Exhibit
10.1


 


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


 


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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.


 


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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:


 


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“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.


 


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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


 


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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


 


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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


 


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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


 


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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


 


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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


 


17
















 


EXHIBIT A, FIRST
AMENDMENT, SHEET 2


 


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

  



 


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