SECOND AMENDMENT TO LEASE AND EXPANSION AGREEMENT
Exhibit 10.3
SECOND AMENDMENT TO LEASE
AND EXPANSION AGREEMENT
AND EXPANSION AGREEMENT
This Second Amendment to Lease and Expansion Agreement (the “Second Amendment”) is dated as of
April 8, 2005 by and between BCIA New England Holdings LLC, a Delaware limited liability company
(“Landlord”) and Ameresco, Inc., a Delaware corporation (“Tenant”).
RECITALS:
WHEREAS, Landlord and Tenant are the Landlord and Tenant, respectively under and pursuant to
that certain Lease dated as of November 20, 2000 (the “Original Lease”) as amended by that certain
First Amendment to Lease dated as of November, 2001 (the “First Amendment”) (the Original Lease as
amended and affected by the First Amendment is hereafter, the “Lease”), pursuant to which Landlord
has demised to Tenant certain Premises presently comprised of approximately 12,548 rentable square
feet of space, of which 11,684 rentable square feet (the “Initial Premises) were leased pursuant to
the Original Lease and 864 rentable square feet (the “Expansion Premises”) were leased pursuant to
the First Amendment (the Initial Premises and the Expansion Premises are hereafter collectively the
“Original Premises”) and each such portion of the Original Premises is located on the fourth (4th)
floor of the building (the “Building”) known as Point Xxxx Xxxxx, 000 Xxxxx Xxxxxx, Xxxxxxxxxx, XX;
and
WHEREAS, the Term of the Lease is presently scheduled to expire on December 31, 2007.
WHEREAS, subject to entering into this Second Amendment, Landlord and Tenant have agreed (a)
to increase the size of the Premises demised under the Lease to include the approximately 2,447
rentable square feet of space located on the fourth (4th) Floor of the Building and marked on
Exhibit A to this Second Amendment as the “Second Expansion Space” (the “Second Expansion Space”)
beginning on the Second Expansion Date for the remainder of the Term of this Lease as extended by
this Second Amendment, (b) to extend the Term of the Lease through and including December 31, 2008;
(c) to provide Tenant with the use of certain Storage Space in the Basement of the Building (the
“Storage Space”) which Storage Space is comprised of 400 rentable square feet of storage area and
(d) to make certain other modifications to the Lease, all as hereafter set forth.
NOW THEREFORE, in consideration of the mutual covenants herein contained, and for other good
and valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged,
Landlord and Tenant hereby agree as follows:
1. Capitalized Terms. All capitalized terms not otherwise modified or defined herein
shall have the same meanings as are ascribed to them in the Lease.
2. Extension of Term. (a) Effective as of the date of execution and delivery of this
Second Amendment, the “Term” of this Lease as set forth in Section 1.1 of the Lease shall be deemed
amended and extended as to the entire Premises so as to be the period beginning on the Commencement
Date of the Lease and expiring on December 31, 2008. Except as modified by this Second Amendment,
all of the terms and provisions of the Lease shall be and remain in full
force and effect through the period that the Term of this Lease has been extended by this
paragraph 2 of this Second Amendment.
(b) The portion of the Term of this Lease as extended hereby beginning on January 1, 2008 and
ending on December 31, 2008 is herein the “Extended Portion of the Term”. During the Extended
Portion of the Term (as hereafter defined), the Basic Rent payable for and with respect to the
12,548 rentable square foot Original Premises shall be in the annual amount of $338,796.00 payable
in equal monthly installments of $28,233.00 beginning on January 1, 2008. The Tenant shall
continue to pay Basic Rent as provided in Section 1.2 of the Lease with respect to the Initial
Premises and the Expansion Rent as provided in paragraph 2(d) of the First Amendment with respect
to the Expansion Space through December 31, 2007.
3. Expansion of Premises. Effective as of the Second Expansion Date (as hereafter
defined), the approximately 2,447 rentable square foot Second Expansion Space shall be deemed added
to and shall become a portion of the Premises demised under the Lease for all purposes of the Lease
for the remainder of the Term of this Lease as extended by this Second Amendment. Except as
otherwise provided in this Second Amendment, all of the terms and provisions of the Lease shall
apply to the Second Expansion Space. The Term of this Lease as to the Second Expansion Space shall
be co-terminous with the remainder of the Premises as provided in paragraph 2(a) of this Second
Amendment. As used in this Second Amendment, the term “Second Expansion Date” shall mean (i) that
date which is the last to occur of May 1, 2005 or (ii) the date which is thirty (30) days
immediately following the Delivery Date (as said term is hereafter defined). As used herein, the
term “Delivery Date” shall mean that date on which Landlord shall deliver possession and control of
the Second Expansion Space to Tenant free and clear of all claims and rights of possession of the
third party (the “Existing Tenant”) which is presently in possession and control of the Second
Expansion Space. Landlord anticipates that the Delivery Date shall occur on or about May 1, 2005
subject to the Existing Tenant timely vacating the Second Expansion Space. Within ten (10) days
after the written request of either party, Landlord and Tenant shall execute and deliver a written
memorandum confirming the Delivery Date and the Second Expansion Date.
From and after the Delivery Date, Tenant and its employees and contractors shall be permitted
to enter the Premises solely for the limited purpose of performing Tenant’s Work (as hereafter
defined). Notwithstanding the foregoing to the contrary, in the event Tenant shall use or occupy
the Second Expansion Space for the conduct of its business prior to the date which is thirty (30)
days after the Delivery Date, such date of use shall be deemed the Second Expansion Date for all
purposes of this Second Amendment.
Effective as of the Second Expansion Date, the Lease shall be deemed amended in the following
respects:
(a) Second Expansion Rent, Basic Rent and Expansion Rent. In addition to the
Basic Rent and Expansion Rent payable with respect to the Original Premises as provided in
Section 1.1 of the Original Lease as to the Initial Premises and in paragraph 2(d) of the
First Amendment with respect to the 864 rentable square foot Expansion Space as they have
been amended by paragraph 2(b) of this Second Amendment with respect to the entire Original
Premises, Tenant shall also pay Landlord the Second
-2-
Expansion Rent (as hereafter defined) attributable to Tenant’s use and occupancy of the
Second Expansion Space. The “Second Expansion Rent” shall be deemed a portion of the Basic
Rent payable under the Lease and shall be in the following amounts during the following
periods:
| Second Expansion Rent | Second Expansion Rent | |||||||||||
| Period | (per annum) | (monthly payment) | ||||||||||
| A. | Second Expansion
Date through
December 31, 2005 |
$ | 58,728.00 | $ | 4,894.00 | |||||||
| B. | January 1, 2006
through December
31, 2006 |
$ | 61,175.00 | $ | 5,097.92 | |||||||
| C. | January 1, 2007
through December
31, 2007 |
$ | 63,622.00 | $ | 5,301.84 | |||||||
| D. | January 1, 2008
through December
31, 2008 (Extended
portion of the
Term) |
$ | 66,069.00 | $ | 5,505.75 | |||||||
The Second Expansion Rent shall be payable beginning on the Second Expansion Date and shall
be payable in addition to the Basic Rent and Expansion Rent payable pursuant to Section 1.1
of the Lease as to the Initial Premises and pursuant to paragraph 2(d) of the First
Amendment with respect to the 864 rentable square foot Expansion Space as such Basic Rent
applicable to the Initial Premises and Expansion Rent applicable to the Expansion Space are
each amended by paragraph 2(b) of this Second Amendment. The Second Expansion Rent shall be
payable as and when all other payments of Basic Rent and the Expansion Rent are due and
payable under the Lease without offset, deduction, abatement or demand, except as otherwise
expressly provided in the Lease.
It is agreed and understood that the Basic Rent applicable to the Initial Premises as set
forth in Section 1.1 of the Lease, the Expansion Rent as provided in paragraph 2(d) of the
First Amendment and the Second Expansion Rent shall be collectively deemed to be the “Basic
Rent” payable from time to time under this Lease as and when called for under the Lease as
amended by this Second Amendment. The total Basic Rent payable during the Extended Portion
of the Term (January 1, 2008 through December 31, 2008) shall be as to the entire Premises
(including the Initial Premises, the Expansion Space and the Second Expansion Space) shall
be in the annual amount of $404,865.00 payable in equal monthly installments of $33,738.75.
(b) Estimated Cost of Electrical Service. The Tenant shall pay Cost of
Tenant’s Electricity for Lights & Plugs attributable to the Second Expansion Space at the
rate of $3,303.45 per annum (the “Second Expansion Electrical Charge”) which shall be
payable in equal monthly installments of $275.29. The Second Expansion Electrical Charge
shall be payable in addition to the Cost of Tenant’s Electricity for Lights & Plugs
-3-
applicable to the Original Premises as provided in the Lease. The Second Expansion
Electrical Charge shall be appropriately pro rated and adjusted for any partial calendar
month if the Second Expansion Date is other than the first day of a calendar month. Such
payments of the Second Expansion Electrical Charge shall commence on the Second Expansion
Date and shall be payable as and when all other payments of the Cost of Tenant’s Electricity
for Lights & Plugs are to be made.
(c) Tax Base, Operating Expense Base and Tenant’s Proportionate Share. The
“Base Year For Taxes”, “Base Year for Operating Expenses” and “Tenant’s Proportionate Share”
applicable to the Second Expansion Space (and only as to the Second Expansion Space) shall
be as follows:
“Base Year for Taxes: Fiscal Tax Year 2005, ending June 30, 2005”
“Base Year for Operating Expenses: Actual Operating Expenses for the calendar year 2005,
ending December 31, 2005.”
“Tenant’s Proportionate Share: 2.27%.”
It is agreed and understood that the foregoing defined Base Year for Taxes, Base Year for
Operating Expenses and Tenant’s Proportionate Share shall only apply to the Second Expansion
Space. Tenant shall continue to be and shall remain liable for Tenant’s Proportionate Share
of increases in Taxes and Operating Expenses allocable to the Original Premises pursuant to
Article 8 and Article 9 of the Lease using the Base Year for Taxes, Base Year for Operating
Expenses and Tenant’s Proportionate Share applicable to the Original Premises as provided in
Section 1.1 of the Original Lease as amended by paragraph 2(c) of the First Amendment in
addition to such amounts applicable to the Second Expansion Space as provided above.
(d) Effective as of the Second Expansion Date and thereafter, for the remainder of the
Term of the Lease as extended by this Second Amendment, the “Premises” demised under the
Lease and the “Premises Rentable Area” shall consist of 14,995 rentable square feet
comprised of the Initial Premises (11,684 rsf), the First Expansion Space (864 rsf) and the
Second Expansion Space (2.447 rsf).
(e) Effective as of the Second Expansion Date and thereafter for the remainder of the
Term of this Lease as extended by this Second Amendment, the Lease shall be deemed amended
by adding thereto the Storage Space License (the “Storage Space License”) attached to this
Second Amendment as Exhibit B and which shall be deemed incorporated in and deemed a part of
the Lease as a new Exhibit F to the Lease.
4. As Is Condition; Allowance; Residual Allowance. (a) Tenant hereby acknowledges
that it is presently in occupancy of the Original Premises and has inspected the Initial Premises,
the Expansion Space, the Second Expansion Space and the Storage Space (as defined in the Storage
Space License) and the common areas of the Building and has agreed to lease the Initial Premises,
the Expansion Space, the Second Expansion Space and the Storage Space for the remainder of the Term
of this Lease as extended by this Second Amendment in their current “as is, where is” condition
with all faults and without representation or warranty by
-4-
Landlord of any kind. Nothing contained in this paragraph 4 shall be deemed or construed to
release Landlord from its ongoing maintenance and repair obligations pursuant to Section 7.1 of
this Lease.
(b) Tenant shall be responsible for performing all work, alterations and improvements which
are required, necessary or desired in the Initial Premises, the Expansion Space, the Second
Expansion Space and the Storage Space in order to prepare same for Tenant’s use and/or occupancy
(the “Tenant’s Work”), all at Tenant’s sole risk, cost and expense. Without limitation of the
foregoing, but subject to Landlord’s obligation to fund the Allowance, Tenant shall be responsible
for the Total Cost of the Tenant’s Work (as hereafter defined). All of Tenant’s Work shall be
performed by Tenant using contractors or workmen first approved by Landlord and in accordance with
and subject to the provisions of Section 5.2 of the Original Lease and all other provisions of the
Lease applicable to alterations or improvements made by or on behalf of the Tenant in or to the
Premises. The provisions of Article 4 of the Lease shall not apply to the Tenant’s Work as defined
in this Paragraph 4 of this Second Amendment.
As used herein, the term “Total Cost of the Tenant’s Work” shall mean the aggregate cost and
expense of (i) all demolition work, permits, governmental approvals, labor, materials, work,
alterations and improvements necessary to complete the Tenant’s Work in accordance with plans and
specifications approved in advance by Landlord (“Tenant’s Plans”), and (ii) architectural and
engineering services necessary to create such plans and specifications. The term “Total Cost of
the Tenant’s Work” shall not include costs and expenses (the “Excluded Costs”) pertaining to the
Storage Space, the acquisition and design of voice and data telecommunications systems, wiring and
cabling, furniture acquisition and installation, or any equipment, improvements or fixtures related
to Tenant’s use of the Premises or the Storage Space, all of which Excluded Costs shall all be paid
at Tenant’s sole cost risk and expense and no portion of the Allowance shall be expended for any
purposes of paying for Excluded Costs.
Landlord shall contribute toward the Total Cost of the Tenant’s Work (specifically excluding
any Excluded Costs) up to an amount equal to the Allowance (as hereafter defined), Tenant shall be
responsible for and pay that portion of the Total Cost of the Tenant’s Work in excess of the
Allowance plus the costs of the Excluded Costs. Landlord shall disburse payments of the Allowance
to Tenant as hereafter provided. It is agreed and understood that except for the Allowance, Tenant
shall be responsible for the Total Cost of the Tenant’s Work plus the cost of any Excluded Costs.
As used herein, the term “Allowance” shall mean the sum of $24,470.00.
As used herein, the term “Allowance Release Conditions” shall mean (i) that no Default of
Tenant shall exist and be continuing (ii) that the applicable Tenant’s Work and the corresponding
portion of the Total Cost of Tenant’s Work for which reimbursement is sought has been completed in
accordance with plans and specifications approved by Landlord in advance (which approval shall not
be unreasonably withheld or delayed by Landlord), (iii) Tenant shall have provided Landlord with
true and accurate copies of all permits and/or approvals required for the performance and
completion of the applicable Tenant’s Work (including, without limitation, Building Permits,
Demolition Permits and certificates of occupancy), (iv) Tenant shall deliver to Landlord Lien
Waivers for Tenant’s contractors or workmen performing such Tenant’s Work, (v) Tenant shall have
delivered to Landlord copies of all relevant invoices for such Tenant’s Work with a reasonably
detailed breakdown of all Tenant’s Work performed, and upon
-5-
substantial compliance with the provisions of Section 5.2 of the Lease and (vi) Tenant shall
have delivered to Landlord a certificate from Tenant’s architect or engineer certifying that such
Tenant’s Work has been completed in compliance with the Tenant’s Plans as approved by Landlord.
(Landlord shall have the right to timely review and inspect Tenant’s Work in order to confirm
completion of Tenant’s Work.
Upon satisfaction of all of the Allowance Release Conditions with respect to Tenant’s Work
performed by Tenant and upon the written request of Tenant (but not more often than once in any
thirty day period), Landlord shall advance corresponding portions of the Allowance and/or as
applicable, the Residual Allowance (as hereafter defined) to Tenant. In no event shall Landlord be
required to expend in excess of the aggregate amount of the Allowance and the Residual Allowance in
connection with Tenant’s Work. Landlord shall be entitled to retain any portion of the Allowance
and/or the Residual Allowance not to be applied to the Total Cost of Tenant’s Work within the time
and manner herein provided. In no event shall Landlord be required to fund any portion of the
Allowance and/or the Residual Allowance with respect to Tenant’s Work not completed or for which
the Allowance Release Conditions are not satisfied on or before December 31, 2005. No portion of
the Allowance or the Residual Allowance shall be applied toward any Excluded Costs.
5. Residual Allowance. Landlord and Tenant hereby acknowledge and agree that Tenant
did not expend the entire amount of the Landlord’s Contribution which was made available to Tenant
for work, and improvements in the Premises pursuant to the Original Lease. In addition to the
Allowance referenced in paragraph 4 of this Second Amendment, Landlord has agreed to make such
unused portion of the Landlord’s Contribution under the Original Lease, namely $38,600.00 (the
“Residual Allowance”), available to Tenant pursuant to this Second Amendment to be applied toward
the Total Cost of Tenant’s Work under this Second Amendment. The Residual Allowance will be
released to Tenant upon and subject to the same conditions and limitations as are applicable to
release of portions of the Allowance pursuant to paragraph 4 above.
6. Brokerage. Each party hereto represents and warrants to the other party that it
has not dealt with any real estate broker or agent in connection with this Second Amendment other
than Xxxxxxxx, Xxxxx, Xxxxx & Partners, LLC (the “Broker”). Each party hereto shall indemnify the
other party and hold the other party harmless from any cost, expense or liability (including costs
of suit and reasonable attorney’s’ fees) for any compensation, commission or fees claimed by any
real estate broker or agent in connection with this Second Amendment or the negotiation hereof by
reason of any of their acts. Notwithstanding the foregoing, Landlord shall pay commissions to the
Broker pursuant to its direct agreements with Broker.
7. Governing Law. This Second Amendment and the rights and obligations of both
parties hereunder shall be governed by the laws of The Commonwealth of Massachusetts.
8. Authority. Landlord and Tenant each warrants and represents to the other that the
person or persons executing this Second Amendment on behalf of the Landlord and Tenant respectively
has the authority to do so and that such execution has fully obligated and bound the respective
party to all terms and provisions of this Second Amendment.
-6-
9. Ratification. Except as modified by this Second Amendment, the Lease is in full
force and effect and Landlord and Tenant ratify and confirm the same.
10. Interpretation and Partial Invalidity. If any term of this Second Amendment, or
the application thereof to any person or circumstances, shall to any extent be invalid or
unenforceable, the remainder of this Second Amendment, or the application, of such term to persons
or circumstances other than those as to which it is invalid or unenforceable, shall not be affected
thereby, and each term of this Second Amendment shall be valid and enforceable to the fullest
extent permitted by law. The titles for the paragraphs are for convenience only and not to be
considered in construing this Second Amendment.
11. Bind and Inure. This Second Amendment shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns, and may not be modified,
amended or cancelled except by a written instrument executed by the parties hereto or their
respective successors or assigns.
[Signatures on next page]
-7-
IN WITNESS WHEREOF, Landlord and Tenant have executed this Second Amendment as of the date and
year first above written.
| LANDLORD: | ||||||||||
| BCIA NEW ENGLAND HOLDINGS LLC, a Delaware limited liability company | ||||||||||
| By: | BCIA NEW ENGLAND HOLDINGS MASTER LLC, a | |||||||||
| Delaware limited liability company, its Manager | ||||||||||
| By: | BCIA NEW ENGLAND HOLDINGS MANAGER LLC, | |||||||||
| a Delaware limited liability company, its Manager | ||||||||||
| By: | BCIA NEW ENGLAND HOLDINGS | |||||||||
| MANAGER CORP., a Delaware | ||||||||||
| corporation, its Manager | ||||||||||
| By: | /s/ Xxxx X. Xxxxxx | |||||||||
| Name: XXXX X. XXXXXX | ||||||||||
| Title: EXECUTIVE VICE PRESIDENT | ||||||||||
| TENANT: | ||||||
| AMERESCO, INC. | ||||||
| By: | /s/ Xxxxxxxx Xxxxxx-Xxxxxxxx | |||||
| Its: | Vice President Human Resources & Administration | |||||
-8-
