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Exhibit 10.11
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(the "Building")
FIFTH AMENDMENT
July 27, 1998
LANDLORD ▇▇▇-▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.▇. (f/k/a ▇▇-▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.▇.),
successor-in-interest to Beacon Properties, L.P., successor-in-
interest to MLH Income Realty Partnership B
TENANT AMR Research, Inc.
EXISTING
PREMISES: Areas on the fifth (5th) floor of the Building containing (in the
aggregate) 9,828 rentable square feet, substantially as shown on
Exhibit H to the Lease dated August 12, 1992, on First Amendment
Exhibit A, dated December 31, 1994 and on Second Amendment, Exhibit
A, dated January 23, 1996; an area on the sixth (6th) floor of the
Building containing 6,327 rentable square feet, substantially as
shown on Third Amendment, Exhibit A dated October 15, 1996; and an
area on the fourth (4th) floor of the Building containing 9,998
rentable square feet, substantially as shown on Fourth Amendment,
Exhibit A, Sheet 1, dated January 8, 1998
LEASE
EXECUTION
DATE: August 12, 1992
TERMINATION
DATE: March 31, 2005
PREVIOUS
LEASE
AMENDMENTS: First Amendment dated December 31, 1994
Second Amendment dated January 23, 1996
Third Amendment dated October 15, ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ dated January 8, 1998
FIFTH AMENDMENT
ADDITIONAL
PREMISES: An area on the fifth (5th) floor of the Building containing
8,975 rentable square feet, substantially as shown on Fifth
Amendment, Exhibit A, dated July 27, 1998, a copy of which is
attached hereto and incorporated by reference herein.
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WHEREAS, Tenant desires to lease additional premises located in the
Building, to wit, the Fifth Amendment Additional Premises;
WHEREAS, Landlord is willing to lease the Fifth Amendment Additional
Premises to Tenant upon the terms and conditions hereinafter set forth;
NOW THEREFORE, the parties hereby agree that the above-referenced lease, as
previously amended (the "Lease"), is hereby further amended as follows
(capitalized terms used herein without definition shall have the meanings
ascribed to them in the Lease):
1. DEMISE OF THE FIFTH AMENDMENT ADDITIONAL PREMISES
Landlord hereby demises and leases to Tenant, and Tenant hereby hires and takes
from Landlord, the Fifth Amendment Additional Premises for a term commencing as
of the Commencement Date in respect of the Fifth Amendment Additional Premises,
as hereinafter defined, and expiring as of March 31, 2005. Said demise of the
Fifth Amendment Additional Premises shall be upon the terms set forth on
Schedule B-5, Fifth Amendment Additional Premises Version, Sheets 1, 2 and 3,
dated July 27, 1998 and upon all of the other terms and conditions of the Lease,
except as follows:
A. The Commencement Date in respect of the Fifth Amendment Additional
Premises shall be the earlier of. (i) the date (the "Scheduled Commencement
Date") which is forty-five (45) days after the first date that all of the
existing tenants of the Fifth Amendment Additional Premises shall have vacated
the Fifth Amendment Additional Premises, or (ii) the date on which Tenant
occupies all or any part of the Fifth Amendment Additional Premises for
business. If there occurs any delay ("Landlord's Delay") in the performance of
Landlord's Work (as hereinafter defined) which is not caused by Tenant or its
agents, employees or contractors and Landlord's Delay directly results in or
causes a delay in the performance of Tenant's Work (as hereinafter defined),
then the Scheduled Commencement Date shall be extended by the number of days of
delay in the performance of Tenant's Work so caused by Landlord's Delay. From
and after September 15, 1998, provided that there shall be no interference with
the performance of Landlord's Work, Tenant shall have the right to enter those
portions of the Fifth Amendment Additional Premises which are then vacant to
perform Tenant's Work. Such right of entry shall be deemed a license from
Landlord to Tenant, subject to the terms and provisions of the Lease, as hereby
amended, except for the obligation to pay Annual Rent, and any entry thereunder
shall be at the sole risk of Tenant.
B. Commencing as of the Commencement Date in respect of the Fifth Amendment
Additional Premises, Tenant shall pay Occupancy Costs in respect of the FIFTH
Amendment Additional Premises ON a monthly estimated basis based upon the most
recent Tax Costs and other Operating Costs data available to Landlord.
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C. 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.
Without limiting the foregoing, if Tenant shall timely and properly exercise its
right to extend the Term of the Lease pursuant to Paragraph 7 of the Fourth
Amendment, such extension shall apply to both the Existing Premises and Fifth
Amendment Additional Premises.
2. CONDITION OF FIFTH AMENDMENT ADDITIONAL PREMISES
Notwithstanding anything to the contrary herein or in the Lease contained,
Tenant shall take the Fifth Amendment Additional Premises "as-is", in the
condition in which the Fifth Amendment Additional Premises are in as of the
vacancy of the Fifth Amendment Additional Premises by the existing tenants,
without any obligation on the part of Landlord to prepare or construct the Fifth
Amendment Additional Premises for Tenant's occupancy or, except as provided in
Paragraph 3 below, to provide any allowance or contribution with respect
thereto, and without any warranty or representation by Landlord as to the
condition of the Fifth Amendment Additional Premises. Notwithstanding the
foregoing, Landlord shall, at its expense, perform the following work
("Landlord's Work") in or with respect to the Fifth Amendment Additional
Premises: (i) purchase (for Tenant's installation) five (5) 5-ton new HVAC units
to serve the Fifth Amendment Additional Premises, (ii) remove or encapsulate any
asbestos located in the Fifth Amendment Additional Premises which Landlord's
asbestos consultant recommends be removed or encapsulated, and (iii) perform
such work as is necessary to cause that portion of the Building sprinkler system
which serves the Fifth Amendment Additional Premises to comply with code.
3. LANDLORD'S CONTRIBUTION IN RESPECT OF THE FIFTH AMENDMENT ADDITIONAL
PREMISES
A. Landlord shall, in the manner hereinafter provided, contribute up
to One Hundred Sixty-One Thousand Five Hundred Fifty and 00/100 ($161,550.00)
Dollars ("Landlord's Contribution") towards the cost of leasehold improvements
to be installed by Tenant in the Fifth Amendment Additional Premises ("Tenant's
Work"). Notwithstanding the foregoing, Tenant may use up to Twenty-Six Thousand
Nine Hundred Twenty-Five and 00/100 ($26,925 . 00) Dollars of Landlord's
Contribution towards architectural and engineering expenses incurred by Tenant
with respect to Tenant's Work and costs incurred by Tenant with respect to its
move to the Fifth Amendment Additional Premises. Tenant's Work shall be subject
to Landlord's prior approval and otherwise performed in accordance with the
terms and conditions of the Lease (including, without limitation, Section 7.03
thereof). Without limiting anything contained in Section 7.03 of the Lease, the
general contractor for Tenant's Work shall be subject to Landlord's reasonable
approval. Provided that Tenant is not in default of its obligations under the
Lease at the time that Tenant submits any requisition (as hereinafter defined)
to Landlord on account of Landlord's Contribution and that Tenant is then in
occupancy of the Fifth Amendment Additional Premises, Landlord shall pay the
cost of Tenant's Work (or the architectural and engineering expenses or moving
costs) shown on each requisition submitted by Tenant to Landlord within thirty
(30) days of submission thereof by Tenant to Landlord.
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B. For the purposes hereof, a "requisition" shall mean written
documentation (including, without limitation, invoices from Tenant's contractor,
written lien waivers and such other documentation as Landlord may reasonably
request) showing in reasonable detail the costs of the improvements installed by
Tenant to date in the Fifth Amendment Additional Premises (or the architectural
and engineering expenses or moving costs incurred with respect thereto),
accompanied by certifications from Tenant, Tenant's architect, and Tenant's
contractor that the work performed to date has been performed in accordance with
applicable laws and in accordance with Tenant's approved plans, and that the
amount of the requisition in questions does not exceed the amount of the work
(or the architectural and engineering expenses or moving costs) covered by such
requisition. Each requisition shall be accompanied by evidence reasonably
satisfactory to Landlord that all work (or the architectural and engineering
expenses or moving costs) covered by previous requisitions has been fully paid
by Tenant. Landlord shall have the right, upon reasonable advance notice to
Tenant, to inspect Tenant's books and records relating to each requisition in
order to verify the amount thereof Tenant shall submit requisition(s) no more
often than monthly,
C. Notwithstanding anything to the contrary herein contained:
(i) Landlord shall have no obligation to advance funds on account of
Landlord's Contribution unless and until Landlord has received the requisition
in question, together with the certifications required by subparagraph B above.
(ii) Except with respect to work and/or materials previously paid for by
Tenant, as evidenced by paid invoices and written lien waivers provided to
Landlord, Landlord shall have the right to have Landlord's Contribution paid to
both Tenant and Tenant's contractor(s) and vendor(s) jointly.
(iii) Landlord shall have no obligation to pay Landlord's Contribution in
respect of any requisition submitted six (6) months after the Commencement Date
in respect of the Fifth Amendment Additional Premises. Tenant shall not be
entitled to any unused portion of Landlord's Contribution.
4. FIFTH AMENDMENT SCHEDULE B-5
Schedule B-5, Fifth Amendment Additional Premises Version, Sheets 1, 2 and
3, dated July 27, 1998 shall apply to the Fifth Amendment Additional Premises.
Revised Schedule B-5, Fourth Amendment, Sheets 1 through 5, dated January 8,
1998 shall continue to apply to the Existing Premises.
5. SECURITY DEPOSIT
The parties hereby acknowledge that, pursuant to Section 20. 10 of the
original Lease, Paragraph 7 of the First Amendment, Paragraph 6 of the Second
Amendment, Paragraph 6 of the, Third Amendment and Paragraph 6 of the Fourth
Amendment, Landlord is holding a security deposit of Eighty-Nine Thousand Nine
Hundred Thirty-Eight and 29/100 ($89,938.29) Dollars
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("Security Deposit") securing Tenant's obligations under the Lease. The parties
hereby further acknowledge that Tenant shall, at the time that Tenant executes
and delivers this Fifth Amendment to Landlord, pay to Landlord an additional
security deposit of One Hundred Fifteen Thousand Three Hundred Sixty-Three and
71/100 ($115,363.71) Dollars ("Additional Security Deposit"). The Additional
Security Deposit shall be held by Landlord subject to the same terms and
conditions as are applicable to the Security Deposit as set forth in Section
20.10 of the Lease.
Notwithstanding anything to the contrary contained herein or in the Lease,
the Security Deposit and the Additional Security Deposit may be in the form of
an irrevocable letter of credit (the "Letter of Credit"), which Letter of Credit
shall: (a) be in the amount of $205,302.00; (b) be issued on the form attached
hereto as Fifth Amendment, Exhibit B; (c) name Landlord as its beneficiary; (d)
be drawn on an FDIC insured financial institution satisfactory to Landlord; and
(e) expire no earlier than sixty (60) days after the Termination Date of the
Lease. If Tenant elects to provide Landlord with the Letter of Credit, Landlord
shall, upon receipt of such Letter of Credit, return to Tenant any cash which it
is then holding as the Security Deposit and Additional Security Deposit under
the Lease.
6. LANDLORD'S CARPET ALLOWANCE
Landlord and Tenant hereby acknowledge and agree that Tenant (and not
Landlord) shall perform the Carpet Work pursuant to Paragraph 1 of the Fourth
Amendment. Accordingly, the last five (5) sentences of Paragraph 1 of the Fourth
Amendment are hereby deleted and replaced by the following (the term "Existing
Premises" as used in the following language shall have the meaning ascribed to
it in the Fourth Amendment):
If Tenant elects to replace the carpet in the fifth (5th) floor portion of
the Existing Premises (the "Carpet Work"), then, provided that Tenant shall
not be in default of its covenants and obligations under the Lease (as
hereby amended), Landlord shall contribute up to Forty Thousand and 00/100
($40,000.00) Dollars ("Landlord's Carpet Allowance") towards the cost of
such Carpet Work. Landlord shall pay Landlord's Carpet Allowance within
thirty (30) days of receipt of paid bills and invoices (and such other
documentation as Landlord shall request) detailing the costs and expenses
of the Carpet Work. Tenant shall not be entitled to any unused portion of
Landlord's Carpet Allowance.
7. TENANT'S RIGHT OF FIRST OFFER
Whereas the Fifth Amendment Additional Premises constitute the remainder of
the fifth (5th) floor of the Building, Paragraph 9A of the Fourth Amendment is
hereby amended by deleting the first sentence thereof and substituting therefor
the following:
"RFO Premises" shall be defined as any separately demised area on the
fourth (4th) floor of the Building when such area becomes available for
lease to Tenant, as hereinafter defined, during the Term of the Lease.
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8. TENANT'S EXPANSION OPTIONS
Whereas a portion of the Fifth Amendment Additional Premises constitutes
Expansion Area A and Expansion Area B as such terms are defined and used in
Paragraph 10 of the Fourth Amendment, Paragraph 10 of the Fourth Amendment is
hereby deleted in its entirety and of no further force or effect.
9. BROKER
Tenant warrants and represents that it has dealt with no broker or agent in
connection with this Fifth Amendment other than Equity Office Properties
("EOP"). Tenant shall indemnify and hold Landlord harmless of and from all
claims that may be made against Landlord for brokerage or other compensation in
the nature of brokerage with respect to this Fourth Amendment by any person
(other than EOP) claiming to have dealt with Tenant in connection with this
Fifth Amendment.
10. CONDITION OF LANDLORD'S EXECUTION
The parties hereby acknowledge that Landlord is only willing to execute this
Fifth Amendment in the event that two (2) of the existing tenants of the Fifth
Amendment Additional Premises, Development Specialists, Inc. ("DSI") and ▇▇▇▇▇,
▇▇▇▇ & ▇▇▇▇▇ ("▇▇▇▇▇), agree to relocate their respective premises from (the
applicable portion of) the Fifth Amendment Additional Premises to other space in
the Building. Therefore, Landlord shall have the night, exercisable upon Written
notice to Tenant, to render this Fifth Amendment void and of no further force or
effect unless all of the following events occur:
A. Tenant executes and delivers this Fifth Amendment to Landlord; and
B. DSI executes and delivers to Landlord an agreement, in form and
substance acceptable to Landlord, whereby DSI agrees to relocate its premises
from (the applicable portion of) the Fifth Amendment Additional Premises to
other space in the Building; and
▇. ▇▇▇▇▇ executes and delivers to Landlord an agreement, in form and
substance acceptable to Landlord, whereby ▇▇▇▇▇ agrees to relocate its premises
from (the applicable portion of) the Fifth Amendment Additional Premises to
other space in the Building.
As herein amended, the Lease is ratified, approved and confirmed in all
respects.
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WHEREFORE, the parties have hereunto set their hands and seals as of the
date first above written.
LANDLORD: TENANT:
▇▇▇-▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.▇. ADVANCED MANUFACTURING
RESEARCH, INC.
By: EOP Operating Limited Partnership,
its sole member
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
By: Equity Office Properties Trust, Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
its managing general partner Title: President
Hereunto Duly Authorized
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Date Signed: 8/6/98 Date Signed: 7/31/98
----------------------- ------------------------
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EXHIBIT A, FIFTH AMENDMENT
DATE: July 27, 1998
[FLOOR PLAN - FIFTH FLOOR OF TWO ▇▇▇▇▇▇ STREET]
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FIFTH AMENDMENT, EXHIBIT B
-----------------------------
[Name of Financial Institution]
Irrevocable Standby
Letter of Credit
No.: ________________________
Issuance Date: _______________
Expiration Date: _____________
Applicant: Advanced
Manufacturing
Research, Inc.
BENEFICIARY
EOP - ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.▇.
c/o Equity Office Properties Trust
Two ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies/Gentlemen:
We hereby establish our Irrevocable Standby Letter of Credit in your favor
for the account of the above referenced Applicant in the amount of Two Hundred
Five Thousand Three Hundred Two and 00/100 U.S. Dollars ($205,302.00) available
for payment at sight by your draft drawn on us when accompanied by the following
documents:
1. An original copy of this Irrevocable Standby Letter of Credit.
2. Beneficiary's dated statement purportedly signed by one of its officers
reading: "This draw in the amount of __________________ U.S. Dollars
($____________) under your Irrevocable Standby Letter of Credit No.
___________ represents funds due and owing to us as a result of the
Applicant's failure to comply with one or more of the terms of that certain
lease dated August 12, 1992, as amended, by and between EOP - 2 ▇▇▇▇▇▇
Street, L.L.C., as landlord, and Advanced Manufacturing Research, Inc., as
tenant."
It is a condition of this Irrevocable Standby Letter of Credit that it will
be considered automatically renewed for a one year period upon the expiration
date set forth above and upon each anniversary of such date, unless at least
sixty (60) days prior to such expiration date or applicable anniversary thereof,
we notify you in writing by certified mail, return receipt requested, that we
elect not to so renew this Irrevocable Standby Letter of Credit. A copy of any
such notice shall also be sent to: Equity Office Properties Trust, ▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Vice
President-Corporate Operations. In addition to the foregoing, we understand and
agree that you shall be entitled to draw upon this Irrevocable Standby Letter of
Credit in accordance with 1. and 2. above in the event that we elect not to
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renew this Irrevocable Standby Letter of Credit and, in addition, you provide us
with a dated statement purportedly signed by one of Beneficiary's officers
stating that the Applicant has failed to provide you with an acceptable
substitute irrevocable standby letter of credit in accordance with the terms of
the above referenced lease. We further acknowledge and agree that: (a) upon
receipt of the documentation required herein, we will honor your draws against
this Irrevocable Standby Letter of Credit without inquiry into the accuracy of
Beneficiary's signed statement and regardless of whether Applicant disputes the
content of such statement; (b) this Irrevocable Standby Letter of Credit shall
permit partial draws and, in the event you elect to draw upon less than the full
stated amount hereof, the stated amount of this Irrevocable Standby Letter of
Credit shall be automatically reduced by the amount of such partial draw; and
(c) you shall be entitled to assign your interest in this Irrevocable Standby
Letter of Credit from time to time without our approval and without charge. In
the event of an assignment, we reserve the right to require reasonable evidence
of such assignment as a condition to any draw hereunder.
This Irrevocable Standby Letter of Credit is subject to the Uniform Customs
and Practice for Documentary Credits (1993 revision) ICC Publication No. 500.
We hereby engage with you to honor drafts and documents drawn under and in
compliance with the terms of this Irrevocable Standby Letter of Credit.
All communications to us with respect to this Irrevocable Standby Letter of
Credit must be addressed to our office located at ___________________________to
the attention of ___________________________.
Very truly yours,
[NAME]
[TITLE]
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SCHEDULE B-5, FIFTH AMENDMENT ADDITIONAL PREMISES VERSION, SHEET I
Two ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(the "Building")
Execution Date: July 27, 1998
Tenant: Advanced Manufacturing Research. Inc.
------------------------------------
(name)
a Delaware corporation
-------------------------------------
(description of business organization)
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------------------
(principal place of business - mailing address)
Landlord: ▇▇▇-▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, L.L.C., a Delaware limited liability
company (the sole member of which is EOP Operating Limited
Partnership, a Delaware limited partnership).
Building: The Building in the City of Boston known as and numbered Two
▇▇▇▇▇▇ Street
Art. 1. 0 1 (n) Fifth Amendment
Additional Premises: An area on the fifth (5th) floor of the
Building, substantially as shown on
Fifth Amendment. Exhibit A dated
July 27, 1998
Art. 1.01(n) Area in respect of
Fifth Amendment
Additional Premises: 8.975 rentable square feet
Art. 1.01(c) Commencement Date
in respect of Fifth Amendment
Additional Premises: See Paragraph I A of Fifth Amendment
Termination Date: March 31, 2005
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SCHEDULE B-5, FIFTH AMENDMENT ADDITIONAL PREMISES VERSION, SHEET ▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(the "Building")
Tenant: Advanced Manufacturinq Research, Inc.
Execution Date: July 27, 1998
Art. 4.01 Annual Rent in respect of Fifth Amendment Additional Premises:
TIME PERIOD ANNUAL RENT MONTHLY PAYMENT
Months 1 - 24: $269,250.00 $22,437.50
Months 25 - 48: $278,225.04 $23,185.42
Months 49 -
March 31, 2005: $287,200.08 $23,933.34
Art. 5.01 Use of Premises: General office uses
Art. 6.02(B)(i) Electric current will be furnished by Landlord to Tenant,
at Tenant's cost.
Schedule of Rent
Escalators: Operating and Tax Escalation:
Tax Cost Base: Actual amount of Taxes for Fiscal Year 1999
(i.e., July 1, 1998 - June 30, 1999)
All Other Occupancy Costs Base: Actual amount of Operating
Costs for Calendar Year 1998
Tenant's Agreed Percentage: 4.23%
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SCHEDULE B-5, FIFTH AMENDMENT ADDITIONAL PREMISES VERSION, SHEET ▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(the "Building")
Tenant: Advanced Manufacturing Research. Inc.
Execution Date: July 27, 1998
Art. 20.12 Broker: Equity Office Properties
Exhibit Dates: Exhibit A. Fifth Amendment dated July 27, 1998
LANDLORD: TENANT:
▇▇▇-▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.▇. ADVANCED TMANUFACTURING
RESEARCH, INC.
By: EOP Operating Limited Partnership, its
sole member
By: Equity Office Properties Trust, By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
its managing general partner ----------------------------------
(Name) (Title)
Hereunto Duly Authorized
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice Presidnet
Date Signed: 8/6/98 Date Signed: 7/31/98
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