Exhibit 10.12.5
FIFTH AMENDMENT TO LEASE
FIFTH AMENDMENT TO LEASE dated as of
this 29 th day of June,
2007 by and between BOSTON PROPERTIES LIMITED PARTNERSHIP, a
Delaware limited partnership (“Landlord”) (as
successor-in-interest to 200 West Street 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 195 West Street, Waltham, Massachusetts (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 200 West Street
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 Salary.com (“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
PAREXEL Fifth Amendment (195 WS) (f)
-1 -
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 |
|
PAREXEL Fifth Amendment (195 WS) (fj)
-2 -
(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 P.O. Box 3557, Boston, Massachusetts 02241-3557,
(ii) by wire transfer to Bank of America in Dallas, Texas,
Bank Routing Number 0260-0959-3 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.
PAREXEL Fifth Amendment (195 WS) (f)
-3 -
(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 |
PAREXEL Fifth Amendment (195 WS) (f)
-4 -
| |
|
|
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
PAREXEL Fifth Amendment (195 WS) (f)
-5 -
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 Prem
|
