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Exhibit 10.10
Xxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
(the "Building")
FOURTH AMENDMENT
January 8, 1998
LANDLORD: XXX-0 Xxxxxx Xxxxxx, X.X.X. (f/k/a XX-0 Xxxxxx Xxxxxx, X.X.X.),
successor-in-interest to Beacon Properties, L.P., successor-in-
interest to MLH Income Realty Partnership V
TENANT: Advanced Manufacturing 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; and 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
ORIGINAL LEASE DATA
LEASE EXECUTION
DATE: August 12, 1992
TERMINATION
DATE: November 30, 2001
PREVIOUS
LEASE
AMENDMENTS: First Amendment dated December 31, 1994 Second Amendment dated
January 23, 1996 Third Amendment dated October 15, 0000
XXXXXX XXXXXXXXX
ADDITIONAL
PREMISES: 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, a copy of
which is attached hereto and incorporated by reference herein.
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WHEREAS, Tenant desires to (i) extend the term of the lease in respect of
the Existing Premises for an additional period; and (ii) lease additional
premises located in the Building, to wit, the Fourth Amendment Additional
Premises;
WHEREAS, Landlord is willing to (i) extend the term of the lease in respect
of the Existing Premises; and (ii) lease the Fourth 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. EXTENSION OF TERM OF LEASE
The Term of the Lease in respect of the Existing Premises is hereby
extended for an additional period commencing as of December 1, 2001 and
expiring seven (7) years after the Commencement Date in respect of the Fourth
Amendment Additional Premises, as hereinafter defined. The leasing of the
Existing Premises for such additional term shall be upon the terms set forth on
Revised Schedule B-5, Fourth Amendment, Sheets 1, 2, 3, 4 and 5, dated January
8, 1998, a copy of which is attached hereto and incorporated by reference herein
("Fourth Amendment Revised Schedule B-5"), and upon all of the other terms and
conditions of the Lease in effect immediately preceding the commencement of such
additional term. Landlord shall, at its expense (except as hereinafter
provided), replace the carpet in the fifth (5th) floor portion of the Existing
Premises (the "Carpet Work"). Landlord shall contribute up to Forty Thousand and
00/100 ($40,000.00) Dollars ("Landlord's Carpet Allowance") towards the costs of
the Carpet Work. If the costs of the Carpet Work exceed Landlord's Carpet
Allowance, Tenant shall reimburse Landlord such excess amount upon receipt of a
xxxx(s) or invoice(s) from Landlord therefor. Tenant shall not be entitled to
any unused portion of Landlord's Carpet Allowance. Tenant shall cooperate with
Landlord in the scheduling and performance of the Carpet Work.
2. DEMISE OF THE FOURTH AMENDMENT ADDITIONAL PREMISES
Landlord hereby demises and leases to Tenant, and Tenant hereby hires and
takes from Landlord, the Fourth Amendment Additional Premises for a term
commencing as of the Commencement Date in respect of the Fourth Amendment
Additional Premises and expiring seven (7) years thereafter. Said demise of the
Fourth Amendment Additional Premises shall be upon the terms set forth on Fourth
Amendment Revised Schedule B-5 and upon all of the other terms and conditions of
the Lease, except as follows:
A. The Commencement Date in respect of the Fourth Amendment Additional
Premises means April 1, 1998, unless Landlord's Work in respect of the Fourth
Amendment Additional Premises, as defined in Paragraph 3 hereof, is delayed for
any reason other than a delay caused by Tenant or its agents, employees or
contractors. In such event, the Commencement Date in respect of the Fourth
Amendment Additional Premises shall be delayed to a later date in accordance
with Article 3.03 of the Lease, provided, however, that the provisions of
Article 3.03 of the Lease which give Tenant the right to occupy premises prior
to
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carpet installation shall not apply to (Landlord's Work in respect of) the
Fourth Amendment Additional Premises.
B. Commencing as of the Commencement Date in respect of the Fourth
Amendment Additional Premises, Tenant shall pay Occupancy Costs in respect of
the Fourth Amendment Additional Premises on a monthly estimated basis based upon
the most recent Tax Costs and other Operating Costs data available to Landlord.
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.
3. CONDITION OF FOURTH AMENDMENT ADDITIONAL PREMISES.
A. Landlord shall construct the Fourth Amendment Additional Premises
substantially in accordance with construction drawings ("Construction Drawings")
to be prepared by or on behalf of Landlord, at Landlord's expense, based upon
the space plan attached hereto as Fourth Amendment, Exhibit B ("Landlord's Work
in respect of the Fourth Amendment Additional Premises"). Exhibit E of the
Lease, Paragraph 4 of the First Amendment to Lease, Paragraph 4 of the Second
Amendment and Paragraph 4 of the Third Amendment shall have no applicability to
the Fourth Amendment Additional Premises. The parties acknowledge that such
space plan contemplates, and the Construction Drawings will detail, the
construction of an internal stairwell between the Fourth Amendment Additional
Premises and the fifth (5th) floor portion of the Existing Premises and that
Landlord reserves the right to engage an engineer or consultant to review such
space plan and Construction Drawings and consult generally as to structural and
related issues concerning such internal stairwell. Accordingly, and
notwithstanding anything to the contrary contained herein, Tenant shall either
reimburse Landlord for the fees, costs and expenses paid by Landlord to such
engineer or consultant (collectively, the "Structural Review Costs") upon
receipt of a xxxx(s) or invoice(s) from Landlord therefor or request that
Landlord apply any available Landlord's Fourth Amendment Contribution (as
hereinafter defined) towards the payment of the Structural Review Costs.
B. Tenant shall have the right to approve the Construction Drawings, which
approval shall not be unreasonably withheld or delayed. If Landlord estimates
that the costs of Landlord's Work in respect of the Fourth Amendment Additional
Premises shall exceed $274,945.00 ("Landlord's Fourth Amendment Contribution"),
Landlord shall advise Tenant of the amount of such estimated excess at the time
that Landlord submits the Construction Drawings to Tenant for its approval. In
such event, Tenant shall have the right, exercisable by written notice to
Landlord within three (3) business days of receipt of the Construction Drawings,
to require modifications to the Construction Drawings so as to reduce the costs
of Landlord's Work in respect of the Fourth Amendment Additional Premises;
provided, however, that if Tenant shall exercise such right, Tenant shall
reimburse Landlord upon demand for the costs of such modifications to the
Construction Drawings and shall bear all risks of delay in the performance of
Landlord's Work in respect of the Fourth Amendment Additional Premises caused by
such modifications to the Construction Drawings. If Tenant fails to respond to
Landlord's request for approval of any Construction Drawings within three (3)
business days of Tenant's receipt thereof, Tenant's approval shall be deemed to
have been given (both as to the Construction Drawings and the costs
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of Landlord's Work in respect of the Fourth Amendment Additional Premises).
Notwithstanding the foregoing, Tenant shall approve the Construction Drawings if
they are consistent with the space plan referred to above and the costs of
Landlord's Work in respect of the Fourth Amendment Additional Premises are
estimated by Landlord to be less than Landlord's Fourth Amendment Contribution.
Without limiting the foregoing, Tenant shall promptly respond to any request
made from time to time by Landlord or Landlord's architect or other
representative for approvals, authorizations to proceed or any other information
in connection with Landlord's Work in respect of the Fourth Amendment Additional
Premises. Time is of the essence of this Paragraph 3B.
C. If Landlord's Fourth Amendment Contribution exceeds the costs of
Landlord's Work in respect of the Fourth Amendment Additional Premises
(including the Structural Review Costs), such excess portion of Landlord's
Fourth Amendment Contribution shall accrue to the sole benefit of Landlord.
D. If Landlord requires a Building permit in order to perform Landlord's
Work in respect of the Fourth Amendment Additional Premises, Tenant shall,
promptly upon request by Landlord, execute and deliver to the City of Boston any
affidavits and documentation required to obtain the Building permit allowing
Landlord to perform Landlord's Work in respect of the Fourth Amendment
Additional Premises on a timely basis.
E. If Landlord's Work in respect of the Fourth Amendment Additional
Premises shall not have been substantially completed by July 31, 1998 due to
Landlord's fault or neglect, Tenant, as its sole and exclusive remedy, shall
have the right, by written notice to Landlord, to cancel this Fourth Amendment.
If Tenant shall exercise such right, this Fourth Amendment shall be cancelled
and of no further force or effect as of the date which is thirty (30) days after
Landlord's receipt of such cancellation notice from Tenant, unless Landlord's
Work in respect of the Fourth Amendment Additional Premises shall have been
substantially completed within such thirty (30) day period. If Landlord's Work
in respect of the Fourth Amendment Additional Premises shall have been
substantially completed within such thirty (30) day period, Tenant's
cancellation notice shall be deemed void and of no further force or effect.
4. CONSTRUCTION RENT IN RESPECT OF FOURTH AMENDMENT ADDITIONAL PREMISES
If the costs of Landlord's Work in respect of the Fourth Amendment
Additional Premises exceed Landlord's Fourth Amendment Contribution, Landlord
and Tenant hereby agree that Tenant, in addition to its obligation to pay Annual
Rent, Construction Rent in respect of the Third Amendment Additional Premises
and other charges provided in the Lease, shall reimburse Landlord an amount
equal to the Construction Principal (as hereinafter defined) as follows. Tenant
shall, commencing as of the Commencement Date in respect of the Fourth Amendment
Additional Premises, pay to Landlord, as additional rent, at the times and in
the manner provided for the payment of Annual Rent, a monthly amount
("Construction Rent") determined by Landlord based upon the amortization of the
Construction Principal on a direct reduction basis over the Term of the Lease in
respect of Fourth Amendment Additional Premises at an interest rate of 12% per
annum. For purposes hereof, the term "Construction Principal" shall be an amount
equal to the excess of (i) the costs of Landlord's Work in respect of the Fourth
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Amendment Additional Premises (other than the costs incurred to prepare the
Construction Drawings), over (ii) the amount of Landlord's Fourth Amendment
Contribution. Landlord shall make the calculation of Construction Rent as soon
as the Construction Principal is actually determined, and Landlord shall advise
Tenant thereof. If the amount of Construction Rent is not known as of the
Commencement Date in respect of the Fourth Amendment Additional Premises, Tenant
shall pay to Landlord, with the first payment of Construction Rent, the
aggregate amount of Construction Rent which shall have accrued from the
Commencement Date in respect of the Fourth Amendment Additional Premises through
the first such payment. The parties shall confirm in writing the amount of
Construction Rent as soon as it is known; provided, however, that the failure to
confirm the same in writing shall not relieve Tenant of its obligation to pay
Construction Rent pursuant to the provisions thereof.
Whereas the payment of Construction Rent by Tenant represents a
reimbursement to Landlord of costs and expenses which Landlord will incur in
connection with the preparation of the Fourth Amendment Additional Premises for
Tenant's occupancy, in the event that there is any default in any of Tenant's
obligations under the Lease (including, without limitation, its obligation to
pay said Construction Rent) or in the event that the Term of the Lease is
terminated prior to the expiration date thereof, the entire unpaid amount of
Construction Principal shall become immediately due and payable upon demand by
Landlord. Landlord's right to demand said entire unpaid amount of Construction
Principal shall be in addition to all other rights and remedies which Landlord
shall have by reason of any default of Tenant under the Lease, and Tenant shall
not be entitled to any credit or reduction in said Construction Principal based
upon amounts collected by Landlord from reletting of any premises after default
of Tenant. Notwithstanding anything to the contrary herein or in the Lease
contained, in no event and under no circumstances shall there be any abatement
of Construction Rent, or any portion thereof, under the Lease, as hereby
amended.
5. FOURTH AMENDMENT REVISED SCHEDULE B-5
Effective as of the Commencement Date in respect of the Fourth Amendment
Additional Premises, Revised Schedule B-5, Third Amendment, Sheets 1, 2, 3 and
4, dated October 15,1996 (attached to the Third Amendment) shall be of no
further force or effect and Fourth Amendment Revised Schedule B-5 shall become
operative.
6. 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 and Paragraph 6 of the Third Amendment, Landlord is holding a security
deposit of Twenty- Four Thousand Nine Hundred Thirty-Eight and 29/100 ($24,93
8.29) Dollars ("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 Fourth Amendment to Landlord, pay to
Landlord an additional security deposit of Sixty-Five Thousand and 00/100
($65,000.00) 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.
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7. TENANT'S OPTION TO EXTEND THE TERM OF THE LEASE
A. On the conditions, which conditions Landlord may waive, at its election,
by written notice to Tenant at any time, that Tenant is not in default of its
covenants and obligations under the Lease and that Advanced Manufacturing
Research, Inc., itself, is occupying the entirety of the premises then demised
to Tenant, both as of the time of option exercise and as of the commencement of
the hereinafter described additional term, Tenant shall have the option to
extend the Term of the Lease for one (1) additional five (5) year term, such
additional term commencing as of the expiration of the term of the Lease. Tenant
may exercise such option to extend by giving Landlord written notice on or
before the date twelve (12) months prior to the expiration date of the term of
the Lease. Upon the timely giving of such notice, the Term of the Lease shall be
deemed extended upon all of the terms and conditions of the Lease (as hereby
amended), except that Landlord shall have no obligation to construct or renovate
the premises and that the Annual Rent, Tax Cost Base and All Other Occupancy
Costs Base during such additional term shall be as hereinafter set forth. If
Tenant fails to give timely notice, as aforesaid, Tenant shall have no further
right to extend the Term of the Lease, time being of the essence of this
Paragraph 7.
B. The Annual Rent payable during the additional term shall be based upon
the Fair Market Rental Value, as defined in Paragraph 8 below, as of the
commencement of the additional term, of the premises then demised to Tenant.
C. Tenant shall have no further option to extend the term of the Lease
other than the one (1) additional five (5) year term herein provided.
D. Notwithstanding the fact that upon Tenant's exercise of the herein
option to extend the term of the Lease such extension shall be self-executing,
as aforesaid, the parties shall promptly execute a lease amendment reflecting
such additional term after -Tenant exercises the herein option, except that the
Annual Rent payable in respect of such additional term, the Tax Cost Base during
such additional term and the All Other Occupancy Costs Base during such
additional term may not be set forth in said amendment. Subsequently, after such
Annual Rent, Tax Cost Base and All Other Occupancy Costs Base are 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 rights under this Paragraph 7, unless otherwise
specifically provided in such lease amendment.
8. DEFINITION OF FAIR MARKET RENTAL VALUE
A. "Fair Market Rental Value" shall be computed as of the date in question
at the then current annual rental charge (i.e., the sum of Annual Rent plus
escalation and other charges), including provisions for subsequent increases and
other adjustments, for leases or agreements to lease then currently being
negotiated or executed for comparable space located in the Building, or if no
leases or agreements to lease are then currently being negotiated or executed
for comparable space in the Building, the Fair Market Rental Value shall be
determined by reference to leases or agreements to lease then currently being
negotiated or executed for comparable space located elsewhere in comparable
office buildings located in downtown Boston. In determining Fair Market Rental
Value, the following factors, among others, shall be taken into
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account and given effect: size, location of premises, lease term, tenant
improvement allowances, condition of building, and services provided by the
landlord.
B. Notwithstanding anything to the contrary herein contained, the parties
hereby agree that upon the determination of any Fair Market Rental Value,
Landlord shall have the right, exercisable by written notice to Tenant on or
before the time that Landlord gives Tenant its initial designation of Fair
Market Rental Value:
(1) to change the Tax Cost Base as stated on Fourth Amendment Revised
Schedule B-5 from the amount stated on Fourth Amendment Revised
Schedule B-5 to an amount equal to the actual amount of Tax Costs
for the immediately preceding fiscal tax year for which Landlord
has actual data, and
(2) to change the All Other Occupancy Costs Base as stated on Fourth
Amendment Revised Schedule B-5 from the amount stated on Fourth
Amendment Revised Schedule B-5 to an amount equal to the actual
amount of Operating Costs (other than Tax Costs) for the
immediately preceding calendar year for which Landlord has actual
data.
If Landlord shall exercise such right, the amount of Annual Rent payable
hereunder shall be commensurately adjusted to reflect such change in the Tax
Cost Base and the All Other Occupancy Costs Base.
C. Landlord shall initially designate Fair Market Rental Value and Landlord
shall furnish data in support of such designation. If Tenant disagrees with
Landlord's designation of a Fair Market Rental Value, Tenant shall have the
right, by written notice given within thirty (30) days after Tenant has been
notified of Landlord's designation, to submit such Fair Market Rental Value to
arbitration. Fair Market Rental Value shall be submitted to arbitration as
follows: Fair Market Rental Value shall be determined by impartial arbitrators,
one to be chosen by the Landlord, one to be chosen by Tenant, and a third to be
selected, if necessary, as below provided. The unanimous written decision of the
two first chosen, without selection and participation of a third arbitrator, or
otherwise, the written decision of a majority of three arbitrators chosen and
selected as aforesaid, shall be conclusive and binding upon Landlord and Tenant.
Landlord and Tenant shall each notify the other of its chosen arbitrator within
ten (10) days following the call for arbitration and, unless such two
arbitrators shall have reached a unanimous decision within thirty (30) days
after their designation, they shall so notify the President of the Boston Bar
Association (or such organization as may succeed to said Boston Bar Association)
and request him or her to select an impartial third arbitrator, who shall be an
office building owner or a real estate broker dealing with like types of
properties, to determine Fair Market Rental Value as herein defined. Such third
arbitrator and the first two chosen shall, subject to commercial arbitration
rules of the American Arbitration Association, hear the parties and their
evidence and render their decision within thirty (30) days following the
conclusion of such hearing and notify Landlord and Tenant thereof. Landlord and
Tenant shall bear the expense of the third arbitrator (if any) equally. The
decision of the arbitrator shall be binding and conclusive, and judgment upon
the award or decision of the arbitrator may be entered in any court of competent
jurisdiction; and the parties consent to the jurisdiction of such court and
further agree that any
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process or notice of motion or other application to such court or a Judge
thereof may be served outside the Commonwealth of Massachusetts by registered
mail or by personal service, provided a reasonable time for appearance is
allowed. If the dispute between the parties as to a Fair Market Rental Value has
not been resolved before the commencement of Tenant's obligation to pay rent
based upon such Fair Market Rental Value, then Tenant shall pay Annual Rent and
other charges under the Lease in respect of the premises in question based upon
the Fair Market Rental Value designated by Landlord until either the agreement
of the parties as to the Fair Market Rental Value, or the decision of the
arbitrators, 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.
9. TENANT'S RIGHT OF FIRST OFFER
On the conditions, which conditions Landlord may waive, at its election, by
written notice to Tenant at any time, that Tenant is not in default of its
covenants and obligations under the Lease and that Advanced Manufacturing
Research, Inc., itself, is occupying the entirety of the premises then demised
to Tenant, both at the time that Landlord is required to give Landlord's Notice,
as hereinafter defined, and as of the Commencement Date in respect of the RFO
Premises, as hereinafter defined, Tenant shall have the following right to lease
the RFO Premises, as hereinafter defined, when the RFO Premises become available
for lease to Tenant, as hereinafter defined. Tenant's right of first offer shall
be subject and subordinate to the rights of existing tenants to lease such RFO
Premises.
A. DEFINITION OF RFO PREMISES
"RFO Premises" shall be defined as any separately demised area on the
fourth (4th) or fifth (5th) floor of the Building (other than the Expansion
Areas described in Paragraph 10 below), when such area becomes available for
lease to Tenant, as hereinafter defined, during the Term of the Lease. For the
purposes of this Paragraph 9, an RFO Premises shall be deemed to be "available
for lease to Tenant" if, during the term of the Lease, Landlord, in its sole
judgment, determines that such area will become available for leasing to Tenant
(i.e., when Landlord determines that the then current tenant of such area will
vacate such area, and when Landlord intends to offer such area for lease; it
being understood that Tenant's rights under this Paragraph 9 shall not apply to
the initial leasing of any area which is vacant as of the date hereof).
Notwithstanding anything to the contrary contained herein, in no event shall
Tenant have any nights under this Paragraph 9 on or after the sixth (6th)
anniversary of the Commencement Date in respect of the Fourth Amendment
Additional Premises (i.e., Landlord shall have no obligation to give Landlord's
Notice to Tenant on or after the sixth (6th) anniversary of the Commencement
Date in respect of the Fourth Amendment Additional Premises).
B. EXERCISE OF RIGHT TO LEASE RFO PREMISES
Landlord shall give Tenant written notice ("Landlord's Notice") at the time
that Landlord determines, as aforesaid, that an RFO Premises will become
available for lease to Tenant. Landlord's Notice shall set forth the size and
location of the RFO Premises, Landlord's designation of the Fair Market Rental
Value (as defined in Paragraph 8 above) applicable to such RFO Premises and the
Commencement Date in respect of such RFO Premises. Tenant shall have
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the right, exercisable upon written notice ("Tenant's Exercise Notice") given to
Landlord within ten (10) days after the receipt of Landlord's Notice, to lease
such RFO Premises. If Tenant fails timely to give Tenant's Exercise Notice,
Tenant shall have no further right to lease such RFO Premises pursuant to this
Paragraph 9; provided, however, that such failure shall not prohibit Tenant from
exercising its right to lease any other RFO Premises which may thereafter become
available for lease to Tenant. Upon the timely giving of Tenant's Exercise
Notice, Landlord shall lease and demise to Tenant and Tenant shall hire and take
from Landlord, such RFO Premises, upon all of the same terms and conditions of
the Lease (as hereby amended), except as hereinafter set forth.
C. LEASE PROVISIONS APPLYING TO RFO PREMISES
The leasing to Tenant of an RFO Premises shall be upon all of the same
terms and conditions of the Lease (as hereby amended), except as follows:
(1) COMMENCEMENT DATE
The Commencement Date in respect of such RFO Premises shall be the later
of: (x) the Commencement Date in respect of such RFO Premises as set forth in
Landlord's Notice, or (y) the date that Landlord delivers such RFO Premises to
Tenant.
(2) Annual Rent
The Annual Rent payable in respect of such RFO Premises shall be based upon
the Fair Market Rental Value, as defined in Paragraph 8 above, of such RFO
Premises as of the Commencement Date in respect of such RFO Premises.
(3) CONDITION OF RF0 PREMISES
Tenant shall take such RFO Premises "as-is", in its then (i.e., as of the
date of delivery of such XX0 Xxxxxxxx) xxxxx of construction, finish and
decoration, without any obligation on the part of Landlord to construct or
prepare such RFO Premises for Tenant's occupancy or to provide any allowance or
contribution with respect thereto. Without limiting the foregoing, Article 3.03
and Exhibit E of the Lease, Paragraph 4 of the First Amendment to Lease,
Paragraph 4 of the Second Amendment, Paragraph 4 of the Third Amendment and
Paragraph 3 of this Fourth Amendment shall have no applicability to such RFO
Premises.
(4) TENANT'S PROPORTIONATE SHARE
Tenant's Proportionate Share in respect of such RFO Premises shall be a
fraction, the numerator of which is the Total Rentable Area of such RFO
Premises, and the denominator of which is the Total Rentable Area of the
Building.
D. EXECUTION OF LEASE AMENDMENTS
Notwithstanding the fact that Tenant's exercise of the above-described
option to lease RFO Premises shall be self-executing, as aforesaid, the parties
hereby agree promptly to execute a lease amendment reflecting the addition of an
RFO Premises, except that the Annual
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Rent payable in respect of such RFO Premises, the Tax Cost Base in respect of
such RFO Premises and the All Other Occupancy Costs Base in respect of such RFO
Premises may not be as set forth in such amendment. Subsequently, after such
Annual Rent, Tax Cost Base and All Other Occupancy Costs Base are 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 option to lease RFO Premises, unless otherwise
specifically provided in such lease amendment.
10. TENANT'S EXPANSION OPTIONS
On the conditions, which conditions Landlord may waive, at its election, by
written notice to Tenant at any time, that Tenant is not in default of its
covenants and obligations under the Lease and that Advanced Manufacturing
Research, Inc., itself, is occupying the entirety of the premises then demised
to Tenant, both as of the time of option exercise and as of the Commencement
Date in respect of the Expansion Area, as hereinafter defined, Tenant shall have
the option to lease Expansion Area A and Expansion Area B, as such terms are
hereinafter defined. "Expansion Area A" contains 679 rentable square feet on the
fifth (5th) floor of the Building, and is substantially as shown on Fourth
Amendment, Exhibit A, Sheet 2, dated January 8, 1998, a copy of which is
attached hereto and incorporated by reference herein; and "Expansion Area B"
contains 5,382 rentable square feet on the fifth (5th) floor of the Building,
and is substantially as shown on said Fourth Amendment, Exhibit A, Sheet 2.
A. EXERCISE OF RIGHTS TO EXPANSION AREAS
Tenant may exercise its option to lease Expansion Area A by giving written
notice to Landlord on or before October 31, 1999, and, provided that Tenant
shall have timely and properly exercised its right to extend the Term of the
Lease in accordance with Paragraph 7 of this Amendment, may exercise its option
to lease Expansion Area B by giving written notice to Landlord on or before June
30, 2004 (any such notice by Tenant to Landlord is hereinafter referred to as
the "Expansion Notice"). If Tenant fails timely to give any Expansion Notice,
Tenant shall have no further right to lease the Expansion Area in question, time
being of the essence of this Paragraph 10. Upon the timely giving of any
Expansion Notice, Landlord shall lease and demise to Tenant, and Tenant shall
hire and take from Landlord, Expansion Area A or Expansion Area B (as the case
may be), without the need for further act or deed by either party, for the Term
and upon all of the same terms and conditions of the Lease (as hereby amended),
except as hereinafter set forth.
B. LEASE PROVISIONS APPLYING TO EXPANSION AREA
The leasing to Tenant of any Expansion Area shall be upon all of the same
terms and conditions of the Lease (as hereby amended), except as follows:
(1) COMMENCEMENT DATE
The Commencement Date in respect of Expansion Area A shall be the later of:
(i) July 31, 2000, or (ii) the date on which the existing tenant of Expansion
Area A vacates the same. The Commencement Date in respect of Expansion Area B
shall be the later of:
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(x) June 30, 2005, or (y) the date on which the existing tenant of Expansion
Area B vacates the same.
(2) ANNUAL RENT
The Annual Rent payable in respect of each Expansion Area shall be
based upon the Fair Market Rental Value, as defined in Paragraph 8 above, of
such Expansion Area, as of the Commencement Date in respect of such Expansion
Area.
(3) CONDITION OF EXPANSION AREA
Tenant shall take such Expansion Area "as-is", in its then (i.e.,
as of the Commencement Date in respect of such Expansion Area), state of
construction, finish and decoration, without any obligation on the part of
Landlord to construct or prepare such Expansion Area for Tenant's occupancy or
to provide any allowance or- contribution with respect thereto. Without limiting
the foregoing, Article 3.03 and Exhibit E of the Lease, Paragraph 4 of the First
Amendment to Lease, Paragraph 4 of the Second Amendment, Paragraph 4 of the
Third Amendment and Paragraph 3 of this Fourth Amendment shall have no
applicability to such Expansion Area.
(4) TENANT'S PROPORTIONATE SHARE
Tenant's Proportionate Share in respect of Expansion Area A shall
be .32%. Tenant's Proportionate Share in respect of Expansion Area B shall be
2.54%
C. EXECUTION OF LEASE AMENDMENTS
Notwithstanding the fact that Tenant's exercise of the above described
expansion option(s) shall be self-executing, as aforesaid, the parties hereby
agree promptly to execute a lease amendment reflecting the addition of the
Expansion Area in question, except that the Annual Rent payable in respect of
such Expansion Area, the Tax Cost Base in respect of such Expansion Area and the
All Other Occupancy Costs Base in respect of such Expansion Area may not be set
forth in such amendment. Subsequently, after such Annual Rent, Tax Cost Base and
All Other Occupancy Costs Base are 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 option(s), unless otherwise specifically provided in such lease
amendment.
11. BROKER
Tenant warrants and represents that it has dealt with no broker or agent in
connection with this Fourth Amendment other than Beacon Management Company
("BMC"). 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 BMC claiming to have dealt with Tenant in connection with this
Fourth Amendment.
As herein amended, the Lease is ratified, approved and confirmed in all
respects.
12
WHEREFORE, the parties have hereunto set their hands and seals as of the
date first above written.
LANDLORD: TENANT:
XXX-0 XXXXXX XXXXXX, X.X.X. ADVANCED MANUFACTURING
RESEARCH, INC.
By: EOP Operating Limited Partnership, its
Sole member
By: Equity Office Properties Trust, its By: /s/ Xxxxxxx X. Xxxxxxx
managing general partner -----------------------------
Hereunto Duly Authorized
By: /s/ Xxxxxxxxxxx X. Xxxxx
---------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Vice President
Dated Signed: 2/2/98 Dated Signed: 1/26/98
--------------------- ------------------
13
EXHIBIT A, FOURTH AMENDMENT
DATE: January 8, 1998
[FLOOR PLAN - FOURTH FLOOR OF TWO XXXXXX STREET]
14
EXHIBIT A (SHEET 2), FOURTH AMENDMENT
DATE: January 8, 1998
[FLOOR PLAN - FIFTH FLOOR OF TWO XXXXXX STREET]
15
REVISED SCHEDULE B-5, FOURTH AMENDMENT, SHEET I
Two Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
(the "Building")
Execution Date: January 8, 1998
Tenant: Advanced Manufacturing Research, Inc.
-------------------------------------------------------------
(name)
a Delaware corporation
-------------------------------------------------------------
(description of business organization)
Xxx Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000
-------------------------------------------------------------
(principal place of business - mailing address)
Landlord: XXX-0 Xxxxxx Xxxxxx, 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 know as and numbered Two
Xxxxxx Street
Art.1.01(n)
Existing
Premises: Areas on the fifth (5th) floor of the Building, substantially
as shown on Exhibit H to the leased dated August 12, 1992
(the "Original Premises"), on First Amendment Exhibit A, dated
December 31, 1994 (the "First Amendment Premises") and on
Second Amendment, Exhibit A, dated January 23, 1996 (the
"Second Amendment Additional Premises"); and an area on the
sixth (6th) floor of the Building, substantially as shown on
Third Amendment, Exhibit A dated October 15, 1996 (the
"Third Amendment Additional Premises")
Art. 1.01 (n) Fourth Amendment
Additional Premises: An area on the fourth (4th) floor of
the building, substantially as shown on
Fourth Amendment, Exhibit A, Sheet 1,
dated December 18, 1997
Art. 1.01 (n) Area in respect of:
Existing Premises: 16,155 rentable square feet
Fourth Amendment
Additional Premises: 9,998 rentable square feet
Total: 26,153 rental square feet
16
REVISED SCHEDULE B-5, FOURTH AMENDMENT, SHEET 0
Xxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
(the "Building")
Tenant: Advanced Manufacturing Research. Inc.
Execution Date: January 8, 1998
Art. 1.01(c) Commencement Date
in respect of initial portion
of Existing Premises: September 1, 1992
Art. 1.01(c) Commencement Date
in respect of Fourth
Amendment Additional
Premises: April 1, 1998 (subject to the
provisions of Paragraph 2A of
the Fourth Amendment
Termination Date in
Respect of all Premises: Seven (7) years after the
Commencement Date in respect of the
Fourth Amendment Additional Premises
Art. 4.01 Annual Rent in respect of Existing Premises and Fourth
Amendment Additional Premises:
EXISTING PREMISES:
TIME PERIOD ANNUAL RENT MONTHLY PAYMENT
March 1, 1997 -
February 28, 1998: $310,470.48 $25,872.54
March 1, 1998 -
February 28, 2000: $333,642.48 $27,803.54
February 29, 2000 -
November 30, 2001: $337,504.56 $58,125.38
December 1, 2001 -
Termination Date: $420,030.00 $35,002.50
17
REVISED SCHEDULE B-5, FOURTH AMENDMENT, SHEET 0
Xxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
(the "Building")
Tenant: Advanced Manufacturing Research. Inc.
Execution Date: January 8, 0000
XXXXXX XXXXXXXXX
ADDITIONAL PREMISES:
LEASE YEAR(1) ANNUAL RENT MONTHLY PAYMENT
1-3 $241,451.76 $20,120.98
4-7 $264,947.04 $22,078.92
Art. 5.01 Use of Premises: GENERAL OFFICE USES
Art. 6.02(B)(i) Electrical current will be furnished by Landlord to Tenant,
at Tenants cost
Schedule of Rent
Escalators: Operating and Tax Escalation:
Existing Premises:
Through November 30, 2001:
Original Premises and First Amendment Premises
(7,724 Rentable Square Feet):
Tax Cost Base: Actual amount of Taxes for Fiscal
Year 1995 (i.e., July 1, 1994 -
June 30, 1995)
All Other Occupancy Costs Base: Actual amount of
Operating Costs for Calendar Year 1995
Tenant's Agreed Percentage in respect of Original
Premises and First Amendment Premises: 3.64%
--------
(1) As used herein, the term "Lease Year" shall mean any twelve (12) month
period commencing on the Commencement Date in respect of the Fourth
Amendment Additional Premises or on any anniversary of the Commencement
Date in respect of the Fourth Amendment Additional Premises.
18
Second Amendment Additional Premises
(2,104 rentable square feet):
Tax Cost Base: Actual amount of Taxes for Fiscal
Year 1996 (i.e., July 1, 1995 - June
30, 1996
19
REVISED SCHEDULE X-0, XXXXXX XXXXXXXXX, XXXXX0
Two Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
(the "Building")
Tenant: Advanced Manufacturing Research. Inc.
Execution Date: January 8, 1998
All Other Occupancy Costs: Actual Amount of Operating Costs for Calendar
Year 1995
Tenant's Agreed Percentage in respect of Second Amendment Additional
Premises: .99%
Third Amendment Additional Premises (6,327) rentable square feet):
All Other Occupancy Costs Base: Actual amount of Operating Costs for
Calendar Year 1996
Tenant's Agreed Percentage in respect of Third Amendment Additional
Premises: 2.98%
FOR THE PERIOD COMMENCING DECEMBER 1, 2001 AND ENDING ON THE TERMINATION
DATE:
Tax Cost Base: Actual amount of Taxes for Fiscal Year 1998 (i.e. July 1,
1997 - June 30, 1998)
All Other Occupancy Costs Base: Actual Amount of Operating Costs for
Calendar Year 1998
Tenant's Agreed Percentage: 7.61%
Fourth Amendment Additional Premises:
Tax Cost Base: Actual amount of Taxes for Fiscal Year 1998 (i.e. July 1,
1997 - June 30, 1998
All Other Occupancy Costs Base: Actual Amount of Operating Costs for
Calendar Year 1998
Tenant's Agreed Percentage: 4.71%
20
REVISED SCHEDULE B-5, FOURTH AMENDMENT, SHEET 5
Two Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
(the "Building")
Tenant: Advanced Manufacturing Research. Inc.
Execution Date: January 8, 1998
Art. 20.12 Broker: Beacon Management Company
Exhibit Dates: Exhibit H, dated August 12, 1992; First Amendment Exhibit A,
dated December 31, 1994; Second Amendment, Exhibit A, dated
January 23, 1996; Third Amendment, Exhibit A, dated October
15, 1996; Fourth Amendment, Exhibit A, Sheets 1 and 2, dated
January 8, 1998
LANDLORD: TENANT:
XXX-0 XXXXXX XXXXXX, X.X.X. ADVANCED MANUFACTURING
RESEARCH, INC.
By: EOP Operating Limited Partnership,
Its sole member
By: Equity Office Properties Trust, By: /s/ Xxxxxxx X. Xxxxxxx
Its managing general partner --------------------------------
(Name) (Title)
Hereunto Duly Authorized
By: /s/ Xxxxxxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Vice President
Dated Signed: 2/2/98 Date Signed: 1/26/98
----------------------------- -----------------------
