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Exhibit 10.12
SIXTH AMENDMENT
THIS SIXTH AMENDMENT (the "Amendment") is made and entered into as of the 30th
day of DECEMBER 1999, by and between EOP-2 OLIVER STREET, L.L.C., A DELAWARE
LIMITED LIABILITY COMPANY ("Landlord"), and AMR RESEARCH, INC., A DELAWARE
CORPORATION ("Tenant").
WITNESSETH
A. WHEREAS, Landlord (as successor in interest to MLH Income Realty
Partnership V, a New York limited partnership) and Tenant (as successor in
interest to Advanced Manufacturing Research, a Massachusetts corporation)
are parties to that certain lease dated August 13, 1992, as amended by that
certain First Amendment to Lease Agreement dated December 31, 1994, by that
certain Second Amendment dated January 23, 1996, by that certain Third
Amendment dated October 15, 1996, by that certain Fourth Amendment dated
January 8, 1998 and by that certain Fifth Amendment dated July 27, 1998
(collectively the Lease") for space currently containing approximately
35,128 rentable square feet (the "Current Premises") on the 4th, 5th and
6th floors of the building commonly known as 2 Oliver Street and the
address of which is 2 Oliver Street, Boston, Massachusetts 02109 (the
"Building"); and
B. WHEREAS, Tenant has requested that additional space containing
approximately 12,973 rentable square feet on the 6th floor of the Building,
shown on EXHIBIT A hereto (the "Sixth Amendment Expansion Space") be added
to the Current Premises and that the Lease be appropriately amended and
Landlord is willing to do the same 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. EXPANSION AND EFFECTIVE DATE. Effective as of the earlier of (i) the 45th
day from and including the date Landlord delivers possession of the Sixth
Amendment Expansion Space to Tenant free from occupancy by any party and
(ii) the day Tenant occupies the Sixth Amendment Expansion Space for the
conduct of its business (the earlier of such dates shall be the "Expansion
Effective Date"), the Premises, as defined in the Lease, is increased from
35,128 rentable square feet on the 4th, 5th and 6th floors to 48,101
rentable square feet on the 4th , 5th and 6th floors by the addition of the
Sixth Amendment Expansion Space, and from and after the Expansion Effective
Date, the Current Premises and the Sixth Amendment Expansion Space,
collectively, shall be deemed the Premises, as defined in the Lease. The
Term of the Lease for the Sixth Amendment Expansion Space shall commence on
the Expansion Effective Date and end on the termination date. The Sixth
Amendment Expansion Space is subject to all the terms and conditions of the
Lease, except as expressly modified herein and except that Tenant shall not
be entitled to receive any allowances, abatements or other financial
concessions granted with respect to the Current Premises unless such
concessions are expressly provided for herein with respect, to the Sixth
Amendment Expansion Space.
II. ANNUAL RENT.
In addition to Tenant's obligation to pay annual rent for the Current
Premises, Tenant shall pay Landlord the sum of $2,176,220.75 as total
annual rent for the Sixth Amendment Expansion Space in 61 equal
installments of $35,675.75 each payable on or before the first day of each
month during the period beginning May 1, 2000 and ending May 31, 2005.
All such annual rent shall be payable by Tenant in accordance with the
terms of Article 4 of the Lease.
Landlord and Tenant acknowledge that the foregoing schedule is based on the
assumption that the Expansion Effective Date is May 1, 2000. If the
Expansion Effective Date is other than the May 1, 2000, the schedule set
forth above with respect to the payment of
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any installment(s) of annual rent for the Sixth Amendment Expansion Space
shall be appropriately adjusted on a per diem basis to reflect the actual
Expansion Effective Date and the actual Expansion Effective Date shall be
set forth in a confirmation letter to be prepared by Landlord. However, the
effective date of any increases or decreases in the annual rent rate shall
not be postponed as a result of an adjustment of the Expansion Effective
Date as provided above.
III. ADDITIONAL SECURITY DEPOSIT. Upon Tenant's execution hereof, Tenant shall
pay Landlord the sum of $210,069.71 which is added to and becomes part of
the Security Deposit held by Landlord as provided under the Lease as
security for payment of Rent and the performance of the other terms and
conditions of the Lease by Tenant. Accordingly, simultaneous with the
execution hereof, the Security Deposit is increased from,$89,930.29 to
$300,000.00. All 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 $300,000.00; (b) be issued on the
form attached hereto as Exhibit B; (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 60 days after the Termination Date
of this Lease.
IV. TENANT'S PERCENTAGE. For the period commencing with the Expansion Effective
Date and ending on the termination date, Tenant's percentage for the Sixth
Amendment Expansion Space is 6.1107%.
V. OPERATING COSTS. For the period commencing with the Expansion Effective
Date and ending on the termination date, Tenant shall pay for its
percentage of Operating Costs applicable to the Sixth Amendment Expansion
Space in accordance with the terms of the Lease, provided, however, during
such period, the Tax Cost Base for the computation of Tenant's percentage
of Operating Costs applicable to the Sixth Amendment Expansion Space is the
actual taxes for fiscal year 2000 (i.e., July 1, 1999: to June 30, 2000)
and the Base for all other Occupancy Costs for the computation of Tenant's
percentage of Operating Costs applicable to the Sixth Amendment Expansion
Space is the actual amount of Operating Costs for calendar year 2000.
VI. IMPROVEMENTS TO SIXTH AMENDMENT EXPANSION SPACE
A. CONDITION OF SIXTH AMENDMENT EXPANSION SPACE. Tenant has inspected the
Sixth Amendment Expansion Space and agrees to accept 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
Amend rent, or as Landlord may be otherwise required to perform
pursuant to the Lease.
Landlord and Tenant hereby acknowledge and agree that as of the date
hereof, the HVAC system serving the Sixth Amendment Expansion Space
provides adequate heating, ventilation and air conditioning to the
Premises. In the event Tenant' requires additional heating,
ventilation and/or air conditioning in the Sixth Amendment Expansion
Space, such additional service(s) shall be subject to the terms of the
Lease and at Tenant's sole cost and expense (subject to the
Improvement Allowance).
B. COST OF IMPROVEMENTS TO SIXTH AMENDMENT EXPANSION SPACE. Tenant shall
be entitled to receive an improvement allowance (the "Improvement
Allowance") in an amount not to exceed $330,811.50 (i.e., $25.50 per
rentable square foot of the Sixth Amendment Expansion Space) to be
applied toward the cost of performing, initial construction,
alteration or improvement of the Sixth Amendment Expansion Space,
including but not limited to the cost of space planning, design and
related, architectural and engineering services (the "Improvement
Work"). The Improvement Allowance shall be paid to Tenant or, at
Landlord's option, to the order of the general contractor that
performed the Improvement Work, within 30 days following receipt by
Landlord of (1) receipted bills covering all labor and materials
expended and used in the Improvement Work; (2) a sworn contractor's
affidavit from the general contractor and a request to disburse from
Tenant
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containing an approval by Tenant of the work done; (3) full and final
waivers of lien; (4) as-built plans of the Improvement Work; and (5)
the certification of Tenant and its architect that the Improvement
Work has been installed in a good and workmanlike manner in accordance
with the approved plans, and in accordance with applicable laws, codes
and ordinances. The Improvement Allowance shall be disbursed in the
amount reflected on the receipted bills meeting the requirements
above. Notwithstanding anything herein to the contrary, Landlord shall
not be obligated to disburse any portion of the improvement Allowance
during the continuance of an uncured default under the Lease, and
Landlord's obligation to disburse shall only resume when and if such
default is cured. In the event the total cost of the Improvement Work
exceeds the Improvement Allowance, Tenant shall pay such excess
directly to the contractors performing the Improvement Work. In the
event Tenant does not properly submit a request for payment of the
entire Improvement Allowance to Landlord in accordance with the
provisions of the subsection B on or before August 31, 2000, any
unused amount of the Improvement Allowance shall accrue to the sole
benefit of Landlord, it being understood that Tenant shall not be
entitled to any credit, abatement or other concession in connection
therewith.
C. RESPONSIBILITY FOR IMPROVEMENTS TO SIXTH AMENDMENT EXPANSION SPACE.
(i) Any construction, alterations or improvements made to the Sixth
Amendment Expansion Space shall be performed by Tenant using
contractors selected by Tenant and approved by Landlord, shall be
made at Tenant's sole cost and expense, subject to the
Improvement Allowance and shall be governed in all respects by
the provisions of Article 7 of the Lease. Landlord's approval of
the contractors to perform the Improvement Work shall not be
unreasonably withheld. The parties agree that Landlord's approval
of the general contractor to perform the Improvement Work shall
not be considered to be unreasonably withheld if any such general
contractor (a) does hot have trade references reasonably
acceptable to Landlord, (b) does not maintain insurance as
required pursuant to the terms of the Lease, (c) does not have
the ability to be bonded for the work, (d) does not provide
current financial statements reasonably acceptable to Landlord,
or (e) is not licensed as a contractor in the state/municipality
in which the Sixth Amendment Expansion Space is located. Tenant
acknowledges the foregoing is not intended to be an exclusive
list of the reasons why Landlord may reasonably withhold its
consent to a general contractor.
(ii) Space planning, architectural and engineering (mechanical,
electrical and plumbing) drawings for the Improvement Work shall
be prepared by Tenant's architect at Tenant's sole cost and
expense, subject to the Improvement Allowance. The space
planning, architectural and mechanical drawings are collectively
referred to herein as the "Plans".
(iii) Tenant shall submit the Plans to Landlord for review and
approval. Landlord agrees to review the Plans and notify Tenant
of the matters, if any, in which said Plans fail to conform to
Landlord's construction requirements or otherwise fail to meet
with Landlord's approval. Tenant shall cause said Plans to be
revised in such manner as to comply with Landlord's requirements
and resubmit the same to Landlord.
VII. EARLY ACCESS TO SIXTH AMENDMENT EXPANSION SPACE. During any period that
Tenant shall be permitted to enter the Sixth Amendment Expansion Space
prior to the Expansion, Effective Date (e.g.. to perform alterations or
improvements, if any), Tenant shall comply with all terms and provisions of
the Lease, except those provisions requiring payment of, annual rent or
additional rent as to the Sixth Amendment Expansion Space. If Tenant takes
possession of the Sixth Amendment Expansion Space prior to the Expansion
Effective Date for any reason whatsoever (other than the performance of
work in the Sixth Amendment Expansion Space with Landlord's prior
approval), such possession shall be subject to all the terms and conditions
of the Lease and this Amendment, and
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Tenant shall pay annual rent and additional rent as applicable to the
Sixth Amendment Expansion Space to Landlord on a per diem basis for
each day of occupancy prior to the Expansion Effective Date.
VIII. CONTINGENCIES.
A. Landlord and Tenant hereby acknowledge that a portion of the Sixth
Amendment Expansion Space consisting of approximately 1.750 rentable
square feet (the "R&S Space") is currently leased to Russo & Scolnick
("R&S") pursuant to a lease that is currently scheduled to expire
January 31, 2002. Landlord is currently engaged in good faith
discussions with R&S with respect to an agreement (The "R&S
Agreement") under which R&S would relocate from the R&S Space to new
space in the Building (the "R&S Relocation Space"). This Amendment is
contingent upon the execution of the R&S Agreement by Landlord and R&S
on or before April 1, 2000. In the event that Landlord and R&S fail to
enter into the R&S Agreement on or before April 1, 2000, Landlord
shall have the right to terminate this Amendment by the delivery of
written notice to Tenant on or before the date on which the R&S
Agreement is entered into by Landlord and R&S.
B. In addition, Landlord and Tenant hereby acknowledge that a portion of
the Sixth Amendment Expansion Space consisting of' approximately 1,187
rentable square, feet (the "R&S Space") is currently leased to Peter
L. Samek ("Samek") pursuant to a lease that is currently scheduled to
expire June 30, 2002. Landlord is currently engaged in good faith
discussions with Samek with respect to an agreement (the "Samek
Agreement") under which Samek would relocate from the Samek Space to
new space in the Building (the "Samek Relocation Space"). This
Amendment is contingent upon the execution of the Samek Agreement by
Landlord and Samek on or before April 1, 2000. In the event that
Landlord and Samek fail to enter into the Samek Agreement on or before
April 1, 2000, Landlord shall have the right to terminate this
Amendment by the delivery of written notice to Tenant on or before the
date on which the Samek Agreement is entered into by Landlord and
Samek. In any case, this agreement will terminate April 1, 2000, if
Landlord has not entered into an agreement with R&S and Samek
Associates.
IX. RELOCATION REIMBURSEMENT. Landlord and Tenant hereby acknowledge that all
costs of and related to the relocation of R&S to the R&S Relocation Space
and Samek to the Samek Relocation Space shall be at Tenant's sole cost and
expense (the "Relocation Costs"). Such costs shall include, without
limitation, (a) alterations, construction and improvements to the R&S
Relocation Space and the Samek Relocation Space, (b) space planning, design
and related architectural and engineering services, (c) relocation of
telecommunications equipment and cabling, (d) additional lighting and (e)
reasonable out-of-pocket costs incurred by R&S and Samek (i.e., reprinting
stationary and business cards and similar items). Tenant hereby
acknowledges and agrees that Landlord shall be entitled to deduct the
Relocation Costs from the Improvement Allowance prior to the distributing
any of the Improvement Allowance to Tenant or the general contractor. In
addition, Landlord shall be entitled to deduct from the Improvement
Allowance a management fee for Landlord's review of plans related to the
relocation of R&S and Samek, coordination of Building services and
oversight of the work required to the R&S Relocation Space and the Samek
Relocation Space in an amount equal to 5% of the total Relocation Costs.
X. 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
provided Tenant in connection with entering into the Lease, unless
specifically set forth in this Amendment.
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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. 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. Landlord hereby represents to Tenant that Landlord has
dealt with no broker in connection with this Amendment. 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.
G. This Amendment shall be of no force and effect unless and until
accepted by any guarantors of the Lease, who by signing below shall
agree that their guarantee shall apply to the Lease as amended herein,
unless such requirement is waived by Landlord in writing.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Amendment
as of the day and year first above written.
WITNESS/ATTEST: LANDLORD:
EOP-2 OLIVER STREET, 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 investment
trust, its managing general
partner
/s/ Sarah L. Wills By: /s/ Thomas Q. Bakke
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Name (print): Name: /s/ Thomas Q. Bakke
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/s/ Sarah L. Wills Title: Vice President
- --------------------------------- --------------------------
Name (print):
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WITNESS/ATTEST: TENANT
AMR RESEARCH, INC., A DELAWARE
CORPORATION
By: /s/ Anthony J. Friscia
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/s/ Karen M. Sullivan Name: /s/ Anthony J. Friscia
- ----------------------------------- ----------------------------------
Name (print): /s/ Karen M. Sullivan Title: PRESIDENT
---------------------- ---------------------------------
/s/ Lisa O'Soro
- -----------------------------------
Name (print): /s/ Lisa O'Soro
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EXHIBIT A, SIXTH AMENDMENT
DATE: DECEMBER 28, 1999
[FLOOR PLAN - SIXTH AMENDMENT EXPANSION SPACE OF TWO OLIVER STREET]
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EXHIBIT B
SAMPLE LETTER OF CREDIT
[Name of Financial Institution]
Irrevocable Standby
Letter of Credit
No. __________________
Issuance Date:________
Expiration Date: _____
Applicant: ___________
BENEFICIARY
[Insert Name of Owner]
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- ------------------------------
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Ladies/Gentlemen:
We hereby establish our Irrevocable Standby Letter of Credit in your favor
for the account of the above referenced Applicant in the amount of U. S. Dollars
($________________) available for payment at sight by your draft drawn on us
when accompanied by the following documents:
1. An original copy of this Irrevocable Standby Letter of Credit.
2. Beneficiary's dated statement purportedly signed by one of its officers
reading: "This draw in the amount of U.S. Dollars ($____________) under
your Irrevocable Standby Letter of Credit No. ___________ represents funds
due and owing to us as a result of the Applicant's failure to comply with
one or more of the terms of that certain lease by and between
______________, as landlord, and ____________, as tenant."
It is a condition of this Irrevocable Standby Letter of Credit that it will
be considered automatically renewed for a one year period upon the expiration
date set forth above and upon each anniversary of such date, unless at least
sixty (60) days prior to such expiration date or applicable anniversary thereof,
we notify you in writing by certified mail, return receipt requested, that we
elect not to so renew this Irrevocable Standby Letter of Credit. A copy of any
such notice shall also be sent to: Equity Office Properties Trust, 2 North
Riverside Plaza, Suite 2200, Chicago, IL 60606, Attention: Vice President
Corporate Operations. In addition to the foregoing, we understand and agree that
you shall be entitled to draw upon this Irrevocable Standby Letter of Credit in
accordance with 1 and 2 above in the event that we, elect not to renew this'
Irrevocable Standby Letter of Credit and, in addition, you provide us with a
dated statement purportedly signed by one of Beneficiary's officers stating that
the Applicant has failed to provide, you with an acceptable substitute
irrevocable standby letter of credit in accordance with the, terms of the above
referenced lease. We further acknowledge and agree that: (a) upon receipt of the
documentation required herein, we will honor your draws against this Irrevocable
Standby Letter of Credit without inquiry into the accuracy of Beneficiary's
signed statement and regardless of whether Applicant disputes the content of
such statement; (b) this Irrevocable Standby Letter of Credit shall permit
partial draws and, in the event you elect to draw upon less than the full stated
amount hereof, the stated amount of this Irrevocable Standby Letter of Credit
shall be automatically reduced by the amount of such partial draw; and (c) you
shall be entitled to assign your interest in this irrevocable Standby Letter of
Credit from time to time without our approval and without charge. In the event
of an assignment, we reserve the right to require reasonable evidence of such
assignment as a condition to any draw hereunder.
This Irrevocable Standby Letter of Credit is subject to the Uniform Customs
and Practice for Documentary Credits (1993 revision) ICC Publication No. 500.
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We hereby engage with you to honor drafts and documents drawn under and in
compliance with the terms of this Irrevocable Standby Letter of Credit.
All communications to us with respect to this Irrevocable Standby Letter of
Credit must be addressed to our office located at ____________________________
to the attention of __________________________________________________.
Very truly yours,
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[NAME]
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[TITLE]
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