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Exhibit 10.9
Two Oliver Street
Boston, Massachusetts 02109
(the "Building")
THIRD AMENDMENT
October 15, 1996
ORIGINAL LEASE DATA
LANDLORD: Beacon Properties, L.P., successor in interest to
MLH Income Realty Partnership V
TENANT: Advanced Manufacturing Research, Inc.
EXISTING PREMISES: Area on the fifth (5th) floor of the Building,
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
LEASE EXECUTION DATE: August 12, 1992
TERMINATION DATE: February 28, 2001
PREVIOUS LEASE AMENDMENTS: First Amendment dated December 31, 1994
Second Amendment dated January 23, 1996
THIRD AMENDMENT
ADDITIONAL PREMISES: An area on the sixth (6th) floor of the Building
consisting of 6,327 rentable square feet,
substantially as shown on Third Amendment,
Exhibit A, dated October 15, 1996, a copy of which
is attached hereto and incorporated by reference
herein
WHEREAS, Tenant desires to (i) extend the term of the lease for an
additional period; and (ii) lease additional premises located in the Building,
to wit, the Third Amendment Additional Premises;
WHEREAS, Landlord is willing to (i) extend the terms of the lease; and (ii)
lease the Third 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
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The Term of the Lease is hereby extended for an additional period
commencing as of March 1, 2002, and expiring as of the last day of the month in
which the day immediately preceding the fifth (5th) anniversary of the
Commencement Date in respect of the Third Amendment Additional Premises, as
hereinafter defined, shall occur. Said additional term shall be upon the terms
set forth on Revised Schedule B-5, Third Amendment, Sheets 1, 2, 3 and 4, dated
October 15, 1996, a copy of which is attached hereto and incorporated by
reference herein, and upon all of the other terms and conditions of the Lease in
effect immediately preceding the commencement of such additional term, except as
set forth herein.
2. DEMISE OF THE THIRD AMENDMENT ADDITIONAL PREMISES
Landlord hereby demises and leases to Tenant, and Tenant hereby hires and
takes from Landlord, the Third Amendment Additional Premises for a term
commencing as of the Commencement Date in respect of the Third Amendment
Additional Premises and expiring as of the expiration date set forth in the
first sentence of Paragraph 1 above. Said demise of the Third Amendment
Additional Premises shall be upon the terms set forth on the attached Revised
Schedule B-5, Third Amendment, Sheets 1, 2, 3 and 4, dated October 15, 1996, and
upon all of the other terms and conditions of the Lease except as follows:
A. The Commencement Date in respect of the Third Amendment Additional
Premises means December 1, 1996, unless Landlord's Work in respect of the Third
Amendment Additional Premises, as defined in Paragraph 3 hereof, is delayed. In
such event, the Commencement Date in respect of the Third 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 carpet installation shall not
apply to (Landlord's Work in respect of) the Third Amendment Additional
Premises.
B. Commencing as of the Commencement Date in respect of the Third Amendment
Additional Premises, Tenant shall pay Occupancy Costs in respect of the Third
Amendment Additional Premises on a monthly estimated basis based upon the most
recent Tax Costs and other Operating Costs 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 THIRD AMENDMENT ADDITIONAL PREMISES
A. Landlord shall construct the Third Amendment Additional Premises
substantially in accordance with construction drawings ("Construction Drawings")
to be prepared by or on behalf of Landlord based upon Space Plan SK-1 dated July
2, 1996 prepared by Beacon Design Corporation ("Landlord's Work in respect of
the Third Amendment Additional Premises"). Exhibit E of the Lease, Paragraph 4
of the First Amendment to Lease, and Paragraph 4 of the Second Amendment shall
have no applicability to the Third Amendment Additional Premises.
B. Tenant shall have the right to approve the Construction Drawings, which
approval shall not be unreasonably withheld or delayed. Notwithstanding the
foregoing, Tenant shall
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approve the Construction Drawings if they are consistent with Space Plan SK-1
referred to above. If Tenant fails to respond to Landlord's request for approval
of any Construction Drawings within five (5) days of Tenant's receipt thereof,
Tenant's approval shall be deemed to have been given. 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 Third Amendment Additional Premises. Time is of the
essence of this Paragraph 3B.
C. If Landlord requires a Building permit in order to perform Landlord's
Work in respect of the Third 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 Third Amendment Additional
Premises on a timely basis.
D. If Landlord's Work in respect of the Third Amendment Additional Premises
shall not have been substantially completed by February 28, 1997 due to
Landlord's fault or neglect, Tenant shall have the right, by written notice to
Landlord, to cancel this Third Amendment. If Tenant shall exercise such right,
this Third 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 Third Amendment
Additional Premises shall have been substantially completed within such thirty
(30) day period. If Landlord's Work in respect of the Third 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 THIRD AMENDMENT ADDITIONAL PREMISES
Landlord and Tenant hereby agree that Tenant, in addition to its obligation
to pay Annual Rent 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 Third 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 Third 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 and expenses incurred by Landlord
in preparing the Third Amendment Additional Premises for Tenant's occupancy
(including, without limitation, all so-called hard and soft costs, including the
cost to construct the internal stairwell (to be) shown on the Construction
Drawings and all amounts on account of architectural and engineering services),
over (ii) $138,100.00 (which is comprised of $132,300.00 in so-called hard
costs, $5,000.00 in design fees with respect to such internal stairwell, and
$800.00 in structural engineering fees with respect to such internal stairwell).
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 Third Amendment Additional Premises, Tenant shall pay to
Landlord, with the first payment of
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Construction Rent, the aggregate amount of Construction Rent which shall have
accrued from the Commencement Date in respect of the Third 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 Third 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. REVISED SCHEDULE B-5, THIRD AMENDMENT
Effective as of the Commencement Date in respect of the Third Amendment
Additional Premises, Revised Schedule B-5, Second Amendment, Sheets 1, 2, 3 and
4, dated January 23, 1996 (attached to the Second Amendment) shall be of no
further force or effect and Revised Schedule B-5, Third Amendment, Sheets 1, 2,
3 and 4, dated October 15, 1996, a copy of which is attached hereto and made a
part hereof, 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 and Paragraph 6 of the Second
Amendment, Landlord is holding a security deposit of Thirteen Thousand Six
Hundred Two and 41/100 ($13,602.41) 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 Third
Amendment to Landlord, pay to Landlord an additional security deposit of Eleven
Thousand Three Hundred Thirty-Five and 88/100 ($11,335.88) 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.
7. BROKER
Tenant warrants and represents that it has dealt with no broker or agent in
connection with this Third 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 Third
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Amendment by any person (other than BMC) claiming to have dealt with Tenant in
connection with this Third Amendment.
As herein amended, the Lease is ratified, approved and confirmed in all
respects.
WHEREFORE, the parties have hereunto set their hands and seals as of the
date first above written.
LANDLORD: TENANT:
BEACON PROPERTIES, L.P. ADVANCED MANUFACTURING RESEARCH INC.
By: Beacon Properties Corporation
General Partner
By: /s/ Douglas S. Mitchell By: /s/ Anthony J. Friscia, President
-------------------------------- ----------------------------------
Douglas S. Mitchell, (Name) (Title)
Senior Vice President Hereunto Duly Authorized
Date Signed: 11/5/96 Date Signed: 11/14/96
-------------------- ----------------------
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REVISED SCHEDULE B-5, THIRD AMENDMENT, SHEET 1
Two Oliver Street
Boston, Massachusetts 02109
(the "Building")
Execution Date: October 15, 1996
----------------------------------------------------------------
Tenant: Advanced Manufacturing Research, Inc.
----------------------------------------------------------------
(name)
a Delaware corporation
----------------------------------------------------------------
(a description of business organization)
Two Oliver Street, Boston, Massachusetts 02109
----------------------------------------------------------------
(principal place of business - mailing address)
Landlord: Beacon Properties, L.P., a Delaware limited partnership (the
sole general partner of which is Beacon Properties Corporation,
a Maryland corporation). Mailing Address: 50 Rowes Wharf,
Boston, Massachusetts 02110, Attention: General Partner.
Building: The Building in the City of Boston known as and numbered Two
Oliver Street
Art. 1.01(n) Existing
Premises: Areas on the fifth (5th) floor of the building,
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
Art. 1.01(n) Third Amendment
Additional Premises: An area an the sixth (6th) Floor of the
Building, consisting of 6,327 rentable
square feet, substantially as shown on
Third Amendment, Exhibit A dated October
15, 1996, a copy of which is attached
hereto and incorporated by reference
herein
Art. 1.01(n) Area in respect of:
Existing Premises: 9,828 rentable square feet
Third Amendment
Additional Premises: 6,327 rentable square feet
Total: 16,155 rentable square feet
Art. 1.01(c) Commencement Date
in respect of initial portion
of Existing Premises: September 1, 1992
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REVISED SCHEDULE B-5, THIRD AMENDMENT, SHEET 2
Two Oliver Street
Boston, Massachusetts 02109
(the "Building")
Tenant: ADVANCED MANUFACTURING RESEARCH, INC.
Execution Date: OCTOBER 15, 1996
Art. 1.01(c) Commencement Date in respect
of Third Amendment Additional
Premises:
December 1, 1996 (subject to the provisions of
Paragraph 2A of the Third Amendment)
Termination Date in respect of
all Premises: See Paragraph 2 of the Third
Amendment
Art. 4.01 Annual Rent in respect of Existing Premises and
Third Amendment Additional Premises
EXISTING PREMISES:
<TABLE>
<CAPTION>
TIME PERIOD: ANNUAL RENT MONTHLY PAYMENT
------------ ----------- ---------------
<S> <C> <C>
Through February 28, 1997: $166,716.00 $13,893.00
March 1, 1997-
February 28, 1998: $174,439.92 $14,536.66
March 1, 1998-
February 28,2000 $197,611.92 $16,467.66
February 29, 2000-
Termination Date $201,474.00 $16,789.50
Third Amendment
Additional Premises:
Annual Rent $136,030.56 Monthly Payment: $11,335.88
Art. 5.01 Use of Premises: General Office Uses
</TABLE>
Art. 6.02(B)(i) Electric current will be furnished by Landlord to
Tenant, at Tenant's cost
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REVISED SCHEDULE B-5, THIRD AMENDMENT, SHEET 3
Two Oliver Street
Boston, Massachusetts 02109
(the "Building")
Tenant: Advanced Manufacturing Research, Inc.
-------------------------------------
Execution Date: October 15, 1996
----------------
Schedule of Rent Operating and Tax Escalation:
Escalators:
Original and First Amendment Premises (7,724 rentable
-----------------------------------------------------
square feet):
-------------
Tax Cost Base: Actual Taxes for Fiscal Year 1995 (i.e.
---------------------------------------
July 1, 1994) -- June 30, 1995
------------------------------
All Other Occupancy Costs Base: Actual amount of Operating
--------------------------
Cost for Calendar Year 1995
---------------------------
Tenant's Agreed Percentage in respect of Original and First
Amendment Premises: 3.64%
-----
Second Amendment Additional Premises (2.104 rentable square
-----------------------------------------------------------
feet)
-----
Tax Cost Base: Actual Taxes for Fiscal Year 1996 (i.e.,
----------------------------------------
July 1, 1995-June 30, 1996)
---------------------------
All Other Occupancy Costs Base: 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)
-----
Tax Cost Base: Actual Taxes for Fiscal Year 1996 (i.e.,
----------------------------------------
July 1, 1995-June 30, 1996)
---------------------------
All Other Occupancy Costs Base: Actual amount of Operating
---------------------------
Costs for Calendar Year 1996
----------------------------
Tenant's Agreed Percentage in respect of Second Amendment
Additional Premises: 2.98%.
------
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REVISED SCHEDULE B-5, THIRD AMENDMENT, SHEET 4
Two Oliver Street
Boston, Massachusetts 02109
(the "Building")
Tenant: Advanced Manufacturing Research, Inc.
-------------------------------------
Execution Date: October 15, 1996
----------------
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
LANDLORD: TENANT:
BEACON PROPERTIES, L.P. ADVANCED MANUFACTURING RESEARCH INC.
By: Beacon Properties Corporation
General Partner
By: /s/ Douglas S. Mitchell By: /s/ Anthony J. Friscia, President
------------------------ ----------------------------------
Douglas S. Mitchell, (Name) (Title)
Senior Vice President Hereunto Duly Authorized
Date Signed: 11/5/96 Date Signed: 11/14/96
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EXHIBIT A, THIRD AMENDMENT
DATE: October 15, 1996
[FLOOR PLAN - SIXTH FLOOR OF TWO OLIVER STREET]
