FIRST AMENDMENT TO AMENDED AND RESTATED LEASE
Exhibit 10.1
FIRST AMENDMENT TO AMENDED AND RESTATED LEASE
THIS FIRST AMENDMENT TO AMENDED AND RESTATED LEASE (this “Amendment”) is entered into as of
September 16, 2011 (the “Effective Date”), by and between ASLAN III FEDERAL, L.L.C. (formerly known
as Transwestern Federal, L.L.C.), a Delaware limited liability company (“Landlord”), and ENERNOC,
INC., a Delaware corporation (“Tenant”).
R E C I T A L S:
A. Landlord and Tenant entered into that certain Amended and Restated Office Lease dated
August 15, 2008 (the “Lease”) for certain premises (the “Original Premises”) on the third (3rd) and
eleventh (11th) floors of the building located at 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx (the
“000 Xxxxxxx Xxxxxx Xxxxxxxx”) and the second (2nd) and third (3rd) floors of the building located
at 00 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx (the “75 Federal Street Building” and, together with
the 000 Xxxxxxx Xxxxxx Building, the “Building”).
B. The Original Premises currently consists of approximately 57,034 square feet of rentable
area.
C. Tenant desires to lease an additional portion of the Building containing approximately
3,975 square feet of rentable area located on the third (3rd) floor of the 000 Xxxxxxx Xxxxxx
Xxxxxxxx and depicted on Exhibit A attached hereto (the “Additional Space”).
D. Landlord and Tenant desire to amend the Lease on the terms and conditions hereinafter set
forth.
NOW, THEREFORE, in consideration of the mutual covenants contained herein and for other good
and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Landlord
and Tenant agree to amend the Lease as follows:
1. Additional Space Commencement Date. Effective as of the Additional Space
Commencement Date (hereinafter defined), the Additional Space shall be added to the Original
Premises (the Original Premises and the Additional Space shall be collectively referred to as the
“Premises”) upon all of the terms and conditions of the Lease as modified herein. The Lease of the
Additional Space shall terminate upon the expiration or sooner termination of the Lease with
respect to the Original Premises. The term “Additional Space Commencement Date” or “ASCD” shall
mean the date upon which Landlord delivers to Tenant possession of the Additional Space free and
clear of all occupants. The Additional Space is currently leased by an existing tenant (the
“Existing Tenant”) for a term currently scheduled to expire on August 31, 2011. Landlord shall, in
good faith, engage in negotiations with the Existing Tenant to terminate such tenant’s lease prior
to such scheduled term expiration date; provided, however, that Landlord shall be under no
obligation to incur any costs to achieve such early termination. Landlord shall use best efforts
to deliver possession of the Additional Space to Tenant by September 1, 2011, and, in any event,
not later than the date which is sixty (60) days following the Effective Date. Notwithstanding the
foregoing, Landlord’s failure to deliver possession of
the Additional Space to Tenant by such date for reasons outside Landlord’s reasonable control,
including, without limitation, the holding over in possession of the Additional Space or any
portion thereof by the current occupant thereof, shall not affect the enforceability of this
Amendment, or subject Landlord to any liability to Tenant for damage or be deemed a default by
Landlord of its obligations under the Lease. In the event that Landlord fails to deliver
possession of the Additional Space to Tenant by the date which is ninety (90) days following the
Effective Date (the “Outside Delivery Date”), Tenant shall have a one (1) time right to terminate
the Lease with respect to the Additional Space only by thirty (30) days’ prior written notice to
Landlord which notice shall be given no later than ten (10) days following the Outside Delivery
Date (provided that if the Additional Space Commencement Date occurs within such 30 day period,
Tenant’s election to terminate pursuant to this Section 1 shall be deemed null and void and
of no force and effect).
2. Base Rent. Tenant shall pay to Landlord Base Rent with respect to the Additional
Space in the manner and at the times set forth in Section 4 of the Lease and in the amounts set
forth below, without demand, deduction or setoff, except as expressly provided in the Lease.
| Annual Base Rent per | Annual | Monthly Installments | ||||||||||
| Period | Rentable Square Foot | Base Rent | of Base Rent | |||||||||
ASCD to 6/30/2014 |
$ | 33.00 | $ | 131,175.00 | $ | 10,931.25 | ||||||
Notwithstanding the foregoing, provided that Tenant is not in default under the terms of the Lease
beyond the expiration of applicable periods of notice and cure, Tenant shall be entitled to an
abatement of Annual Base Rent and Additional Rent for the Premises for a period of two (2) months
commencing on the Additional Space Commencement Date (the “Rent Abatement Period”).
3. Additional Rent. Commencing on the Additional Space Commencement Date, (a)
Tenant’s Pro Rata Share for the entire Premises shall mean: (i) six and 95/100 percent (6.95%) of
the 000 Xxxxxxx Xxxxxx Building, and (ii) eight and 73/100 percent (8.73%) of the 00 Xxxxxxx Xxxxxx
Building, and (b) the Premises shall be deemed to contain 61,009 square feet of rentable area in
the aggregate. With respect to the Additional Space, Tenant shall pay Tenant’s Pro Rata Share of
(y) the amount by which Basic Costs for each year of the term of the Lease exceeds Basic Costs for
the year 2012, and (z) the amount by which Taxes for each year of the term of the Lease exceeds
Taxes for the fiscal year 2012 (i.e., July 1, 2011 through June 30, 2012).
4. Condition of Additional Space. Landlord shall deliver the Additional Space with
the existing mechanical systems, plumbing systems and restrooms serving the third (3rd) floor of
the 000 Xxxxxxx Xxxxxx Xxxxxxxx (xxxxxxxxxxxx, the “Third Floor Restrooms”) in good working order.
Subject to the foregoing, Tenant acknowledges that it is leasing the Additional Space in its “as
is” condition, and that no agreements to alter, remodel, decorate, clean or improve the Additional
Space or the Building have been made by Landlord or any party acting on Landlord’s behalf.
Notwithstanding the foregoing, Landlord acknowledges that Tenant intends to perform certain
alterations and improvements to the Additional Space (“Tenant’s
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Work”). Tenant shall be permitted to perform Tenant’s Work (subject to Tenant’s compliance
with the provisions of Section 9 of the Lease) through a contractor reasonably approved by Landlord
in advance and pursuant to plans and specifications reasonably approved by Landlord in advance
(Landlord hereby acknowledging that it has approved Corderman Construction as Tenant’s contractor).
Subject to Landlord’s approval, which approval shall not be unreasonably withheld, conditioned or
delayed, Tenant may select all finishes and design elements for the improvements intended to be
performed by Tenant in the elevator corridor on the third (3rd) floor of the 000 Xxxxxxx Xxxxxx
Building (the “Tenant’s Elevator Corridor Work”). Any such Tenant’s Elevator Corridor Work shall
require Landlord’s prior written consent and otherwise be subject to Tenant’s compliance with the
provisions of Section 9 of the Lease. Tenant and its contractors shall obtain and pay for
insurance (from insurance companies reasonably satisfactory to Landlord) in connection with
Tenant’s Work, which insurance coverages and amounts shall be reasonably satisfactory to Landlord
in its reasonable discretion. Tenant shall, prior to the commencement of Tenant’s Work, deliver to
Landlord evidence of such insurance reasonably satisfactory to Landlord. Tenant’s entry into the
Additional Space prior to the Additional Space Commencement Date shall be subject to all of the
terms and conditions of the Lease, except that Base Rent and Additional Rent shall not commence to
accrue until the Additional Space Commencement Date (as affected by the Rent Abatement Period).
Tenant’s Work shall be performed in a good and workmanlike manner, lien-free and in compliance with
all applicable laws. Notwithstanding anything to the contrary contained in the Lease, Tenant shall
not be required to remove Tenant’s Work as described in this Section 4 upon the expiration
or earlier termination of the Lease.
All costs of Tenant’s Work shall be borne by Tenant; provided, however, Landlord shall
contribute up to Fifty-Nine Thousand Six Hundred Twenty-Five Dollars ($59,625.00), being $15.00 per
square foot of rentable area of the Additional Space (the “Construction Allowance”), toward the
cost of Tenant’s Work (including the cost of finishes and design elements therefor). In addition,
notwithstanding anything to the contrary contained in the Lease, Landlord shall not charge Tenant
any construction management or supervisory fee, or any fees for the use of the freight elevator in
connection with Tenant’s Work. The Construction Allowance shall be available solely to reimburse
Tenant for the actual, documented cost of Tenant’s Work and shall not be available to pay for
Tenant’s furniture, office equipment or other personal property, or as a rent credit, or for any
other purpose. Landlord shall pay to Tenant the portion of the Construction Allowance for which
Tenant has qualified for disbursement, following the completion of Tenant’s Work within forty-five
(45) days after receipt by Landlord of Tenant’s written demand therefor accompanied by (i) a
reasonably detailed description of Tenant’s Work, including, without limitation, the identification
of all contractors and material suppliers who have supplied labor or materials in connection with
Tenant’s Work, (ii) invoices marked “paid” from all contractors and material suppliers identified
pursuant to clause (i), (iii) lien waivers from all contractors and material suppliers identified
pursuant to clause (i), and (iv) Tenant’s certification that Tenant’s Work has been completed
pursuant to the provisions of this paragraph and Section 9 of the Lease. Prior to commencing
Tenant’s Work, Tenant shall submit to Landlord an itemized statement of the estimated costs of
completing Tenant’s Work, including, without limitation, costs of obtaining permits; architectural,
engineering and contracting fees; and costs of labor and materials (collectively, the “Estimated
Cost of Work”). If the Estimated Cost of Work exceeds the Construction Allowance (such excess
referred to herein as the “Excess Cost”), then except with respect to the final disbursement,
Landlord shall
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deduct from each disbursement made pursuant to this Section 4 (and shall have no obligation
to advance the Construction Allowance with respect thereto) an amount equal to (a) the cost of the
Tenant’s Work for which such disbursement is being requested, multiplied by (b) a fraction, the
numerator of which shall be the Excess Cost and the denominator of which shall be the Estimated
Cost of Work. Landlord’s obligation to fund the Construction Allowance shall expire and be of no
further force or effect if Tenant fails to complete Tenant’s Work and deliver to Landlord written
demand for payment of the Construction Allowance accompanied by the items described in clauses (i)
through (iv) above no later than the first (1st) anniversary of the Additional Space
Commencement Date; provided, however, that Tenant may apply the Construction Allowance, to the
extent not requisitioned by Tenant and in an amount not to exceed $19,875.00 (being $5.00 per
square foot of rentable area of the Additional Space), as a credit against Base Rent and Additional
Rent due under the Lease. Notwithstanding anything to the contrary contained herein, Landlord
shall not be obligated to disburse any portion of the Construction Allowance, or permit Tenant to
apply any portion of the Construction Allowance as a credit against Base Rent and Additional Rent,
during the continuance of an uncured default under the Lease, and Landlord’s obligation to disburse
shall resume only when and if such default is cured.
Landlord shall also contribute up to $397.50 toward the cost of the initial test fit plan for
the Additional Space prepared by Tenant’s architect (the “Test Fit Allowance”).
5. Third Floor Connector. From and after the Additional Space Commencement Date,
Tenant shall have, as appurtenant to the Premises (as expanded by this Amendment), the exclusive
right (subject to use by Landlord or Landlord’s personnel in connection with the performance of
Landlord’s obligations under the Lease, Landlord’s reserved rights with respect to the Common
Areas, and emergency use) to use the Third Floor Connector for purposes of access and, subject to
Landlord’s prior written approval (which approval shall not be unreasonably withheld, conditioned
or delayed), installing signage and/or soft seating in accordance with the provisions of Section
6.B of the Lease (but in no event shall Tenant have any right to make any other Alterations to the
Third Floor Connector).
6. Maintenance and Repair Obligations for Additional Space. Landlord’s maintenance
and repair obligations with respect to the Premises (as expanded by this Amendment) shall be as set
forth in the Lease, including without limitation Section 9.C thereof, provided, however, that from
and after the Additional Space Commencement Date and notwithstanding anything to the contrary
contained in the Lease, Landlord shall maintain the existing heating, ventilation and
air-conditioning (“HVAC”) systems serving the Additional Space in good order and condition.
7. Third Floor Restrooms and Hallways. Landlord and Tenant acknowledge that the Third
Floor Restrooms are not part of the Premises (as expanded by this Amendment). Notwithstanding the
foregoing, Landlord agrees that Tenant shall have exclusive, appurtenant use (subject to use by
Landlord or Landlord’s personnel in connection with the performance of Landlord’s obligations under
the Lease, Landlord’s reserved rights with respect to the Common Areas, and emergency use) of the
Third Floor Restrooms and all hallways on the third (3rd) floor of the 000 Xxxxxxx Xxxxxx Building
for purposes of access and lavatory use, with no right to make any Alterations thereto (except for
the Tenant’s Elevator Corridor Work as set forth in Paragraph
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4 above). Notwithstanding anything in the Lease to the contrary, Tenant shall, at its sole
cost and expense and in accordance with the provisions of Section 9.A of the Lease, maintain the
Third Floor Restrooms in compliance with all applicable laws, ordinances, orders, rules and
regulations of any governmental entity and otherwise as if such Third Floor Restrooms were
contained within the Premises (except that Landlord shall be responsible for (a) any capital
repairs or replacements required to keep the plumbing systems serving the Third Floor Restrooms in
good working order and (b) for the maintenance of the HVAC systems serving the Third Floor
Restrooms and all hallways on the 3rd floor of the 000 Xxxxxxx Xxxxxx Xxxxxxxx). Xxxxxxxx shall
provide routine janitorial services to the Third Floor Restrooms.
8. Option to Terminate. Section 35 of Exhibit E of the Lease is hereby amended by
deleting subsection (ii) in the definition of “Leasing Costs” set forth in the second-to-last
sentence of the paragraph, and replacing it with the following:
“(ii) $44,134.00 (representing the total legal fees payable by Landlord in
connection with the negotiation and execution of the Lease and the First Amendment
to the Lease)”
Notwithstanding the fact that Tenant is expanding into an Offer Space under this First
Amendment, Landlord acknowledges and agrees that Tenant shall continue to have its Termination
Option relating to the entire Premises (as expanded by this Amendment) as set forth in Section 35
of Exhibit E to the Lease, as amended hereby.
9. Signage. Landlord, at Landlord’s expense, shall provide Tenant with building
standard signage on the ground floor lobby directory in the Building, and in the common corridor on
each floor of the Premises, as expanded by this Amendment.
10. Parking. From and after the Additional Space Commencement Date, Tenant shall be
entitled to use, in the aggregate, up to fifteen (15) parking spaces in the Parking Garage.
Tenant’s use of the Parking Garage shall be subject to the terms and conditions of Section 37 of
Exhibit E of the Lease
11. Notices. Landlord’s addresses for notices set forth in Section 1.L of the Lease
are hereby amended as follows:
| (a) | The name “Transwestern Federal, L.L.C.” is deleted and replaced with “Aslan III Federal, L.L.C.” | ||
| (b) | The copy address to Transwestern Investment Company is deleted and replaced with: |
Pearlmark Real Estate Partners, L.L.C.
000 Xxxx Xxxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Owner’s Representative
000 Xxxx Xxxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Owner’s Representative
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12. Termination of Certain Provisions. Effective as of the date of this Amendment,
the following sections of the Lease are deemed terminated, void and without further force or
effect: Exhibit D of the Lease (entitled “Work Letter”).
13. Brokers. Landlord and Tenant each represent and warrant to the other that the
only brokers they have dealt with in connection with this Amendment are T3 Advisors and Xxxxxxx &
Wakefield of Massachusetts, Inc., whose commission and fees shall be paid by Landlord pursuant to a
separate written agreement. Landlord and Tenant each agree to defend, indemnify and hold the other
harmless from and against all claims by any other broker for fees, commissions or other
compensation to the extent such broker alleges to have been retained by the indemnifying party in
connection with the execution of this Amendment. The provisions of this paragraph shall survive
the expiration or sooner termination of the Lease.
14. Limitation of Landlord’s Liability. Any liability of Landlord under the Lease, as
amended by this Amendment, shall be limited as set forth in Section 32 of the Lease.
15. Miscellaneous. Except as modified herein, the Lease and all of the terms and
provisions thereof shall remain unmodified and in full force and effect as originally written. In
the event of any conflict or inconsistency between the provisions of the Lease and the provisions
of this Amendment, the provisions of this Amendment shall control. All terms used herein but not
defined herein which are defined in the Lease shall have the same meaning for purposes hereof as
they do for purposes of the Lease. The Recitals set forth above in this Amendment are hereby
incorporated by this reference. This Amendment shall be binding upon and shall inure to the
benefit of the parties hereto and their respective beneficiaries, successors and assigns.
16. Counterparts. This Amendment may be executed in any number of counterparts and by
each of the undersigned on separate counterparts, which counterparts taken together shall
constitute one and the same instrument.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the day and year first
above written.
| LANDLORD: ASLAN III FEDERAL, L.L.C., a Delaware limited liability company |
||||
| By: | /s/ Xxxxxx X. Xxxxxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxxxxx | |||
| Title: | Managing Director | |||
| TENANT: ENERNOC, INC., a Delaware corporation |
||||
| By: | /s/ Xxxxx Xxxxxxx | |||
| Name: | Xxxxx Xxxxxxx | |||
| Title: | Executive Vice President | |||
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EXHIBIT A
ADDITIONAL SPACE
A-1
