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SECOND AMENDMENT
THIS SECOND AMENDMENT (the "Amendment") is made and entered into as of 14
August, 2000, by and between EOP-TEN CANAL PARK, L.L.C., a Delaware limited
liability company ("Landlord"), and ASPEN TECHNOLOGY, INC. a Massachusetts
corporation ("Tenant").
WITNESSETH
A. WHEREAS, Landlord (as successor in interest to Beacon Properties, L.P.) and
Tenant are parties to that certain lease dated the 30th day of January,
1992, for premises currently containing approximately 110,843 rentable
square feet of space (the "Premises") on the first (1st) through the sixth
(6th) floors of the building commonly known as Ten Canal Park and the
address of which is Xxx Xxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000 (the
"Building"), which lease has been previously amended by a First Amendment
dated May 5, 1997 (collectively, the "Lease"); and
B. WHEREAS, the Lease by its terms shall expire on September 30, 2002 ("Prior
Termination Date"), and the parties desire to extend the Term of the Lease,
all on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Landlord and Tenant agree as
follows;
I. EXTENSION. The Lease Term is hereby extended for a period of 120 months and
shall expire on September 30, 2012 ("Extended Termination Date"), unless
sooner terminated in accordance with the terms of the Lease. That portion
of the Lease Term commencing the day immediately following the Prior
Termination Date ("Extension Date") and ending on the Extended Termination
Date shall be referred to herein as the "Extended Term." Tenant
acknowledges that this extension is in fulfillment of Tenant's options to
extend contained in Paragraph 1 of Exhibit D to the Lease and, accordingly,
that said Paragraph 1 shall be no further force of effect.
II. MONTHLY BASIC RENT. As of the Extension Date, the schedule of monthly
installments of Basic Rent payable with respect to the Premises during the
Extended Term is the following:
A. Sixty (60) equal installments of Three Hundred Forty-One Thousand
Seven Hundred Sixty-Five and 92/100 Dollars ($341,765.92) each
payable on or before the first day of each month during the
period beginning October 1, 2002 and ending September 30, 2007.
B. Sixty (60) equal installments of Three Hundred Forty-Eight
Thousand Six Hundred Ninety-Three and 60/100 Dollars
($348,693.60) each payable on or before the first day of each
month during the period beginning October 1, 2007 and ending
September 30, 2012.
All such Basic Rent shall be payable by Tenant in accordance with the terms
of Section 3.1 of the Lease.
III. ESCALATION CHARGES. For the period commencing on the Extension Date and
ending on the Extended Termination Date, Tenant shall pay the Escalation
Charges for the Premises as set forth in the Lease.
IV. IMPROVEMENTS TO PREMISES.
A. CONDITION OF PREMISES. Tenant is in possession of the Premises and
accepts the same "as is" without any agreements, representations,
understandings, or obligations on the part of Landlord to perform any
alterations, repairs or improvements, except as may be expressly
provided otherwise in this Amendment.
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B. Cost of improvements to Premises. Any construction, alterations or
improvements made to the Premises shall be made at Tenant's sole cost
and expense.
V. SECURITY DEPOSIT.
A security deposit in the amount of $683,531.84 ("Security Deposit")
shall be delivered to Landlord no later than September 1, 2000 by Tenant and
shall be held by Landlord without liability for interest (unless required by
law) as security for the performance of Tenant's obligations. All or part of
the 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 $683,531.84; (b) be issued on the form attached hereto as Exhibit A; (c)
name Landlord as its beneficiary; (d) be drawn on an FDIC insured financial
institution satisfactory to the Landlord; and (e) expire no earlier than
sixty (60) days after the Termination Date of this Lease. If Landlord
intends to assign Landlord's interest in the Lease, Tenant shall, upon
notice from Landlord, deliver to Landlord an amendment to the Letter of
Credit naming Landlord's assignee as the beneficiary thereof. If Tenant
fails to deliver such amendment within seven (7) days after notice from
Landlord, Landlord shall have the right to draw down the entire amount of
the Letter of Credit and hold the proceeds thereof as a Security Deposit in
accordance with this Section V. The Security Deposit is not an advance
payment of Rent or a measure of Tenant's liability for damages. Landlord
may, from time to time, without prejudice to any other remedy, use all or a
portion of the Security Deposit to satisfy past due Rent or to cure any
uncured default by Tenant. If Landlord uses the Security Deposit, Tenant
shall on demand restore the Security Deposit to its original amount (which
may be achieved by providing an additional letter of credit for the amount
so drawn), Landlord shall return any unapplied portion of the Security
Deposit to Tenant within 45 days after the last to occur of: (1) the
determination of Tenant's Escalation Charge for the final year of the Term;
(2) the date Tenant surrenders possession of the Premises to Landlord in
accordance with this Lease; or (3) the Termination Date. If Landlord
transfers its interest in the Premises, Landlord may assign the Security
Deposit to the transferee and, following the assignment, provided that (i)
Landlord provides the Tenant with notice of such transfer, and (ii) such
transferee assumes Landlord's obligations with respect to the Security
Deposit, Landlord shall have no further liability for the return of the
Security Deposit. Landlord shall not be required to keep the Security
Deposit separate from its other accounts.
Notwithstanding anything herein to the contrary, the Security Deposit
will be adjusted each November 1, beginning November 1, 2003, as follows:
Tenant will inform Landlord by October 15 of each year (i) of the ratio, as
of October 1, of the current assets of Tenant to the current liabilities of
Tenant, determined in accordance with generally accepted accounting
principles, consistently applied (United States) ("Tenant's Current Ratio"),
and (ii) whether Tenant has shown a net profit, determined in accordance
with generally accepted accounting principles, consistently applied (United
States), for the quarter ending on the previous September 30. If Tenant's
Current Ratio is less than 2.0:1, or if Tenant has not shown a net profit
for the quarter ending on the previous September 30, then Tenant shall
provide Landlord with an additional Security Deposit of $341,765.92,
provided that the Security Deposit shall never exceed $1,025,297.76.
Beginning November 1, 2005, if Tenant's Current Ratio is greater than 2.0:1,
and if Tenant has shown a net profit for the quarter ending on the previous
September 30, then provided Tenant is not in default beyond any applicable
notice and cure periods under this Lease as of the effective date of any
reduction of the Security Deposit, the Security Deposit shall be reduced by
$341,765.92. In all events, a certificate of Tenant, executed by Tenant's
chief executive officer or Tenant's chief financial officer, shall be
sufficient to establish such ratio in any instance.
VI. Renewal Option
A. Tenant shall have the right to extend the Lease Term (the "Renewal
Option") for one additional period of 5 years commencing on the day following
the Extended Termination Date of the Lease Term and ending on the 5th
anniversary of the Extended Termination Date (the "Renewal Term"), if:
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1. Landlord receives notice of exercise ("Renewal Notice") not less then
twenty-four (24) full calendar months prior to the Extended Termination
Date and not more than twenty-seven (27) full calendar months prior to the
Extended Termination Date; and
2. Tenant is not in default under the Lease beyond any applicable cure
periods at the time that Tenant delivers its Renewal Notice (hereinafter
defined); and
3. Not more than twenty-five percent (25%) of the Premises is sublet at the
time that Tenant delivers its Renewal Notice;
4. If applicable, the Renewal Notice shall not apply to any part of the
Premises that is sublet at the time that Tenant delivers its Renewal Notice
(in other words, Tenant can only renew the Lease with respect to those
portions of the Premises which have not been sublet); and
5. The Lease has not been assigned prior to the date that Tenant delivers
its Renewal Notice (but the foregoing prohibition shall not apply to an
assignment of the Lease to(i) an entity directly or indirectly controlling,
controlled by or under common control with Tenant; (ii) any entity owning
or controlling fifty percent (50%) or more of the outstanding voting
interests of Tenant; (iii) any entity of which Tenant owns or controls
fifty percent (50%) or more of the voting interests; (iv) any entity into
which Tenant is merged or consolidated; (v) any corporation or other entity
resulting from the consolidation of Tenant with some other entity; or (vi)
a successor corporation or some other entity arising from any bona fide
reorganization of Tenant (each of the entities described in (i)-(vi) being
hereafter referred to as an "Affiliate"), provided that such Affiliate
agrees directly with Landlord to be bound by all obligations of Tenant
under the Lease).
Upon the timely giving of the Renewal Notice, the term of the Lease shall
be extended for the Renewal Term without the need for further act or deed of
either party, upon all of the same terms and conditions of the Lease as are in
effect immediately preceding the Renewal Term, except that the Basic Rent
payable during the Renewal Term shall be as set forth in Paragraph B of this
Section VI, and determined in accordance with Paragraph D of this Section VI. If
Tenant fails timely to give the Renewal Notice, Tenant shall have no further
right to renew the term of the Lease pursuant to this Section VI, time being of
the essence of this Section VI.
B. The Basic Rent rate per rentable square foot for the Premises during the
Renewal Term shall equal the Fair Market Rental Value, as defined in Paragraph 4
of Section 1 of Exhibit D to the Lease, provided however, that in no event shall
the sum of Basic Annual Rent and Escalation Charges payable by Tenant for any
twelve-(12)-month period during the Renewal Term be less than the sum of Basic
Annual Rent and Escalation Charges payable by Tenant in respect of the
twelve-(12)-month period immediately preceding the commencement of the Renewal
Term.
C. Tenant shall pay Escalation Charges for the Premises during the Renewal
Term in accordance with the terms and conditions of the Lease.
D. Within thirty (30) days after receipt of Tenant's Renewal Notice,
Landlord shall advise Tenant of Landlord's designation of the applicable Basic
Rent rate for the Premises for the renewal Term. Tenant, within thirty (30) days
after the date on which Landlord advises Tenant of the applicable Basic Rent
rate for the Renewal Term, shall either (i) give Landlord final binding written
notice ("Acceptance Notice") that it has accepted Landlord's designation, or
(ii) if Tenant disagrees with Landlord's designation, provide Landlord with
written notice ("Arbitration Notice") submitting Tenant's disagreement to
arbitration in accordance with the procedures set forth in the paragraph
entitled "Dispute as Fair Market Rent" in Paragraph 1 of Exhibit D of the Lease.
If Tenant fails to provide Landlord with either an Acceptance Notice or an
Arbitration Notice within such thirty (30) day period, Tenant shall conclusively
be deemed to have accepted Landlord's designation of the Basic Rent rate for the
Renewal Term. If Tenant timely gives an Arbitration Notice, then, unless the
parties otherwise agree in writing, the decision of the arbitrators, in
accordance with said Paragraph 1 of Exhibit D to the Lease, shall be conclusive
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and binding upon the parties.
E. If Tenant is entitled to and properly exercises its Renewal Option,
the parties shall, promptly after the Basic Rent for the Renewal Term is
determined in accordance with Paragraph D above, execute an amendment (the
"Renewal Amendment") to confirm the exercise of Tenant's Renewal Option and
reflecting only changes in the Basic Rent, Lease Term, Termination Date and
other appropriate terms. The execution of the Renewal Amendment shall not be a
condition to the exercise by Tenant of Tenant's Renewal Option (the parties
hereby acknowledging and agreeing that the timely giving of Tenant's Renewal
Notice and the satisfaction of all of the conditions to the exercise of Tenant's
Renewal Option, as set forth in Paragraph A above, shall be sufficient to bind
both parties to the exercise of Tenant's Renewal Option).
VII Other Pertinent Provisions. Landlord and Tenant agree that, effective as
of the date hereof (unless different effective date(s) is/are specifically
referenced in this Section), the Lease shall be amended in the following
additional respects:
A. NOTICES
For all purposes of the Lease, the notice address for the Landlord is
as follows:
EOP-One Canal Park, L.L.C.
c/o Equity Office Properties
000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Building Manager
With copy to:
Equity Office Properties
Two Xxxxx Xxxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Northeast Regional Counsel Equity Office Properties
For all purposes of the Lease, the notice address for Tenant is as
follows:
Aspentech
Xxx Xxxxx Xxxx
Xxxxxxxxx, XX 00000
Attn: Facilities Manager
With copy to:
Xxxxxxx Xxxx LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxx X. Xxxxx, Esq.
B. Section 14.29 is hereby deleted in its entirety and of no further force
or effect.
C. The phrase "(including the Fixed Management Fee, as said term is
defined in Section 14.29 of the Lease)" is hereby deleted from
Paragraph B.1 of Exhibit E to the Lease, and replaced with the
following: "(including a management fee not to exceed four percent (4%)
of gross revenues)".
VIII. Miscellaneous.
A. This Amendment sets forth the entire agreement between the parties with
respect to the matters set forth herein. There have been no additional
oral or written representations or agreements. Under no circumstances
shall Tenant be entitled to any Rent abatement, improvement allowance,
leasehold improvements, or other work to the Premises, or any similar
economic incentives that may have been
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provided Tenant in connection with entering into the Lease, unless
specifically set forth in this Amendment.
B. Except as herein modified or amended, the provisions, conditions and terms
of the Lease shall remain unchanged and in full force and effect.
C. In the case of any inconsistency between the provisions of the Lease and
this Amendment, the provisions of this Amendment shall govern and control.
D. Submission of this Amendment by Landlord is not an offer to enter into this
Amendment but rather is a solicitation for such an offer by Tenant.
Landlord shall not be bound by this Amendment until Landlord has executed
and delivered the same to Tenant.
E. The capitalized terms used in this Amendment shall have the same
definitions as set forth in the Lease to the extent that such capitalized
terms are defined therein and not redefined in this Amendment.
F. Tenant hereby represents to Landlord that Tenant has dealt with no broker
in connection with this Amendment other than the Xxxxxxxx Xxxx Company.
Tenant agrees to indemnify and hold Landlord, its members, principals,
beneficiaries, partners, officers, directors, employees, mortgagee(s) and
agents, and the respective principals and members of any such agents
(collectively, the "Landlord Related Parties") harmless from all claims of
any brokers claiming to have represented Tenant in connection with this
Amendment other than the Xxxxxxxx Xxxx Company. Landlord hereby represents
to Tenant that Landlord has dealt with no broker in connection with this
Amendment other than the Xxxxxxxx Xxxx Company. Landlord agrees to
indemnify and hold Tenant, its members, principals, beneficiaries,
partners, officers, directors, employees, and agents, and the respective
principals and members of any such agents (collectively, the "Tenant
Related Parties") harmless from all claims of any brokers claiming to have
represented Landlord in connection with this Amendment other than the
Xxxxxxxx Xxxx Company. Landlord agrees to pay Xxxxxxxx Xxxx Company a
brokerage commission in accordance with a separate written agreement
between Landlord and Xxxxxxxx Xxxx Company.
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IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Amendment
as of the day and year first above written.
WITNESS/ATTEST: LANDLORD:
EOP-TEN CANAL PARK, L.L.C., A Delaware
limited liability company
By: EOP Operating Limited Partnership,
a Delaware limited partnership,
its sole member
By: Equity Office Properties Trust,
a Maryland real estate invest-
ment trust, its managing
general partner
/s/ Xxx Xxxx
-------------------------------------
Name (print): Xxx Xxxx By: /s/ Xxxxxxx X. Xxxxxx
------------------------ ---------------------------------
------------------------------------- Name: Xxxxxxx X. Xxxxxx
--------------------------------
Name (print): ----------------------- Title: Regional Senior Vice President
------------------------------
WITNESS/ATTEST: TENANT:
ASPEN TECHNOLOGY, INC., a
Massachusetts corporation
------------------------------------- By: /s/
---------------------------------
Name (print): ----------------------- Name: -------------------------------
------------------------------------- Title: ------------------------------
Name (print): -----------------------
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