FIFTH AMENDMENT TO LEASE
Exhibit 10.12.5
FIFTH AMENDMENT TO LEASE
FIFTH AMENDMENT TO LEASE dated as of this 29th day of June, 2007 by
and between BOSTON PROPERTIES LIMITED PARTNERSHIP, a Delaware limited partnership (“Landlord”) (as
successor-in-interest to 000 Xxxx Xxxxxx Limited Partnership) and PAREXEL INTERNATIONAL LLC, a
Delaware limited liability company (as successor-in-interest to PAREXEL International Corporation,
“Tenant”).
RECITALS
WHEREAS, by lease dated June 14, 1991 (as amended by the First Amendment, Second
Amendment, Third Amendment and Fourth Amendment and affected by the Consent Agreement referred to
below, the “Lease”), Landlord did lease to Tenant and Tenant did hire and lease from Landlord
certain premises (the “Initial Premises”) in the building known as and numbered 000 Xxxx Xxxxxx,
Xxxxxxx, Xxxxxxxxxxxxx (the “Building”) containing a total of 48,258 square feet of rentable floor
area (the “Rentable Floor Area of the Initial Premises”).
WHEREAS, by First Amendment to Lease dated January 3, 1992 (the “First Amendment”), Tenant
exercised its right pursuant to Section 2.1.1.1 of the Lease to lease from Landlord certain
additional premises in the Building (the “Additional Premises”) containing a total of 15,242 square
feet of rentable floor area (the “Rentable Floor Area of the Additional Premises”) upon the terms
and conditions contained in the First Amendment. The Initial Premises and the Additional Premises
are hereinafter referred to collectively as the “Premises,” and the Rentable Floor Area of the
Initial Premises and the Rentable Floor Area of the Additional Premises are hereinafter referred to
collectively as the “Rentable Floor Area of the Premises” and shall contain a total of 63,500
square feet of rentable floor area.
WHEREAS,
by Second Amendment to Lease dated June 28, 1993 (the “Second Amendment”), Tenant
leased from Landlord an additional 660 square feet in the basement of the Building (the “Tenant’s
Storage Space”) upon the terms and conditions contained in the
Second Amendment.
WHEREAS, by Third Amendment to Lease dated November 17,1998 (the “Third Amendment”), Landlord
provided Tenant with the option of extending the Term of the Lease so that it would be coterminus
with the 000 Xxxx Xxxxxx Lease Term (as that term is defined in the Third Amendment).
WHEREAS, by Fourth Amendment to Lease dated August 28, 2000 (the “Fourth Amendment”), the Term
of the Lease was extended for the Interim Extended Term (as that term is defined in the Fourth
Amendment).
WHEREAS, by Consent Agreement by and between Landlord, Tenant and Xxxxxx.xxx (“Subtenant”)
dated February 7, 2006 (the “Consent Agreement”), Landlord consented to the sublease of
approximately 51,291 square feet of the Rentable Floor Area of the Premises by
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Tenant to
Subtenant. Pursuant to a letter agreement dated April 25, 2006, Landlord, Tenant and
Subtenant acknowledged and agreed that Subtenant subsequently subleased all of the Premises.
WHEREAS, Landlord and Tenant have agreed to extend the Term of the Lease for one (1) period of
one hundred twenty-four (124) months upon all of the same terms and conditions set forth in the
Lease except as set forth in this Fifth Amendment to Lease (the “Fifth Amendment”).
WHEREAS, Landlord and Tenant are entering into this instrument to set forth said
extension of the Term of the Lease and to amend the Lease.
NOW, THEREFORE, in consideration of One Dollar ($1.00) and other good and valuable
consideration in hand this date paid by each of the parties to the other, the receipt and
sufficiency of which are hereby severally acknowledged, and in further consideration of the mutual
promises herein contained, Landlord and Tenant hereby agree to and with each other as follows:
1. (A) The
Term of the Lease, which but for this Fifth Amendment is scheduled to expire on
April 30, 2009, is hereby extended for one (1) period of
one hundred twenty-four (124) months
commencing on May 1, 2009 and expiring on August 31, 2019 (the “Fifth Amendment Extended Term”)
unless sooner extended or terminated in accordance with the provisions of the Lease, upon all the
same terms and conditions contained in the Lease as herein amended.
(B) Landlord and Tenant acknowledge and agree that the extension option contained in
Section 2.4.1 of the Lease (as affected by Section 1(B) of the Fourth Amendment) shall be deleted
in its entirety and Tenant shall have no further option to extend the Term upon the expiration of
the Fifth Amendment Extended Term except as provided in Section 9 of this Fifth Amendment.
2. (A) Prior to the commencement of the Fifth Amendment Extended Term, Annual Fixed Rent
for both the Premises and the Tenant’s Storage Space shall
continue to be payable as set forth in
the Lease.
(B) Annual Fixed Rent for the Premises shall be payable during the Fifth Amendment
Extended Term as follows:
Time Period | Rate PSF | Annual Amount | ||||||
5/1/09—8/31/09 |
$ | 0 | $ | 0 | ||||
9/1/09—8/31/12 |
$ | 36.50 | $ | 2,317,750.00 | ||||
9/1/12—8/31/15 |
$ | 37.50 | $ | 2,381,250.00 | ||||
9/1/15—8/31/19 |
$ | 38.50 | $ | 2,444,750.00 |
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(C) Annual
Fixed Rent for the Tenant’s Storage Space shall be payable during the Fifth
Amendment Extended Term at the annual rate of $6,600.00.
(D) Annual
Fixed Rent for the Premises and Tenant’s Storage Space during the Extended Term (as
defined in Section 8 below) (if exercised) shall be determined
as provided in Section 9 below.
(E) Effective
as of the date of this Fifth Amendment, and until notice of some other
designation is given, fixed rent and all other charges for which
provision is herein made shall be
paid by remittance to or for the order of Boston Properties Limited
Partnership either (i) by mail
to X.X. Xxx 0000, Xxxxxx, Xxxxxxxxxxxxx 00000-0000, (ii) by wire transfer to Bank of America in
Dallas, Texas, Bank Routing Number 0000-0000-0 or (iii) by ACH
transfer to Bank of America in
Dallas, Texas, Bank Routing Number 111 000 012, and in the case of (ii) or (iii)referencing Account
Number 3756454460, Account Name of Boston Properties, LP,
Tenant’s name and the Property address.
3. (A) For the purposes of computing the Tenant’s payments for Operating Expenses
Allocable to the Premises during the Fifth Amendment Extended Term pursuant to Section 2.6 of the
Lease (as amended by Section 6 of the First Amendment and Section 3 of the Fourth Amendment), the
definition of “Base Operating Expenses” contained in said Section 2.6 shall be deleted in its
entirety and replaced with the following:
‘“Base Operating Expenses’ shall mean Landlord’s Operating Expenses for calendar year 2009,
being the period from January 1, 2009 through December 31, 2009; provided, however, that
for the purposes of determining Base Operating Expenses, the amount to be included in such
Base Operating Expenses for maintenance and repair of the Building elevators and heating,
ventilation and air conditioning systems shall be $33,363.20 (being the product of (x) 52¢
and (y) the sum of the square feet of (aa) the Rentable Floor Area of the Premises and (bb)
the Tenant’s Storage Space).”
For the portion of the Lease Term prior to the commencement of the Fifth Amendment Extended Term,
the definition of Base Operating Expenses shall remain unchanged for such purposes.
(B) Notwithstanding anything contained in the Lease to the contrary, in determining the
amount of Landlord’s Operating Expenses for any calendar year or portion thereof falling within the
Fifth Amendment Extended Term (including, without limitation, calendar year 2009 for the purposes
of determining the amount of Base Operating Expenses for the Fifth Amendment Extended Term) and the
Extended Term (as defined in Section 9 below), if exercised, if less than one hundred percent
(100%) of the Total Rentable Floor Area of the Building shall have been occupied by tenants at any
time during the period in question, then those components of Landlord’s Operating Expenses that
vary based on occupancy for such period shall be adjusted to equal the amount such components of
Landlord’s Operating Expenses would have been for such period had occupancy been one hundred
percent (100%) throughout such period.
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(C) Notwithstanding anything contained in the Lease to the contrary, for the
purposes of determining the amount of Landlord’s Operating Expenses during the Fifth Amendment
Extended Term, neither Base Operating Expenses nor Operating Expenses Allocable to the Premises
shall include (i) any costs associated with the repair, maintenance or replacement of the
Building’s roof, structural foundation or structural walls or (ii) any costs associated with the
replacement (as opposed to the maintenance or repair) of the Building’s masonry facade, elevators
or heating, ventilation and air conditioning systems (it being understood and agreed that the costs
associated with the maintenance and repair of the items listed in this subsection (ii) may be
included within Base Operating Expenses and/or Operating Expenses Allocable to the Premises,
subject to and in accordance with the provisions of Section 2.6 of the Lease). In addition and
notwithstanding anything contained in the Lease to the contrary, (x) the costs includable in Base
Operating Expenses and Landlord’s Operating Expenses during the Fifth Amendment Extended Term
associated with the maintenance and repair of the Building elevators and heating, ventilation and
air conditioning systems (collectively, the “Elevator and HVAC Costs”) shall be limited to
so-called “hard costs” of maintenance and repair (e.g., preventative maintenance contracts with
outside vendors, annual inspection fees mandated by state and local authorities, water treatment
costs for cooling towers, general supplies and parts, etc.) and shall not include any wages paid to
Landlord’s personnel (other than fees associated with the monitoring of the energy management
system for the Building) and (y) for purposes of determining Landlord’s Operating Expenses solely
for calendar year 2010, Tenant shall only be required to pay Elevator and HVAC Costs in excess of
$46,195.20 (being the product of (1) 72¢ and (2) the sum of the square feet of (aa) the Rentable
Floor Area of the Premises and (bb) the Tenant’s Storage Space).
4. For the purposes of computing Tenant’s payments for Landlord’s Tax Expenses Allocable to
the Premises during the Fifth Amendment Extended Term pursuant to
Section 2.7 of the Lease (as
amended by Section 6 of the First Amendment and Section 3 of the Fourth Amendment), the definition
of “Base Taxes” contained in said Section 2.7 shall be
deleted in its entirety and replaced with the
following:
‘“Base Taxes’ shall mean Landlord’s Tax Expenses for fiscal tax year 2009, being the period
from July 1, 2008 through June 30, 2009.”
For the portion of the Lease Term prior to the commencement of the Fifth Amendment Extended Term,
the definition of Base Taxes shall remain unchanged for such purposes.
5. Effective
as of May 1, 2009, Section 2.2.1 of the Lease shall be amended as follows:
(i) | By deleting the first sentence in its entirety and substituting the following therefor: “In addition, for so long as Tenant shall be directly (which shall include any permitted sublease or assignment under this Lease) leasing the entirety of the Premises and the Storage Space demised to Tenant under the Fifth Amendment to Lease, Tenant shall have the exclusive right to use all of the parking spaces |
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located in the basement of the Building and on the surface parking areas of the Site (collectively, “Tenant’s Parking Spaces”). | |||
(ii) | By deleting the words “Tenant’s Basement Spaces” where they appear in the second and third sentences of said Section 2.2.1 and substituting the words “Tenant’s Parking Spaces” therefor. |
6. Effective as of May 1, 2009, Section 2.8 of the Lease shall be deleted in its
entirety and the following substituted therefor:
“Effective
as of May 1, 2009 and continuing throughout the Term, for so long as Tenant shall
be directly (which shall include any permitted sublease or assignment under this Lease)
leasing the entirety of the Premises and the Storage Space demised to Tenant under the
Fifth Amendment to Lease, Tenant covenants and agrees to make application to the
appropriate utility company or utility provider for electrical service to the Building in
the quantum required for Tenant’s use of the Building and to make any deposit (including
but not limited to, such letters of credit) as such utility company or provider shall
require. Tenant covenants and agrees to pay, punctually as and when due, all electricity
charges and rates for and relating to the Building and from time-to-time if requested by
Landlord to provide Landlord with evidence of payment to, and good standing with, such
utility company or provider as Landlord may reasonably require. Tenant further covenants
and agrees to defend, save harmless and, indemnify Landlord against all liability, cost and
damage arising out of or in any way connected to the payment, nonpayment or late payment of
any and all charges or deposits to such utility company or provider. The provisions of this
Section 2.8 shall survive the expiration or termination of this Lease for a period of
twelve (12) full calendar months.”
In addition, as of May 1, 2009, all references in the Lease (including, without limitation, in
Sections 2.5 and 2.6 thereof) to separate payments by Tenant to Landlord on account of tenant
electricity shall be deleted in their entirety, it being understood and agreed that from and after
May 1, 2009, Tenant shall be fully responsible for making all payments regarding electric service
to the Building directly to the utility company as set forth in Section 2.8 of the Lease (as
amended hereby).
7. (A) Tenant shall accept the Premises and the Storage Space in their as-is
condition without any obligation on Landlord’s part to perform any additions, alterations,
improvements, demolition or other work therein or pertaining thereto except as expressly provided
in this Section 7 or in Section 8 below. Notwithstanding the foregoing, it is contemplated that
certain work will be performed in the Premises pursuant to construction drawings to be submitted by
Tenant and reviewed by Landlord in accordance with the terms and provisions of the Lease (the
“Tenant Improvement Work”). The Tenant Improvement Work shall be performed by a general contractor
to be mutually agreed upon by Landlord and Tenant (the parties hereby agreeing to cooperate with
each other in good faith in the selection of such general contractor).
In the event that the agreed-upon general contractor is a union contractor, Landlord shall
enter into the general contract with such contractor (hereinafter, “Landlord’s General
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Contractor”) and shall be responsible for performing the Tenant Improvement Work on Tenant’s
behalf. The Tenant Improvement Work shall be performed by Landlord’s General Contractor on an
“open book” basis, and Landlord shall provide Tenant with copies of all construction budgets and
bids. Landlord shall bid the project to several general contractors before selecting Landlord’s
General Contractor, and shall require Landlord’s General Contractor once selected to obtain a
minimum of three (3) bids for any subcontract in excess of $50,000.00.
In the event that the agreed-upon general contractor is a non-union contractor, Tenant shall
enter into a general contract with such contractor (hereinafter, “Tenant’s General Contractor”)
(the form of which general contract shall be subject to Landlord’s approval, not to be unreasonably
withheld, conditioned or delayed) and shall be responsible for performing the Tenant Improvement
Work; provided, however, that Landlord shall provide construction management consulting services to
Tenant in connection with the Tenant Improvement Work in accordance with a Consulting Services
Agreement in the form attached hereto as Exhibit A to be entered into by Landlord and Tenant.
In either event, Tenant shall have the right, at its sole cost and expense, to retain a
third-party construction manager in connection with the performance of the Tenant Improvement Work.
In the event that Tenant’s General Contractor is performing the Tenant Improvement Work and
Landlord is providing consulting services in accordance with the immediately preceding paragraph,
such third-party construction manager shall be in addition to, and not in lieu of, Landlord. In
the event that Landlord’s General Contractor is performing the Tenant Improvement Work, Landlord
shall provide such third-party construction manager with full access to the project, including
without limitation all construction budgets and bids, as well as all job meetings and discussions
concerning the review and progress of construction.
(B) Landlord shall provide to Tenant a special allowance of One Million Six Hundred Four
Thousand and 00/100 Dollars ($1,604,000.00) (the “Tenant Allowance”), being the product of (x)
$25.00 and (y) the sum of the square feet of (aa) the Rentable Floor Area of the Premises and (bb)
the Tenant’s Storage Space. The Tenant Allowance shall be used and applied by Landlord solely on
account of the cost of Tenant Improvement Work. In no event shall Landlord’s obligations to pay or
reimburse Tenant for any of the costs of the Tenant Improvement Work exceed the sum of (x) the
total Tenant Allowance and (y) the “Supplemental Allowance” (as defined in subsection (C) below),
to the extent requested by Tenant. Notwithstanding the foregoing, Landlord shall be under no
obligation to apply or provide any portion of the Tenant Allowance for any purposes other than as
provided in this Section 7(B). In addition, in the event that (i) Tenant is in default under the
Lease and Landlord has provided Tenant with written notice thereof or (ii) there are any liens
which are not bonded to the reasonable satisfaction of Landlord against Tenant’s interest in the
Lease or against the Building or the Site arising out of any work performed by Tenant or any
litigation in which Tenant is a party, then, from and after the date of such event (“Event”) until
the circumstances giving rise to such Event under either subsection (i) or (ii) above have been
cured, Landlord shall have no further obligation to fund any portion of the Tenant Allowance and
Tenant shall be obligated to pay, as additional rent, all costs of the Tenant Improvement Work in
excess of that portion of the Tenant Allowance (and the Supplemental Allowance, if requested)
funded by Landlord through the date of the Event. In addition, if the Tenant Improvement Work is
performed by Tenant’s
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General Contractor rather than Landlord’s General Contractor, Landlord shall only disburse
the Tenant Allowance to Tenant within thirty (30) days after (x) Tenant has completed the Tenant
Improvement Work in accordance with the terms of the Lease, has paid for all of such Tenant
Improvement Work in full and has delivered to Landlord lien waivers from all persons who might
have a lien as a result of such work, in the recordable forms attached hereto as Exhibit B, and
(y) Tenant has delivered to Landlord its certificate specifying the cost of such Tenant
Improvement Work and all contractors, subcontractors and supplies involved with the Tenant
Improvement Work, together with evidence of such cost in the form of paid invoices, receipts and
the like.
Irrespective of whether the Tenant Improvement Work is performed by Landlord’s General
Contractor or by Tenant’s General Contractor, the Tenant Allowance shall only be applied towards
the cost of leasehold improvements and in no event shall Landlord be required to make application
of any portion of the Tenant Allowance towards Tenant’s personal property, trade fixtures or moving
expenses or on account of any supervisory fees, overhead, management fees or other payments to
Tenant, any partner or affiliate of Tenant or any third-party construction manager retained by
Tenant. In no event shall Landlord be deemed to have assumed any obligations, in whole or in part,
of Tenant to any contractors, subcontractors, suppliers, workers or materialmen. In the event that
the costs of the Tenant Improvement Work are less than the Tenant Allowance, Tenant shall not be
entitled to any payment or credit nor shall there be any application of the same toward Annual
Fixed Rent or additional rent owed by Tenant under the Lease. Tenant acknowledges that any portion
of the Tenant Allowance which has not been utilized on or before October 31, 2010 shall be
forfeited by Tenant.
Landlord shall be entitled to deduct from the Tenant Allowance a construction
management fee equal to:
(1) | four percent (4%) of the cost of the Tenant Improvement Work up to $1,604,000.00; | ||
(2) | three percent (3%) of the cost of the Tenant Improvement Work between $1,604,001.00 and $2,245,601.00; and | ||
(3) | two percent (2%) of the cost of the Tenant Improvement Work in excess of $2,245,601.00. |
(C) In addition, Tenant shall have the right to request that Landlord provide Tenant
with an additional allowance of up to Six Hundred Forty-One Thousand Six Hundred and 00/100 Dollars
($641,600.00), being the product of (x) $10.00 and (y) the sum of the square feet of (aa) the
Rentable Floor Area of the Premises and (bb) the Tenant’s Storage Space (the “Supplemental
Allowance”). Tenant may exercise its right to require Landlord to provide the Supplemental
Allowance by giving to Landlord, on or before April 1, 2009, written notice advising Landlord that
Tenant intends to use the Supplemental Allowance, which such notice shall set forth the amount of
the Supplemental Allowance which Tenant desires to be made available to Tenant in accordance with
this Section 7 (such amount being hereinafter referred to as the “Amortization Amount”). Tenant
acknowledges that any portion of the Supplemental
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Allowance which has not been requested by Tenant on or before April 1, 2009 shall be
forfeited by Tenant. The Supplemental Allowance shall be disbursed in accordance with the
procedures set forth in subsection (B) above, and shall be used solely for the purposes set forth
in said subsection (B).
Tenant shall reimburse Landlord, as additional rent, for the Amortization Amount amortized on
a direct reduction basis over one hundred twenty (120) months at an interest rate of ten percent
(10%) per annum in one hundred twenty (120) monthly payments (“Monthly Improvement Cost Payments”)
payable on the first day of each month commencing on September 1, 2009 in the same manner as
provided in the Lease for the payment of Annual Fixed Rent. Neither the Amortization Amount nor the
Monthly Improvement Cost Payments shall be abated or reduced for any reason whatsoever (including,
without limitation, untenantability of the Premises or termination of the Lease). Without limiting
the foregoing, the rent abatement provisions of Article VI of the Lease shall not apply to the
Amortization Amount or the Monthly Improvement Cost Payments. If there is any default (beyond the
expiration of any applicable grace periods) of any of Tenant’s obligations under the Lease
(including, without limitation, its obligation to pay the Monthly Improvement Cost Payments) or if
the Term of the Lease is terminated for any reason whatsoever prior to the expiration of the Term
of the Lease, Tenant shall pay to Landlord, within ten (10) days following demand therefor, the
unamortized balance of the Amortization Amount. Tenant’s obligation to pay the unamortized balance
of the Amortization Amount shall be in addition to all other rights and remedies which Landlord has
based upon any default of Tenant under the Lease, and Tenant shall not be entitled to any credit or
reduction in such payment based upon amounts collected by Landlord from reletting the Premises
after the default of Tenant.
(D) Tenant shall be fully responsible for all costs of the Tenant
Improvement Work in excess of the Tenant Allowance (and the Supplemental Allowance, if
requested) (such excess costs being hereinafter referred to as the “Tenant Plan Excess Costs”). In
the event that the Tenant Improvement Work is being performed by Landlord’s General Contractor,
Tenant shall pay Landlord, as additional rent, fifty percent (50%) of any Tenant Plan Excess Costs
prior to the commencement of the Tenant Improvement Work, with the balance of the Tenant Plan
Excess Costs due upon substantial completion of the Tenant Improvement Work; provided, however,
that in the event the Tenant Plan Excess Costs exceed $50,000.00 (the “Maximum Amount”), then
Tenant shall pay to Landlord, as additional rent, prior to the commencement of the Tenant
Improvement Work, one hundred percent (100%) of the Tenant Plan Excess Costs in excess of the
Maximum Amount. For the purposes of this Section 7(D), the Tenant Improvement Work shall be deemed
to be “substantially complete” on the later of: (i) the date on which the Tenant Improvement Work
has been completed except for items of work and adjustment of equipment and fixtures which can be
completed after occupancy has been taken without causing substantial interference with Tenant’s use
of the Premises (i.e. so-called “punch list” items); or (ii) the date when permission has been
obtained from the applicable governmental authority for occupancy by Tenant of the Premises for the
Permitted Use, but only to the extent required by law in connection with the performance and
completion of the Tenant Improvement Work (it being understood and agreed that if such permission
is required but cannot be obtained as a result of a delay in the completion of the Base Building
Work caused by the act or wrongful
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failure to act of Tenant, the Tenant Improvement Work will nonetheless be deemed to be
substantially complete so long as the conditions set forth in subsection (i) above have been met).
(E) With respect to any future alterations, additions or improvements made to the
Premises subsequent to the Tenant Improvement Work, Tenant shall pay to Landlord as a fee for
Landlord’s review of any work or plans, an amount equal to the sum of: (i) $150.00 per hour plus
(ii) third party expenses incurred by Landlord to review
Tenant’s plans and Tenant’s work. Such
fee shall be payable by Tenant as additional rent within thirty (30) days after receipt of an
invoice from Landlord therefor.
8. (A) Landlord shall, at its sole cost and expense, perform the work described on
Exhibit C (the “Base Building Work”). It is understood and agreed that Landlord may be performing
the Base Building Work (and the Tenant Improvement Work, if and when requested by Tenant) while
Tenant is in possession of the Premises, and Landlord and Tenant accordingly agree to cooperate
with each other in good faith so as to enable Landlord to perform the Base Building Work (and the
Tenant Improvement Work, as applicable) in an efficient and cost-effective manner while at the same
time minimizing any unreasonable interference with Tenant’s business operations in the Premises
(consistent with the nature of the work being undertaken by Landlord). Subject to events beyond
Landlord’s reasonable control and to delays caused by Tenant or Tenant’s agents, contractors or
employees (including, without limitation, Tenant’s use of non-union labor in connection with the
construction of the Tenant Improvement Work), Landlord shall use commercially reasonable efforts to
substantially complete such Base Building Work prior to May 1, 2009; provided, however, that
Landlord shall not be liable to Tenant for the failure to complete the Base Building Work by any
specific date except as expressly provided in this Section 8.
(B) In the event that Landlord shall have failed to substantially complete the Base
Building Work on or before September 1, 2009 (which date shall be extended automatically for such
periods of time as Landlord is prevented from proceeding with or completing the same as the result
of events beyond Landlord’s reasonable control or any act or wrongful failure to act of Tenant
which interferes with Landlord’s construction of the Base Building Work, including, without
limitation, Tenant’s use of non-union labor in connection with the construction of the Tenant
Improvement Work), Tenant shall receive a rent credit equal to one-half (1/2) of the Annual Fixed
Rent otherwise payable by Tenant under Section 2(B) above on a per diem basis for each day beyond
September 1, 2009 (as so extended) that Landlord thus fails to substantially complete the Base
Building Work. In the event that Landlord shall have failed to substantially complete the Base
Building Work on or before November 1, 2009 (which date shall be extended automatically for such
periods of time as Landlord is prevented from proceeding with or completing the same as the result
of events beyond Landlord’s reasonable control or any act or wrongful failure to act of Tenant
which interferes with Landlord’s construction of the Base Building Work, including, without
limitation, Tenant’s use of non-union labor in connection with the construction of the Tenant
Improvement Work), Tenant shall receive a rent credit equal to the Annual Fixed Rent otherwise
payable by Tenant under Section 2(B) above on a per diem basis for each day beyond November 1, 2009
(as so extended) that Landlord thus fails to complete the Base Building Work. The foregoing rent
abatements shall be Tenant’s sole and
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exclusive remedy at law or in equity or otherwise for Landlord’s failure to complete the Base
Building Work within the time periods set forth above.
(C) For the purposes of this Section 8, the Base Building Work (and/or individual
components thereof, if applicable in a particular context) shall be deemed to be “substantially
complete” on the later of: (i) the date on which the Base Building Work has been completed except
for items of work and adjustment of equipment and fixtures which can be completed after occupancy
has been taken without causing substantial interference with Tenant’s use of the Premises (i.e.
so-called “punch list” items); or (ii) the date when permission has been obtained from the
applicable governmental authority for occupancy by Tenant of the Premises for the Permitted Use,
but only to the extent required by law in connection with the performance and completion of the
Base Building Work (it being understood and agreed that (x) in the event that the Tenant
Improvement Work is being performed by Landlord’s General Contractor, if such permission is
required but cannot be obtained as the result of a delay in the completion of the Tenant
Improvement Work caused by any act or wrongful failure to act of Tenant, the Base Building Work
will nonetheless be deemed to be substantially complete so long as the conditions set forth in
subsection (i) above have been met and (y) in the event that the Tenant Improvement Work is being
performed by Tenant’s General Contractor, if such permission is required but cannot be obtained as
the result of a delay in the completion of the Tenant Improvement Work except to the extent such
delay is caused by any act or wrongful failure to act of Landlord, the Base Building Work will
nonetheless be deemed to be substantially complete so long as the conditions set forth in
subsection (i) above have been met).
9. (A) On the conditions (which conditions Landlord may waive by written notice
to Tenant) that both at the time of exercise of the herein described option to extend and as of the
commencement of the Extended Term (as defined below) (i) there exists no Event of Default and there
have been no more than three (3) Event of Default occurrences during the Fifth Amendment Extended
Term, (ii) this Lease is still in full force and effect, and (iii) Tenant has neither assigned this
Lease nor sublet more than forty percent (40%) of the Rentable Floor Area of the Premises (except
for an assignment or subletting permitted without Landlord’s consent under Section 5.6.1 of the
Lease), Tenant shall have the right to extend the Term hereof upon all the same terms, conditions,
covenants and agreements herein contained (except for the Annual Fixed Rent which shall be adjusted
during the option period as hereinbelow set forth and except that mere shall be no further option
to extend) for one (1) period of five (5) years as hereinafter set forth. The option period is
sometimes herein referred to as the “Extended Term.” Notwithstanding any implication to the
contrary, Landlord has no obligation to make any additional payment to Tenant in respect of any
construction allowance or the like or to perform any work to the Premises and/or the Storage Space
as a result of the exercise by Tenant of any such option.
(B) If Tenant desires to exercise said option to extend the Term, then Tenant
shall give notice (the “Exercise Notice”) to Landlord, not earlier than fifteen (15) months nor
later than thirteen (13) months prior to the expiration of the Fifth Amendment Extended Term
exercising such option to extend. Promptly after Landlord’s receipt of the Exercise Notice,
Landlord shall provide Landlord’s quotation to Tenant of a proposed annual rent for the Premises
and the Storage Space for the Extended Term (“Landlord’s Rent Quotation”). If at the expiration
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of thirty (30) days after the date when Landlord provides such quotation to Tenant (the
“Negotiation Period”), Landlord and Tenant have not reached agreement on a determination of an
annual rental for the Extended Term and executed a written instrument extending the Term of this
Lease pursuant to such agreement, then Tenant shall have the right, for ten (10) business days
following the expiration of the Negotiation Period, to either (x) make a request to Landlord for a
broker determination (the “Broker Determination”) of the Prevailing Market Rent (as defined in
Exhibit D) for the Extended Term, which Broker Determination shall be made in the manner set forth
in Exhibit D, or (y) rescind the Exercise Notice without any further obligation. If Tenant timely
shall have requested the Broker Determination, then the Annual Fixed Rent for the Extended Term
shall be the greater of (a) the Prevailing Market Rent as determined by the Broker Determination or
(b) the Annual Fixed Rent for the Premises and the Storage Space in effect during the last twelve
(12) month period of the Lease Term immediately prior to the Extended Term. If Tenant does not
timely request the Broker Determination, then Tenant shall be deemed to have rescinded its Exercise
Notice.
(C) Upon the first to occur of (x) the agreement by Landlord and Tenant during the
Negotiation Period on an annual rental for the Extended Term or (y) the timely request by Tenant
for the Broker Determination, then this Lease and the Lease Term hereof shall automatically be
deemed extended, for the Extended Term, without the necessity for the execution of any additional
documents, except that Landlord and Tenant agree to enter into an instrument in writing setting
forth the Annual Fixed Rent for the Extended Term as determined in the relevant manner set forth in
this Section 9; and in such event all references herein to the Lease Term or the term of this Lease
shall be construed as referring to the Lease Term, as so extended, unless the context clearly
otherwise requires, and except that there shall be no further option to extend the Lease Term.
Notwithstanding anything contained herein to the contrary, in no event shall the Lease Term hereof
be extended for more than five (5) years after the expiration of
the Fifth Amendment Extended Term.
10. Effective
as of May 1, 2009, Section 4.1 of the Lease is hereby,
amended as follows: (i) by
deleting the words “high quality” in third
(3rd) line of Section 4.1.1 and substituting
the words “Class A office” therefor; and (ii) by
deleting the word “similar” in the tenth
(10th) line of Section 4.1.3 and substituting the words “Class A office” therefor.
11. Section 5.6.5
of the Lease is hereby amended by adding the following new subsection
(E):
“(E) Notwithstanding the provisions of Section 5.6 above, in the event Tenant
desires
(i) | to assign this Lease, or | ||
(ii) | to sublet such portion of the Premises (the “Sublease Portion”) as would bring the total amount of the Premises then being subleased to fifty percent (50%) or more, |
Landlord shall have the right at its sole option, to be exercised within thirty
(30) days after receipt of Tenant’s notice under Section 5.6.2 above (the
“Acceptance
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Period”), to (x) terminate this Lease in the case of a proposed assignment, or
(y) terminate this lease with respect to the Sublease Portion in the case of a
proposed sublease, as of a date specified in a notice to Tenant, which date shall
not be earlier than sixty (60) days nor later than one hundred and twenty (120)
days after Landlord’s notice to Tenant. In the case of an assignment, upon the
termination date as set forth in Landlord’s notice, all obligations relating to the
period after such termination date (but not those relating to the period before
such termination date) shall cease and promptly upon being billed therefor by
Landlord, Tenant shall make final payment of all Annual Fixed Rent and Additional
Rent due from Tenant through the termination date. In the case of a sublease, all
obligations relating to the Sublease Portion for the period after such termination
date (but not those relating to a period before such termination date, or to
portions of the Premises other than the Sublease Portion) shall cease. In the event
that Landlord shall not exercise its termination rights as aforesaid, or shall fail
to give any or timely notice pursuant to this Section 5.6.5(E), the provisions of
Sections 5.6.2-5.6.5 shall be applicable. This Section 5.6.5(E) shall not be
applicable to an assignment or sublease pursuant to Section 5.6.1.”
12. Subject
to events beyond Landlord’s reasonable control and for temporary periods as may be
necessary for required maintenance (with respect to which Tenant
shall be given reasonable prior
notice except in the event of an emergency), Tenant shall have access
to the Premises, including
elevators, twenty-four (24) hours a day, seven (7) days a week,
fifty-two (52) weeks a year.
Landlord hereby agrees to provide Tenant with any access codes,
electronic passes or keys for access
to the Premises and shall allow Tenant (at Tenant’s sole cost
and expense) to modify such codes,
passes or keys upon Tenant’s reasonable request and upon reasonable prior notice.
13. (A) Tenant
warrants and represents that Tenant has not dealt with any broker in
connection with the consummation of this Fifth Amendment other than
Xxxxxxxx Xxxxx Xxxxx & Partners
(the “Broker”); and in the event any claim is made against
Landlord relative to dealings by Tenant
with brokers other than the Broker, Tenant shall defend the claim against Landlord with counsel of
Tenant’s selection first approved by Landlord (which approval
shall not be unreasonably withheld)
and save harmless and indemnify Landlord on account of any loss, cost or damage which may arise by
reason of such claim.
(B) Landlord warrants and represents that Landlord has not dealt with any broker in
connection with the consummation of this Fifth Amendment other than the Broker; and in the event
any claim is made against Tenant relative to dealings by Landlord with brokers other than the
Broker, Landlord shall defend the claim against Tenant with counsel of Landlord’s selection first
approved by Tenant (which approval shall not be unreasonably withheld) and save harmless and
indemnify Tenant on account of any loss, cost or damage with may arise by reason of such claim.
Landlord agrees that it shall be solely responsible for the payment of the brokerage commission to
the Broker in connection with this Fifth Amendment.
14. As an inducement to Landlord to enter into this Fifth Amendment, Tenant hereby represents
and warrants that: (i) Tenant is not, nor is it owned or controlled directly or indirectly
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by, any person, group, entity or nation named on any list issued by the Office of Foreign
Assets Control of the United States Department of the Treasury (“OFAC”) pursuant to Executive Order
13224 or any similar list or any law, order, rule or regulation or any Executive Order of the
President of the United States as a terrorist, “Specially Designated National and Blocked Person”
or other banned or blocked person (any such person, group, entity or nation being hereinafter
referred to as a “Prohibited Person”); (ii) Tenant is not (nor is it owned, controlled, directly or
indirectly, by any person, group, entity or nation which is) acting directly or indirectly for or
on behalf of any Prohibited Person; and (iii) from and after the effective date of the
above-referenced Executive Order, Tenant (and any person, group, or entity which Tenant controls,
directly or indirectly) has not conducted nor will conduct business nor has engaged nor will engage
in any transaction or dealing with any Prohibited Person in violation of the U.S. Patriot Act or
any OFAC rule or regulation, including without limitation any assignment of the Lease or any
subletting of all or any portion of the Premises or the making or receiving of any contribution of
funds, goods or services to or for the benefit of a Prohibited Person in violation of the U.S.
Patriot Act or any OFAC rule or regulation. In connection with the foregoing, it is expressly
understood and agreed that (x) any breach by Tenant of the foregoing representations and warranties
shall be deemed an immediate Event of Default by Tenant under Section 7.1 of the Lease (without the
benefit of notice or grace) and shall be covered by the indemnity provisions of Section 5.7 of the
Lease, and (y) the representations and warranties contained in this subsection shall be continuing
in nature and shall survive the expiration or earlier termination of the Lease.
15. Except as otherwise expressly provided herein, all capitalized terms used herein without
definition shall have the same meaning as set forth in the Lease.
16. Except as herein amended the Lease shall remain unchanged and in full force and effect.
All references to the “Lease” shall be deemed to be references to the Lease as heretofore amended
and as amended hereby.
[page ends here]
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EXECUTED as a sealed instrument as of the date and year first above written.
WITNESS: | LANDLORD: | ||||||
BOSTON PROPERTIES LIMITED | |||||||
PARTNERSHIP | |||||||
By: | /s/ BOSTON PROPERTIES, INC., | ||||||
its general partner | |||||||
By: | |||||||
Name: | |||||||
Title: | |||||||
TENANT: | ||||
PAREXEL INTERNATIONAL LLC | ||||
By: | ||||
Name: | ||||
Title: | (President or Vice President) | |||
Hereto duly authorized |
ATTEST: |
||||||
By:
|
/s/ W. Xxxxx Xxxxx | By: | /s/ Xxxxx X. Xxxxxxxx Xx. | |||
Name:
|
W. Xxxxx Xxxxx | Name: | XXXXX X. XXXXXXXX, XX. | |||
Title:
|
(Assistant Secretary) | Title: | (Treasurer) | |||
Hereto duly authorized | ||||||
(CORPORATE SEAL) |
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