection (ii). Further, no Annual Fixed Rent or Additional
Rent may be paid by Tenant more than thirty (30) days in advance except with
Lenders’ prior written consent, and any such payment without such consent shall
not be binding on Lenders.


 


16.16      STATUS
REPORT AND FINANCIAL STATEMENTS. Recognizing that Landlord may find it
necessary to establish to third parties, such as accountants, banks, potential
or existing mortgagees, potential purchasers or the like, the then current
status of performance hereunder, Tenant, within ten (10) days after the
request of Landlord made from time to time, will furnish to Landlord, or any
existing or potential holder of any mortgage encumbering the Premises, the
Building or the Prudential Center, or any potential purchaser of the Premises,
the Building, or the Prudential Center (each an “Interested Party”) a statement
of the status of any matter pertaining to this Lease, including, without
limitation, acknowledgments that (or the extent to which) each party is in
compliance with its obligations under the terms of this Lease. In addition,
Tenant shall deliver to Landlord, or any Interested Party designated by
Landlord, financial statements of Tenant, and any guarantor of Tenant’s
obligations under this Lease, as reasonably requested by Landlord including,
but not limited to, financial statements for the past three (3) years. Any
such status statement or financial statement delivered by Tenant pursuant to
this Section 16.16 may be relied upon by any Interested Party.


 


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


 


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to
any other right or remedy of Landlord) the same rights and remedies in the
event of the non-payment thereof by Tenant as in the case of default by Tenant
in the payment of Annual Fixed Rent.


 


16.18      HOLDING
OVER. Any holding over by Tenant after the expiration of the term of this Lease
shall be treated as a tenancy at sufferance and shall be on the terms and
conditions as set forth in this Lease, as far as applicable except that Tenant
shall pay as a use and occupancy charge an amount equal to the greater of (x) the
Holdover Percentage, as hereinafter defined, of the Annual Fixed Rent and
Additional Rent calculated (on a daily basis) at the highest rate payable under
the terms of this Lease or (y) the fair market rental value of the
Premises, in each case for the period measured from the day on which Tenant’s
hold-over commences and terminating on the day on which Tenant vacates the
Premises. For the first sixty (60) days of such holding over, the Holdover
Percentage shall be one hundred fifty percent (150%); from and after the
sixty-first (61st) day of such holding over, the Holdover Percentage shall be
two hundred percent (200%). In addition, Tenant shall save Landlord, its agents
and employees harmless and will exonerate, defend and indemnify Landlord, its
agents and employees from and against any and all damages which Landlord may
suffer on account of Tenant’s hold-over in the Premises after the expiration or
prior termination of the term of this Lease. Nothing in the foregoing nor any
other term or provision of this Lease shall be deemed to permit Tenant to
retain possession of the Premises or hold over in the Premises after the
expiration or earlier termination of the Lease Term. All property which remains
in the Building or the Premises after the expiration or termination of this
Lease shall be conclusively deemed to be abandoned and may either be retained
by Landlord as its property or sold or otherwise disposed of in such manner as
Landlord may see fit. If any part thereof shall be sold, then Landlord may
receive the proceeds of such sale and apply the same, at its option against the
expenses of the sale, the cost of moving and storage, any arrears of rent or
other charges payable hereunder by Tenant to Landlord and any damages to which
Landlord may be entitled under this Lease and at law and in equity.


 


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


 


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purchasers
and mortgagees. Any such entry will be made subject to the provisions of Section 2.2
hereof.


 


16.20      TENANT’S
PAYMENTS. Each and every payment and expenditure, other than Annual Fixed Rent,
shall be deemed to be Additional Rent hereunder, whether or not the provisions
requiring payment of such amounts specifically so state, and shall be payable,
unless otherwise provided in this Lease, within ten (10) days after
written demand by Landlord, and in the case of the non-payment of any such
amount, Landlord shall have, in addition to all of its other rights and
remedies, all the rights and remedies available to Landlord hereunder or by law
in the case of non-payment of Annual Fixed Rent. Unless expressly otherwise
provided in this Lease, the performance and observance by Tenant of all the
terms, covenants and conditions of this Lease to be performed and observed by
Tenant shall be at Tenant’s sole cost and expense. If Tenant has not objected
to any statement of Additional Rent which is rendered by Landlord to Tenant within
one hundred eighty (180) days after Landlord has rendered the same to Tenant,
then the same shall be deemed to be a final account between Landlord and Tenant
not subject to any further dispute. In the event that Tenant shall seek
Landlord’s consent or approval under this Lease, then Tenant shall reimburse
Landlord, upon demand, as Additional Rent, for all reasonable costs and
expenses, including legal and architectural costs and expenses, incurred by
Landlord in processing such request, whether or not such consent or approval
shall be given.


 


16.21      LATE
PAYMENT. If Landlord shall not have received any payment or installment of
Annual Fixed Rent or Additional Rent (the “Outstanding Amount”) on or before
the date ten (10) days after the date on which the same first becomes
payable under this Lease (the “Due Date”), the amount of such payment or
installment shall incur a late charge equal to the sum of: (a) three
percent (3%) of the Outstanding Amount for administration and bookkeeping costs
associated with the late payment and (b) interest on the Outstanding
Amount from the Due Date through and including the date such payment or
installment is received by Landlord, at a rate equal to the lesser of (i) the
rate announced by Fleet National Bank (or its successor) from time to time as
its prime or base rate (or if such rate is no longer available, a comparable
rate reasonably selected by Landlord), plus two percent (2%), or (ii) the
maximum applicable legal rate, if any. Such interest shall be deemed Additional
Rent and shall be paid by Tenant to Landlord upon demand.


 


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


 


16.23      ENTIRE
AGREEMENT. This Lease constitutes the entire agreement between the parties
hereto, Landlord’s managing agent and their respective affiliates with


 


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respect
to the subject matter hereof and thereof and supersedes all prior dealings
between them with respect to such subject matter, and there are no verbal or
collateral understandings, agreements, representations or warranties not
expressly set forth in this Lease. No subsequent alteration, amendment, change
or addition to this Lease shall be binding upon Landlord or Tenant, unless
reduced to writing and signed by the party or parties to be charged therewith.


 


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


 


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


 


16.26      SECURITY
DEPOSIT. (A) Concurrently with the execution of this Lease, Tenant shall
pay to Landlord a security deposit in the amount of Five Hundred


 


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Thousand
and 00/100 ($500,000.00) Dollars and Landlord shall hold the same, throughout
the Term of this Lease (including the Extended Term, if applicable), unless
sooner returned to Tenant as provided in this Section 16.26, as security
for the performance by Tenant of all obligations on the part of Tenant to be
performed under this Lease. Such deposit shall be in the form of an
irrevocable, unconditional, negotiable letter of credit (the “Letter of Credit”).
The Letter of Credit shall (i) be issued by and drawn on a bank reasonably
approved by Landlord and at a minimum having a corporate credit rating from
Standard and Poor’s Professional Rating Service of BBB- or a comparable minimum
rating from Moody’s Professional Rating Service, (ii) be in a form
reasonably acceptable to Landlord, (iii) permit one or more draws
thereunder to be made accompanied only by certification by Landlord that
pursuant to the terms of this Lease, Landlord is entitled to draw upon such
Letter of Credit, (iv) permit transfers at any time without charge and (v) permit
presentment in Boston, Massachusetts. Any such Letter of Credit shall be for a
term of two (2) years (or for one (1) year if the issuer thereof
regularly and customarily only issues letters of credit for a maximum term of
one (1) year) and shall in either case provide for automatic renewals
through the date which is thirty (30) days subsequent to the scheduled
expiration of this Lease (as the same may be extended) or if the issuer will
not grant automatic renewals, the Letter of Credit shall be renewed by Tenant
each year and each such renewal shall be delivered to and received by Landlord
not later than thirty (30) days before the expiration of the then current
Letter of Credit (herein called a “Renewal Presentation Date”). In the event of
a failure to so deliver any such renewal Letter of Credit on or before the
applicable Renewal Presentation Date, Landlord shall be entitled to present the
then existing Letter of Credit for payment and to receive the proceeds thereof,
which proceeds shall be held as Tenant’s security deposit, subject to the terms
of this Section 16.26. Upon the occurrence of any Event of Default,
Landlord shall have the right from time to time without prejudice to any other
remedy Landlord may have on account thereof, to draw on all or any portion of
such deposit held as a Letter of Credit and to apply the proceeds of such
Letter of Credit or any cash held as such deposit, or any part thereof, to
Landlord’s damages arising from such Event of Default on the part of Tenant
under the terms of this Lease. If Landlord so applies all or any portion of
such deposit, Tenant shall within seven (7) days after notice from
Landlord deposit cash with Landlord in an amount sufficient to restore such
deposit to the full amount stated in this Section 16.26. While Landlord
holds any cash deposit Landlord shall have no obligation to pay interest on the
same and shall have the right to commingle the same with Landlord’s other
funds. Neither the holder of a mortgage nor the Landlord in a ground lease on
property which includes the Premises shall ever be responsible to Tenant for
the return or application of any such deposit, whether or not it succeeds to
the position of Landlord hereunder, unless such deposit shall have been
received in hand by such holder or ground Landlord.


 


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Tenant
not then being in default and having performed all of its obligations under
this Lease, including the payment of all Annual Fixed Rent, Landlord shall
return the deposit, or so much thereof as shall not have theretofore been
applied in accordance with the terms of this Section 16.26, to Tenant on
the expiration or earlier termination of the term of this Lease (as the same
may have been extended) and surrender possession of the Premises by Tenant to
Landlord in the condition required in the Lease at such time.


 


(B)  Reduction
in Letter of Credit Amount. Notwithstanding anything herein to the contrary,
commencing on the first Effective Reduction Date (as defined below), and
continuing on each Effective Reduction Date thereafter occurring during the
initial Term, the security required under Section 26.6(A) shall be
automatically reduced by $50,000.00 provided (i) there has been no
monetary Event of Default by Tenant under this Lease and (ii) Tenant has
delivered to Landlord, at least fifteen (15) days before the Effective
Reduction Date in question, Tenant’s most recent annual audited financial
statement which statement shall, (x) if Tenant is then a publicly traded
company, be for Tenant’s fiscal year immediately preceding the fiscal year in
which the Effective Reduction Date occurs, together with the most recent so
called 10Q statements filed by Tenant, or (y) if Tenant is not then a
publicly traded company, be for Tenant’s fiscal year in which the Effective
Reduction Date occurs, all of which statements shall be prepared in accordance
with generally accepted accounting principles (collectively, “GAAP Financial
Statement”), that shows, as of the date of said GAAP Financial Statement, that (1) Tenant’s
minimum net worth, as determined in accordance with generally accepted
accounting principles (“GAAP”), is at least $40,000,000.00 and (2) Tenant’s
minimum cash flow from operations, as determined in accordance with GAAP, is at
least $15,000,000.00. If any of the aforesaid conditions are not satisfied as
of the Effective Reduction Date in question, then the security shall not be
reduced by $50,000.00; provided, however, if the reduction does not occur as a
result of a failure to satisfy the condition set forth in clause (i), then
there shall be no further reduction in the amount of the security; and
provided, further, if the reduction does not occur solely as a result of a
failure to satisfy the condition set forth in clause (ii), then such failure
shall not affect the automatic reduction for any subsequent Effective Reduction
Date if all of the conditions are satisfied as of said subsequent Effective
Reduction Date. For the purposes of this Section 16.26, the “Effective
Reduction Date” shall be each anniversary of the Rent Commencement Date,
commencing on the third (3rd) anniversary of the Rent Commencement Date, except
that if Tenant is not then a publicly traded company, the Effective Reduction
Date shall be the later of the applicable anniversary of the Rent Commencement
Date or the date that Landlord receives the GAAP Financial Statement for the
fiscal year in which such Effective Reduction Date occurs. Such reduction shall
be accomplished by having Tenant provide Landlord with a substitute letter of
credit in the reduced amount, or an amendment, in form reasonably satisfactory
to Landlord, to the letter of credit


 


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then
being held by Landlord reducing the amount thereof to the reduced amount.


 


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


 


16.28      WAIVER OF
TRIAL BY JURY. To induce Landlord to enter into this Lease, the Tenant hereby waives
any right to trial by jury in any action, proceeding or counterclaim brought by
either Landlord or Tenant on any matters whatsoever arising out of or any way
connected with this Lease, the relationship of the Landlord and the Tenant, the
Tenant’s use or occupancy of the Premises and/or any claim of injury or damage,
including but not limited to, any summary process eviction action.


 


16.29      ROOFTOP
ANTENNA.


Provided
that Tenant notifies Landlord in writing of its desire to do  so on or before the first anniversary of the
Commencement Date, Tenant shall have the right to use the Antenna Area, as
hereinafter defined, to install one (1) satellite dish antenna (“Antenna”)
for a period commencing as of the date that Tenant installs the Antenna, as
hereinafter defined, in the Antenna Area (“Commencement Date in respect of the
Antenna Area”) and terminating as of the last day of the Term, as such Term may
be extended. The “Antenna Area” shall be an area on the roof of the Building
designated by Landlord. Tenant, at Tenant’s cost, shall have the right to use,
to the extent available, and install, if necessary, conduit between the
Premises and the Antenna Area, provided that Tenant obtains Landlord’s prior
written consent. Landlord agrees that it will not unreasonably withhold such
consent. Tenant shall be permitted to use the Antenna Area solely for one (1) Antenna
installed in accordance with specifications approved by Landlord in advance
utilizing a frequency or frequencies and transmission power identified in such
approved specifications which Tenant will be installing in the Antenna Area and
no other frequencies or transmission power shall be used by Tenant without
Landlord’s prior written consent. Such installation shall be designed in such
manner as to be easily removable and so as not to damage the roof of the
Building. The Antenna and any replacement shall be subject to Landlord’s
approval. Tenant’s use of the Antenna Area shall be upon all of the conditions
of the Lease, except as follows:


 


(A)          The Annual Fixed
Rent in respect of the Antenna Area shall be the Fair Market Rental Value of
the Antenna Area, as determined by Landlord in its reasonable discretion taking
into consideration the rent charged by Landlord to other tenants in the
Prudential Center for similar rooftop facilities, as of the Commencement Date
in respect of the Antenna Area.


 


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(B)           Tenant shall
have no obligation to pay Tax Excess or Operating Expense Excess in respect of
the Antenna Area.


 


(C)           Landlord
shall have no obligation to provide any services to the Antenna Area.


 


(D)          Tenant shall
have no right to make any changes, alterations, signs, decoration, or other
improvements (which changes, alterations, signs, decoration or other improvements,
together with the Antenna, are hereby collectively referred to as “Rooftop
Installations”) to the Antenna Area or to the Antenna without Landlord’s prior
written consent, which consent Landlord may hold it its sole discretion.


 


(E)           Tenant shall
have no right of access to the roof of the Building unless Tenant has given
Landlord reasonable advance notice and unless Tenant’s representatives are
accompanied by a representative of Landlord. Landlord shall provide Tenant with
24-hour access to the Antenna Area, subject to Landlord’s reasonable security
procedures and restrictions based on emergency conditions and to other causes
beyond Landlord’s reasonable control. Tenant shall give Landlord reasonable
advance written notice of the need for access to the Antenna Area (except that
such notice may be oral in an emergency), and Landlord must be present during
any entry by Tenant onto the Antenna Area. Each notice for access shall be in
the form of a work order referencing the lease and describing, as applicable,
the date access is needed, the name of the contractor or other personnel
requiring access, the name of the supervisor authorizing the access/work, the
areas to which access is required, the Building common elements to be impacted
(risers, electrical rooms, etc.) and the description of new equipment or other
Rooftop Installations to be installed and evidence of Landlord’s approval
thereof. In the event of an emergency, such notice shall follow within five (5) days
after access to the Antenna Area.


 


(F)           At the
expiration or prior termination of Tenant’s right to use the Antenna Area,
Tenant shall remove all Installations (including, without limitation, the
Antenna) from the Antenna Area.


 


(G)           Tenant shall
be responsible for the cost of repairing any damage to the roof of the Building
caused by the installation or removal of any Rooftop Installations.


 


(H)          Tenant shall
have no right to sublet the Antenna Area.


 


(I)            No other
person, firm or entity (including, without limitation, other tenants, licensees
or occupants of the Building) shall have the right to benefit from the services
provided by the Antenna other than Tenant.


 


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(J)            In the event
that Landlord performs repairs to or replacement of the roof, Tenant shall, at
Tenant’s cost, remove the Antenna until such time as Landlord has completed
such repairs or replacements. Tenant recognizes that there may be an
interference with Tenant’s use of the Antenna in connection with such work.
Landlord shall use reasonable efforts to complete such work as promptly as
possible and to perform such work in a manner which will minimize or, if
reasonably possible, eliminate any interruption in Tenant’s use of the Antenna.


 


(K)          Any services
required by Tenant in connection with Tenant’s use of the Antenna Area or the
Antenna shall be installed by Tenant, at Tenant’s expense, subject to Landlord’s
prior approval.


 


(L)           To the
maximum extent permitted by law, all Rooftop Installations in the Antenna Area
shall be at the sole risk of Tenant, and Landlord shall have no liability to
Tenant in the event that any Rooftop Installations are damaged for any reason.


 


(M)         Tenant shall
take the Antenna Area “as-is” in the condition in which the Antenna Area is in
as of the Commencement Date in respect of the Antenna Area.


 


(N)          Tenant shall
comply with all applicable laws, ordinances and regulations in Tenant’s use of
the Antenna Area and the Antenna.


 


(O)          Landlord
shall have the right, upon thirty (30) days notice to Tenant, to require Tenant
to relocate the Antenna Area to another area (“Relocated Rooftop Area”) on the
roof of the Building suitable for the use of Rooftop Installations. In such
event, Tenant shall, at Landlord’s cost and expense, on or before the thirtieth
(30th) day after Landlord gives such notice, relocate all of its Rooftop
Installations from the Antenna Area to the Relocation Rooftop Area.


 


(P)           In addition
to complying with the applicable construction provisions of the Lease, Tenant
shall not install or operate Rooftop Installations in any portion of the
Antenna Area until (x) Tenant shall have obtained Landlord’s prior written
approval, which approval will not be unreasonably withheld or delayed, of
Tenant’s plans and specifications for the placement and installation of the Rooftop
Installations in the Premises, and (y) Tenant shall have obtained and
delivered to Landlord copies of all required governmental and
quasi-governmental permits, approvals, licenses and authorizations necessary
for the lawful installation, operation and maintenance of the Rooftop
Installations. The parties hereby acknowledge and agree, by way of illustration
and not limitation, that Landlord shall have the right to withhold its approval
of Tenant’s plans and specifications hereunder, and shall not be deemed to be
unreasonable in doing so, if Tenant’s intended placement or method of
installation or operation of the Rooftop Installations (i) may subject
other licensees, tenants or occupants of the Building,


 


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or
other surrounding or neighboring landowners or their occupants, to signal
interference, Tenant hereby acknowledging that a shield may be required in
order to prevent such interference, (ii) does not minimize to the fullest
extent practicable the obstruction of the views from the windows of the
Building that are adjacent to the Rooftop Installations, if any, (iii) does
not complement (in Landlord’s bona fide business judgment, which shall not,
however, require Tenant to incur unreasonable expense) the design and finish of
the Building, (iv) may damage the structural integrity of the Building or
the roof thereof, or (v) may constitute a violation of any consent,
approval, permit or authorization necessary for the lawful installation of the
Rooftop Installations.


 


(Q)          In addition
to the indemnification provisions set forth in the Lease which shall be
applicable to the Antenna Area, Tenant shall, to the maximum extent permitted
by law, indemnify, defend, and hold Landlord, its agents, contractors and employees
harmless from any and all claims, losses, demands, actions or causes of actions
suffered by any person, firm, corporation, or other entity arising from Tenant’s
use of the Antenna Area.


 


(R)           Landlord
shall have the right to designate or identify the Rooftop Installations with or
by a lease or license number (or other marking) and to place such number (or
marking) on or near such Rooftop Installations.


 


(S)           (i)            Tenant
recognizes that Landlord may wish to (and Landlord hereby reserves the right
to) install a central Building system (the “Central Building System”) capable
of, among other things, providing Tenant with the type of service (to be)
provided by Tenant’s Rooftop Installations. If Landlord elects to install the
Central Building System, and provided that the Central Building System provides
Tenant with service equivalent to the service which had been provided by Tenant’s
Rooftop Installations, then (i) Tenant shall, upon Landlord’s request and
at Tenant’s expense, remove its Rooftop Installations and other Alterations
(including any existing cabling) from the Building and repair any damage caused
their installation or removal, (ii) Tenant may, at Tenant’s expense and
subject to the provisions of this Agreement (including, without limitation,
subparagraph P hereof), have access to and use (and tie into) the Central
Building System for the uses permitted hereunder, and (ii) commencing upon
Tenant’s use of the Central Building System and continuing thereafter
throughout the term, the Yearly Rent payable hereunder shall be adjusted to
include that which is reasonably designated by Landlord from time to time based
upon Landlord’s determination of the fair market value of the access rights to
the Central Building System granted herein, such amount to be (x) competitive
with amounts then being charged by other landlords in the Boston area for
similar services and (y) in no event greater than the rent that Tenant
would have been paying pursuant to this Section 16.29 if Landlord had not
exercised its rights under this Section 16.29(S).


 


82














 


(ii)           Landlord
shall maintain, repair or replace the Central Building System, in accordance
with the standards for the repair and maintenance of such systems generally
prevailing in the industry from time to time, so as to eliminate any material
interruption or other adverse effects caused by malfunction, damage or
destruction of the Central Building System, the cost of which shall be borne by
Tenant if the problem was caused by the act or omission of Tenant or its
agents, contractors or employees. Notwithstanding the foregoing, Landlord’s
obligation to maintain, repair or replace the Central Building System shall
apply only to the extent necessary to reach premises in the Building that are
then used by tenants after the malfunction, damage or destruction or that, if
damaged or destroyed, will be again used by tenants upon the completion of
restoration or repair thereof. In no event shall Tenant have any claim or right
to make any claim against Landlord whatsoever for any damages, including,  without limitation, consequential or
incidental damages, or lost  profits, in
any such circumstance.


 


16.30       SIGNAGE.


 


(A)          Landlord
shall provide building standard signage in the standard graphics for the
Building listing Tenant and any permitted subtenant or assignee of Tenant (i) on
the primary non-electronic directory(ies) for the Building, and (ii) at
the entrance to the Premises. The initial listing of Tenant’s name shall be at
Landlord’s expense. Any changes or additions to such directory(ies) or signage
shall be at Tenant’s cost and expense.


 


(B)           Landlord
shall permit Tenant, any permitted subtenant or assignee of Tenant, and their
key employees to be listed on any electronic directory installed by Landlord in
the Building (Tenant acknowledging that Landlord has no obligation to install
an electronic directory) at no charge to Tenant.


 


16.31       STORAGE
SPACE; GENERATOR SPACE.


 


(A)          Tenant shall
have the right, by written election given to Landlord not more than one hundred
twenty (120) days after the Commencement Date, to license up to 1500 rentable
square feet in the aggregate of dry storage space (“Storage Space”) at a
location or locations designated by Landlord within the Prudential Center. The
Storage Space need not be contiguous, but each portion of the Storage Space must
be useable for storage purposes for items typically stored in connection with
office uses. Tenant shall pay a fee for such Storage Space at the rate of
$15.00 per rentable square foot per annum, increased by the increase in the
Consumer Price Index every three (3) years. Tenant shall not be obligated
to pay Operating Expense Excess or Tax Excess with respect to such Storage
Space. Landlord shall not be obligated to provide any services to such Storage
Space. Upon Tenant’s election to license such Storage Space, the parties shall
enter into Landlord’s standard form of license agreement therefor.


 


83

















 


(B)           Tenant shall
have the right, by written election given to Landlord not more than one hundred
twenty (120) days after the Commencement Date, to license up to 36 rentable
square feet of space for an emergency generator (“Generator Space”) at a
location designated by Landlord within the Prudential Center. Tenant shall pay
a fee for such Generator Space at the rate of $20.00 per rentable square foot
per annum, increased by the increase in the Consumer Price Index every three (3) years.
Tenant shall not be obligated to pay Operating Expense Excess or Tax Excess
with respect to such Generator Space. Landlord shall not be obligated to
provide any services to such Generator Space. Any generator to be installed by
Tenant in the Generator Space shall be subject to Landlord’s reasonable
approval, and Tenant shall be responsible for the installation and maintenance
thereof in accordance with all applicable laws, including without limitation
obtaining and maintaining any required permits. Upon Tenant’s election to
license such Generator Space, the parties shall enter into Landlord’s standard
form of license agreement therefor.


 


16.32       ARBITRATION
Any disputes relating to (i) provisions or obligations in this Lease as to
which a specific provision for a reference to arbitration is made herein (i.e.,
disputes under Articles IV ), or (ii) the withholding of consent or approval
where a “reasonableness” standard is specifically required by this Lease, shall
be submitted to arbitration in accordance with the provisions of applicable
state law, as from time to time amended. Arbitration proceedings, including the
selection of an arbitrator, shall be conducted pursuant to the rules,
regulations and procedures from time to time in effect as promulgated by the
American Arbitration Association. Prior written notice of application by either
party for arbitration shall be given to the other at least ten (10) days
before submission of the application to the said Association’s office in
Boston, Massachusetts. The arbitrator shall hear the parties and their
evidence. The decision of the arbitrator shall be binding and conclusive, and
judgment upon the award or decision of the arbitrator may be entered in the
Supreme Court of Suffolk County, Massachusetts; and the parties consent to the
jurisdiction of such court and further agree that any process or notice of
motion or other application to the court or a judge thereof may be served
outside the Commonwealth of Massachusetts by certified mail or by personal
service provided in accordance with the provisions of Section 16.9,
provided a reasonable time for appearance is allowed. The costs and expenses of
each arbitration hereunder and their apportionment between the parties shall be
determined by the arbitrator in his award or decision. No arbitrable dispute
shall be deemed to have arisen under this Lease prior to the expiration of the
period of twenty (20) days after the date of the giving of written notice by
the party asserting the existence of the dispute together with a description
thereof sufficient for an understanding thereof.


 


84

















 


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


 


	
  WITNESS:

  	
  LANDLORD:

  
	
   

  	
   

  
	
   

  	
  BP
  PRUCENTER ACQUISITION LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Boston
  Properties Limited Partnership,

  
	
   

  	
   

  	
  a
  Delaware limited partnership

  
	
   

  	
   

  	
  Its:
  Member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   Boston
  Properties, Inc.,

  
	
   

  	
   

  	
   

  	
   a
  Delaware corporation

  
	
   

  	
   

  	
  Its: 

  	
   General
  Partner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Its:

  	
   

  
	
   

  	
   

  	
   

  	
  Hereunto
  duly authorized

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  TENANT:

  	
  THE
  FIRST MARBLEHEAD

  
	
   

  	
   

  	
   

  	
  CORPORATION

  
	
  ATTEST:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By

  	
   

  	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name

  	
   

  	
   

  	
  Name

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title 

  	
  SECRETARY (OR ASSISTANT
  SECRETARY)

  	
   

  	
  Title

  	
   

  	
  PRESIDENT (OR VICE PRESIDENT)

  
	
   

  	
   

  	
   

  	
   

  	
  HEREUNTO DULY
  AUTHORIZED

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title

  	
   

  	
  TREASURER (OR ASSISTANT
  TREASURER)

  
	
   

  	
   

  	
   

  	
   

  	
  HEREUNTO DULY
  AUTHORIZED

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (CORPORATE SEAL)

  
							



 


85

















 


EXHIBIT
A


 


LEGAL
DESCRIPTION


 


PRUDENTIAL
CENTER


 


PARCEL
1


 


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


 


PARCEL
2 AND PARCEL 3


 


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


 


1

















 


EXHIBIT
A-1


 


PLAN
DEPICTING THE PRUDENTIAL CENTER


 


1

















 


EXHIBIT
B


 


PRUDENTIAL
CENTER


 


TENANT
PLAN AND WORKING DRAWING REQUIREMENTS


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


1

















 


 


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


 


14.           Location of
any special soundproofing requirements.


 


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


 


16.           Drawing submittal
shall include one sepia and one blue line print of each drawing.


 


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


 


2

















 


EXHIBIT
B-1


 


PRUDENTIAL
CENTER


 


PLANS
AND CONSTRUCTION SCHEDULE


 


	
  Permit/GMP Plans (i.e., a set of plans
  sufficiently detailed to permit Landlord to apply for all permits and
  approvals necessary for the performance of Landlord’s Work and to permit
  Landlord to obtain guaranteed maximum price bid(s) for the cost of
  Landlord’s Work). These plans will also be used to generate the list of, and
  associated costs for, long lead time items.

  	
   

  	
  Already
  submitted and approved, subject to the terms and conditions set forth in a
  letter from Landlord to Tenant dated August 22, 2003

  
	
   

  	
   

  	
   

  
	
  Construction Drawings (i.e., full construction
  drawings for the performance of Landlord’s Work, based on the approved GMP
  Plans)

  	
   

  	
  September 15,
  2003

  
	
   

  	
   

  	
   

  
	
  Long
  Lead Items Release Date

  	
   

  	
  September 8,
  2003

  
	
   

  	
   

  	
   

  
	
  Authorization
  to Proceed Date

  	
   

  	
  September 15,
  2003

  



 


3














 


EXHIBIT
C


 


PRUDENTIAL
TOWER, BOSTON, MA


 


LANDLORD
SERVICES


 


I.                                         CLEANING:


 


Cleaning
and janitor services as provided below:


 


A.                                   OFFICE
AREAS:


 


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


 


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


 


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


 


3.                                       Vacuum
all rugs and carpeted areas.


 


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


 


5.                                       Wash
clean all water fountains and sanitize.


 


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


 


7.                                       Wipe
clean all chrome and other bright work.


 


8.                                       Hand
dust grill work within normal reach.


 


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


 


WEEKLY:


 


1.                                       Dust
coat racks and the like.


 


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


 


1

















 


QUARTERLY:


 


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


 


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


 


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


 


c)              dusting
all pipes, ducts and moldings.


 


d)             dusting
of all vertical blinds.


 


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


 


2.                                       Spray
buff all resilient floors.


 


B.                                     LAVATORIES:


 


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


 


1.                                       Sweep
and damp mop.


 


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


 


3.                                       Wash
both sides of all toilet seats.


 


4.                                       Wash
all basins, bowls and urinals.


 


5.                                       Dust
and clean all powder room fixtures.


 


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


 


7.                                       Remove
waste paper and refuse.


 


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


 


MONTHLY:


 


1.                                       Machine
scrub lavatory floors.


 


2.                                       Wash all
partitions and tile walls in lavatories.


 


2

















 


3.                                       Dust
all lighting fixtures and grills in lavatories.


 


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


 


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


 


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


 


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


 


3.                                       Spot
clean any metal work inside lobbies.


 


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


 


5.                                       Sweep
all stairwells and dust handrails.


 


MONTHLY:


 


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


 


D.                                    WINDOW
CLEANING:


 


All
exterior windows shall be washed on the inside no less than two (2) times
per year and on the outside no less than three (3) times per year.


 


II.                                     HVAC:


 


A.                                   Heating,
ventilating and air conditioning equipment will be provided with sufficient
capacity to accommodate a maximum population density of one (1) person per
one hundred fifty (150) square feet of useable floor area served, and a
combined lightning and standard electrical load of 3.0 watts per square foot of
useable floor area. In the event Tenant introduces into the Premises personnel
or equipment which overloads the system’s ability to adequately perform its
proper functions, Landlord shall so notify Tenant in writing and supplementary
system(s) may be required and installed by Landlord at Tenant’s expense,
if within fifteen (15) days Tenant has not modified its use so as not to cause
such overload.


 


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


 


3

















 


i)                                         Cooling
season indoor conditions of not in excess of 78 degrees Fahrenheit when outdoor
conditions are 91 degrees Fahrenheit drybulb and 73 degrees Fahrenheit wetbulb.


 


ii)                                      Heating
season minimum room temperature of 72 degrees Fahrenheit when outdoor
conditions are 6 degrees Fahrenheit drybulb.


 


B.                                   Landlord
shall provide heating, ventilating and air conditioning as normal seasonal
charges may require during Normal Building Operating Hours (8:00 a.m. to
6:00 p.m., Monday through Friday, and 8:00 a.m. to 1:00 p.m. on
Saturdays, legal holidays in all cases excepted).


 


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


 


III.                                 ELECTRICAL
SERVICES:


 


A.                                 Landlord
shall provide electric power for a combined load of 6.0 watts per square foot
of useable area for lighting and for office machines through standard
receptacles for the typical office space.


 


B.                                   Landlord, at
its option, may require separate metering and direct billing to Tenant for the
electric power required for any special equipment (such as computers and
reproduction equipment) that requires either 3-phase electric power or any
voltage other than 120, or for any other usage in excess of 6.0 watts per
square foot.


 


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


 


IV.                                 ELEVATORS:


 


Provide  passenger elevator service.


 


V.                                     WATER:


 


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


 


4

















 


toilet
purposes.


 


VI.                                 CARD ACCESS
SYSTEM:


 


Landlord
will provide a card access system at one entry door of the building.


 


5

















 


EXHIBIT
D


 


FLOOR
PLAN


 


[schematic
diagram of floor plan]


 


1

















 


EXHIBIT
E


 


FORM OF
COMMENCEMENT DATE AGREEMENT


 


Reference
is made to that certain Lease by and between                                         ,
a(n)                                         ,
Landlord and
                                                            ,
a(n)                                             ,
Tenant, and dated
                                                    .


 


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


 


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


 


 


	
   

  	
  LANDLORD:

  	
   

  	
  ,

  



 


	
   

  	
  a(n)

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TENANT:

  	
   

  	
  ,

  
	
   

  	
   

  
	
   

  	
  a(n)

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
  Name
  (print):

  	
   

  	
   

  
										



 


1

















 


EXHIBIT
F


 


LOCATION
OF RESERVED PARKING STALLS


 


1














 


EXHIBIT
G


 


INTENTIONALLY
OMITTED


 


1

















 


EXHIBIT
H


 


BROKER
DETERMINATION OF PREVAILING MARKET RENT


 


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


 


1.             TENANT’S
REQUEST. Tenant shall send a notice to Landlord in accordance with Section 3.2
of the Lease, requesting a Broker Determination of the Prevailing Market Rent,
which notice to be effective must (i) make explicit reference to the Lease
and to the specific section of the Lease pursuant to which said request is
being made, (ii) include the name of a broker selected by Tenant to act
for Tenant, which broker shall be affiliated with a major Boston commercial
real estate brokerage firm selected by Tenant and which broker shall have at
least ten (10) years experience dealing in properties of a nature and type
generally similar to the Building located in the Downtown Boston and Back Bay
Markets, and (iii) explicitly state that Landlord is required to notify
Tenant within thirty (30) days of an additional broker selected by Landlord.


 


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


 


3.             SELECTION OF
THIRD BROKER. Within ten (10) days thereafter the two (2) brokers so
selected shall select a third such broker also having at least the affiliation
and experience referred to above.


 


4.             RENTAL VALUE
DETERMINATION. Within thirty (30) days after the selection of the third broker,
the three (3) brokers so selected, by majority opinion, shall make a
determination of the annual fair market rental value of the Premises for the
Extended Term. Such annual fair market rental value determination (x) may
include provision for annual increases in rent during said Extended Term if so
determined, (y) shall take into account the as-is condition of the
Premises and (z) shall take account of, and be expressed in relation to,
the payment in respect of taxes and operating costs and provisions for paying
for so-called tenant electricity as contained in the Lease. The brokers shall
advise Landlord and Tenant in writing by the expiration of said thirty (30) day
period of the annual fair market rental value which as so determined shall be
referred to as the “Prevailing Market Rent”.


 


1

















 


5.             RESOLUTION
OF BROKER DEADLOCK. If the Brokers are unable to agree at least by majority on
a determination of annual fair market rental value, then the brokers shall send
a notice to Landlord and Tenant by the end of the thirty (30) day period for
making said determination setting forth their individual determinations of
annual fair market rental value, and the highest such determination and the
lowest such determination shall be disregarded and the remaining determination
shall be deemed to be the determination of annual fair market rental value and
shall be referred to as the Prevailing Market Rent.


 


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


 


7.             FAILURE TO
SELECT BROKER OR FAILURE OF BROKER TO SERVE. If Tenant shall have requested a
Broker Determination and Landlord shall not have designated a broker within the
time period provided therefor above and such failure shall continue for more
than ten (10) days after notice thereof, then Tenant’s broker shall alone
make the determination of the Prevailing Market Rent in writing to Landlord and
Tenant within thirty (30) days after the expiration of Landlord’s right to
designate a broker hereunder. If Tenant and Landlord have both designated
brokers but the two brokers so designated do not, within a period of fifteen
(15) days after the appointment of the second broker, agree upon and designate
the third broker willing so to act, the Tenant, the Landlord or either broker
previously designated may request the Greater Boston Real Estate Board (or such
organization as may succeed to the Greater Boston Real Estate Board) to
designate the third broker willing so to act and a broker so appointed shall,
for all purposes, have the same standing and powers as though he had been
seasonably appointed by the brokers first appointed. In case of the inability
or refusal to serve of any person designated as a broker, or in case any broker
for any reason ceases to be such, a broker to fill such vacancy shall be
appointed by the Tenant, the Landlord, the brokers first appointed or the
Greater Boston Real Estate Board, as the case may be, whichever made the
original appointment, or if the person who made the original appointment fails
to fill such vacancy, upon application of any broker who continues to act or by
the Landlord or Tenant such vacancy may be filled by the said Greater Boston
Real Estate Board, and any broker so appointed to fill such vacancy shall have
the same standing and powers as though originally appointed.


 


2

















 


EXHIBIT
I


 


LIST
OF MORTGAGES


 


Mortgage,
dated 6/30/98, recorded in the Suffolk County Registry of Deeds at Book 22643, Page 183,
made by Landlord to The Northwestern Mutual Life Insurance Company, having an
address at 720 East Wisconsin Avenue, Milwaukee, Wisconsin 53202, Attn: Real
Estate Investment Department, with a copy to The Northwestern Mutual Life
Insurance Company, Suite 700, 1133 20th Street, N.W., Washington, DC
20036, Attn: Mr. John Kraus; and Teachers Insurance and Annuity
Association of America, having an address at 730 Third Avenue, New York, New
York 10017, Attn: Ms. Joan Herman; and New York Life Insurance Company,
having an address at 51 Madison Avenue, New York New York 10010, Attn: Real
Estate Department: Mortgage Loan Administration Unit.


 


1














 


The Prudential Tower

Prudential Center

Boston, Massachusetts 02199

(the “Building”)


 


FIRST AMENDMENT


 


Execution Date:  October 7, 2004


 


	
   

  	
   

  	
  LANDLORD:

  	
   

  	
  BP Prucenter Acquisition
  LLC

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  TENANT:

  	
   

  	
  The First Marblehead Corporation,
  a Delaware corporation

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  EXISTING PREMISES:

  	
   

  	
  The entirety of the thirty-fourth
  (34th) floor
  of the Building, containing 26,296 rentable square feet, in accordance with the
  floor plan annexed to the Lease as Exhibit D

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ORIGINAL LEASE DATA

  	
   

  	
  DATE OF LEASE:

  	
   

  	
  September 5, 2003

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  COMMENCEMENT DATE OF EXISTING
  PREMISES:

  	
   

  	
  December 1, 2003

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  RENT COMMENCEMENT DATE OF
  EXISTING PREMISES:

  	
   

  	
  April 1, 2004

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  TERMINATION DATE:

  	
   

  	
  March 31, 2014

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  PREVIOUS LEASE AMENDMENTS:

  	
   

  	
  None

  



 


1

















 


	
   

  	
   

  	
  FIRST AMENDMENT PREMISES:

  	
   

  	
  The entirety of the twenty-ninth
  (29th) floor
  of the Building, containing 25,676 rentable square feet, substantially as shown
  on Exhibit A, First Amendment, Sheet 1, a copy of which is attached hereto and
  incorporated by reference herein

  



 


WHEREAS, Tenant desires to
lease additional Premises from Landlord, to wit, the First Amendment Premises;


 


WHEREAS, Landlord is willing
to lease the First Amendment Premises to Tenant on the terms and conditions hereinafter
set forth;


 


NOW THEREFORE, the above-described
lease (the “Lease”) is hereby amended as follows:


 


1.             DEMISE OF THE FIRST
AMENDMENT PREMISES


 


Landlord hereby demises and
leases to Tenant and Tenant hereby hires and takes from Landlord, the First Amendment
Premises for a Term commencing as of the CD, as hereinafter defined in Paragraph
1.A, and terminating as of March 31, 2014 (“Termination Date”).  Said demise of the First Amendment Premises shall
be upon all of the terms and conditions of the Lease (including, without limitation,
(i) Tenant’s obligation to pay Annual Fixed Rent, as hereinafter provided, (ii)
Tenant’s obligation to pay Tax Excess, in accordance with Section 6.2 of the Lease,
and (iii) Tenant’s obligation to pay Operating Cost Excess, in accordance with Section
7.5 of the Lease), except as follows:


 


A.            The Commencement Date in
respect of the First Amendment Premises (“CD”) shall be the first to occur of (a)
the day on which the First Amendment Premises are deemed to be substantially completed,
as defined in Section 4.1(C) of the Lease, based upon the performance of Landlord’s
First Amendment Premises Work, as defined in Section 2 below, or (b) the date upon
which Tenant commences use of the First Amendment Premises for business purposes
(the parties hereby agreeing that the installation of Tenant’s furniture, fixtures
and equipment shall not be considered to be business purposes).


 


B.            The Rent Commencement Date
in respect of the First Amendment Premises (“RCD”) shall be the date six (6) months
after the CD (“Fixed Rent Abatement Period”) (i.e., Tenant shall have no obligation
to pay Annual Fixed Rent during the first (1st) six (6) months of the Term of the Lease
in respect of the First Amendment Premises (“Abated Fixed Rent “).  Notwithstanding anything to the contrary herein
contained, if Tenant defaults at any time during the Term of the Lease and fails
to cure such default


 


2

















 


within any applicable cure
period under the Lease, all Abated Fixed Rent shall immediately become due and payable.  The payment by Tenant of the Abated Fixed Rent
in the event of a default shall not limit or affect any of Landlord’s other rights,
pursuant to this Lease or at law or in equity. 
During the Fixed Rent Abatement Period, only Annual Fixed Rent payable in
respect of the First Amendment Premises shall be abated, and Tax Excess, Operating
Cost Excess and all other costs and charges specified in the Lease shall remain
as due  and payable pursuant to the provisions
of the Lease.  In the event that Tenant pays
to Landlord the Abated Fixed Rent in accordance with this Paragraph 1(B), then the
monthly installments of Annual Fixed Rent thereafter (i.e., after Tenant makes such
payment) payable by Tenant during the remainder of the initial Term of the Lease
shall be reduced by the Monthly Abated Fixed Rent Reduction, as hereinafter defined.  The “Monthly Abated Fixed Rent Reduction” shall
be defined as the amount of Abated Fixed Rent actually paid by Tenant to Landlord,
amortized a straight-line basis in equal monthly installments over the remainder
of the initial Term of the Lease.


 


C.            No Annual Fixed Rent shall
be payable in respect of the First Amendment Premises prior to the RCD.  The Annual Fixed Rent payable in respect of the
First Amendment Premises for the period from and after the RCD shall be as follows:


 


	
   

  	
  Time Period

  	
   

  	
  Rent PSF

  	
   

  	
  Annual Fixed Rent

  	
   

  	
  Monthly Payment

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  RCD through the date 55 months(1) after the CD:

  	
   

  	
  $

  	
  39.50

  	
   

  	
  $

  	
  1,014,202.00

  	
   

  	
  $

  	
  84,516.84

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  The date 55 months after the CD through March 31, 2014:

  	
   

  	
  $

  	
  43.50

  	
   

  	
  $

  	
  1,116,906.00

  	
   

  	
  $

  	
  93,075.50

  	
   

  	
   

  



 


D.            Base Operating Expenses
in respect of the First Amendment Premises means Operating Expenses for the Building
for calendar year 2005 (that is the period beginning January 1, 2005 and ending
December 31, 2005).


 


E.             Base Taxes in respect
of the First Amendment Premises means Landlord’s Tax Expenses for fiscal tax year
2005 (that is the period beginning July 1, 2004 and ending June 30, 2005).


 


F.             In accordance with the
provisions of Section 2.1 of the Lease, Landlord shall have no right to relocate
the First Amendment Premises prior to the third (3rd) anniversary of the Rent Commencement Date
in respect the Existing Premises.


 






(1) The fixed rent adjustment
date shall occur in the 55th month after the CD
on the same day of the month as the CD occurs. 
For example, if the CD occurs on January 15, 2005, then the Annual Fixed
Rent shall be increased from $1,014,202.00 to $1,116,906.00 effective as of July
15, 2009.


 


3

















 


G.            Tenant’s Extension Options
as set forth in Section 3.2 of the Lease, shall apply to the First Amendment Premises.  The parties hereby acknowledge that Tenant’s Extension
Options may be exercised with respect to (i) both the Existing Premises and the
First Amendment Premises, (ii) only the Existing Premises, or (iii) only the First
Amendment Premises.  If Tenant exercises its
option to extend the Term of the Lease for an Extended Term pursuant to Section
3.2 of the Lease, then the Term of the Lease shall be extended with respect to premises
set forth in Tenant’s notice.  In the event
Tenant exercises said option with respect to only one of the premises, then the
Term of the Lease shall expire with respect to the other premises on the then Termination
Date.


 


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


 


2.             CONDITION OF FIRST AMENDMENT
PREMISES


 


Landlord shall perform the
work (“Landlord’s First Amendment Premises Work”) necessary to prepare the First
Amendment Premises for Tenant’s occupancy (including renovation of the bathrooms
on the twenty-ninth (29th)
floor) in accordance with all of the terms and conditions set forth in Article IV
of the Lease and Exhibit B to the Lease, except as follows:


 


A.            Definitions.  With respect to Landlord’s First Amendment Premises
Work, the terms set forth in this Paragraph 2.A shall be defined as follows:


 


	
  · Authorization to Proceed
  Date:

  	
  September 28, 2004

  
	
   

  	
   

  
	
  · Estimated Commencement
  Date:

  	
  January 14, 2005

  
	
   

  	
   

  
	
  · Outside Completion
  Date:

  	
  January 14, 2006

  
	
   

  	
   

  
	
  · Tenant’s Construction
  Representative:

  	
  Robert Campbell

  
	
   

  	
   

  
	
  · Landlord’s Construction
  Representative:

  	
  Gretchen McGill

  



 


B.            Exhibit B-1.  Exhibit B-1, First Amendment, a copy of which
is attached hereto shall apply to Landlord’s First Amendment Premises Work in lieu
of Exhibit B-1 attached to the Lease.


 


C.            Tenant’s Termination
Right in respect of First Amendment Premises.  Section 4.2 of the Lease shall have no applicability
to the First Amendment Premises or Landlord’s First Amendment Premises Work, and
in lieu thereof the following shall be substituted in its place:


 


4

















 


“If the Commencement Date
in respect of the First Amendment Premises shall not have occurred on or before
Outside Completion Date in respect of the First Amendment Premises (which Outside
Completion Date shall be extended automatically for such periods of time as Landlord
is prevented from proceeding with or completing the same by reason of Force Majeure
as defined in Section 14.1 of the Lease, as well as for any Tenant Delay as defined
in Section 4.1(B) of the Lease, without limiting Landlord’s other rights on account
thereof), Tenant shall have the right to terminate the Lease in respect of the First
Amendment Premises only (i.e. Tenant’s termination right pursuant to this paragraph
shall not affect Tenant’s demise of the Existing Premises) by giving notice to Landlord
of Tenant’s desire to do so at any time before such completion and within the time
period from the Outside Completion Date in respect of the First Amendment Premises
(as so extended) until the date which is thirty (30) days subsequent to the Outside
Completion Date in respect of the First Amendment Premises (as so extended); and,
upon the giving of such notice, the Term of the Lease in respect of the First Amendment
Premises shall cease and come to an end, this First Amendment shall be void and
without further force or effect, and without further liability or obligation on
the part of either party under this First Amendment or with respect to the First
Amendment Premises, unless, within thirty (30) days after receipt of such notice,
the Commencement Date in respect of the First Amendment Premises occurs.  Each day of Tenant Delay shall be deemed conclusively
to cause an equivalent day of delay by Landlord in substantially completing Landlord’s
First Amendment Premises Work, and thereby automatically extend for each such equivalent
day of delay the date of the Outside Completion Date in respect of the First Amendment
Premises.  The remedies set forth in this
paragraph are Tenant’s sole and exclusive rights and remedies based upon any delay
in the performance of Landlord’s First Amendment Premises Work.”


 


E.             Special Allowance in
Respect of First Amendment Premises. 
Landlord shall provide to Tenant a special allowance in respect of the First
Amendment Premises equal to $1,668,940.00, being the product of (i) $65.00 and (ii)
the Rentable Floor Area of the First Amendment Premises (“First Amendment Tenant
Allowance”).  The First Amendment Tenant Allowance
shall be paid upon all of the same terms and conditions set forth in Section 4.4
of the Lease.  Landlord hereby acknowledges
that Tenant may apply up to twenty percent (20%) of the First Amendment Tenant Allowance
towards the payment of various “soft” costs (including, without limitation, wiring
and cabling costs, telecommunications costs, business wire services costs, architectural
and engineering fees, general construction fees and management fees) incurred by
Tenant in connection with the preparation of the First Amendment Premises for Tenant’s
occupancy.


 


F.             Bathroom Allowance
in Respect of First Amendment Premises. 
Landlord shall provide to Tenant an allowance to be used for the renovation
of the bathrooms in the First Amendment Premises of up to $134,000.00 (“Bathroom
Allowance”).  The Bathroom Allowance shall
be paid upon all of the same terms and conditions set forth in Section 4.4 of the
Lease, except that the only costs which may be reimbursed from the Bathroom Allowance
shall be those costs related to the renovation of the bathrooms in the First Amendment
Premises.


 


5

















 


G.            Potential Verizon Strike.  Section 4.1(C)(6) of the Lease shall have no applicability
to Landlord’s First Amendment Premises Work.


 


H.            Payment of Tenant Plan
Excess Costs.  Tenant shall be obligated
to pay all Tenant Plan Excess Costs in respect of the Landlord’s First Amendment
Premises Work in accordance with Section 4.5 of the Lease, except as follows:


 


(i)            Maximum Amount, as defined
in Section 4.5 of the Lease, with respect to Landlord’s First Amendment Premises
Work shall be $513,520.00 (being the product of (i) $20.00 and (ii) the Rentable
Floor Area of the First Amendment Premises) rather than $525,920.00;


 


(ii)           In the second (2nd) paragraph of Section 4.5 of the
Lease, (i) the phrase “one hundred twenty-three (123) months” is deleted and the
phrase “the number of full calendar months between the RCD and March 31, 2014” is
substituted in its place, and (ii) the phrase “one hundred twenty-three (123) monthly
payments” is deleted and the phrase “in equal monthly payments” is substituted in
its place; and


 


(iii)          The last sentence of the
second (2nd) paragraph of
Section 4.5 of the Lease is deleted in its entirety.


 


I.              Initial Fit Allowance.  Section 4.4(D) of the Lease shall have no applicability
to Landlord’s First Amendment Premises Work. 
However, Landlord agrees to provide Tenant with an allowance (“First Amendment
Premises Fit Allowance”) of up to $2,567.60, being the product of ((i) $0.10 and
(ii) the Rentable Floor Area of the First Amendment Premises toward the cost of
the initial fit plans for the First Amendment Premises.


 


3.             RIGHT OF FIRST OFFER


 


A             Subject to the provisions
of this Paragraph 3 (including, without limitation, Subparagraph F of this Paragraph
3), provided that at the time that any portion of the RFO Space, as hereinafter
defined, first becomes available for reletting (i) there exists no “Event of Default”
(defined in Section 15.1 of the Lease), (ii) this Lease is still in full force and
effect, and (iii) Tenant has neither assigned this Lease nor sublet more than twenty
percent (20%) of the Rentable Floor Area of the Premises (except for an assignment
or subletting permitted without Landlord’s consent under Section 12.2 of the Lease),
Landlord agrees not to enter into a lease to relet such portion of the RFO Space
without first giving to Tenant an opportunity to lease such space as hereinafter
set forth.


 


B.            The “RFO Space” shall be
defined as the twenty-sixth (26th)
and twenty-seventh (27th) floors
of the Building.  The RFO Space is presently
leased to another tenant, The Gillette Company (“Gillette”), pursuant to a lease
with Landlord, the term of which expires as of December 31, 2009, with Gillette
having the right to further extend


 


6

















 


the term of such lease.  Any portion of the RFO Space shall be deemed to
be “available for reletting” when Landlord, in its sole judgment, determines that:
(x) such portion of the RFO Space will be vacated by Gillette, and anyone claiming
through Gillette, and (y) Landlord intends to offer such area for lease.  Tenant acknowledges that Gillette may surrender
the entire RFO Space to Landlord at the same time, or Gillette may surrender portions
of the RFO Space at different times.  All
portions of the RFO Space which are surrendered to Landlord at the same time shall
be deemed to be available for reletting by Tenant at such time (i.e. and Tenant
shall have the option to lease the entirety, but not less than the entirety, of
the portions of the RFO Space so surrendered by Gillette).


 


C.            When Landlord determines
that any portion of the RFO Space becomes so available for reletting, Landlord shall
notify Tenant of the availability of such space, the date when Landlord estimates
that the Commencement Date in respect of such portion of the RFO Space will occur,
and Landlord’s designation of the Prevailing Market Rent applicable to such portion
of the RFO Space (“Landlord’s Notice”).  If
Tenant wishes to exercise Tenant’s right of first offer, Tenant shall do so, if
at all, by giving Landlord notice (“Tenant’s RFO Exercise Notice”) of Tenant’s desire
to lease the entire amount of such space on the terms set forth in this Paragraph
3 herein within fifteen (15) days after receipt of Landlord’s Notice to Tenant,
time being of the essence.  If Tenant and
Landlord do not agree upon the Prevailing Market Rent applicable to the RFO Space,
then, provided that Tenant has timely given Tenant’s RFO Exercise Notice, Tenant
shall have the right to submit such Prevailing Market Rent to Broker Determination
in accordance with Exhibit H attached to the Lease.   If Tenant shall fail to timely give Tenant’s
RFO Exercise Notice with respect to any portion of the RFO Space, time being of
the essence in respect to such exercise, Tenant shall have no further right to lease
such portion of the RFO Space.


 


D.            The leasing to Tenant of
any portion of the RFO Space shall be upon all of the same terms and conditions
of the Lease applicable to the Premises initially demised to Tenant, except as follows:


 


(1)           Commencement Date


 


The Commencement Date
in respect of any portion of the RFO Space shall be the later of:  (x) the estimated Commencement Date in respect
of such portion of the RFO Space as set forth in Landlord’s Notice, or (y) the date
that Landlord delivers such portion of the RFO Space to Tenant.


 


(2)           Rent
Commencement Date


 


The Rent Commencement
Date in respect of any portion of the RFO Space shall be the earlier of: (x) the
date ninety (90) days after the Commencement Date in respect of such portion of
the RFO Space, or (y) the date that Tenant commences to use such portion of the
RFO Space (or


 


7

















 


any portion of such portion of the RFO Space) for business purposes.


 


(3)           Termination
Date


 


The Termination Date
in respect of the RFO Space shall be the Termination Date of the Term of the Lease
in respect of the Existing Premises.


 


(4)           Annual Fixed Rent


 


The Annual Fixed Rent
in respect of such portion of the RFO Space shall be based upon the Prevailing Market
Rent, as defined in Exhibit H attached to the Lease, of such portion of the RFO
Space as of the Commencement Date in respect of such portion of the RFO Space.  Tenant may only request a Broker Determination
of the Prevailing Market Rent at the time that Tenant unconditionally gives Tenant’s
RFO Exercise Notice with respect to such portion of the RFO Space.  Without limiting any other factors which may be
taken into account in determining such Prevailing Market Rent, such Prevailing Market
Rent shall take into account: (x) the fact that the Rent Commencement Date in respect
of such portion of the RFO Space may be ninety (90) days after the Commencement
Date in respect of such portion of the RFO Space, and (y) the fact that, unless
otherwise agreed to by the parties in writing, Tenant will, in accordance with Paragraph
3D(5), be taking the RFO Space “as-is”, without any obligation on the part of Landlord
to provide any allowance or contribution to Tenant towards the preparation of such
portion of the RFO Space for Tenant’s occupancy.   If the Broker Determination with respect to a
Prevailing Market Rent has not been resolved before the commencement of Tenant’s
obligation to pay rent based upon such Prevailing Market Rent, then Tenant shall
pay Annual Fixed Rent and other charges under the Lease in respect of the premises
in question based upon the Prevailing Market Rent designated by Landlord until either
the agreement of the parties as to the Prevailing Market Rent, or the decision of
the Brokers, as the case may be, at which time Tenant shall pay any underpayment
of rent and other charges to Landlord, or Landlord shall refund any overpayment
of rent and other charges to Tenant.


 


(5)           Condition of RFO Space


 


Tenant shall take each
portion of the RFO Space “as-is” in its then (i.e. as of the date of premises delivery)
state of construction, finish, and decoration, without any obligation on the part
of Landlord to construct or prepare such portion of the RFO Space for Tenant’s occupancy,
and without any obligation on the part of Landlord to provide any allowance or


 


8

















 


contribution towards the preparation of such portion of the RFO Space for
Tenant’s occupancy.


 


(6)           Parking


 


Landlord shall provide
to Tenant one (1) unreserved parking space per 2,000 square feet of Rentable Floor
Area of each portion of the RFO Space effective as of the Commencement Date in respect
of such portion of the RFO Space.  Tenant
shall not be entitled to any reserved parking spaces based upon its demise of the
RFO Space.  Tenant’s use of such parking spaces
shall be on all of the same terms and conditions as are applicable to the unreserved
parking spaces provided to Tenant in connection with the Premises in initially demised
to Tenant, as set forth in Article X of the Lease.


 


(7)           Base Years


 


Base Taxes in respect of each portion of the RFO Space shall be defined
as Landlord’s Tax Expenses for the fiscal tax year in which the Commencement Date
in respect of such portion of the RFO Space occurs. Base Operating Expenses in respect
of each portion of the RFO Space shall be defined as Operating Expenses for the
Building for the calendar year in which the Commencement Date in respect of such
portion of the RFO Space occurs, adjusted to 95% occupancy in accordance with the
provisions of Section 7.4 of the Lease.


 


E.             If Tenant shall exercise
any such right of first offer and if, thereafter, the then occupant of any portion
of the RFO Space wrongfully fails to deliver possession of such premises at the
time when its tenancy is scheduled to expire, commencement of the term of Tenant’s
occupancy and lease of such additional space shall, in the event of such holding
over by such occupant, be deferred until possession of the additional space is delivered
to Tenant.  The failure of the then occupant
of such premises to so vacate shall not constitute or default or breach by Landlord
and shall not give Tenant any right to terminate this Lease or to deduct from, offset
against or withhold Annual Fixed Rent or additional rent (or any portions thereof).
However, Landlord agrees to use good faith efforts (which shall be limited to the
commencement and prosecution of eviction proceedings but shall not require the taking
of any appeal) to cause the then occupant of the RFO Space to vacate such space
when its tenancy expires.


 


F.             Notwithstanding anything
to the contrary herein contained, if the estimated Commencement Date with respect
to an RFO Space is on or after the date which is three (3) years prior to the scheduled
termination date of the Lease, then Tenant shall have no right to lease such RFO
Space unless: (i) Tenant has the right, pursuant to Section 3.2 of the Lease, to
extend the Term of the Lease in respect of both the Existing Premises and First
Amendment Premises for at least one additional Extended Term which is not yet


 


9

















 


lapsed unexercised, and
(ii) Tenant, at the time that Tenant gives Tenant’s Exercise Notice with respect
to such RFO Space, gives Tenant’s Extension Exercise Notice pursuant to Section
3.2 of the Lease, extending the Term of the Lease for such Extended Term in respect
of both the Existing Premises and First Amendment Premises.  If Tenant exercises its right to extend the Term
for such Extended Term pursuant to this Paragraph 3F, then, notwithstanding anything
to the contrary in Section 3.2 or elsewhere in the Lease contained:


 


·      Landlord agrees that Tenant shall
have the right to give Tenant’s Extension Exercise Notice with respect to such Extended
Term prior to the date fifteen (15) months prior to the expiration of the Term of
the Lease;


·      Tenant shall have no right to
request, and Landlord shall not be required to give, Landlord’s Rent Quotation with
respect to such Extended Term prior to the time that Tenant is required to give
such Tenant’s Exercise Notice; and


·      Landlord may give Landlord’s
Rent Quotation at any time after the date fifteen (15) months prior to the expiration
of the Term of the Lease, but prior to the commencement of such Extended Term (Tenant
hereby acknowledging that Tenant shall be deemed to unconditionally have exercised
its right to extend the Term for such Extended Term in respect of both the Existing
Premises and First Amendment Premises after it has given Tenant’s Extension Exercise
Notice even though it has not received any Landlord’s Rent Quotation and the parties
may not have entered into any negotiations as to the Annual Fixed Rent payable with
respect to such Extended Term), and,  if Landlord
has not already given Landlord’s Rent Quotation to Tenant, Landlord shall, within
thirty (30) days after Landlord’s receipt of Tenant’s request therefore made after
the date fifteen (15) months prior to the expiration of the Term of the Lease, give
Landlord’s Rent Quotation to Tenant.


 


G.            Execution of Lease Amendments


 


Notwithstanding
the fact that Tenant’s exercise of the above-described option to lease any portion
of the RFO Space shall be self-executing, as aforesaid, the parties hereby agree
promptly to execute a lease amendment reflecting the addition of any portion of
the RFO Space, except that the Annual Fixed Rent payable in respect of such portion
of the RFO Space may not be as set forth in such Amendment.  At the time that such Annual Fixed Rent is determined,
the parties shall execute a written agreement confirming the same.  The execution of such lease amendment shall not
be deemed to waive any of the conditions to Tenant’s exercise of its right of first
offer, unless otherwise specifically provided in such lease amendment.


 


4.             EXPANSION OPTION


 


Provided that there is no
Event of Default by Tenant, Tenant shall have the option to lease the entirety of
the twenty-eighth (28th)
floor of the Building (“Expansion Area”). 
The Expansion Area contains approximately 25,676 rentable square feet, and
is


 


10

















 


substantially as shown on
Exhibit A, First Amendment, Sheet 2.  Landlord
hereby represents to Tenant that the Expansion Area is presently occupied by Constellation
New Energy, Inc. (“Existing Occupant”) and the Landlord expects that the Expansion
Area will be available for occupancy by Tenant as of January 1, 2010 because the
Existing Occupant’s lease expires as of December 31, 2009.


 


A.            Exercise of Rights to
Expansion Areas


 


Tenant may exercise its option
to lease the Expansion Area by giving written notice (“Exercise Notice”) to Landlord
on or before December 1, 2008.  If Tenant
fails timely to give such notice, Tenant shall have no further right to lease such
Expansion Area, time being of the essence of this Paragraph 4.  Upon the timely giving of such notice, Landlord
shall lease and demise to Tenant, and Tenant shall hire and take from Landlord,
such Expansion Area, without the need for further act or deed by either party, for
the term and upon all of the same terms and conditions of this Lease, except as
hereinafter set forth.


 


B.            Lease Provisions Applying
to Expansion Area


 


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


 


(1)           Commencement Date


 


The Commencement Date in respect
of the Expansion Area shall be the later of: (x) January 1, 2010, or (y) the date
that the Existing Occupant, and anyone claiming under the Existing Occupant, vacates
the Expansion Area and delivers the Expansion Area to Landlord.


 


(2)           Rent Commencement
Date


 


The Rent Commencement Date
in respect of the Expansion Area shall be the earlier of: (x) the date ninety (90)
days after the Commencement Date in respect of the Expansion Area, or (y) the date
that Tenant commences to use the Expansion Area (or any portion of the Expansion
Area) for business purposes.


 


(3)           Annual Fixed Rent


 


Annual Fixed Rent in respect
of the Expansion Area shall be based upon the Prevailing Market Rent, as defined
in Exhibit H attached to the Lease, of the Expansion Area as of the Commencement
Date in respect of the Expansion Area. Without limiting any other factors which
may be taken into account in determining such Prevailing Market Rent, such Prevailing
Market Rent shall take into account: (x) the fact that the Rent Commencement Date
in respect of such portion of the Expansion Area may be ninety (90) days after the
Commencement Date in respect of such portion of the


 


11

















 


Expansion Area, and (y) the
fact that, unless otherwise agreed to by the parties in writing, Tenant will, in
accordance with Paragraph 4B(6), be taking the Expansion Area “as-is”, without any
obligation on the part of Landlord to provide any allowance or contribution to Tenant
towards the preparation of such portion of the Expansion Area for Tenant’s occupancy.


 


(4)           Base Operating Expenses
in respect of the Expansion Area means Operating Expenses for the Building for calendar
year 2010, adjusted to 95% occupancy in accordance with the provisions of Section
7.4 of the Lease.


 


(5)           Base Taxes in respect of
the Expansion Area means Landlord’s Tax Expenses for fiscal tax year 2010 (that
is the period beginning July 1, 2009 and ending June 30, 2010).


 


(6)           Condition of Expansion
Area


 


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


 


C.            Notwithstanding the fact
that Tenant’s exercise of the above-described expansion option shall be self-executing,
as aforesaid, the parties hereby agree promptly to execute a lease amendment reflecting
the addition of the Expansion Area, except that the Annual Fixed Rent payable in
respect of such Expansion Area shall not be as set forth in such Amendment. Subsequently,
after such Annual Fixed Rent is determined, the parties shall execute a written
agreement confirming the same.  The execution
of such lease amendment shall not be deemed to waive any of the conditions to Tenant’s
exercise of the herein expansion options, unless otherwise specifically provided
in such lease amendment.


 


5.             ALLOCATION OF ELECTRICITY
CHARGES IN RESPECT OF THE FIRST AMENDMENT PREMISES


 


The First Amendment Premises
shall be separately metered for electricity, as part of Landlord’s First Amendment
Premises Work, and Tenant shall pay for all electricity charges in respect of the
First Amendment Premises directly to the supplier of the same.


 


12














 


6.             SECURITY DEPOSIT


 


The parties hereby
acknowledge that Landlord is holding a Letter of Credit in the amount of Five
Hundred Thousand and 00/100 ($500,000.00) Dollars, pursuant to Section 16.26
of the Lease and subject to reduction in accordance with Section 16.26 of
the Lease.  The parties hereby further
acknowledge that Landlord shall continue to hold said Letter of Credit
throughout the Term of the Lease, pursuant to and in accordance with said Section 16.26
of the Lease.


 


7.             PARKING PRIVILEGES
IN RESPECT OF FIRST AMENDMENT PREMISES.


 


In addition to the
Parking Privileges granted to Tenant pursuant to Article X of the Lease,
Landlord shall provide to Tenant, in respect of the First Amendment Premises,
monthly parking privileges (“Additional Parking Privileges”) in the Prudential
Center Garage (the “Garage”) for seventeen (17) passenger automobiles for the
parking of motor vehicles, fifteen (15) in unreserved stalls and two (2) in
reserved stalls, in the Garage by Tenant’s employees commencing on the Commencement
Date in respect of the First Amendment Premises.  Tenant’s reserved parking stalls shall be as
shown on Exhibit B attached hereto.  
Said Additional Parking Privilege shall be upon all of the same terms
and conditions set forth in said Article X, except that the second (2nd), third (3rd) and fourth (4th) sentences of Section 10.1 of the
Lease shall not apply to the Additional Parking Privileges.


 


8.             SIGNAGE


 


Tenant shall have the
right, subject to Landlord’s prior written approval, which approval shall not
be unreasonably withheld, to install a logo sign in the twenty-ninth (29th) floor elevator lobby.  The parties hereby acknowledge that Tenant’s
current logo installed in the elevator lobby of the thirty-fourth (34th) floor is acceptable to
Landlord.


 


9.             STORAGE SPACE;
GENERATOR SPACE


 


A.            Sections 16.31A and B
of the Lease are hereby deleted and the following is substituted in their
place:


 


B.            Tenant shall have the
right, by written election given to Landlord not more than one hundred twenty
(120) days after the CD, to license up to 3,000 rentable square feet in the
aggregate of dry storage space (“Additional Storage Space”) at a location or
locations designated by Landlord within the Prudential Center.  The Additional Storage Space need not be
contiguous, but each portion of the Additional Storage Space must be useable
for storage purposes for items typically stored in connection with office
uses.  Tenant shall pay a fee for such
Additional Storage Space at the rate of $15.00 per rentable square foot per
annum, increased by the increase in the Consumer Price Index every three (3) years.  Tenant shall not be obligated to pay
Operating Expenses Excess or Tax Excess


 


13

















 


with respect to such
Additional Storage Space.  Landlord shall
not be obligated to provide any services to such Additional Storage Space.  Upon Tenant’s election to license such
Additional Storage Space, the parties shall enter into Landlord’s standard form
of license agreement therefor.


 


C.            Tenant shall have the
right, by written election given to Landlord not more than one hundred twenty
(120) days after the CD, to license up to 72 rentable square feet of space for
an emergency generator (“Additional Generator Space”) at a location designated
by Landlord within the Prudential Center. 
Tenant shall pay a fee for such Additional Generator Space at the rate
of $20.00 per rentable square foot per annum, increased by the increase in the
Consumer Price Index every three (3) years.  Tenant shall not be obligated to pay
Operating Expenses Excess or Tax Excess with respect to such Additional
Generator Space.  Landlord shall not be
obligated to provide any services to such Additional Generator Space.  Any generator to be installed by Tenant in
the Additional Generator Space shall be subject to Landlord’s reasonable
approval, and Tenant shall be responsible for the installation and maintenance
thereof in accordance with all applicable laws, including without limitation
obtaining and maintaining any required permits. 
Upon Tenant’s election to license such Additional Generator Space, the
parties shall enter into Landlord’s standard form of license agreement
therefor.


 


10.           BROKERAGE.


 


(A)          Tenant warrants and
represents that Tenant has not dealt with any broker in connection with the
consummation of this First Amendment other than The Codman Company, (the “Broker”),
and in the event any claim is made against the Landlord relative to Tenant’s
dealings with brokers other than the Broker, Tenant shall defend the claim
against Landlord with counsel of Tenant’s selection, subject to Landlord’s
reasonable approval, and save harmless and indemnify Landlord on account of
loss, cost or damage which may arise by reason of such claim.


 


(B)           Landlord warrants and
represents that Landlord has not dealt with any broker in connection with the
consummation of this First Amendment other than the Broker, and in the event
any claim is made against the Tenant relative to Landlord’s dealings with
brokers other than the Broker, Landlord shall defend the claim against Tenant
with counsel of Landlord’s selection, subject to Tenant’s reasonable approval,
and save harmless and indemnify Tenant on account of loss, cost or damage which
may arise by reason of such claim.


 


(C)           Landlord agrees that it
shall be solely responsible for the payment of brokerage commissions to the
Broker.


 


14

















 


11.           TENANT PLAN EXCESS
COSTS AND MONTHLY IMPROVEMENT COST PAYMENTS IN RESPECT OF EXISTING PREMISES


 


The parties confirm and
agree that the total amount of Tenant Plan Excess Costs in respect of Landlord’s
Work in respect of the Existing Premises was $525,920.00 and that the amount of
Monthly Improvement Costs Payments payable by Tenant to Landlord in respect of
the Existing Premises during the initial Term of the Lease is $6,561.91.


 


12.           INTERNAL STAIRWAY


 


If, at any time during
the Term, Tenant is leasing space in the Building that is vertically
contiguous, then Tenant shall have the right to construct, at Tenant’s expense
or as part of a tenant improvement package from Landlord, an internal stairwell
connecting the vertically contiguous spaces. 
Such work shall be governed by the provisions of Article IX of the
Lease.  Tenant’s use of such internal
stairwell shall be conditioned upon the following:


 


(A)          Tenant shall maintain
its improvements in such internal stairwell in good condition, reasonable wear
and tear, fire and other casualty excepted, throughout the Term of the Lease.


 


(B)           Tenant shall, upon
expiration or prior termination of the Term of the Lease, remove all
improvements made by Tenant in such internal stairwell, and restore such
internal stairwell to the condition in which it was in immediately prior to the
making of such improvements.


 


(C)           Tenant shall obtain all
governmental approvals necessary for the use of such stairwell.


 


(D)          Tenant’s use of the
internal stairwell shall be solely for the purpose of pedestrian egress and
ingress.


 


(E)           Tenant shall indemnify,
defend and hold Landlord harmless, from and against all loss, cost or damage
arising from Tenant’s use of such stairwell.


 


(F)           Tenant shall install
such security measures are reasonably required by Landlord or which are
required by law in connection with Tenant’s use of such stairwell.


 


13.           CONDITION OF
LANDLORD’S EXECUTION


 


The parties hereby
acknowledge that Landlord is only willing and able to execute this First
Amendment if Digitas agrees to terminate the term of its lease in respect of
the First Amendment Premises.  Therefore,
if, on or before the date forty-five (45) days after the Execution Date of this
First Amendment, Landlord does not enter into in agreement, in form and
substance acceptable to Landlord, in its sole discretion, with Digitas agreeing


 


15

















 


to terminate the
term of its lease in respect of the First Amendment Premises, both parties
shall have the right, exercisable upon written notice to the other party, to
render this First Amendment void and without further force or effect.


 


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


 


EXECUTED under seal as of
the date first above-written.


 


	
  LANDLORD:

  	
  TENANT:

  
	
  BP PRUCENTER
  ACQUISITION LLC

  	
  THE FIRST MARBLEHEAD

  
	
  By:

  	
  Boston Properties
  Limited Partnership,

  	
  CORPORATION

  
	
   

  	
  a Delaware limited
  partnership

  	
   

  
	
   

  	
  Its:

  	
  Manager

  	
  By:

  	
  /s/ Donald R. Peck

  
	
   

  	
   

  	
  Name:

  	
  Donald R. Peck

  
	
   

  	
  By: 

  	
  Boston
  Properties, Inc., a

  	
  Title:

  	
  Executive Vice
  President and

  
	
   

  	
   

  	
  Delaware corporation

  	
   

  	
  Chief Financial Officer

  
	
   

  	
   

  	
  Its:        General
  Partner

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ David C. Provost

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
  David C. Provost

  	
   

  	
   

  
	
   

  	
   

  	
  Its:

  	
  Senior Vice President

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Hereunto Duly
  Authorized

  	
   

  
	
   

  	
   

  	
   

  
	
  Date Signed:

  	
  10/7/04

  	
   

  	
  Date Signed:

  	
  10/7/04

  
											



 


16

















 


EXHIBIT A, FIRST
AMENDMENT, SHEET 1


 


FIRST AMENDMENT
PREMISES PLAN


 


[schematic diagram
of premises plan]


 


17

















 


EXHIBIT A, FIRST
AMENDMENT, SHEET 2


 


EXPANSION AREA


 


[schematic diagram
of expansion area]


 


18

















 


EXHIBIT B-1, FIRST
AMENDMENT


 


PLANS AND CONSTRUCTION
SCHEDULE


 


	
  Permit/GMP Plans (i.e., a set of plans sufficiently
  detailed to permit Landlord to apply for all permits and approvals necessary
  for the performance of Landlord’s Work and to permit Landlord to obtain
  guaranteed maximum price bid(s) for the cost of Landlord’s Work). These
  plans will also be used to generate the list of, and associated costs for,
  long lead time items.

  	
   

  	
  September 3,
  2004

  
	
   

  	
   

  	
   

  
	
  Construction Drawings (i.e., full construction
  drawings for the performance of Landlord’s Work, based on the approved GMP
  Plans)

  	
   

  	
  September 17,
  2004

  
	
   

  	
   

  	
   

  
	
  Long
  Lead Items Release Date

  	
   

  	
  September 17,
  2004

  
	
   

  	
   

  	
   

  
	
  Authorization
  to Proceed Date

  	
   

  	
  September 28,
  2004

  



 


19














 


The Prudential Tower

Prudential Center

Boston, Massachusetts 02199

(the “Building”)


 


SECOND AMENDMENT


Execution Date: September 14, 2004


 


	
   

  	
   

  	
  LANDLORD:

  	
  BP
  Prucenter Acquisition LLC

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  TENANT:

  	
  The
  First Marblehead Corporation, a Delaware  corporation

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  EXISTING

  	
   

  
	
   

  	
   

  	
  PREMISES:

  	
   

  
	
   

  	
   

  	
  Original
  Premises:

  
	
   

  	
   

  	
   

  	
  The
  entirety of the thirty-fourth (34th) floor of the Building,
  containing 26,296 rentable square feet, in accordance with the floor plan
  annexed to the Lease as Exhibit D

  
	
   

  	
   

  	
  First
  Amendment Premises:

  
	
   

  	
   

  	
   

  	
  The
  entirety of the twenty-ninth (29th) floor of the Building,
  containing 25,676 rentable square feet, substantially as shown on Exhibit A,
  First Amendment, Sheet 1 attached to the First Amendment

  
	
   

  	
   

  	
   

  	
   

  
	
  ORIGINAL

  	
   

  	
  DATE
  OF

  	
   

  
	
  LEASE

  	
   

  	
  LEASE:
  

  	
  September
  5, 2003

  
	
  DATA

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  COMMENCEMENT

  	
   

  
	
   

  	
   

  	
  DATE
  OF EXISTING

  	
   

  
	
   

  	
   

  	
  PREMISES:

  	
  December
  1, 2003

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  RENT

  	
   

  
	
   

  	
   

  	
  COMMENCEMENT

  	
   

  
	
   

  	
   

  	
  DATE
  OF EXISTING

  	
   

  
	
   

  	
   

  	
  PREMISES:

  	
  April
  1, 2004

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  TERMINATION

  	
   

  
	
   

  	
   

  	
  DATE:

  	
  March
  31, 2014

  



 


1

















 


	
   

  	
   

  	
  PREVIOUS

  	
   

  
	
   

  	
   

  	
  LEASE

  	
   

  
	
   

  	
   

  	
  AMENDMENTS:

  	
  First
  Amendment dated September
           , 2004 (the “First
  Amendment”)

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  TEMPORARY

  	
   

  
	
   

  	
   

  	
  PREMISES:

  	
  An
  area on the twenty-fourth (24th) floor of the Building,
  containing 5,549 rentable square feet, substantially as shown on Exhibit A,
  Second Amendment, a copy of which is attached hereto and incorporated by
  reference herein

  



 


WHEREAS,
prior to the Commencement Date in respect of the First Amendment Premises,
Tenant desires to lease other premises in the Building, to wit, the Temporary
Premises, on a temporary basis;


 


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


 


1.                                       DEMISE OF THE
TEMPORARY PREMISES


 


Landlord
hereby hires and leases to Tenant, and Tenant hires and takes from Landlord,
the Temporary Premises. Said demise of the Temporary Premises shall be upon all
of the same terms and conditions of the Lease, except:


 


A.                                        The
Commencement Date in respect of the Temporary Premises shall be September 20,
2004.


 


B.                                          The Rent
Commencement Date in respect of the Temporary Premises shall be September 20,
2004.


 


C.                                          The termination
date (“Temporary Premises Termination Date”) in respect of the Temporary
Premises shall be the earlier of: (x) the day after the Commencement Date in
respect of the First Amendment Premises, as defined in Paragraph 1 of the First
Amendment Premises Lease, or (y) if the First Amendment is terminated pursuant
to Paragraph 13 of the First Amendment, the date that the First Amendment is so
terminated; provided however, that if the Temporary Premises Termination Date
has not already occurred and if Tenant exercises its right to terminate the
Term of the Lease in respect of the First Amendment Premises based upon the
failure of the Commencement Date in respect of the First Amendment Premises to
occur on or before January 14, 2006, as set forth in Section 2A of the First
Amendment and in Section 4.2(A) of the Lease, then the Temporary Premises
Termination Date shall be the effective termination date of the Term of the
Lease in respect of the First Amendment Premises.


 


2

















 


D.                                         The Annual
Fixed Rent in respect of the Temporary Premises shall be Eighty-Eight Thousand
Seven Hundred Eighty-Four and 04/100 ($88,784.04) Dollars (i.e., a monthly
payment of 7,398.67).


 


E.                                           Tenant shall
have no obligation to pay Tax Excess, Operating Cost Excess or electricity in
respect of the Temporary Premises.


 


F.                                           Tenant shall
not be entitled to any signage in respect of the Temporary Premises.


 


2.                                            CONDITION OF TEMPORARY PREMISES


 


Tenant
shall lease the Temporary Premises “as-is”, in the condition in which the
Temporary Premises are in as of the Commencement Date in respect of the
Temporary Premises, without any obligation on the part of Landlord to prepare
or construct the Temporary Premises for Tenant’s occupancy, without any
obligation on the part of Landlord to provide any allowance or contribution to
Tenant on account of the Temporary Premises, and without any representation by
Landlord as to the condition of the Temporary Premises or the Building.


 


3.                                       INAPPLICABLE LEASE PROVISIONS


 


Sections 2.3, 3.2, 5.2, 7.4, 7.5, 16.29, 16.30,
16.31 of the Lease, Articles IV, VI, and X of the Lease,
Exhibits B-1, F and H to the Lease and the entirety of the First Amendment
shall have no applicability in respect of the Temporary Premises.


 


3

















 


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


 


EXECUTED
under seal as of the date first above-written.


 


	
  LANDLORD:

  	
   

  	
  TENANT:

  
	
  BP
  PRUCENTER ACQUISITION LLC

  	
   

  	
  THE
  FIRST MARBLEHEAD

  
	
  By:

  	
  Boston
  Properties Limited Partnership,

  	
   

  	
  CORPORATION

  
	
   

  	
  a
  Delaware limited partnership

  	
   

  	
   

  
	
   

  	
  Its:

  	
  Manager

  	
   

  	
  By:

  	
  /s/
  Donald R. Peck

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Donald
  R. Peck

  
	
   

  	
  By:

  	
  Boston
  Properties, Inc., a

  	
   

  	
  Title:

  	
  EVP
  & CFO

  
	
   

  	
   

  	
  Delaware
  corporation

  	
   

  	
   

  
	
   

  	
   

  	
  Its:

  	
  General
  Partner

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  David C. Provost

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
  David
  C. Provost

  	
   

  	
   

  
	
   

  	
   

  	
  Its:

  	
  Senior
  Vice President

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Hereunto
  Duly Authorized

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Date
  Signed:

  	
  9/14/04

  	
   

  	
  Date
  Signed:

  	
  9/10/2004

  
									



 


4

















 


EXHIBIT A, SECOND AMENDMENT


 


TEMPORARY PREMISES


 


[schematic
diagram of temporary premises]


 


5

















 


The Prudential Tower

Prudential Center

Boston, Massachusetts 02199

(the “Building”)


 


THIRD AMENDMENT


Execution Date: December 1, 2005


 


	
   

  	
  Landlord:

  	
  BP
  Prucenter Acquisition LLC

  
	
   

  	
   

  	
   

  
	
   

  	
  Tenant:

  	
  The
  First Marblehead Corporation, a Delaware corporation

  
	
   

  	
   

  	
   

  
	
   

  	
  Existing
  Premises:

  	
  Original
  Premises:

  
	
   

  	
   

  	
  The
  entirety of the thirty-fourth (34th) floor of the Building,
  containing 26,296 rentable square feet, in accordance with the floor plan
  annexed to the Lease as Exhibit D.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  First
  Amendment Premises:

  
	
   

  	
   

  	
  The
  entirety of the twenty-ninth (29th) floor of the Building,
  containing 25,676 rentable square feet, substantially as shown on Exhibit A,
  First Amendment, Sheet 1 attached to the First Amendment.

  
	
   

  	
   

  	
   

  
	
  Original Lease Data:

  	
   

  	
   

  
	
   

  	
  Date
  of Lease:

  	
  September
  5, 2003

  
	
   

  	
   

  	
   

  
	
   

  	
  Commencement
  Date of Existing Premises:

  	
  December
  1, 2003

  
	
   

  	
   

  	
   

  
	
   

  	
  Rent
  Commencement Date of Existing Premises:

  	
  April
  1, 2004

  
	
   

  	
   

  	
   

  
	
   

  	
  Termination
  Date:

  	
  March
  31, 2014

  
	
   

  	
   

  	
   

  
	
   

  	
  Previous
  Lease Amendments:

  	
  First
  Amendment dated October 4, 2004 (the “First Amendment”)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Second
  Amendment dated September 14, 2004 (the “Second Amendment”)

  



 


1

















 


	
   

  	
  Third
  Amendment Premises:

  	
  An
  area on the lower level of the  Building,
  containing 4,986 rentable square  feet,
  substantially as shown on Exhibit  A attached
  hereto and incorporated herein.

  



 


WHEREAS, Tenant desires to lease other premises in
the Building, to wit, the Third Amendment Premises, on the terms set forth
herein;


 


NOW THEREFORE, the above-described lease, as
previously amended (the “Lease”), is herby further amended as follows:


 


1.                             Demise of the
Third Amendment Premises


 


Landlord
hereby demises and leases to Tenant, and Tenant hires and takes from Landlord,
the Third Amendment Premises. Said demise of the Third Amendment Premises shall
be upon all of the same terms and conditions of the Lease, except:


 


A.                                   The
Commencement Date in respect of the Third Amendment Premises shall be the
Execution Date of this Third Amendment (the “Third Amendment Premises
Commencement Date”).


 


B.                                     The Rent Commencement
Date in respect of the Third Amendment Premises shall be the date which is
ninety (90) days subsequent to the Third Amendment Premises Commencement Date
(the “Third Amendment Premises Rent Commencement Date”).


 


C.                                     The termination
date in respect of the Third Amendment Premises shall be the same as for the
Original Premises.


 


D.                                    (i)                                     The Annual
Fixed Rent for the Third Amendment Premises for the period beginning on the
Third Amendment Premises Rent Commencement Date and ending on the last day of the
thirty-sixth (36th) calendar
month following the Third Amendment Premises Rent Commencement Date shall be
Seventy-Four Thousand Seven Hundred Ninety and 00/100 Dollars ($74,790.00)
(i.e., a monthly payment of $6,232.50)


 


(ii)                                  Annual Fixed
Rent for the Third Amendment Premises for the period  beginning on the first day
of the month next following the thirty-seventh (37th) anniversary of the Third Amendment Premises Rent
Commencement Date (“First Adjustment Date”) and ending on the last day of the
seventy-second (72nd) calendar
month following the Third Additional Premises Rent Commencement Date shall be
the Annual Fixed Rent set forth in Section 1D(i) hereinabove (being Seventy-Four
Thousand Seven Hundred Ninety and 00/100 Dollars ($74,790.00)) adjusted to reflect
increases in the cost of living in the following manner:


 


2

















 


FIRST,  there shall be computed any percentage
increase which has occurred in the “Price Index” (as defined hereinbelow)
between the Price Index in effect on the First Adjustment Date and the Price
Index in effect on the Third Amendment Premises Rent Commencement Date,


 


SECOND,  the amount obtained in FIRST above shall be
multiplied by said Annual Fixed Rent payable pursuant to Section 1D(i) hereinabove,
and


 


THIRD, the product determined pursuant to SECOND above
shall be  added to said Annual Fixed Rent payable pursuant to Section 1D(i) hereinabove.


 


(iii)                               The Annual
Fixed Rent for the Third Amendment Premises for the period beginning on the first
day of the month next following the seventy-third (73rd) anniversary of the Third
Amendment Premises Rent Commencement Date (“Second Adjustment Date”) through
the remainder of the Term shall be the Annual Fixed Rent determined in Section 1D(ii)
hereinabove above adjusted to reflect increases in the cost of living in the
following manner:


 


FIRST, there shall be computed any percentage increase
which has occurred in the “Price Index” between the Price Index in effect on
the  Second Adjustment Date and the Price Index in effect on the First
Adjustment Date, and


 


SECOND, the amount obtained in FIRST above shall be
multiplied by said Annual Fixed Rent determined pursuant to Section 1D(ii) hereinabove,
and


 


THIRD, the product determined pursuant to SECOND above shall
be  added to said Annual Fixed Rent determined pursuant to Section 1D(ii) hereinabove.


 


(iv)                              The Annual
Fixed Rent for the Third Amendment Premises for any extension period, if
exercised, shall be as provided in Section 3.2.


 


(v)                                 The term “Price
Index” as used in this Third Amendment means the Consumer Price Index for Urban
Wage Earners and Clerical Workers, (All Items) for the Boston Metropolitan
Statistical Area on the basis of 1982-1984 = 100) published by the Bureau of
Labor Statistics, U.S. Department of Labor. If the Bureau of Labor Statistics
should cease to publish such an Index in its present form and calculated on the
present basis, a comparable index or an index reflecting changes in the cost of
living determined in a similar manner shall be reasonably chosen by Landlord.


 


3

















 


The
Price Index as of any date relative to the application of this Section shall be
that published by the Bureau of Labor Statistics as of such date, if computed
for such date, or otherwise, for the most recent date immediately preceding the
date as of which the application of this provision is to be made. Since a Price
Index relevant to the application of this provision may not be available as of
the date on which a determination of the applicability of this Section is to be
made, the most current Price Index then available shall be used on a temporary
basis for such determination and a final calculation shall be determined and
necessary adjustments between Landlord and Tenant shall be made retroactively
back to the  date of such temporary calculation within a reasonable time after
required computations readily can be completed using the relevant Price Index.


 


E.                                      Tenant shall
have no obligation to pay Tax Excess or Operating Cost Excess in respect of the
Third Amendment Premises.


 


F.                                      Tenant agrees
to pay to Landlord, as Additional Rent, electricity payments for the Third
Additional Premises as provided in Exhibit C attached hereto and made a part
hereof.


 


G.                                     Tenant shall
not be entitled to any signage in respect of the Third Amendment Premises.


 


H.                                    Tenant’s
Extension Options as set forth in Section 3.2 of the Lease, (as amended by
Section 1 of the First Amendment) shall apply to the Third Amendment Premises.
The parties hereby acknowledge that Tenant’s Extension Options may be exercised
with respect to (i) all of the Existing Premises, the First Amendment Premises
and the Third Amendment Premises, (ii) only the Existing Premises, (iii) only
the First Amendment Premises, (iv) only the Third Amendment Premises or (v) any
combination of (ii), (iii) and (iv) above. If Tenant exercises its option to
extend the Term of the Lease for an Extended Term pursuant to Section 3.2 of
the Lease, then the Term of the Lease shall be extended with respect to
premises set forth in Tenant’s notice. In the event Tenant exercises said
option with respect to only one or two of the premises, then the Term of the
Lease shall expire with respect to the other premises on the then Termination
Date.


 


I.                                         (i)                                     The Third
Amendment Premises shall be delivered to Tenant in “as is” condition and
Landlord shall have no obligation to perform any additions, alterations,
improvements or demolitions to the Third Amendment Premises.


 


(ii)                                  Landlord
acknowledges that as of the date of this Third Amendment, there is heating,
ventilating and air conditioning equipment located on the northwest corner of
the roof of the Building which is dedicated to the Liebert units located within
the Third Amendment Premises (such equipment along with any ducts, conduits and
other items appurtenant thereto are hereinafter referred to as the “Third
Amendment Premises HVAC Equipment”). In consideration for the terms set forth
in this Third Amendment, Landlord agrees to allow Tenant to utilize


 


4

















 


such
Third Amendment Premises HVAC Equipment during the Lease Term respecting the
Third Amendment Premises and Tenant agrees to maintain the same in good order
and condition reasonable wear and tear excepted. Landlord makes no
representation as to the fitness or suitability of such Third Amendment
Premises HVAC Equipment for Tenant’s purposes. Tenant may not remove the  Third Amendment
Premises HVAC Equipment from the Third Amendment Premises or the roof of the Building
without Landlord’s prior consent, however, Landlord shall be reasonable in
providing its consent for Tenant, at its sole cost, to replace such equipment
with similar equipment if necessary.. Tenant agrees, at  its expense, to
maintain and repair the Third Amendment Premises HVAC Equipment in good order
and condition reasonable wear and tear and damage by  fire or other casualty or by
condemnation excepted. Landlord shall have no obligation for the maintenance,
repair or replacement of any such Third Amendment Premises HVAC Equipment.
Tenant shall have reasonable access to the roof in order to repair and maintain
such Third Amendment Premises HVAC  Equipment upon notice to
Landlord and in accordance with the roof access procedures for the Building as
established by Landlord. Upon the expiration of earlier termination of the
Lease Term respecting the Third Amendment Premises,  Tenant shall yield up such
Third Amendment Premises HVAC Equipment to Landlord in the same condition as
delivered to Tenant on the Third Amendment Premises Commencement Date,
reasonable wear and tear and damage by fire or other casualty or by
condemnation excepted.


 


J.                                        Use - the
Permitted Use for the Third Amendment Premises shall be as a data center in
conjunction with Tenant’s Existing Premises.


 


K.                                    (i)                                     Landlord shall
have no obligation to provide any cleaning or other maintenance services to the
Third Amendment Premises; provided, however, nothing contained in this Third
Amendment shall be deemed to eliminate, reduce or otherwise alter Landlord’s
obligations under the Lease to maintain the Building and the Building systems.
Tenant shall be responsible, at its expense, to maintain the Third Amendment
Premises along with the “Generator Room” and “Fuel Storage Room” as defined in
Section 3A hereinbelow.


 


(ii) Further, the provisions of
the Lease shall govern any additions, alterations  or demolitions in the Third
Amendment Premises, Generator Room or Fuel Storage Room. Tenant shall submit to
Landlord for its review and approval in accordance with the provisions of
Article IX of the Lease, the plans and  specifications for any
additions, alterations or demolitions Tenant desires to perform in the Third
Amendment Premises and Landlord shall review and/or respond to such submittal
as set forth in such Article IX.


 


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


 


5














 


2.                                       Brokerage


 


A.                                   Tenant warrants
and represents that Tenant has not dealt with any broker in connection with the
consummation of this Third Amendment other than the Codman Company, (the
“Broker”), and in the event any claim is made against the Landlord relative to
Tenant’s dealings with brokers other than the Broker, Tenant shall defend the
claim against Landlord with counsel of Tenant’s selection, subject to
Landlord’s reasonable approval, and save harmless and indemnify Landlord on
account of loss, cost or damage which may arise by reason of such claim.


 


B.                                     Landlord
warrants and represents that Landlord has not dealt with any broker in
connection with the consummation of this Third Amendment other that the Broker,
and in the event any claim is made against the Tenant relative to Landlord’s
dealings with brokers other than the Broker or any claim made against Tenant by
the Broker for Landlord’s failure to pay the brokerage commission due Broker in
connection with this Third Amendment, Landlord shall defend the claim against
Tenant with counsel of Landlord’s selection, subject to Tenant’s reasonable
approval, and save harmless and indemnify Tenant on account of loss, cost or
damage which may arise by reason of such claim.


 


C.                                     Landlord agrees
that it shall be solely responsible for the payment of brokerage commissions to
the Broker.


 


3.                                       Generator
Equipment


 


A.                                   Landlord hereby
represents to Tenant that the equipment listed on Exhibit B attached hereto and
incorporated herein (collectively the “Generator Equipment”) exclusively
services the Third Amendment Premises. The two (2) generators listed on Exhibit
B (“Generators”) are located in a room located on the loading dock servicing
the Building (the “Generator Room”) and the fuel tanks for the generators are
located in the fuel storage room located in the Yellow Level of the Garage (the
“Fuel Storage Room”). Tenant shall have reasonable access to the Generator Room
and the Fuel Storage Room twenty-four (24) hours a day, seven (7) days a week
upon reasonable prior notice to Landlord. Tenant acknowledges that its access
to and use of the Generator Room and Fuel Storage Room are not exclusive,
however, the area within the Generator Room in which the Generators are located
shall be exclusive to Tenant (the Generators shall be separated from other
generators in the Generator Room by a chain link fence).


 


B.                                     In
consideration for the terms set forth herein, Landlord agrees to allow Tenant
to utilize such Generator Equipment during the Lease Term respecting the Third
Amendment Premises, however, Landlord makes no representation as to the fitness
or suitability of the Generator Equipment for Tenant’s purposes and Tenant
agrees that its use of the same shall be at Tenant’s sole risk. Tenant may not
remove the Generator Equipment from the Third Amendment Premises, the


 


6

















 


Generator
Room or the Fuel Storage Room, however, Landlord shall not  unreasonably
withhold its consent for Tenant to replace, at its sole cost, the Generators with
similar equipment in the event such replacement is necessary. Tenant shall, at
its expense, maintain the Generator Equipment in good order and condition
reasonable wear and tear and damage by fire or other casualty or by
condemnation excepted (which maintenance shall include, at a minimum, two
maintenance inspections a year, one of which shall be a major inspection with
an oil change). Landlord shall have no obligation whatsoever for the
maintenance, repair or replacement of such Generator Equipment. Further, for
purposes of the Tenant’s indemnity provisions contained in Section 13.1 of the
Lease and Tenant’s requirements to maintain insurance pursuant to Article XIII
of the Lease, the Generator Room and the Fuel Storage Room shall be deemed to
be part of the Premises. Upon the expiration of earlier termination of the Term,
Tenant shall yield up such Generator Equipment to Landlord in the same
condition as delivered to Tenant on the Third Amendment Premises Commencement
Date, reasonable wear and tear and damage by fire or other casualty or by
condemnation excepted.


 


C.                                     (i)                                     In
consideration for the use of the Generator Equipment, Tenant shall pay  to Landlord, as
Additional Rent, commencing on the Third Additional Premises  Rent
Commencement Date and continuing throughout the Term, Thirty-Six Thousand
00/100 Dollars ($36,000.00) per year (“Generator Fee”) payable in equal monthly
installments at the time and in the manner specified in the Lease respecting
payments for Annual Fixed Rent.


 


(ii)                                  Notwithstanding
the foregoing, in the event that (i) Tenant and Landlord execute a letter of
intent for Tenant to lease two full floors of additional office space in the
Building (“Additional Two Floors of Space”) prior to December 31, 2005, and
(ii) Landlord and Tenant enter into a mutually acceptable lease for the
Additional Two Floors of Space prior to February 28, 2006, Tenant’s payments
for the Generator Fee shall be eliminated for the period commencing on the date
that payments for Annual Fixed Rent commence for the Additional Two Floors of
Space throughout the remainder of the Original Term.


 


(iii)                               Notwithstanding
the foregoing, in the event that (i) Tenant and Landlord execute a letter of
intent for Tenant to lease one full floor of additional office space in the Building
(“Additional Floor of Space”) prior to December 31, 2005, and (ii) Landlord and
Tenant enter into a mutually acceptable lease for the Additional Floor of Space
prior to February 28, 2006, Tenant’s payments for the Generator Fee shall be
reduced to Eighteen Thousand 00/100 Dollars ($18,000.00) per year commencing on
the date that payments for Annual Fixed Rent commence for the Additional Floor
of Space throughout the remainder of the Original Term.


 


7

















 


4.                                       Inapplicable Lease
Provisions


 


Sections 5.2, 7.4, 7.5,
16.5, 16.30, 16.31 of the Lease, Article IV, VI, and X of the Lease, Exhibits
B-1, F and H to the Lease and the entirety of the First Amendment shall have no
applicability in respect of this Third Amendment.


 


5.                                       Invalid Lease Provisions


 


Section 9(B) and 9(C) of the
First Amendment is hereby deleted and Tenant shall have no further rights
thereunder.


 


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


 


EXECUTED under seal as of
the date first above-written.


 


 




	
  LANDLORD:

  	
   

  	
  TENANT:

  
	
   

  	
   

  	
   

  
	
  BP PRUCENTER ACQUISITION
  LLC

  	
   

  	
  THE FIRST MARBLEHEAD
  CORPORATION

  
	
   

  	
   

  	
   

  
	
  By:

  	
  Boston Properties Limited
  Partnership,

  	
   

  	
  By:

  	
  /s/ Jack L. Kopnisky

  
	
   

  	
  a Delaware limited
  partnership,

  	
   

  	
  Name:

  	
  Jack L. Kopnisky

  
	
   

  	
  its manager

  	
   

  	
  Title:

  	
  CEO & President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Boston Properties, Inc.,

  	
   

  	
   

  
	
   

  	
   

  	
  a Delaware corporation

  	
   

  	
   

  
	
   

  	
   

  	
  its general partner

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ David C. Provost

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
  David C. Provost

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Senior Vice President

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Boston Properties

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Date
  Signed:

  	
  11/28/05

  	
   

  	
  Date
  Signed: 

  	
  11/21/05

  
									






 


8

















 


EXHIBIT A, THIRD AMENDMENT




THIRD AMENDMENT PREMISES


 


[schematic
diagram of premises]


 


9

















 


EXHIBIT B, THIRD AMENDMENT


 


GENERATOR EQUIPMENT


 


The
following is a physical description of the two generators:


 


Make:
Caterpillar


KVA:
375


KW:
300


HZ:
60


Volts:
480


Phase:
3


Year:
1997


Engine


·                  Model #: 3406


·                  Serial # - 4ZRO3365 & 4ZRO3366


Generator


·                  Model # - SR4B


·                  Serial # - 9CRO1143 & 9CRO1142


 


10

















 


EXHIBIT C


 


PRUDENTIAL CENTER

PROCEDURE FOR ADJUSTMENT OF COSTS OF ELECTRIC POWER USAGE BY

TENANTS


 


This
memo outlines the procedure for adjusting charges for electric power to certain
office tenants of the Building.


 


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


 


2.                                       Landlord
represents to Tenant that there is a separate meter (known as a “check meter”)
that measures only (i) the electricity consumed by Tenant within the Third
Amendment Premises and (ii) the electricity consumed by the Third Amendment
Premises HVAC Equipment.


 


3.                                       Landlord will
cause the check meter to be read monthly by its employees. For this purpose,
the Landlord shall, as far as possible, read the check meter to determine usage
for periods that include one or more entire periods used by the utility company
for the reading of the meters located within the central utility metering
center.


 


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


 


a.                                       The cost of the
total amount of electricity supplied for usage by tenants during the period
being measured shall be determined by dividing the total cost of electricity
through the central utility metering center as invoiced by the utility company
for the same period by the total amount of kilowatt hour usage as measured by
the meters located within the central utility metering center (herein called
“Cost Per Kilowatt Hour”).


 


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


 


11

















 


c.                                       Tenant’s
obligation to pay the cost of Tenant Electricity, shall  commence on the
Third Amendment Premises Commencement Date.


 


5.                                       a.                                       Tenant shall
pay to Landlord the cost of Tenant Electricity for the period  within thirty
(30) days after billing therefor.


 


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


 


12