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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM 10-K
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
FOR THE FISCAL YEAR ENDED: DECEMBER 31, 1999
COMMISSION FILE NUMBER: 0-25265
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
ALLAIRE CORPORATION
(Exact name of registrant as specified in its charter)
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<S> <C>
DELAWARE 41-1830792
(State or other jurisdiction (IRS employer
of Incorporation) identification number)
ONE ALEWIFE CENTER
CAMBRIDGE, MASSACHUSETTS 02140
(Address of principal executive offices) Zip Code
</TABLE>
Telephone No.: (617) 761-2000
SECURITIES REGISTERED PURSUANT TO SECTION 12(B) OF THE ACT:
NONE
SECURITIES REGISTERED PURSUANT TO SECTION 12(G) OF THE ACT:
COMMON STOCK, PAR VALUE $.01 PER SHARE
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes [X] No [ ]
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to the
best of the registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K. Yes [X] No [ ]
The aggregate market value of Common Stock held by non-affiliates of the
registrant at March 20, 1999 was $1,663,728,330 based upon the last reported
sales price of the Common Stock as reported by Nasdaq National Market on such
date.
The number of shares of the registrant's Common Stock, $.01 par value,
outstanding at March 20, 1999 was 26,916,775.
DOCUMENTS INCORPORATED BY REFERENCE
(1) Pages 20-48 of the registrant's Annual Report to Shareholders for its fiscal
year ended December 31, 1999 are incorporated by reference into Part II of
this Annual Report on Form 10-K
(2) Portions of the registrant's Proxy Statement related to the registrant's
2000 Annual Meeting of Shareholders, to be held on May 17, 2000, are
incorporated by reference into Part III of this Annual Report on Form 10-K
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PART I
ITEM 1. BUSINESS
ALLAIRE
We develop, market and support Internet software products for companies
building their businesses on the Web. The products in the Allaire Business
Platform enable customers to rapidly build, deploy, and manage sophisticated
e-business Web sites that provide dynamic content, personalized interaction, and
secure business transactions. Based on open Internet technologies, our platform
provides a robust, secure, scalable foundation for building online applications
that support online commerce, strengthen customer and partner relationships,
publish and personalize content, and automate key business processes. Companies
as varied as Williams-Sonoma, Kaiser Permanente and autobytel.com have all used
the Allaire Business Platform to build and manage large-scale, content-rich,
transaction-oriented Web sites and applications.
INDUSTRY OVERVIEW
GROWTH OF THE INTERNET
The Internet has experienced dramatic growth, both in terms of the number
of users and as a means of conducting business transactions, and is expected to
continue to grow rapidly. International Data Corporation estimates that the
number of Internet users will increase from 196 million in 1999 to 502 million
in 2003. The emergence of the Internet has enabled new online business models
and spurred the development and deployment of Web applications to facilitate
business interactions that were not practical to address with traditional
computing systems. This public infrastructure enables companies to market and
sell their products and services to customers through e-business applications as
well as forge closer ties with their partners and suppliers. International Data
Corporation estimates that the volume of commerce over the Internet will
increase from approximately $111 billion in 1999 to approximately $1.3 trillion
by 2003.
As the number of companies conducting business online has increased, the
Internet has become a highly competitive business environment and has in turn
energized the entire business world. A growing number of companies are building
Web applications that perform a combination of marketing, sales and operational
functions. The Internet promotes competition in markets and makes it easy for
customers to locate and transact business with competitive vendors. As a result,
companies are seeking to differentiate themselves from competitors by developing
increasingly sophisticated capabilities for attracting and retaining customers.
Online businesses are looking for innovative technology solutions that enable
them to deliver products and information targeted to their customers' interests
and that enable them to provide a higher level of customer service. More
broadly, this heightened competition is raising the importance of technology in
increasing business efficiency. Companies are increasingly looking to Internet
technology to help them manage their supplier and distributor networks more
effectively -- by automating inter- and intra-company business processes and
integrating diverse systems where key information is managed and where key
business transactions reside.
Combined, these factors have created demand for comprehensive software
platforms that can enable businesses to execute on their key Internet business
initiatives quickly and reliably. Such a platform includes application servers
that provide the basic infrastructure for hosting Web applications and
integrating them with existing enterprise applications; packaged solutions that
provide advanced services for content management, commerce, and personalization;
standards-based middleware for integrating the systems of different businesses
across the Internet; as well as productive tools that enable both developers and
business users to participate in the construction, maintenance and management of
online businesses.
WEB APPLICATION SERVERS
A Web application server is a software program that hosts Web applications
and enables access to these applications through Web browsers, client hardware
devices and other applications. A Web application server
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also enables hosted applications to access a company's servers and other
internal systems. Application servers are central to the Web as a computing
platform, much as the operating system is central to the desktop computing
platform. According to Forrester Research, the market for Web application
servers will triple from $692 million in 1999 to $2.1 billion in 2002. We
believe that the central technology role of Web application servers places
leading Web application server vendors in a strong position to sell related
software products. This additional software includes development tools,
business-to-business integration tools, Web management products and packaged
e-business applications.
PACKAGED E-BUSINESS APPLICATIONS
Packaged e-business applications enable companies to rapidly deploy
Internet applications by providing pre-built functionality based on best
practices in online commerce, content management, and personalization. Using
these packages, companies can dynamically deliver information and transactional
capabilities to a broad group of users, including customers, vendors and
employees. More companies are seeking to gain a competitive advantage by
deploying applications with sophisticated content management, commerce and
personalization capabilities. An International Data Corporation report estimates
that the market for e-business applications will grow from $1.7 billion in 1999
to $13.2 billion in 2003.
INDUSTRY CHALLENGES
Companies are deploying Web applications to address a wide range of
strategic business needs, with the greatest activity occurring in the following
areas:
- Online commerce -- the marketing and sale of products or services online
- Customer service -- the use of Internet applications to increase customer
satisfaction and drive downstream revenue
- Content management -- the facilitation of communication and
decision-making through improved information management
- Business process automation -- the use of Web technology to further
automate core business tasks
Many of the applications in these four key Internet disciplines were not
practical or feasible using mainframe, desktop or client-server technologies.
However, the Internet's open standards and the low cost of deploying Web
applications open up a wide vista of new opportunities for companies to innovate
and achieve significant competitive advantage.
To make the full range of Web application deployments economically
feasible, a Web application platform must be flexible, highly functional, and
affordably priced. Similarly, successful Web applications must be based on
standards that are specific to the Web, as these enable their portability and
broad reach. Standard Web protocols such as HTTP, HTML and XML form the core of
Web application technology. These protocols evolved independently from
mainframe, desktop or client-server technologies, which form the backbone of
most established companies' computer systems. Thus, to be successful, Web-based
applications must be able to integrate with a company's existing hardware and
software systems where key applications and data reside, including databases,
directories, messaging servers and transaction monitors.
To date, few Web application server products have achieved broad market
acceptance. Widespread and sustained acceptance of a product promotes market
entry by technology vendors and service providers offering complementary
products and professional services to customers. Broad customer and developer
support enhances a vendor's ability to launch new products and product versions
by improving the quality of pre-release customer testing, by enhancing the
vendor's ability to secure reference customers prior to a new product's release,
and by helping to ensure widespread customer awareness and availability of new
products through the vendor's distribution channel.
As competition among companies conducting online commerce increases,
businesses are becoming increasingly focused on speeding the development and
deployment process. Cutter Information Corporation estimates that 72% of Web
application development projects have a schedule of six months or less, and 14%
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have a schedule of less than a month. As a consequence, Web application servers
and packaged e-business applications must contain features, such as visual
tools, templates and wizards, which promote productive development and simplify
deployment. The graphical, content-rich and data-intensive nature of e-business
applications requires the involvement of a variety of contributors. These
include enterprise systems programmers, database developers and application
programmers as well as a variety of non-traditional contributors such as Web and
multimedia designers, business managers, and business users. To ensure
productive Web application development and deployment, the Web application
server must provide appropriate tools to each set of participants, while
preserving the integrity of the application and coordinating the efforts of
geographically-dispersed, multi-disciplinary teams.
THE ALLAIRE SOLUTION
We are a leading provider of Internet software and services that enable
organizations to build their businesses on the Web. The products in the Allaire
Business Platform offer companies the following benefits:
- A comprehensive software platform that enables customers to rapidly
build, deploy and manage Web applications in each of the four key
Internet business disciplines -- online commerce, customer service,
content management and business process automation. The Allaire Business
Platform consists of enterprise-class, competitively-priced Web
application servers, packaged e-business applications and visual tools
and is complemented by high-quality consulting, training, and support
offerings that support the full life cycle of design, development,
testing, and deployment.
- Support for the latest Web standards, such as HTML, XML and Java, and
integration with a large number of enterprise information systems
technologies. The products in our platform are not constrained by a need
to support or promote a particular legacy technology or a particular
operating system.
- Widespread industry adoption among corporations, independent developers,
consultants, and software vendors. The Allaire Alliance partner program
includes over 1000 technology partners, direct and indirect distributors,
systems integrators, and other professionals that support and extend the
use and functionality of our products through complementary products and
services.
- Features and technologies designed to reduce time to market. Allaire
Spectra speeds development by providing packaged functionality based on
industry best practices, and our platform includes visual tools that
simplify development and administration tasks for technical and business
users alike. In addition, innovative technologies such as ColdFusion
Markup Language (CFML), JavaServer Pages (JSP), Web Distributed Data
eXchange (WDDX), and a large number of third-party components all enhance
developer productivity.
ALLAIRE STRATEGY
Our goal is to be the leading e-business platform provider for businesses
building and deploying sophisticated e-business Web sites and applications. Key
elements of our strategy to attain this goal are:
Make Enterprise-Class Products that are Easy to Use and Affordable. We
believe that we have become a leader in the Web application server market by
providing enterprise-class products that have high performance, scalability and
security, but that are much easier to use and cost significantly less than
products available from most other vendors. Because our products are easier to
use and cost less than other products, they can be adopted by a larger number of
businesses to develop and deploy a wider variety of applications. We intend to
continue to sell easy-to-use, high-quality products at affordable prices to
capture a significant portion of the Internet software market.
Maximize Product Adoption. We have established significant market presence
for our products by making components of our technology freely and widely
available. Non-commercial versions of our ColdFusion, JRun and HomeSite products
are available for free electronic distribution and are also distributed by
original equipment manufacturers. By promoting access to our technology, we seek
to associate the Allaire
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brand with high-quality, highly-productive Web application products, and to
encourage users to progress from free versions to commercial products.
Leverage Leadership Position in Web Application Server Market. We intend
to continue to introduce new products that complement our Internet business
platform. We believe that our leadership position in the Web application server
market gives us a competitive advantage over vendors that have sold fewer
products. We believe the broad customer base and developer support of our Web
application servers enhance our ability to introduce complementary products.
Continue to Support Open Web Standards. We designed our products to be
open by supporting development for key Web application platforms and
technologies, as well as integration with key enterprise and client-server
standards. We have helped to introduce innovative technologies for Web
application development and deployment, such as CFML, WDDX and JSP, that are
used by large numbers of Web developers. We intend to continue to develop
innovative Web technologies to meet changing customer requirements and to align
our products with additional Internet standards as they emerge. This will enable
our customers to preserve their investments in existing computer systems without
compromising Web application functionality or performance.
Expand Channel Distribution. To maximize the effectiveness of our sales
and marketing resources, we intend to continue to expand the depth and breadth
of our channel distribution. We believe that increasing the dollar amount of the
sales opportunities handled by our indirect channel distribution will increase
the strength and motivation of our channel while allowing our direct sales force
to focus on increasingly larger sales to Fortune 1000 companies and other major
organizations.
Expand Sales Through the OEM Channel. We intend to increase the dollar
amount of sales to companies that embed our technology in their products. By
providing low-cost, flexible, and productive software, we believe we can attract
a large number of customers that need Web application server technology in their
products but do not wish to develop and maintain it themselves.
Enhance Co-Selling Relationships with Systems Integrators. We intend to
continue to develop our relationships with systems integrators and other Web
consultants that implement e-business applications using our Web application
products. By providing significant opportunities to these firms to generate
consulting revenue, we believe that they will promote our products over those
sold by competing vendors that seek to keep implementation and consulting
services revenue for themselves. The substantial resources of systems
integrators and Web consultants help ensure the successful development and
deployment of our customers' e-business applications.
Win Enterprise Standards Decisions. As companies invest in Web application
servers and related software products, their purchasing decisions more often
require approval of a vendor's technology as a company-wide standard. We intend
to expand the support and coverage of these accounts within our direct sales
force, and to continue to present the business advantages of adopting our
technology as a company-wide standard.
PRODUCTS
Our products enable companies and other organizations to develop and deploy
sophisticated e-business applications. The discussion and chart below describe
our products.
COLDFUSION
ColdFusion Server. ColdFusion Server is an open, scalable and secure Web
application server. Web applications built with ColdFusion range from simple,
database-driven pages to large-scale, content-rich, transaction-oriented Web
sites. ColdFusion Server is available in two editions, Professional and
Enterprise, running on Windows NT. The Enterprise edition also runs on Sun
Solaris and HP-UX. An Enterprise edition
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running on Linux (an open source version of Unix) is expected to be released
during the second quarter of 2000. ColdFusion Server has won the following
awards:
- 1999 Best of 1999 Award from PC Magazine;
- 1999 Editors' Choice Award from PC Magazine;
- 1999 Jolt Product Excellence Award from Software Development Magazine;
- 1999 Well-Connected Award from Network Computing;
- 1999 Reader's Choice Award from the Visual Basic Programmer's Journal;
and
- "Best of Show Award" at the 1998 Fall Internet World.
ColdFusion Studio. ColdFusion Studio is the integrated development
environment for ColdFusion Server. Based on HomeSite, ColdFusion Studio allows
developers to preserve development skills as well as individual projects as they
move from developing static Web pages and sites to interactive Web sites and Web
applications. ColdFusion Studio runs on Microsoft Windows NT, Windows 95 and
Windows 98.
JRUN
JRun provides companies with a system for deploying Web applications based
on Java Servlets and JSP. Java Servlets are Web application components written
in the Java programming language, a language developed by Sun Microsystems. JSP
is a Web application scripting model used to create dynamic Web pages and
applications. Java addresses the needs of more advanced, object-oriented systems
programmers. JRun has won numerous industry awards, including the 1999 Java
Developer's Journal Editor's Choice award for "Most Innovative Java Product of
the Year" and the 1998 WebTechniques' Best Java Tool award. JRun runs on any
software platform that supports Java.
JRun 3.0, which we expect to release in 2000, will incorporate additional
Java services into JRun, including Enterprise JavaBeans, Java Messaging Service,
and the Java Transaction API. These new capabilities will be based on the Ejipt
product we acquired as part of Valto Systems. By expanding the range of services
provided by JRun, we will increase the size and complexity of Web applications
that can be developed using this product. This will in turn increase the number
of projects and developers that can take advantage of our Internet business
platform.
ALLAIRE SPECTRA
Allaire Spectra is a packaged e-business application for building and
managing large-scale Web sites and applications that require advanced content
management, commerce and personalization capabilities. Allaire Spectra provides
systems administrators, Web developers and business users and managers with the
necessary pre-built software components and visual tools to rapidly deploy and
manage large-scale publishing efforts, e-commerce sites, enterprise portals, and
intranets. Applications built with Allaire Spectra run on the ColdFusion
application server. Allaire Spectra was released in December 1999. Allaire
Spectra was ranked among the top 3 commerce platforms by a leading independent
research firm in October 1999.
HOMESITE
HomeSite is a leading HTML design tool, which is principally used for the
creation of Web pages. HomeSite runs on Microsoft Windows NT, Windows 95 and
Windows 98. HomeSite has won a large number of industry awards as a leading HTML
design tool.
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PRODUCT
(SUGGESTED LIST PRICE
AS OF MARCH 1, 2000) DESCRIPTION TYPICAL APPLICATIONS TARGET USERS
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ColdFusion Server Professional Licensed for four Business intranets and Large enterprises
($1,295) processors and allows an extranets
unlimited number of Large systems
concurrent users Field office extranets integrators
Features include open Single server New Web-based businesses
state repository and applications
shared server security using a relational Internet service
database providers
Access to any ODBC and
OLE-DB data source
ColdFusion Server Enterprise Licensed for eight High-volume, business- Large enterprises
($4,995) processors and allows an critical commerce and
unlimited number of applications Large systems
sites concurrent users integrators
Enterprise intranet
Includes all applications New Web-based businesses
Professional features,
plus features required Enterprise applications Internet service
for large scale requiring native providers
applications, including database
clustering, load drivers or CORBA
balancing and automatic
failover and CORBA
support IBM DB2,
Informix, Oracle and
Sybase native database
drivers
ColdFusion Studio ($495) An integrated Business systems (human Web application
development environment resources, financial, developers
with a number of visual customer support)
tools for creating Web Enterprise and
applications Electronic commerce client-server
(stores, business-to- programmers
Includes the business)
award-winning HomeSite HTML and desktop
HTML design Tool Dynamic content database developers
publishing (document
Features include (management, dynamic Development team
interactive debugging, news and personalized managers
remote development information)
capabilities and
one-step deployment Collaboration
(discussion, project,
Team development support and workflow management)
Allaire Spectra ($15,000) Licensed per server and Corporate intranets Large enterprises
allows an unlimited
number of users Enterprise portals Large systems
integrators
Requires a ColdFusion Internet portals
Enterprise license for
each server Online commerce sites Internet service
providers
Includes all of the core B2B extranet sites
Spectra services, Webtop New Web-based businesses
productivity tools, and
administration console
JRun Pro ($595) Supports any number of Corporate Internet, Java developers
processors and allows an intranet, and extranet
unlimited number of sites that utilize Java Large enterprises
concurrent users as their primary
development architecture Large systems
Features full support integrators
for Java Servlets and Enterprise Web
JSPs applications requiring New Web-based businesses
connectivity to CORBA,
Licensed per processor Enterprise Java Beans Software publishers
and other distributed
environments
JRun Pro Unlimited ($1,995) Includes all Pro High-volume, business- Large enterprises
features, plus the critical commerce sites
ability to use any and applications Large systems
number of concurrent utilizing a large number integrators
Java Virtual Machines of processors and/ or
Java Virtual Machines New Web-based businesses
Licensed per machine
Internet service
providers
Software publishers
HomeSite (Electronic HTML page design and Web High-quality static Web site developers
Version $89; Packaged Version $99) site development tool corporate Web sites
Web development team
Features an intuitive
graphical interface
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TECHNOLOGY
We develop, market and support Web application servers, packaged
applications, visual tools and related software products that enable the
development and deployment of sophisticated e-business Web sites and
applications. Our products support emerging Web application technologies as well
as integrate with key enterprise information systems. They include features and
tools that increase the productivity of Web developers and ensure the
scalability and reliability of the applications they deploy.
Open Integration
At the core of our Web application technology are the ColdFusion and JRun
application servers. Both are built on an open architecture and can be deployed
on Windows 98/NT, Sun Solaris and HP-UX. JRun can also be deployed on AIX, IRIX,
or any other operating system that has a Java virtual machine. This openness
ensures that a customer can switch core operating system platforms and maintain
the same core application server technology. Our open architecture supports
native, high-performance connectivity into major enterprise databases, such as
Oracle, Sybase, SQL Server, Informix and IBM DB2. Our application server
technology supports major distributed computing standards, including DCOM,
CORBA, Java and Enterprise Java Beans. This support enables existing legacy
corporate applications infrastructure to be extended into Internet-based
systems. Additionally, all major Internet protocols and key enterprise
information systems, including messaging servers, directory servers, file
servers and other network technology, are supported. Future versions of our Web
application server products will provide tighter integration between the Java
and ColdFusion environments.
Scalable, Secure Deployment
To successfully support high-volume sites and transaction-intensive
applications, a Web application platform requires high performance, availability
and scalability from a Web application server. Our application server technology
provides a high degree of cross-platform performance and fault-tolerance from
individual servers and multiple server clusters. The ColdFusion application
server runs as a 32-bit multi-threaded system service, which permits
applications to experience an increase in processing performance as processors
are added to the server. Clusters of multiple servers significantly enhance an
application's availability and scalability. ColdFusion automatically balances
load among servers deployed in a cluster, so that performance is optimized.
ColdFusion permits a cluster deployment to store client state information in a
shared repository, so it will not be lost when a server fails. If any machine in
the cluster fails or is heavily loaded, ColdFusion automatically transfers its
responsibilities to one of the remaining servers. Because ColdFusion clusters
use a software-based system for load balancing and failover, there is no single
point of failure.
ColdFusion also provides a set of features for securely deploying
applications. Principal among these is the ability of ColdFusion to restrict
access to specific resources needed to run an application, including
directories, files, databases and components. Therefore, multiple applications
on the same server cannot access each other's resources. Other security features
include authentication and encryption for e-business Web applications. The
application server security technology also provides a set of tools for
authenticating end users and tracking their interaction with a Web system. This
technology forms the foundation for personalized customer experiences and rich
business intelligence. Additionally, this security technology meets the needs of
hosting and application server provider companies, which require robust security
to host multiple, outsourced corporate Web sites and business applications on a
shared infrastructure. We license portions of this security technology from a
third party.
JRun includes a similar set of features for supporting high-volume Web
sites, including Java's native multithreaded architecture which maximizes the
scalability of multiprocessor machines. JRun also includes a sophisticated
administration application that allows users to easily maintain their deployed
JRun applications. In addition, JRun 3.0, which we plan to release in 2000, will
incorporate load balancing technology similar to that currently available in
ColdFusion, enabling greater scalability and reliability, as well as addition
security features.
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Multi-Language Development
Our Internet business platform supports multiple programming language
technologies and models. At the core of ColdFusion is the ColdFusion Markup
Language, or CFML, which provides developers with a highly-productive, tag-based
scripting model that tightly integrates with Web-based programming languages
such as HTML, XML, and Wireless Markup Language (WML).
As a result of our merger with Live Software and our acquisition of Valto
Systems, we acquired JRun and Ejipt, two server-side Java development and
deployment environments. JRun provides developers with a system for deploying
Web applications based on Java Servlets and JSP -- a standards-based model for
deploying Java on Web application servers. Ejipt is a product for deploying
applications based on more Java models, including Enterprise JavaBeans, the Java
Transaction API, and the Java Messaging Service. These products are currently
being merged to provide a complete environment for the construction, deployment,
and management of enterprise-scale server-side Java applications. Java addresses
the needs of more advanced, object-oriented system programmers. By integrating
the key Java technologies into our platform, we have further expanded the range
of projects and developers that can use our products as well as reinforced our
support for open Internet standards.
Productive Development and Management
In addition to our innovative approaches to Web-based programming
languages, we offer a wide range of visual development tools. We believe that
company-wide adoption of the Web requires rich productivity tools for system
administrators, developers, designers, and business users and managers. Our
visual tools include HomeSite, an HTML design tool and ColdFusion Studio, our
ColdFusion rapid application development tool. Additionally, Allaire Spectra
includes Web-based productivity tools for business users and managers to assist
them in managing content, controlling business workflow and using decision
support tools to analyze their Web-based sales and marketing activities.
In addition to these development tools, we have announced plans to release
a new product for Web systems management, code-named "Harvest." Harvest will
provide an array of advanced management features designed to lower the cost of
ownership of and increase the reliability of Internet business systems,
including deployment and replication as well as real-time monitoring and
control.
Packaged e-Business Applications
Allaire Spectra consists of three core components: the ContentObject API,
the core solution services, and a Web-based productivity tool. The ContentObject
API is an XML-based object programming system and content repository. It allows
companies to model their Web business technology and data using an object-based
programming model, implemented in ColdFusion, and to store their Web information
in an XML-based content repository. This technology helps companies build an
extensible and reusable information management solution and syndicating content
and applications across the Internet.
The six core solution services of Allaire Spectra include:
- Content management -- a system for managing content infrastructure;
- Workflow and process automation -- a set of services for building custom
workflow templates and process automation;
- Role-based security -- an open authentication framework to assign users
and groups to activities and processes;
- Personalization -- a three-tier model that supports user profiling,
rules-based dynamic targeting and the integration of third party
personalization engines;
- Business intelligence -- a model for logging, measuring and reporting on
user activities; and
- Syndication -- a set of XML-based capabilities for extending Web business
to Internet partners or site affiliates.
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The final core technology in Allaire Spectra is a Web-based user interface
and productivity tool, which provides business users and managers with a simple
user interface for managing content, workflow, and business rules as well as
decision support and analysis tools.
Internet Middleware and XML
In addition to our tools, application servers and packaged e-business
applications, we have developed a core technology aimed at supporting
business-to-business commerce and application syndication. Web Distributed Data
eXchange, or WDDX, was developed to support the integration of business systems
across the Internet. WDDX was released in late 1998 as an open source
technology, freely available from a separate Web site, www.wddx.org. Since its
release, over 7,000 users have downloaded a software development kit for using
WDDX, and several major software programming languages now support it, including
Java, ASP, JavaScript, PHP and Python. We intend to foster broad adoption of the
technology and have incorporated it directly into our own platforms, including
extensive use within Allaire Spectra for enabling business-to-business commerce
applications.
We have also announced plans to develop a new Web business-to-business
(B2B) integration server, code-named "Tron," which will incorporate and extend
XML technologies such as WDDX. By automating the way businesses communicate with
each other using a common set of open XML technologies and supporting emerging
industry standards, Tron will enable new business models based on application
syndication and Web-based business system integration.
RESEARCH AND DEVELOPMENT
We devote a substantial portion of our resources to developing new products
and product features, extending and improving our products and technology, and
strengthening our technological expertise. Our research and development
expenditures were $5.0 million in 1997, $8.0 million in 1998 and $12.9 million
in 1999. We intend to continue to devote substantial resources toward research
and development. As of December 31, 1999, we had 74 employees engaged in
research and development activities. We must hire additional skilled software
engineers to continue to increase our research and development efforts. Our
business, operating results and financial condition could be adversely affected
if we are not able to hire and retain the required number of engineers.
SALES, MARKETING AND DISTRIBUTION
We market and sell our products and services to businesses using a
combination of direct and indirect distribution channels, including a corporate
sales force, domestic and international distribution, electronic commerce and
sales through business partners. The percentage of our total revenue generated
through our indirect distribution channel was 28% in 1997, 44% in 1998 and 53%
in 1999. As of December 31, 1999, we had 94 sales and marketing employees
worldwide.
Corporate Sales Force. Our corporate account sales force focuses on sales
to institutional customers worldwide. Corporate account sales can be filled
either directly by our sales force or through our indirect channel partners. The
corporate account sales force is comprised of field representatives and
telesales representatives. The field representatives market and sell to
corporate, government and higher education institutional customers primarily
interested in application servers and packaged applications for e-business
applications. The telesales representatives qualify, develop and pursue leads
generated from inquiries on our Web site, from seminars and from downloads of
our products. We intend to add a significant number of additional field
representatives over the next 12 months.
Indirect Distribution. We have a number of domestic and international
distributors and resellers that market and sell our products. We have
distributors in North America, Europe and Asia Pacific, including Ingram Micro
and Mitsubishi. As of December 31, 1999, we had over 500 corporate and catalog
resellers, original equipment manufacturers and value-added resellers.
9
<PAGE> 11
Electronic Commerce. Our Web site allows visitors to download, evaluate
and purchase our products. A number of third-party electronic commerce sites,
including Beyond.com, Intraware.com, JapanMarket.com and RealStore.com,
distribute commercial copies of our products for delivery by direct download.
Electronic distribution provides us with a low-cost, globally accessible,
24-hour sales channel.
Allaire Alliance. We believe that establishing a large community of active
users of our products and technology is critical to our success. To further the
development of this community, we have established the Allaire Alliance program.
Allaire Alliance members include Web developers, application vendors and systems
integrators. Allaire Alliance members also include the distributors, corporate
and catalog resellers, original equipment manufacturers and value-added
resellers referenced above. We typically enter into written agreements with
Allaire Alliance members. These agreements typically do not provide for firm
financial commitments from the member, but are intended to establish the basis
upon which the parties will work together to achieve mutually beneficial
objectives.
Product Marketing Programs. We engage in a broad range of product
marketing activities, including sponsoring seminars for potential customers,
providing product information through our Web site and promoting special events.
During 1999, we held over 100 seminars in over 35 cities and conducted over 10
seminars over the Web. Our product marketing programs are aimed at informing
customers of the capabilities and benefits of our products and services and
stimulating demand across all market segments. Certain programs are designed to
encourage independent software developers to develop products and applications
that are compatible with our products and technology.
Branding Strategy. We continue to develop market awareness of the
"Allaire" brand. Our branding strategy includes participating in trade shows and
conferences, promoting special events and advertising our products and services
in print and electronic media.
CUSTOMERS
Our products are marketed and distributed to a diverse group of customers,
ranging from small, independent consultants and Internet presence providers to
Fortune 1000 businesses and other large organizations. Many of our customers are
global organizations that use our products to create Web sites and Web
applications with electronic commerce, content management and personalization
capabilities for Internet, intranet and extranet use.
Revenue from customers outside North America, primarily Asia and Europe, as
a percentage of our total revenue, was 19% in 1997, 13% in 1998 and 14% in 1999.
Sales to Ingram Micro accounted for 28% of our total revenue in 1998 and 37% in
1999. No single customer accounted for 10% or more of our total revenue in 1997.
SUPPORT AND PROFESSIONAL SERVICES
We offer a broad range of consulting, support and training services to our
customers. We believe that providing a high level of customer service and
technical support is necessary to achieve rapid product implementation which, in
turn, is essential to customer satisfaction and continued license sales and
revenue growth. Our customers have a broad choice of support options depending
on the level of service desired. We maintain a technical support hotline staffed
by engineers from 8:00 a.m. to 8:00 p.m., Eastern time, Monday through Friday,
from our corporate office in Cambridge, Massachusetts. Internationally,
distribution partners provide telephone support to customers with technical
assistance from us. Our support staff also responds to e-mail inquiries. We
track support requests through a series of customer databases, including current
status reports and historical customer interaction logs. We use customer
feedback as a source of ideas for product improvements and enhancements.
We also provide training and consulting to assist our customers in the
development and deployment of e-business applications using our products. As of
December 31, 1999 we had 40 technical support engineers and professional service
employees.
10
<PAGE> 12
COMPETITION
The Web application products market is intensely competitive, subject to
rapid change and significantly affected by new product introductions and other
activities of market participants. Primary competitors in the high end of the
market include large Web and database platform companies that offer a variety of
software products, such as IBM, Oracle and Sun Microsystems. We also compete
against a number of companies that offer Web application servers, such as BEA
Systems, Bluestone and SilverStream Software. In addition, our Allaire Spectra
application competes against packaged e-commerce applications from companies
such as Broadvision, Vignette, and Art Technology Group. These companies
generally sell their products at significantly higher prices than our products.
In the middle range of the market, where product prices are generally lower, we
compete primarily against Microsoft.
As the size and visibility of the market opportunity increases, we believe
that additional competitors may enter the market with competing products.
Increased competition could result in pricing pressures, reduced margins or the
failure of our products to achieve or maintain market acceptance, any of which
could have a material adverse effect on our business, operating results and
financial condition. Many of our current and potential competitors have longer
operating histories and substantially greater financial, technical, marketing
and other resources than we do. Therefore, they may be able to respond more
quickly to new or changing opportunities, technologies, standards or customer
requirements. Many of these competitors also have broader and more established
distribution channels that may be used to deliver competing products directly to
customers through bundling or other means. If competitors were to bundle
competing products with their products, the demand for our products might be
substantially reduced and the our ability to distribute our products
successfully would be substantially diminished.
Competitive factors in the Web application products market include:
- the quality and reliability of software;
- cost per user;
- application server scalability, availability and performance;
- productivity features for creating, editing and adapting content;
- ease of use and interactive user features;
- compatibility with the user's existing network components and software
systems; and
- interoperability with emerging Internet standards such as XML, Java, and
HTML.
To expand our customer base, we must continue to innovate and improve the
performance of our products. We anticipate that consolidation will continue in
the Web application products market and related markets such as computer
software, media and communications. Consequently, competitors may be acquired
by, receive investments from or enter into other commercial relationships with,
larger, well-established and well-financed companies.
INTELLECTUAL PROPERTY
Our success and competitiveness are dependent to a significant degree on
the protection of our proprietary technology. We rely primarily on a combination
of copyrights, trademarks, licenses, trade secret laws and restrictions on
disclosure to protect our intellectual property and trade secrets. We also enter
into confidentiality agreements with our employees and consultants, and
generally control access to and distribution of our documentation and other
proprietary information. Despite these precautions, it may be possible for a
third party to copy or otherwise attain and use our intellectual property or
trade secrets without authorization.
In addition, we rely in part on "shrinkwrap" and "clickwrap" licenses that
are not signed by the end user and, therefore, may be unenforceable under the
laws of some jurisdictions. Moreover, the laws of other countries in which we
market our products may afford us little or no effective protection of our
intellectual
11
<PAGE> 13
property. There can be no assurance that the precautions taken by us will
prevent misappropriation or infringement of our technology. In addition, there
can be no assurance that others will not independently develop substantially
equivalent intellectual property. Our failure to protect our intellectual
property in a meaningful manner could have a material adverse effect on our
business, operating results and financial condition.
In addition, the laws of some foreign countries do not protect our
proprietary rights to the same extent as do the laws of the United States, and
effective patent, copyright, trademark and trade secret protection may not be
available in such jurisdictions. We license some of our proprietary rights to
third parties, and there can be no assurance that such licensees will not fail
to abide by compliance and quality control guidelines with respect to such
proprietary rights or take actions that would materially adversely affect our
business, operating results and financial condition.
Litigation may be necessary in the future to enforce our intellectual
property rights, to protect our trade secrets or to determine the validity and
scope of the proprietary rights of others. This litigation, whether successful
or unsuccessful, could result in substantial costs and diversion of management
and technical resources, either of which could have a material adverse effect on
our business, operating results and financial condition.
We attempt to avoid infringing known proprietary rights of third parties in
our product development efforts. However, we have not conducted and do not
conduct comprehensive patent searches to determine whether the technology used
in our products infringes patents held by third parties. In addition, product
development is inherently uncertain in a rapidly evolving technological
environment in which there may be numerous patent applications pending, many of
them which are confidential when filed, with regard to similar technologies. If
we were to discover that one or more of our products violated third party
proprietary rights, there can be no assurance that we would be able to obtain
licenses to continue offering such products without substantial reengineering or
that any effort to undertake such reengineering would be successful, or that any
licenses would be available on commercially reasonable terms.
We pursue the registration of some of our trademarks and service marks in
the United States and in some other countries, although we have not secured
registration of all of our marks. We have registered United States trademarks
for "Cold Fusion" and a related design for "Bright Tiger". A significant portion
of our marks contain the word "Fusion", such as ColdFusion. We are aware of
other companies that use "Fusion" in their marks alone or in combination with
other words, and we do not expect to be able to prevent third party uses of the
word "Fusion" for competing goods and services. For example, NetObjects markets
its principal products for designing, building and updating Web sites under the
names "NetObjects Fusion" and "NetObjects Team Fusion."
We currently license technology from third parties that we incorporate into
our products. Examples include licenses for the following: visual editing
technology from Microsoft, security technology from Netegrity, and full-text
indexing and searching technology from Verity.
In addition, our current JRun product and much of our future product plans
depend on the availability, stability, and performance of the Java programming
language and the associated Java virtual machine as well as on the broad
adoption of Java by our customers. Sun Microsystems controls and maintains the
Java programming language and associated technologies. Java may fall out of
favor among developers, or Sun may not continue to make the Java virtual
machines available at commercially reasonable terms or at all. Furthermore, if
Sun were to make significant changes to the Java language or its Java virtual
machines, or fail to correct defects and limitations in these products, our
ability to continue to improve and ship our products could be impaired.
In light of the rapidly evolving nature of the Web platform and our
strategy to pursue industry partnerships to ensure our support of and by the
emerging platform, we will increasingly need to rely on technology that we
license from other vendors which is integrated with internally developed
software and used in our products to perform key functions.
12
<PAGE> 14
EMPLOYEES
As of December 31, 1999, Allaire had 270 employees, 238 of whom were based
at Allaire's headquarters in Cambridge, Massachusetts. None of Allaire's
employees is subject to a collective bargaining agreement. Allaire believes that
its relations with its employees are good.
ITEM 2. PROPERTIES
Allaire's headquarters is located in Cambridge, Massachusetts. The lease,
which covers approximately 54,000 square feet of space in Cambridge, expires in
March 2003. Allaire plans to move its headquarters from the Cambridge location
to Newton, Massachusetts in July 2000 and is seeking to terminate its Cambridge
lease or sublet the space thereafter. The Newton lease, which covers
approximately 270,000 square feet of space, expires in June 2010. Allaire also
leases office space in other cities for its sales and development personnel.
Allaire believes that these facilities are adequate to meet its current
foreseeable requirements or that suitable additional or substitute space will be
available on commercially reasonable terms.
ITEM 3. LEGAL PROCEEDINGS
From time to time Allaire has been, and expects to continue to be, subject
to legal proceedings and claims in the ordinary course of its business,
including claims of alleged infringement of third party trademarks and other
intellectual property rights by Allaire and its licensees. Such claims, even if
not meritorious, could result in the expenditure of significant financial and
managerial resources. Allaire is not aware of any legal proceedings or claims
that it believes will have, individually or in the aggregate, a material adverse
effect on its business, financial condition or results of operations.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
There were no matters submitted to a vote of security holders during the
fourth quarter of 1999.
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
The information required by this Item is incorporated by reference to page
48 of the Company's 1999 Annual Report to Shareholders.
ITEM 6. SELECTED CONSOLIDATED FINANCIAL DATA
The information required by this Item is incorporated by reference to page
20 of the Company's 1999 Annual Report to Shareholders.
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
The information required by this Item is incorporated by reference to pages
21-27 of the Company's 1999 Annual Report to Shareholders.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
Financial Statements:
The information required by this Item is incorporated by reference to pages
28-46 of the Company's 1999 Annual Report to Shareholders and the Report of
Independent Accountants on Financial Statement Schedule dated March 13, 2000 is
contained in this report.
13
<PAGE> 15
Financial Statement Schedule:
Schedule II -- Valuation and Qualifying Accounts is contained in this
report.
All other schedules are omitted because they are not applicable or the
required information is shown in the financial statements or notes thereto.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
None.
PART III
Certain information required by Part III is incorporated by reference in
this Annual Report on Form 10-K from the Company's definitive proxy statement
for its 2000 Annual Meeting of Stockholders to be filed pursuant to Regulation
14A (the "Proxy Statement").
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
The information required by this Item is incorporated by reference from the
Proxy Statement.
ITEM 11. EXECUTIVE COMPENSATION
The information required by this Item is incorporated by reference from the
Proxy Statement.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The information required by this Item is incorporated by reference from the
Proxy Statement.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The information required by this Item is incorporated by reference from the
Proxy Statement.
PART IV
ITEM 14. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) The following documents are filed as a part of this report:
1. Financial Statements: The financial statements filed as part of this
report are listed on the Index to Financial Statements included in Item
8 and are incorporated herein by reference.
2. Financial Statement Schedule: The financial statement schedule filed as
part of this report is included in Item 8 and is incorporated herein by
reference.
3. Exhibits
The following exhibits are filed as part of, or incorporated by reference
into, this Form 10-K
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT TITLE
- ------- -------------
<S> <C>
3.1 Amended and Restated Certificate of Incorporation (filed as
Exhibit 3.3 to the Company's Registration Statement on Form
S-1 (File No. 333-68639) and incorporated herein by
reference)
3.2 Certificate of Amendment of Amended and Restated Certificate
of Incorporation
3.3 Amended and Restated By-Laws of the Company (filed as
Exhibit 3.5 to the Company's Registration Statement on Form
S-1 (File No. 333-68639) and incorporated herein by
reference)
4.1 Specimen certificate for the Common Stock of Allaire(1)
10.1 1997 Stock Incentive Plan as amended(1)
</TABLE>
14
<PAGE> 16
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT TITLE
- ------- -------------
<S> <C>
10.2 1998 Stock Incentive Plan as amended
10.3 1998 Employee Stock Purchase Plan(1)
10.4 Option Agreement for David J. Orfao(1)
10.5 Form of Incentive Stock Option Agreement for other executive
officers
10.6 Office Lease Agreement between Allaire and One Alewife
Center Realty Trust, dated November 5, 1997(1)
10.7 Lease Agreement between Allaire and CambridgePark Two, L.P.,
dated May 21, 1998(1)
10.8 Loan and Security Agreement between Allaire and Silicon
Valley Bank, dated March 26, 1998(1)
10.9 Negative Pledge Agreement between Allaire and Silicon Valley
Bank, dated March 26, 1998(1)
10.10 Loan Modification Agreement between Allaire and Silicon
Valley Bank, dated August 6, 1998(1)
10.11 Loan Modification Agreement between Allaire and Silicon
Valley Bank, dated December 9, 1998(1)
10.12 Senior Loan and Security Agreement between Allaire and
Phoenix Leasing Incorporated, dated May 1, 1998(1)
10.15 Warrant Agreement between Allaire and Polaris Venture
Partners, L.P., dated March 7, 1997(1)
10.16 Warrant Agreement between Allaire and Polaris Venture
Partners Founders' Fund, L.P., dated March 7, 1997(1)
10.17 Amended and Restated Registration Rights Agreement, dated
May 15, 1997(1)
10.18 Waiver and Amendment No. 1 to Amended and Restated
Registration Rights Agreement, dated December 7, 1998(1)
10.19 Letter of Offer of Employment from Allaire to David J.
Orfao, dated December 23, 1996(1)
10.20 Contribution and Restricted Stock Purchase Agreement between
Allaire and Yesler Software, Inc., dated July 14, 1998(1)
10.21 Working Capital Line of Credit Letter from Polaris Ventures
Partners, L.P., and Polaris Venture Partners Founders' Fund,
L.P., dated December 4, 1998(1)
10.22 Agreement and Plan of Merger, dated as of April 2, 1999, by
and among Allaire, Bengal Acquisition Corp. and Bright Tiger
Technologies, Inc. (included as Exhibit 2.1 to Allaire's
Current Report on Form 8-K filed with the Securities and
Exchange Commission on April 27, 1999 and incorporated
herein by reference)
10.23 Lease Agreement between Allaire and EOP-Riverside Project,
L.L.C., dated November 23, 1999
10.24 Loan Modification Agreement between Allaire and Silicon
Valley Bank, dated November 30, 1999
11.1 Statement re computation of per share earnings
13.1 Pages 20-48 of the 1999 Annual Report to Shareholders of
Allaire Corporation
21.1 Subsidiaries of Allaire Corporation
23.1 Consent of PricewaterhouseCoopers LLP
27.1 Financial Data Schedules
99.1 Report of Independent Accountants on Financial Statement Schedule
</TABLE>
- ---------------
(1) Previously filed with the Securities and Exchange Commission as the
identically numbered exhibit to Allaire's Registration Statement on Form S-1
(File No. 333-68639) and incorporated herein by reference
(b) Reports on Form 8-K:
None.
15
<PAGE> 17
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned thereunto duly authorized.
ALLAIRE CORPORATION
By: /s/ DAVID J ORFAO
------------------------------------
David J. Orfao
President and Chief Executive
Officer
March 30, 2000
Pursuant to the requirements of the Securities Act of 1934, this report has
been signed below by the following persons on behalf of the registrant and in
the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ JOSEPH J. ALLAIRE Chairman of the Board March 30, 2000
- ------------------------------------
JOSEPH J. ALLAIRE
/s/ DAVID J. ORFAO President, Chief Executive Officer March 30, 2000
- ------------------------------------ and Director (principal executive
DAVID J. ORFAO officer)
/s/ DAVID A. GERTH Vice President, Finance and March 30, 2000
- ------------------------------------ Operations, Treasurer and Chief
DAVID A. GERTH Financial Officer (principal
financial and accounting officer)
/s/ JONATHAN A. FLINT Director March 30, 2000
- ------------------------------------
JONATHAN A. FLINT
/s/ JOHN J. GANNON Director March 30, 2000
- ------------------------------------
JOHN J. GANNON
/s/ THOMAS A HERRING Director March 30, 2000
- ------------------------------------
THOMAS A. HERRING
/s/ RONALD G. WARD Director March 30, 2000
- ------------------------------------
RONALD G. WARD
</TABLE>
16
<PAGE> 18
SCHEDULE II
VALUATION AND QUALIFYING ACCOUNTS
ALLOWANCE FOR DOUBTFUL ACCOUNTS AND SALES RETURNS
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-----------------------
1997 1998 1999
----- ----- -----
(IN THOUSANDS)
<S> <C> <C> <C>
Balance at beginning of period.............................. $220 $487 $502
Additions:
Charged to expense........................................ 164 61 233
Charged against other accounts............................ 165 56 63
Deductions:
Write-offs and returns.................................... (62) (102) (97)
---- ---- ----
Balance at end of period.................................... $487 $502 $701
==== ==== ====
</TABLE>
17
<PAGE> 1
EXHIBIT 3.2
CERTIFICATE OF AMENDMENT
OF
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
ALLAIRE CORPORATION
Allaire Corporation, a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware (the
"Corporation"), does hereby certify as follows:
FIRST: That by a unanimous written consent of the Board of Directors
dated as of January 26, 2000, resolutions were duly adopted
proposing and declaring advisable that the Amended and Restated
Certificate of Incorporation of the Corporation be amended and
that such amendment be submitted to the stockholders of the
Corporation for their consideration, as follows:
RESOLVED: To amend the Corporation's Amended and Restated
Certificate of Incorporation to increase the
number of authorized shares of the Corporation's
common stock, $.01 par value per share (the
"Common Stock"), from 35,000,000 to 100,000,000
(the "Charter Amendment");
RESOLVED: To call a special meeting of the stockholders of
the Corporation for the purposes of considering
the Charter Amendment and to recommend approval of
the Charter Amendment by the stockholders;
RESOLVED: That the officers of the Corporation be, and they
hereby are, and each of them hereby is,
authorized, for and on behalf of the Corporation
and in its name, to prepare, execute, seal,
deliver, filed and record any and all instruments,
documents and other papers, and to take any and
all other actions necessary, desirable or
convenient carry out the purposes of the foregoing
Resolutions.
SECOND: That the Charter Amendment was approved by stockholders holding a
majority of the issued and outstanding shares of the
Corporation's Common Stock at a meeting held on March 13, 2000.
1
<PAGE> 2
THIRD: That the Charter Amendment was duly adopted in accordance with
the applicable provisions of Section 242 of the General
Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, said Allaire Corporation. has caused this certificate
to be signed by David J. Orfao, its Chief Executive Officer, and attested by
Lori H. Freedman, its Secretary, this 13th day of March, 2000.
ATTEST: ALLAIRE CORPORATION
/s/ Lori H. Freedman By: /s/ David J. Orfao
- -------------------- ------------------
Lori H. Freedman David J. Orfao
Secretary Its: President and Chief Executive
Officer
2
<PAGE> 1
EXHIBIT 10.2
ALLAIRE CORPORATION
1998 STOCK INCENTIVE PLAN
(as amended effective March 13, 2000)
SECTION 1. GENERAL PURPOSE OF THE PLAN; DEFINITIONS
The name of the plan is the Allaire Corporation 1998 Stock Incentive Plan
(the "Plan"). The purpose of the Plan is to encourage and enable officers,
directors, and employees of Allaire Corporation (the "Company") and its
Subsidiaries and other persons to acquire a proprietary interest in the Company.
It is anticipated that providing such persons with a direct stake in the
Company's welfare will assure a closer identification of their interests with
those of the Company and its shareholders, thereby stimulating their efforts on
the Company's behalf and strengthening their desire to remain with the Company.
The following terms shall be defined as set forth below:
"Award" or "Awards", except where referring to a particular category of
grant under the Plan, shall include Incentive Stock Options, Non-Statutory Stock
Options, Restricted Stock Awards, Unrestricted Stock Awards, Performance Share
Awards and Stock Appreciation Rights.
"Board" means the Board of Directors of the Company.
"Cause" means (i) any material breach by the participant of any agreement
to which the participant and the Company are both parties, and (ii) any act or
omission justifying termination of the participant's employment for cause, as
determined by the Committee.
"Change of Control" shall have the meaning set forth in Section 15.
"Code" means the Internal Revenue Code of 1986, as amended, and any
successor Code, and related rules, regulations and interpretations.
"Conditioned Stock Award" means an Award granted pursuant to Section 6.
"Committee" shall have the meaning set forth in Section 2.
"Disability" means disability as set forth in Section 22(e)(3) of the Code.
"Effective Date" means the date on which the Plan is approved by
stockholders as set forth in Section 17.
"Eligible Person" shall have the meaning set forth in Section 4.
<PAGE> 2
"Fair Market Value" on any given date means the closing price per share of
the Stock on such date as reported by a nationally recognized stock exchange,
or, if the Stock is not listed on such an exchange, as reported by NASDAQ, or,
if the Stock is not quoted on NASDAQ, the fair market value of the Stock as
determined by the Committee.
"Incentive Stock Option" means any Stock Option designated and qualified as
an "incentive stock option" as defined in Section 422 of the Code.
"Non-Statutory Stock Option" means any Stock Option that is not an
Incentive Stock Option.
"Normal Retirement" means retirement from active employment with the
Company and its Subsidiaries in accordance with the retirement policies of the
Company and its Subsidiaries then in effect.
"Outside Director" means any director who (i) is not an employee of the
Company or of any "affiliated group," as such term is defined in Section 1504(a)
of the Code, which includes the Company (an "Affiliate"), (ii) is not a former
employee of the Company or any Affiliate who is receiving compensation for prior
services (other than benefits under a tax-qualified retirement plan) during the
Company's or any Affiliate's taxable year, (iii) has not been an officer of the
Company or any Affiliate and (iv) does not receive remuneration from the Company
or any Affiliate, either directly or indirectly, in any capacity other than as a
director. "Outside Director" shall be determined in accordance with Section
162(m) of the Code and the Treasury regulations issued thereunder.
"Option" or "Stock Option" means any option to purchase shares of Stock
granted pursuant to Section 5.
"Performance Share Award" means an Award granted pursuant to Section 8.
"Stock" means the Common Stock, $.01 par value per share, of the Company,
subject to adjustments pursuant to Section 3.
"Stock Appreciation Right" means an Award granted pursuant to Section 9.
"Subsidiary" means a subsidiary as defined in Section 424 of the Code.
"Unrestricted Stock Award" means Awards granted pursuant to Section 7.
SECTION 2. ADMINISTRATION OF PLAN; COMMITTEE AUTHORITY TO SELECT PARTICIPANTS
AND DETERMINE AWARDS.
-2-
<PAGE> 3
(a) Committee. The Plan shall be administered by a committee of the Board
(the "Committee") consisting of not less than two (2) Outside Directors, but the
authority and validity of any act taken or not taken by the Committee shall not
be affected if any person administering the Plan is not an "Outside Director."
Except as specifically reserved to the Board under the terms of the Plan, the
Committee shall have full and final authority to operate, manage and administer
the Plan on behalf of the Company. Action by the Committee shall require the
affirmative vote of a majority of all members thereof.
(b) Powers of Committee. The Committee shall have the power and authority
to grant and modify Awards consistent with the terms of the Plan, including the
power and authority:
(i) to select the persons to whom Awards may from time to time be
granted;
(ii) to determine the time or times of grant, and the extent, if any,
of Incentive Stock Options, Non-Statutory Stock Options, Restricted Stock,
Unrestricted Stock, Performance Shares and Stock Appreciation Rights, or
any combination of the foregoing, granted to any one or more participants;
(iii) to determine the number of shares to be covered by any Award;
(iv) to determine and modify the terms and conditions, including
restrictions, not inconsistent with the terms of the Plan, of any Award,
which terms and conditions may differ among individual Awards and
participants, and to approve the form of written instruments evidencing the
Awards; provided, however, that no such action shall adversely affect
rights under any outstanding Award without the participant's consent;
(v) to accelerate the exercisability or vesting of all or any portion
of any Award;
(vi) subject to the provisions of Section 5(a)(ii), to extend the
period in which any outstanding Stock Option or Stock Appreciation Right
may be exercised;
(vii) to determine whether, to what extent, and under what
circumstances Stock and other amounts payable with respect to an Award
shall be deferred either automatically or at the election of the
participant and whether and to what extent the Company shall pay or credit
amounts equal to interest (at rates determined by the Committee) or
dividends or deemed dividends on such deferrals; and
(viii) to adopt, alter and repeal such rules, guidelines and practices
for administration of the Plan and for its own acts and proceedings as it
shall deem advisable; to interpret the terms and provisions of the Plan and
any Award (including related written instruments); to make all
determinations it deems advisable for the administration of the Plan; to
decide all disputes arising in connection with the Plan; and to otherwise
supervise the administration of the Plan.
-3-
<PAGE> 4
All decisions and interpretations of the Committee shall be binding on all
persons, including the Company and Plan participants.
SECTION 3. SHARES ISSUABLE UNDER THE PLAN; MERGERS; SUBSTITUTION.
(a) Shares Issuable. The maximum number of shares of Stock with respect to
which Awards (including Stock Appreciation Rights) may be granted under the Plan
shall be eight million eight hundred thousand (8,800,000). For purposes of this
limitation, the shares of Stock underlying any Awards which are forfeited,
cancelled, reacquired by the Company or otherwise terminated (other than by
exercise) shall be added back to the shares of Stock with respect to which
Awards may be granted under the Plan so long as the participants to whom such
Awards had been previously granted received no benefits of ownership of the
underlying shares of Stock to which the Award related. Subject to such overall
limitation, any type or types of Award may be granted with respect to shares,
including Incentive Stock Options. Shares issued under the Plan may be
authorized but unissued shares or shares reacquired by the Company.
(b) Limitation on Awards. In no event may any Plan participant be granted
Awards (including Stock Appreciation Rights) with respect to more than one
million (1,000,000) shares of Stock in any calendar year. The number of shares
of Stock relating to an Award granted to a Plan participant in a calendar year
that is subsequently forfeited, cancelled or otherwise terminated shall continue
to count toward the foregoing limitation in such calendar year. In addition, if
the exercise price of an Award is subsequently reduced, the transaction shall be
deemed a cancellation of the original Award and the grant of a new one so that
both transactions shall count toward the maximum shares issuable in the calendar
year of each respective transaction.
(c) Stock Dividends, Mergers, etc. In the event that after approval of the
Plan by the stockholders of the Company in accordance with Section 17, the
Company effects a stock dividend, stock split or similar change in
capitalization affecting the Stock, the Committee shall make appropriate
adjustments in (i) the number and kind of shares of stock or securities with
respect to which Awards may thereafter be granted (including without limitation
the limitations set forth in Sections 3(a) and (b) above), (ii) the number and
kind of shares remaining subject to outstanding Awards, and (iii) the option or
purchase price in respect of such shares. In the event of any merger,
consolidation, dissolution or liquidation of the Company, the Committee in its
sole discretion may, as to any outstanding Awards, make such substitution or
adjustment in the aggregate number of shares reserved for issuance under the
Plan and in the number and purchase price (if any) of shares subject to such
Awards as it may determine and as may be permitted by the terms of such
transaction, or accelerate, amend or terminate such Awards upon such terms and
conditions as it shall provide (which, in the case of the termination of the
vested portion of any Award, shall require payment or other consideration which
the Committee deems equitable in the circumstances), subject, however, to the
provisions of Section 15.
(d) Substitute Awards. The Committee may grant Awards under the Plan in
substitution for stock and stock based awards held by employees of another
corporation who
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<PAGE> 5
concurrently become employees of the Company or a Subsidiary as the result of a
merger or consolidation of the employing corporation with the Company or a
Subsidiary or the acquisition by the Company or a Subsidiary of property or
stock of the employing corporation. The Committee may direct that the substitute
awards be granted on such terms and conditions as the Committee considers
appropriate in the circumstances. Shares which may be delivered under such
substitute awards may be in addition to the maximum number of shares provided
for in Section 3(a).
SECTION 4. ELIGIBILITY.
Awards may be granted to officers, directors, and employees of the Company
or its Subsidiaries ("Eligible Persons").
SECTION 5. STOCK OPTIONS.
The Committee may grant to Eligible Persons options to purchase stock.
Any Stock Option granted under the Plan shall be in such form as the
Committee may from time to time approve.
Stock Options granted under the Plan may be either Incentive Stock Options
or Non-Statutory Stock Options. Unless otherwise so designated, an Option shall
be a Non-Statutory Stock Option. To the extent that any option does not qualify
as an Incentive Stock Option, it shall constitute a Non-Statutory Stock Option.
No Incentive Stock Option shall be granted under the Plan after the tenth
anniversary of the earlier of (i) the date of adoption of the Plan by the Board,
or (ii) the date on which the Plan is approved by the stockholders as set forth
in Section 17.
The Committee in its discretion may determine the effective date of Stock
Options, provided, however, that grants of Incentive Stock Options shall be made
only to persons who are, on the effective date of the grant, employees of the
Company or any Subsidiary. Stock Options granted pursuant to this Section 5(a)
shall be subject to the following terms and conditions and the terms and
conditions of Section 13 and shall contain such additional terms and conditions,
not inconsistent with the terms of the Plan, as the Committee shall deem
desirable.
(a) Exercise Price. The exercise price per share for the Stock covered
by a Stock Option granted pursuant to this Section 5(a) shall be determined
by the Committee at the time of grant but shall be, in the case of
Incentive Stock Options, not less than one hundred percent (100%) of Fair
Market Value on the date of grant. If an employee owns or is deemed to own
(by reason of the attribution rules applicable under Section 424(d) of the
Code) more than ten percent (10%) of the combined voting power of all
classes of stock of the Company or any Subsidiary or parent corporation and
an Incentive Stock Option is
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<PAGE> 6
granted to such employee, the option price shall be not less than one
hundred ten percent (110%) of Fair Market Value on the grant date.
(b) Option Term. The term of each Stock Option shall be fixed by the
Committee, but no Incentive Stock Option shall be exercisable more than ten
(10) years after the date the option is granted. If an employee owns or is
deemed to own (by reason of the attribution rules of Section 424(d) of the
Code) more than ten percent (10%) of the combined voting power of all
classes of stock of the Company or any Subsidiary or parent corporation and
an Incentive Stock Option is granted to such employee, the term of such
option shall be no more than five (5) years from the date of grant.
(c) Exercisability; Rights of a Shareholder. Stock Options shall
become vested and exercisable at such time or times, whether or not in
installments, as shall be determined by the Committee at or after the grant
date. The Committee may at any time accelerate the exercisability of all or
any portion of any Stock Option. An optionee shall have the rights of a
shareholder only as to shares acquired upon the exercise of a Stock Option
and not as to unexercised Stock Options.
(d) Method of Exercise. Stock Options may be exercised in whole or in
part, by delivering written notice of exercise to the Company, specifying
the number of shares to be purchased. Payment of the purchase price may be
made by one or more of the following methods:
(i) In cash, by certified or bank check or other instrument
acceptable to the Committee;
(ii) In the form of shares of Stock that are not then subject to
restrictions, if permitted by the Committee, in its discretion. Such
surrendered shares shall be valued at Fair Market Value on the
exercise date; or
(iii) By the optionee delivering to the Company a properly
executed exercise notice together with irrevocable instructions to a
broker to promptly deliver to the Company cash or a check payable and
acceptable to the Company to pay the purchase price; provided that in
the event the optionee chooses to pay the purchase price as so
provided, the optionee and the broker shall comply with such
procedures and enter into such agreements of indemnity and other
agreements as the Committee shall prescribe as a condition of such
payment procedure. The Company need not act upon such exercise notice
until the Company receives full payment of the exercise price; or
(iv) By any other means (including, without limitation, by
delivery of a promissory note of the optionee payable on such terms as
are specified by the
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<PAGE> 7
Committee) which the Committee determines are consistent with the
purpose of the Plan and with applicable laws and regulations.
The delivery of certificates representing shares of Stock to be purchased
pursuant to the exercise of a Stock Option will be contingent upon receipt
from the Optionee (or a purchaser acting in his stead in accordance with
the provisions of the Stock Option) by the Company of the full purchase
price for such shares and the fulfillment of any other requirements
contained in the Stock Option or imposed by applicable law.
(e) Non-transferability of Options. Except as the Committee may
provide with respect to a Non-Statutory Stock Option, no Stock Option shall
be transferable other than by will or by the laws of descent and
distribution and all Stock Options shall be exercisable, during the
optionee's lifetime, only by the optionee.
(f) Annual Limit on Incentive Stock Options. To the extent required
for "incentive stock option" treatment under Section 422 of the Code, the
aggregate Fair Market Value (determined as of the time of grant) of the
Stock with respect to which incentive stock options granted under this Plan
and any other plan of the Company or its Subsidiaries become exercisable
for the first time by an optionee during any calendar year shall not exceed
$100,000.
(g) Form of Settlement. Shares of Stock issued upon exercise of a
Stock Option shall be free of all restrictions under the Plan, except as
otherwise provided in this Plan.
SECTION 6. RESTRICTED STOCK AWARDS.
(a) Nature of Restricted Stock Award. The Committee in its discretion may
grant Restricted Stock Awards to any Eligible Person, entitling the recipient to
acquire, for a purchase price determined by the Committee, shares of Stock
subject to such restrictions and conditions as the Committee may determine at
the time of grant ("Restricted Stock"), including continued employment and/or
achievement of pre-established performance goals and objectives.
(b) Acceptance of Award. A participant who is granted a Restricted Stock
Award shall have no rights with respect to such Award unless the participant
shall have accepted the Award within sixty (60) days (or such shorter date as
the Committee may specify) following the award date by making payment to the
Company of the specified purchase price, of the shares covered by the Award and
by executing and delivering to the Company a written instrument that sets forth
the terms and conditions applicable to the Restricted Stock in such form as the
Committee shall determine.
(c) Rights as a Shareholder. Upon complying with Section 6(b) above, a
participant shall have all the rights of a shareholder with respect to the
Restricted Stock, including voting and dividend rights, subject to
non-transferability restrictions and Company repurchase or forfeiture
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<PAGE> 8
rights described in this Section 6 and subject to such other conditions
contained in the written instrument evidencing the Restricted Award. Unless the
Committee shall otherwise determine, certificates evidencing shares of
Restricted Stock shall remain in the possession of the Company until such shares
are vested as provided in Section 6(e) below.
(d) Restrictions. Shares of Restricted Stock may not be sold, assigned,
transferred, pledged or otherwise encumbered or disposed of except as
specifically provided herein. In the event of termination of employment by the
Company and its Subsidiaries for any reason (including death, Disability, Normal
Retirement and for Cause), the Company shall have the right, at the discretion
of the Committee, to repurchase shares of Restricted Stock with respect to which
conditions have not lapsed at their purchase price, or to require forfeiture of
such shares to the Company if acquired at no cost, from the participant or the
participant's legal representative. The Company must exercise such right of
repurchase or forfeiture within ninety (90) days following such termination of
employment (unless otherwise specified in the written instrument evidencing the
Restricted Stock Award).
(e) Vesting of Restricted Stock. The Committee at the time of grant shall
specify the date or dates and/or the attainment of pre-established performance
goals, objectives and other conditions on which the non-transferability of the
Restricted Stock and the Company's right of repurchase or forfeiture shall
lapse. Subsequent to such date or dates and/or the attainment of such
preestablished performance goals, objectives and other conditions, the shares on
which all restrictions have lapsed shall no longer be Restricted Stock and shall
be deemed "vested." The Committee at any time may accelerate such date or dates
and otherwise waive or, subject to Section 13, amend any conditions of the
Award.
(f) Waiver, Deferral and Reinvestment of Dividends. The written instrument
evidencing the Restricted Stock Award may require or permit the immediate
payment, waiver, deferral or investment of dividends paid on the Restricted
Stock.
SECTION 7. UNRESTRICTED STOCK AWARDS.
(a) Grant or Sale of Unrestricted Stock. The Committee in its discretion
may grant or sell to any Eligible Person shares of Stock free of any
restrictions under the Plan ("Unrestricted Stock") at a purchase price
determined by the Committee. Shares of Unrestricted Stock may be granted or sold
as described in the preceding sentence in respect of past services or other
valid consideration.
(b) Restrictions on Transfers. The right to receive unrestricted Stock may
not be sold, assigned, transferred, pledged or otherwise encumbered, other than
by will or the laws of descent and distribution.
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<PAGE> 9
SECTION 8. PERFORMANCE SHARE AWARDS.
Nature of Performance Shares. A Performance Share Award is an award
entitling the recipient to acquire shares of Stock upon the attainment of
specified performance goals. The Committee may make Performance Share Awards
independent of or in connection with the granting of any other Award under the
Plan. Performance Share Awards may be granted under the Plan to any Eligible
Person. The Committee in its discretion shall determine whether and to whom
Performance Share Awards shall be made, the performance goals applicable under
each such Award, the periods during which performance is to be measured, and all
other limitations and conditions applicable to the awarded Performance Shares.
SECTION 9. STOCK APPRECIATION RIGHTS
The Committee in its discretion may grant Stock Appreciation Rights to any
Eligible Person (i) alone, or (ii) simultaneously with the grant of a Stock
Option and in conjunction therewith or in the alternative thereto. A Stock
Appreciation Right shall entitle the participant upon exercise thereof to
receive from the Company, upon written request to the Company at its principal
offices (the "Request"), a number of shares of Stock (with or without
restrictions as to substantial risk of forfeiture and transferability, as
determined by the Committee in its sole discretion), an amount of cash, or any
combination of Stock and cash, as specified in the Request (but subject to the
approval of the Committee in its sole discretion, at any time up to and
including the time of payment, as to the making of any cash payment), having an
aggregate Fair Market Value equal to the product of (i) the excess of Fair
Market Value, on the date of such Request, over the exercise price per share of
Stock specified in such Stock Appreciation Right or its related Option,
multiplied by (ii) the number of shares of Stock for which such Stock
Appreciation Right shall be exercised. Notwithstanding the foregoing, the
Committee may specify at the time of grant of any Stock Appreciation Right that
such Stock Appreciation Right may be exercisable solely for cash and not for
Stock.
SECTION 10. TERMINATION OF STOCK OPTIONS AND STOCK APPRECIATION RIGHTS.
(a) Incentive Stock Options:
(i) Termination by Death. If any participant's employment by the
Company and its Subsidiaries terminates by reason of death, any Incentive
Stock Option owned by such participant may thereafter be exercised to the
extent exercisable at the date of death, by the legal representative or
legatee of the participant, for a period of two (2) years (or such longer
period as the Committee shall specify at any time) from the date of death,
or until the expiration of the stated term of the Incentive Stock Option,
if earlier.
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<PAGE> 10
(ii) Termination by Reason of Disability or Normal Retirement.
(A) Any Incentive Stock Option held by a participant whose employment
by the Company and its Subsidiaries has terminated by reason of Disability
may thereafter be exercised, to the extent it was exercisable at the time
of such termination, for a period of one (1) year (or such longer period as
the Committee shall specify at any time) from the date of such termination
of employment, or until the expiration of the stated term of the Option, if
earlier.
(B) Any Incentive Stock Option held by a participant whose employment
by the Company and its Subsidiaries has terminated by reason of Normal
Retirement may thereafter be exercised, to the extent it was exercisable at
the time of such termination, for a period of ninety (90) days (or such
longer period as the Committee shall specify at any time) from the date of
such termination of employment, or until the expiration of the stated term
of the Option, if earlier.
(C) The Committee shall have sole authority and discretion to
determine whether a participant's employment has been terminated by reason
of Disability or Normal Retirement.
(D) Except as otherwise provided by the Committee at the time of
grant, the death of a participant during a period provided in this Section
10(b) for the exercise of an Incentive Stock Option shall extend such
period for two (2) years from the date of death, subject to termination on
the expiration of the stated term of the Option, if earlier.
(iii) Termination for Cause. If any participant's employment by the
Company and its Subsidiaries has been terminated for Cause, any Incentive
Stock Option held by such participant shall immediately terminate and be of
no further force and effect; provided, however, that the Committee may, in
its sole discretion, provide that such Option can be exercised for a period
of up to thirty (30) days from the date of termination of employment or
until the expiration of the stated term of the Option, if earlier.
(iv) Other Termination. Unless otherwise determined by the Committee,
if a participant's employment by the Company and its Subsidiaries
terminates for any reason other than death, Disability, Normal Retirement
or for Cause, any Incentive Stock Option held by such participant may
thereafter be exercised, to the extent it was exercisable on the date of
termination of employment, for ninety (90) days (or such longer period as
the Committee shall specify at any time) from the date of termination of
employment or until the expiration of the stated term of the Option, if
earlier.
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<PAGE> 11
(b) Non-Statutory Stock Options and Stock Appreciation Rights. Any
Non-Statutory Stock Option or Stock Appreciation Right granted under the Plan
shall contain such terms and conditions with respect to its termination as the
Committee, in its discretion, may from time to time determine.
SECTION 11. TAX WITHHOLDING.
(a) Payment by Participant. Each participant shall, no later than the date
as of which the value of an Award or of any Stock or other amounts received
thereunder first becomes includable in the gross income of the participant for
Federal income tax purposes, pay to the Company, or make arrangements
satisfactory to the Committee regarding payment of any Federal, state or local
taxes of any kind required by law to be withheld with respect to such income.
The Company and its Subsidiaries shall, to the extent permitted by law, have the
right to deduct any such taxes from any payment of any kind otherwise due to the
participant.
(b) Payment in Shares. A Participant may elect, with the consent of the
Committee, to have such tax withholding obligation satisfied, in whole or in
part, by (i) authorizing the Company to withhold from shares of Stock to be
issued pursuant to an Award a number of shares with an aggregate Fair Market
Value (as of the date the withholding is effected) that would satisfy the
withholding amount due with respect to such Award, or (ii) transferring to the
Company shares of Stock owned by the participant with an aggregate Fair Market
Value (as of the date the withholding is effected) that would satisfy the
withholding amount due.
SECTION 12. TRANSFER, LEAVE OF ABSENCE, ETC.
For purposes of the Plan, the following events shall not be deemed a
termination of employment:
(a) a transfer to the employment of the Company from a Subsidiary or from
the Company to a Subsidiary, or from one Subsidiary to another;
(b) an approved leave of absence for military service or sickness, or for
any other purpose approved by the Company, if the employee's right to
re-employment is guaranteed either by a statute or by contract or under the
policy pursuant to which the leave of absence was granted or if the Committee
otherwise so provides in writing.
SECTION 13. AMENDMENTS AND TERMINATION.
The Board may at any time amend or discontinue the Plan and the Committee
may at any time amend or cancel any outstanding Award (or provide substitute
Awards at the same or reduced exercise or purchase price or with no exercise or
purchase price, but such price, if any, must satisfy the requirements which
would apply to the substitute or amended Award if it were then initially granted
under this Plan) for the purpose of satisfying changes in law or for any other
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<PAGE> 12
lawful purpose, but no such action shall adversely affect rights under any
outstanding Award without the holder's consent. However, no such amendment,
unless approved by the stockholders of the Company, shall be effective if it
would cause the Plan to fail to satisfy the incentive stock option requirements
of the Code.
SECTION 14. STATUS OF PLAN.
With respect to the portion of any Award which has not been exercised and
any payments in cash, Stock or other consideration not received by a
participant, a participant shall have no rights greater than those of a general
creditor of the Company unless the Committee shall otherwise expressly determine
in connection with any Award or Awards. In its sole discretion, the Committee
may authorize the creation of trusts or other arrangements to meet the Company's
obligations to deliver Stock or make payments with respect to Awards hereunder,
provided that the existence of such trusts or other arrangements is consistent
with the provision of the foregoing sentence.
SECTION 15. CHANGE OF CONTROL PROVISIONS.
(a) Upon the occurrence of a Change of Control as defined in this Section
15:
(i) subject to the provisions of clause (iii) below, after the
effective date of such Change of Control, each holder of an outstanding
Stock Option, Restricted Stock Award, Performance Share Award or Stock
Appreciation Right shall be entitled, upon exercise of such Award, to
receive, in lieu of shares of Stock (or consideration based upon the Fair
Market Value of Stock), shares of such stock or other securities, cash or
property (or consideration based upon shares of such stock or other
securities, cash or property) as the holders of shares of Stock received in
connection with the Change of Control;
(ii) the Committee may accelerate the time for exercise of, and waive
all conditions and restrictions on, each unexercised and unexpired Stock
Option, Restricted Stock Award, Performance Share Award and Stock
Appreciation Right, effective upon a date prior or subsequent to the
effective date of such Change of Control, specified by the Committee; or
(iii) each outstanding Stock Option, Restricted Stock Award,
Performance Share Award and Stock Appreciation Right may be cancelled by
the Committee as of the effective date of any such Change of Control
provided that (x) notice of such cancellation shall be given to each holder
of such an Award and (y) each holder of such an Award shall have the right
to exercise such Award to the extent that the same is then exercisable or,
in full, if the Committee shall have accelerated the time for exercise of
all such unexercised and unexpired Awards, during the thirty (30) day
period preceding the effective date of such Change of Control.
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<PAGE> 13
(b) "Change of Control" shall mean the occurrence of any one of the
following events:
(i) any "person" (as such term is used in Sections 13(d) and 14(d)(2)
of the Act) becomes a "beneficial owner" (as such term is defined in Rule
13d-3 promulgated under the Act) (other than the Company, any trustee or
other fiduciary holding securities under an employee benefit plan of the
Company, or any corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same proportions as their
ownership of stock of the Company), directly or indirectly, of securities
of the Company representing fifty percent (50%) or more of the combined
voting power of the Company's then outstanding securities; or
(ii) the stockholders of the Company approve a merger or consolidation
of the Company with any other corporation or other entity, other than a
merger or consolidation which would result in the voting securities of the
Company outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into voting
securities of the surviving entity) more than sixty-five percent (65%) of
the combined voting power of the voting securities of the Company or such
surviving entity outstanding immediately after such merger or
consolidation; or
(iii) the stockholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or disposition by
the Company of all or substantially all of the Company's assets.
SECTION 16. GENERAL PROVISIONS.
(a) No Distribution; Compliance with Legal Requirements. The Committee may
require each person acquiring shares pursuant to an Award to represent to and
agree with the Company in writing that such person is acquiring the shares
without a view to distribution thereof.
No shares of Stock shall be issued pursuant to an Award until all
applicable securities laws and other legal and stock exchange requirements have
been satisfied. The Committee may require the placing of such stop orders and
restrictive legends on certificates for Stock and Awards as it deems
appropriate.
(b) Delivery of Stock Certificates. Delivery of stock certificates to
participants under this Plan shall be deemed effected for all purposes when the
Company or a stock transfer agent of the Company shall have delivered such
certificates in the United States mail, addressed to the participant, at the
participant's last known address on file with the Company.
(c) Other Compensation Arrangements; No Employment Rights. Nothing
contained in this Plan shall prevent the Board from adopting other or additional
compensation arrangements, including trusts, subject to stockholder approval if
such approval is required; and such
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<PAGE> 14
arrangements may be either generally applicable or applicable only in specific
cases. The adoption of the Plan or any Award under the Plan does not confer upon
any employee any right to continued employment with the Company or any
Subsidiary.
SECTION 17. EFFECTIVE DATE OF PLAN.
The Plan shall become effective upon approval by the holders of a majority
of the shares of capital stock of the Company present or represented and
entitled to vote at a meeting of stockholders.
SECTION 18. GOVERNING LAW.
This Plan shall be governed by, and construed and enforced in accordance
with, the substantive laws of the State of Delaware without regard to its
principles of conflicts of laws.
* * *
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<PAGE> 1
EXHIBIT 10.5
ALLAIRE CORPORATION
1998 STOCK INCENTIVE PLAN
INCENTIVE STOCK OPTION AGREEMENT
This is an INCENTIVE STOCK OPTION AGREEMENT between Allaire Corporation, a
Delaware corporation (the "Company"), and the optionee (the "Optionee")
identified on the Notice of Grant of Stock Options to which this Agreement is
attached and which is incorporated into this Agreement by reference (the
"Notice").
WHEREAS, the Company desires to carry out the purposes of the Allaire
Corporation 1998 Stock Incentive Plan (the "Plan") by affording the Optionee an
opportunity to purchase shares of Common Stock of the Company, par value $.01
per share ("Common Stock"), according to the terms set forth herein.
NOW THEREFORE, the parties hereto hereby agree as follows:
1. GRANT OF OPTION. Subject to the terms of the Plan, the Company
hereby grants to the Optionee the right and option (the "Option") to purchase
the number of shares of the Company's Common Stock specified in the Notice (the
"Shares") on the terms and conditions hereinafter set forth. Such Option is
intended by the Company and the Optionee to be an Incentive Stock Option as
defined in the Plan.
2. PURCHASE PRICE. The purchase price of each of the Shares subject
to the Option shall be the exercise price per share specified in the Notice,
which price has been specified in accordance with Section 5(a) of the Plan.
3. OPTION PERIOD.
(a) Subject to the provisions of Sections 5 and 6 of this
Agreement, the Option shall become exercisable as to the number of Shares
and on the dates specified in the exercise schedule in the Notice. The
exercise schedule shall be cumulative; thus, to the extent the Option has
not already been exercised and has not expired, terminated or been
canceled, the Optionee may at any time, and from time to time, purchase all
or any portion of the Shares then purchasable under the exercise schedule.
(b) The Option and all rights to purchase Shares thereunder
shall cease on the earliest of:
(i) the expiration date specified in the Notice (which date
shall not be more than ten years after the date of this
Agreement);
(ii) termination of the Optionee's employment for Cause (as
defined in the Plan);
(iii) the expiration of the period after the termination of
the Optionee's employment, other than a termination for
Cause, within which the Option is exercisable as specified
in Section 5(a) or 5(b) of this Agreement, whichever is
applicable; or
(iv) the date, if any, fixed for cancellation pursuant to
Section 6(b)(iii) of this Agreement.
Notwithstanding any other provision in this Agreement, in no event may anyone
exercise the Option, in whole or in part, after its original expiration date.
4. MANNER OF EXERCISING OPTION.
<PAGE> 2
(a) The Option may be exercised in whole or in part, by
delivering written notice of exercise to the Company, specifying the number
of shares to be purchased. Payment of the purchase price may be made by one
or more of the following methods:
(i) in cash, by certified or bank check or other instrument
acceptable to the committee under the Plan (the
"Committee"); or
(ii) in the form of shares of the Company's Common Stock
that are not then subject to restrictions, if permitted by
the Committee, in its discretion. Such surrendered shares
shall be valued at Fair Market Value (as defined in the
Plan) on the exercise date; or
(iii) by the Optionee delivering to the Company a properly
executed exercise notice together with irrevocable
instructions to a broker to promptly deliver to the Company
cash or a check payable and acceptable to the Company to pay
the purchase price; provided that in the event the Optionee
chooses to pay the purchase price as so provided, the
Optionee and the broker shall comply with such procedures
and enter into such agreements of indemnity and other
agreements as the Committee shall prescribe as a condition
of such payment procedure. The Company need not act upon
such exercise notice until the Company receives full payment
of the exercise price; or
(iv) by any other means, (including, without limitation, by
delivery of a promissory note of the Optionee, payable on
such terms as specified by the Committee) which the
Committee determines are consistent with the purpose of the
Plan and with applicable laws and regulations.
(b) The delivery of certificates representing shares of the
Company's Common Stock to be purchased pursuant to the exercise of the
Option will be contingent upon receipt by the Company of the full purchase
price for such shares from the Optionee or the Optionee's legal
representative, heirs or legatees and the fulfillment of any other
requirements contained in the Plan or imposed by applicable law.
5. EXERCISABILITY OF OPTION AFTER TERMINATION OF EMPLOYMENT.
(a) During the lifetime of the Optionee, the Option may be
exercised only while the Optionee is employed by the Company or a parent or
subsidiary thereof, and only if the Optionee has been continuously so
employed since the date of this Agreement, except that:
(i) the Option shall continue to be exercisable for three
months after termination of the Optionee's employment,
unless the Optionee's employment was terminated for Cause,
but only to the extent that the Option was exercisable
immediately prior to the Optionee's termination of
employment;
(ii) in the event the Optionee's employment terminates due
to Disability, the Optionee or his or her legal
representative may exercise the Option within one year after
the termination of the Optionee's employment;
(iii) in the event the Optionee's employment terminates due
to Normal Retirement, the Option shall continue to be
exercisable for three months after the date of such Normal
Retirement; and
(iv) if the Optionee's employment terminates after the
Committee notifies the Optionee pursuant to Section
6(b)(iii) of this Agreement that the Option shall be
canceled, the Optionee may exercise the Option at any time
permitted by Section 6(b)(iii).
2
<PAGE> 3
(b) In the event of the Optionee's death prior to expiration of
the Option, the legal representative, heirs or legatees of the Optionee's
estate or the personal who acquired the right to exercise the Option by
bequest or inheritance may exercise the Option within five years after the
death of the Optionee.
(c) Neither the transfer of the Optionee between any combination
of the Company, its parent and any subsidiary of the Company, nor a leave
of absence granted to the Optionee and approved by the Committee, shall be
deemed a termination of employment. The terms "parent" and "subsidiary" as
used herein shall have the meaning ascribed to "parent corporation" and
"subsidiary corporation," respectively in Sections 424(e) and (f) (or
successor provisions) of the Internal Revenue Code of 1986, as amended.
6. ACCELERATION OF OPTION.
(a) DEATH, DISABILITY OR RETIREMENT. If any of Sections
(5)(a)(ii), 5(a)(iii) or 5(b) of this Agreement is applicable, the Option,
whether or not previously exercisable, shall become immediately exercisable
in full if the Optionee shall have been employed continuously by the
Company or a parent or subsidiary thereof between the date the Option was
granted and the date of such Disability or Normal Retirement or, in the
event of death, a date not more than three months prior to such death.
(b) CHANGE OF CONTROL. In the event of a Change of Control (as
defined in the Plan):
(i) SUBSTITUTE OPTIONS. Subject to the provisions of clause
(iii) below, after the effective date of such Change of
Control, the Optionee shall be entitled, upon exercise of
the Option, to receive, in lieu of shares of the Company's
Common Stock (or consideration based upon the Fair Market
Value of the Company's Common Stock), shares of such stock
or other securities, cash or property (or consideration
based upon shares of such stock or other securities, cash or
property) as the holders of shares of the Company's Common
Stock received in connection with the Change of Control.
(ii) PARTIAL ACCELERATION. Notwithstanding any other
provision of this Section 6, fifty-percent (50%) of the
Shares which are not then exercisable shall become
exercisable upon the occurrence of a Change of Control if
the Optionee is an employee of the Company immediately
before the occurrence of the Change of Control and (A) the
Optionee's employment with the Company is terminated by the
Company (including any successor or parent resulting from
the Change in Control) without Cause within six (6) months
after the Change in Control, or (2) the Company (or
successor) does not offer the Optionee a Comparable Position
upon the Change in Control, or (3), if the Optionee is
offered and accepts a Comparable Position, the Optionee is
involuntarily removed from such position within six (6)
months after the Change in Control. For the purpose of this
Section 6(b), the term "Comparable Position" shall mean a
position of employment with the Company or its successor
following a Change of Control (or if the Company or its
successor has a Parent following a Change of Control, its
Parent) (X) with substantially the same or superior title,
responsibilities, base salary, opportunity for incentive
compensation, and eligibility for stock options or other
equity incentives as the Optionee had prior to the Change of
Control, and (Y) at a location within 50 miles of the
Optionee's location prior to the Change of Control, without
the Optionee's express prior written consent.
(iii) ACCELERATION OF VESTING AND NOTICE OF CANCELLATION.
The Committee may cancel the Option as of the effective date
of any such Change of Control provided that (x) all Shares
that have not yet become exercisable shall become
exercisable in full immediately prior to such Change of
Control, (y) notice of such cancellation shall be given to
the Optionee and
3
<PAGE> 4
(z) the Optionee shall have the right to exercise the
Option, including exercising Shares that became exercisable
pursuant to the acceleration provisions of clause (x) above.
(c) EARLY EXERCISE FOR RESTRICTED SHARES. The Optionee may
exercise the Option in accordance with this Section 6(c) for shares of the
Company's Common Stock prior to the date or dates upon which such shares
become exercisable under Section 3(a), and the exercise schedule in the
Notice shall be deemed to have been accelerated for such purpose, provided,
however, that in no event shall the Optionee be permitted pursuant to this
Section 6(c) to exercise in any calendar year more than the $100,000
Limitation Amount. For these purposes, the "$100,000 Limitation Amount"
shall mean the number of shares of the Company's Common Stock equal to (i)
$100,000 less the Prior Grant Amount divided by (ii) the exercise price per
share specified in the Notice; and the "Prior Grant Amount" shall mean the
number of shares of the Company's Common Stock becoming exercisable in such
calendar year pursuant to incentive stock options granted to the Holder by
the Company (or a company acquired by the Company) prior to the date this
Option was granted multiplied by the exercise price of such options. The
shares issued upon such early exercise shall be subject to the restrictions
set forth in this subsection, and are referred to in this subsection as the
"Restricted Shares."
(i) REVERSE VESTING. Restricted Shares purchased under this
Section 6(c) prior to the Option becoming exercisable shall
"vest" according to the same schedule (i.e., on the same
dates and in the same amounts) as such shares would have
become purchasable upon exercise of the Option had the
exercise schedule not been accelerated in accordance with
this Section 6(c). In addition, Restricted Shares shall be
subject to accelerated "vesting" as set forth in Section
6(a), Section 6(b)(ii) and Section 6(b)(iii) if applicable,
to the same extent as the exercisability of such shares
would have been accelerated had the exercise schedule not
been previously accelerated in accordance with this Section
6(c). Restricted Shares that are not vested shall be subject
to repurchase by the Company under Sections 6(c)(ii) and
6(c)(iii) below. As Restricted Shares become vested they
shall no longer be subject to repurchase by the Company.
(ii) COMPANY REPURCHASE RIGHTS. In the event of termination
of the Optionee's employment by the Company for any reason
(including death, Disability, Normal Retirement and for
Cause), the Company shall have the option to purchase all or
any part of the Restricted Shares that were not vested prior
to termination of the Optionee's employment (after taking
into effect any accelerated vesting pursuant to Section
6(a), Section 6(b)(ii) and Section 6(b)(iii)) at a per share
price equal to the purchase paid by the Optionee upon
exercise of the Option (subject to equitable adjustment for
any stock split, stock dividend or combination of the
Restricted Shares).
(iii) TERMS OF COMPANY PURCHASE. If the Company intends to
repurchase the Restricted Shares subject to repurchase, then
it shall, within sixty (60) days after termination of the
Optionee's employment, mail written notice of its intent to
repurchase the Restricted Shares and the number of
Restricted Shares to be repurchased to the Optionee's last
known address appearing in the personnel records of the
Company. If the Company has not mailed notice within that
period, the Restricted Shares will no longer be subject to
repurchase by the Company. Upon receipt from the Optionee of
the certificate for the Restricted Shares, duly endorsed in
blank or accompanied by a duly endorsed blank stock power
suitable for transferring the Shares to the Company, the
Company shall send to the Optionee (or his or her heir
legatee, representative or guardian) the purchase price for
the Restricted Shares and a certificate for the shares which
are not subject to repurchase or are not being repurchased
by the Company. The purchase price for the Restricted Shares
being repurchased may be payable by check, by cancellation
of all or a portion of any outstanding indebtedness of the
Optionee to the Company, or both. If the Company has not
received the certificate for the Restricted Shares by the
time the Company is prepared to pay the purchased price for
such shares, then the Company, at its option, may coincident
with the payment of the purchase price and/or cancellation
of debt, make appropriate entries in the
4
<PAGE> 5
records of the Company to effect the transfer of the
Restricted Shares to the Company free and clear of any liens
or encumbrances.
(iv) OPTIONEE REPRESENTATIONS. By exercising the shares
under this subsection 6(c), the Optionee represents that (i)
he or she is acquiring the Restricted Shares for investment
and not with a view to, or for resale in connection with,
any distribution thereof; (ii) the Restricted Shares are
"restricted securities" within the meaning of Rule 144
promulgated under the Securities Act of 1933, as amended
(the "Securities Act"), and that there is no assurance that
such Rule will apply to future resales of the Restricted
Shares; (iii) he or she will make no sale or other
distribution that would cause the Optionee to be deemed an
"underwriter" within the meaning of Section 2(11) of the
Securities Act; and (iv) he or she will make no sale,
pledge, transfer or other disposition of the Restricted
Shares received except in accordance with this Agreement
unless a registration statement with respect to the
Restricted Shares is then in effect under applicable federal
and state securities laws or unless he or she obtains an
opinion of counsel satisfactory to the Company that such
disposition may be effected without violation of applicable
federal or state securities laws.
(v) CERTIFICATES; LEGENDS. The certificates representing the
Restricted Shares will bear restrictive legends noting the
restrictions identified in the preceding clause, the
Company's repurchase rights and the restrictions on transfer
set forth in Section 7 of this Agreement.
7. LIMITATION ON TRANSFER. During the lifetime of the Optionee,
only the Optionee or his or her guardian or legal representative or
transferee of a transfer permitted by this Section may exercise the Option.
The Optionee shall not assign or transfer the Option or Restricted Shares
issued upon early exercise of the Option, except that the Optionee may
transfer the Option by will or the laws of descent and distribution. Any
attempt to assign, transfer, pledge, hypothecate or otherwise dispose of
the Option or any Restricted Shares contrary to the provisions hereof, and
the levy of any attachment or similar process upon the Option or any
Restricted Shares, shall be null and void.
8. SHAREHOLDER RIGHTS BEFORE EXERCISE. The Optionee shall have
none of the rights of a shareholder of the Company with respect to any
Share subject to the Option until the Share is actually issued to him or
her upon exercise of the Option.
9. ADJUSTMENTS. The Committee may in its sole discretion make
appropriate adjustments in the number of Shares subject to the Option and
in the purchase price per Share to give effect to any adjustments made in
the number of outstanding Shares of the Company through a merger or
consolidation (that is not a Change in Control) or a recapitalization,
stock dividend, stock split or other relevant change, provided that
fractional Shares shall be rounded to the nearest whole share.
10. DISQUALIFYING DISPOSITIONS. The Optionee agrees to notify
the Company in writing immediately after making a Disqualifying Disposition
of any shares of Common Stock received pursuant to the exercise of this
Option. A "Disqualifying Disposition" shall have the meaning specified in
Section 421(b) of the Internal Revenue Code of 1986, as amended, or any
successor provision. The Optionee also agrees to provide the Company with
any information that the Company shall request concerning any such
Disqualifying Disposition. The Optionee acknowledges that he or she will
forfeit the favorable income tax treatment otherwise available with respect
to the exercise of this Option if he or she makes a Disqualifying
Disposition of shares received upon exercise of this Option.
11. TAX WITHHOLDING. The Optionee agrees that if the Company in
its discretion determines that it is obligated to withhold tax with respect
to a Disqualifying Disposition of shares of Common Stock received upon
exercise of this Option, then the Company may withhold from the Optionee's
wages the appropriate amount of federal, state or local withholding taxes
attributable to such Disqualifying Disposition. If any portion of this
Option is treated as a Nonqualified Option (as defined in the Plan), the
Optionee hereby agrees that the Company may withhold from the Optionee's
wages the appropriate amount of federal, state and local withholding taxes
attributable to the Optionee's exercise of such Nonqualified Option. The
Optionee further agrees that, at the time he or she exercises the Option,
if the Company or a parent or subsidiary thereof is required to withhold
such taxes, he or she
5
<PAGE> 6
will promptly pay in cash upon demand to the Company, or the parent or
subsidiary having such obligation, such amounts as shall be necessary to
satisfy such obligation; provided, however, that in lieu of all or any part
of such a cash payment, the Board may, but shall not be required to, permit
the Optionee to elect to cover all or any part of the required
withholdings, and to cover any additional withholdings up to the amount
needed to cover the Optionee's full FICA and federal, state and local
income taxes with respect to income arising from the exercise of the
Option, through a reduction of the number of Shares delivered to the
Optionee.
12. LOCK UP AGREEMENT. Optionee agrees that, upon the request of
the Company or the managing underwriter(s) in connection with a
registration of shares of the Company's Common Stock pursuant to Section 12
of the Securities Exchange Act of 1934 (the "Exchange Act") for a period of
time (not to exceed 180 days) from the effective date of the Company's
registration under Section 12 of the Exchange Act, Optionee (or any
transferee permitted under this Agreement) shall not sell, make any short
sale of, loan, grant any option for the purchase of, or otherwise dispose
of any shares of the Company's Common Stock owned or controlled by it;
provided, however, that, at the time of the request, the Optionee is an
officer or a member of the board of directors of the Company or the
Optionee holds (assuming exercise of all options and warrants, and the
conversion of all convertible securities held by the Optionee, to the
extent then exercisable or convertible) an aggregate number of shares of
the Company's Common Stock (or equivalent) equal to at least one percent
(1%) of the total number of shares of the Company's Common Stock then
issued and outstanding.
13. INTERPRETATION OF THIS AGREEMENT. All decisions and
interpretations made by the Committee with regard to any question arising
hereunder or under the Plan shall be binding and conclusive upon the
Company and the Optionee. In the event that there is any inconsistency
between the provisions of this Agreement and the Plan, the provisions of
the Plan shall govern.
14. DISCONTINUANCE OF EMPLOYMENT. This Agreement shall not give
the Optionee a right to continued employment with the Company or any parent
or subsidiary thereof, and the Company or any such parent or subsidiary
thereof employing the Optionee may terminate his or her employment and
otherwise deal with the Optionee without regard to the effect it may have
upon him or her under this Agreement.
15. GENERAL. The Company shall at all times during the term of
this Option reserve and keep available such number of Shares as will be
sufficient to satisfy the requirements of this Agreement. This Agreement
shall be binding in all respects on the Optionee's heirs, representatives,
successors and assigns. This Agreement is entered into under the laws of
the State of Delaware, without regard to its principles of conflict of
laws, and shall be construed and interpreted thereunder.
6
<PAGE> 1
Exhibit 10.23
RIVERSIDE CENTER
NEWTON, MASSACHUSETTS
OFFICE LEASE AGREEMENT
BETWEEN
EOP-RIVERSIDE PROJECT, L.L.C, A DELAWARE LIMITED LIABILITY COMPANY
("LANDLORD")
AND
ALLAIRE CORPORATION, A CORPORATION ORGANIZED UNDER THE LAWS OF THE STATE OF
DELAWARE ("TENANT")
<PAGE> 2
TABLE OF CONTENTS
I. BASIC LEASE INFORMATION.....................................................1
II. LEASE GRANT................................................................4
III. ADJUSTMENT OF COMMENCEMENT DATE; POSSESSION...............................5
IV. RENT.......................................................................9
V. COMPLIANCE WITH LAWS; USE..................................................13
VI. SECURITY DEPOSIT..........................................................14
VII. SERVICES TO BE FURNISHED BY LANDLORD.....................................16
VIII. LEASEHOLD IMPROVEMENTS..................................................17
IX. REPAIRS AND ALTERATIONS...................................................17
X. USE OF ELECTRICAL SERVICES BY TENANT.......................................19
XI. ENTRY BY LANDLORD.........................................................19
XII. ASSIGNMENT AND SUBLETTING................................................20
XIII. LIENS...................................................................22
XIV. INDEMNITY AND WAIVER OF CLAIMS...........................................23
XV. INSURANCE.................................................................23
XVI. SUBROGATION..............................................................23
XVII. CASUALTY DAMAGE.........................................................24
XVIII. CONDEMNATION...........................................................25
XIX. EVENTS OF DEFAULT........................................................25
XX. REMEDIES..................................................................26
XXI. LIMITATION OF LIABILITY..................................................27
XXII. NO WAIVER...............................................................27
XXIII. QUIET ENJOYMENT.......................................................27
XXIV. RELOCATION..............................................................27
XXV. HOLDING OVER.............................................................27
XXVI. SUBORDINATION TO MORTGAGES; ESTOPPEL CERTIFICATE........................28
XXVII. ATTORNEYS'FEES.........................................................28
XXVIII. NOTICE................................................................28
XXIX.EXCEPTED RIGHTS..........................................................29
XXX. SURRENDER OF PREMISES....................................................29
XXXI. MISCELLANEOUS...........................................................29
XXXII.ENTIRE AGREEMENT........................................................32
EXHIBIT A - OUTLINE AND LOCATION OF FIRST FLOOR PREMISES OF ONE RIVERSIDE CENTER
EXHIBIT A-1 - OUTLINE AND LOCATION OF SECOND FLOOR PREMISES OF ONE RIVERSIDE
CENTER
EXHIBIT A-2 - OUTLINE AND LOCATION OF THIRD FLOOR PREMISES OF ONE RIVERSIDE
CENTER
EXHIBIT A-3 - OUTLINE AND LOCATION OF FIRST FLOOR PREMISES OF TWO RIVERSIDE
CENTER
EXHIBIT A-4 - OUTLINE AND LOCATION OF SECOND FLOOR PREMISES OF TWO RIVERSIDE
CENTER
EXHIBIT B - RULES AND REGULATIONS
EXHIBIT C - COMMENCEMENT LETTER
EXHIBIT D - WORK LETTER
EXHIBIT E - ADDITIONAL TERMS AND CONDITIONS
EXHIBIT F - NOTICE OF LEASE
EXHIBIT G - LEGAL DESCRIPTION OF PROPERTY
EXHIBIT H - BUILDING PLAN
EXHIBIT I - SAMPLE LETTER OF CREDIT
EXHIBIT J - FORM OF NON-DISTURBANCE AGREEMENT
EXHIBIT K - LOCATION OF PARKING STRUCTURE SIGN
i
<PAGE> 3
EXHIBIT L - LOCATION OF ONE RIVERSIDE CENTER SIGN
EXHIBIT M - BASE BUILDING SCOPE
EXHIBIT N - SAMPLE CLEANING SPECIFICATIONS
EXHIBIT O - ENTRY SIGNAGE
EXHIBIT P - FIRST EXPANSION SPACE
ii
<PAGE> 4
OFFICE LEASE AGREEMENT
This Office Lease Agreement (the "Lease") is made and entered into as of
the 23rd day of November, 1999, by and between EOP-RIVERSIDE PROJECT, L.L.C, A
DELAWARE LIMITED LIABILITY COMPANY ("Landlord") and ALLAIRE CORPORATION, A
CORPORATION ORGANIZED UNDER THE LAWS OF THE STATE OF DELAWARE ("Tenant").
I. BASIC LEASE INFORMATION.
A. "Building" shall mean the building to be constructed on the land
described in EXHIBIT G attached hereto, commonly known as Riverside
Center, and having an address of 275 Grove Street, Newton, MA.
Landlord and Tenant acknowledge that: (i) the "Building", as defined
herein, consists of three (3) buildings commonly known as One
Riverside Center, Two Riverside Center and Three Riverside Center, and
(ii) the Premises (hereinafter defined) are located entirely in One
Riverside Center and Two Riverside Center. A copy of a plan showing
the Building and the location of One Riverside Center and Two
Riverside Center within the Building is attached hereto as EXHIBIT H.
B. "Rentable Square Footage of the Building" is deemed to be 494,710
square feet.
C. "Premises" shall mean the area shown on EXHIBITS A, A-1, A-2, A-3 AND
A-4 to this Lease and identified as Suites #1-100, 1-200, 1-300,
2-100, and 2-200. The Premises are located on floors one (1), two (2)
and three (3) of One Riverside Center and floors one (1) and two (2)
of Two Riverside Center. The "Rentable Square Footage of the Premises"
is deemed to be approximately 270,446 square feet, consisting of
223,300 square feet in One Riverside Center (sometimes referred to as
the "One Riverside Center Premises") and 47,146 square feet in Two
Riverside Center (sometimes referred to as the "Two Riverside Center
Premises"). Tenant acknowledges that Landlord has not yet determined
the exact location of the building management office on the first
floor of Two Riverside Center and, as such, EXHIBIT A-3 shows the
approximate location of the portion of the Two Riverside Center
Premises that is located on the first floor of Two Riverside Center.
Landlord and Tenant will work together in good faith to agree upon the
exact location of the management office and, accordingly, the portion
of the Two Riverside Center Premises on the first floor of Two
Riverside Center by no later than December 15, 1999; provided that:
(i) the management office will be located in either the southwesterly
or northeasterly corners of the first floor of Two Riverside Center;
and (ii) in no event shall the management office be located so as to
segregate Tenant's space on the first floor of Two Riverside Center,
it being agreed that Tenant's space on the first floor shall be
demised as one contiguous parcel of space. In the event that Landlord
and Tenant do not agree on the location of the management office by
December 15, 1999, Tenant shall have the right to designate the
location of the Two Riverside Premises on the first floor of Two
Riverside Center and the management office in either the southwesterly
corner or northeasterly corner. All corridors and restroom facilities
located on floors one, two and three of One Riverside Center, floor
two of Two Riverside Center and any other floors leased by Tenant in
their entirety shall be considered part of the Premises. The total
Rentable Square Footage of the Premises and of the Building has been
determined from the approved permit set of construction drawings,
without field measurement, based upon the 1996 BOMA standard of
measurement. Notwithstanding the foregoing, Landlord, at its sole cost
and expense within six (6) months following the Substantial Completion
(hereinafter defined) of the Base Building Work (hereinafter defined),
shall cause the Rentable Square Footage of the Premises, the Rentable
Square Footage of the Building and the Rentable Square Footage of the
First Expansion Space (defined in Section IV of Exhibit E) to be field
measured by an architect retained by Landlord. If, as a result of such
field measurement, it is determined that the Rentable Square Footage
of the Premises, First Expansion Space or the Rentable Square Footage
of the Building has been misstated by more than 1%, Landlord and
Tenant shall promptly enter into an amendment to this Lease to restate
the Rentable Square Footage of the Building, First Expansion Space,
and/or the Rentable Square Footage of the Premises, as the case may
be, to reflect the actual square footage pursuant to the field
measurement. If such field measurement does not disclose a variance of
1% or more, any variance that is disclosed shall be considered by
Landlord and Tenant to be immaterial and shall not result in an
amendment of the Rentable Square Footage of the Building, First
Expansion Space, and/or the Rentable Square Footage of the Premises,
as the case may be. Landlord and Tenant acknowledge that the amendment
of the Rentable Square Footage of the Premises will affect the Base
Rent, Allowance (hereinafter defined) and the Architectural and
Engineering Allowance (hereinafter defined), as such amounts are
determined on a "per
1
<PAGE> 5
square foot" basis. Landlord and Tenant further acknowledge that the
amendment of either the Rentable Square Footage of the Premises or the
Rentable Square Footage of the Building will affect Tenant's Pro Rata
Share (as hereinafter defined).
D. "Base Rent" shall mean the following with respect to the One Riverside
Center Premises and the Two Riverside Center Premises:
Base Rent Schedule for the One Riverside Center Premises
--------------------------------------------------------
<TABLE>
<CAPTION>
ANNUAL RATE ANNUAL MONTHLY
PERIOD PER SQUARE FOOT BASE RENT BASE RENT
------ --------------- --------- ---------
<S> <C> <C> <C>
Months 1-6 $32.50 $4,773,632.52 $397,802.71
Months 7-15 $32.50 $6,015,457.52 $501,288.13
Months 16-60 $32.50 $7,257,249.96 $604,770.83
Months 61-120 $32.50 $7,927,149.96 $660,595.83
</TABLE>
Landlord and Tenant acknowledge that, notwithstanding the Rentable
Square Footage of the One Riverside Center Premises, the foregoing
schedule of Base Rent has been calculated based upon 146,881 rentable
square feet with respect to months 1 - 6 of the Term and upon 185,091
rentable square feet with respect to months 7 - 15 of the Term. Tenant
shall be required to pay Base Rent based upon such reduced square
footage amounts regardless of whether Tenant occupies more or less
square footage of the One Riverside Center Premises during such
period.
Base Rent Schedule for the Two Riverside Center Premises
--------------------------------------------------------
<TABLE>
<CAPTION>
ANNUAL RATE ANNUAL MONTHLY
PERIOD PER SQUARE FOOT BASE RENT BASE RENT
------ --------------- --------- ---------
<S> <C> <C> <C>
Months 1-60 $34.00 $1,602,963.96 $133,580.33
Months 61-Termination Date $36.00 $1,697,256.00 $141,438.00
</TABLE>
In the event the Rentable Square Footage of the Premises is adjusted
pursuant to Section I.C. above, the foregoing square footage amounts
shall be adjusted up or down by the same percentage as the adjustment
of the overall Premises. The schedule of Base Rent shall also be
adjusted based upon the new square footage calculations. In the event
that the Term does not commence on the first day of a calendar month,
the schedule of Base Rent shall be deemed to reflect lease months, as
opposed to calendar months, provided, however, payments of Base Rent
shall be made on a calendar month basis. For example, if the
Commencement Date occurs on July 15, 2000, the first lease month shall
reflect the period of July 15, 2000 through August 14, 2000. In the
event that Base Rent adjusts on a day other than the first day of a
calendar month, the total monthly Base Rent for such month shall
reflect a blended rate based upon the number of days in such calendar
month during which each rate (or square footage) is in effect.
Notwithstanding the foregoing, Base Rent shall always be payable on or
before the first day of each calendar month.
E. "Tenant's Pro Rata Share": 54.6676%, subject to adjustment as provided
in this Lease.
F. "Tax Base Year" shall be the Fiscal Year 2001 (i.e. July 1, 2000
through June 30, 2001). For purposes hereof, the term "Fiscal Year"
shall mean the Tax Base Year and every subsequent period of July 1st
through June 30th. The "Expense Base Year" shall be the period
beginning on the Commencement Date and ending on the day prior to the
first anniversary of the Commencement Date. For example, if the
Commencement Date occurs on July 15, 2000, the Expense Base Year shall
mean the period beginning on July 15, 2000 and ending on July 14,
2001. Expenses for the Expense Base Year and subsequent years shall be
adjusted to reflect 95% occupancy in accordance with the terms and
conditions of Section IV.C.
2
<PAGE> 6
G. "Term" shall mean the following with respect to the One Riverside
Center Premises and the Two Riverside Center Premises:
Term for the One Riverside Center Premises
------------------------------------------
A period of 120 months, as the same may be extended in accordance with
the terms hereof. The "Term" for the One Riverside Center Premises
shall commence on the later to occur of (1) July 1, 2000 (the "Target
Commencement Date"); or (2) the date upon which Landlord Work in the
One Riverside Premises is "Substantially Complete", as such date is
determined pursuant to Section III.A. hereof (such date being referred
to as the date of "Substantial Completion"); or (3) the date on which
Landlord delivers full possession of the One Riverside Center Premises
to Tenant (the later to occur of such dates being defined as the
"Commencement Date"). The "Termination Date" shall, unless sooner
terminated as provided herein, mean the last day of the Term as the
same may be extended as provided herein.
Term for the Two Riverside Center Premises
------------------------------------------
A period of months, days and years, as the same may be extended in
accordance with the terms hereof, commencing on the Two Riverside
Center Premises Commencement Date (hereinafter defined) and ending on
the Termination Date as determined above with respect to the One
Riverside Center Premises, it being agreed that the entire Premises
(i.e. the One Riverside Center Premises and Two Riverside Center
Premises) shall always expire on the same date. The "Two Riverside
Center Premises Commencement Date" shall occur on the later to occur
of (1) August 1, 2000 (the "Two Riverside Center Target Commencement
Date"); or (2) the date upon which Landlord Work in the Two Riverside
Premises is "Substantially Complete", as such date is determined
pursuant to Section III.A. hereof (such date being referred to as the
date of "Substantial Completion"); (3) the date on which Landlord
delivers full possession of the Two Riverside Center Premises to
Tenant; or (4) the Commencement Date with respect to the One Riverside
Center Premises. Landlord and Tenant acknowledge that the defined
terms of "Substantially Complete" and "Substantial Completion" shall
have the same meaning, but shall be applied separately, with respect
to the One Riverside Center Premises and the Two Riverside Center
Premises.
Except as provided elsewhere in this Lease to the contrary, the
adjustment of the Commencement Date and, accordingly, the postponement
of Tenant's obligation to pay Rent shall be Tenant's sole remedy and
shall constitute full settlement of all claims that Tenant might
otherwise have against Landlord by reason of the Landlord Work in the
One Riverside Center Premises not being Substantially Complete on the
Target Commencement Date or the Two Riverside Center Premises not be
Substantially Complete on the Two Riverside Premises Target
Commencement Date. Landlord, in accordance with Section III.A. below,
shall provide Tenant with notice of the date on which Landlord
reasonably estimates that the Landlord Work will be Substantially
Complete (as defined in Section III.A herein) in the One Riverside
Center Premises and the Two Riverside Center Premises. Promptly after
the determination of the Commencement Date and the Two Riverside
Center Premises Commencement Date, Landlord and Tenant shall enter
into a commencement letter agreement in the form attached as EXHIBIT
C.
H. Tenant allowances: An Allowance (defined in Exhibit D) of Six Million
Seven Hundred Sixty-One Thousand One Hundred Fifty and 00/100 Dollars
($6,761,150.00) to be applied toward the cost of the Landlord Work and
an Architectural and Engineering Allowance (defined in Exhibit D) of
$540,892.00 to be applied toward the cost of preparing Plans (defined
in Exhibit D) for the Landlord Work.
I. "Security Deposit": Initially $8,477,000.00. Fifty percent (50%) of
the Security Deposit (i.e. $4,238,500.00) shall be due and payable
upon the execution of this Lease by Tenant. The remaining fifty
percent (50%) of the Security Deposit (i.e. $4,238,500.00) shall be
payable during the performance of the Landlord Work in accordance with
the terms and conditions of Article VI. The Security Deposit shall be
subject to increase and decrease in accordance with the terms and
conditions of Article VI.
J. "Guarantor(s)": None.
K. "Broker(s)": Spaulding & Slye.
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L. "Permitted Use": General office use.
M. "Notice Addresses":
Tenant:
On and after the Commencement Date, notices shall be sent to Tenant at
the Premises, Attention: General Counsel. Prior to the Commencement
Date, notices shall be sent to Tenant at the following address:
Allaire Corporation
One Alewife Center
Third Floor
Cambridge, Massachusetts 02140
Attention: General Counsel
Phone #: 617.761.2260
Fax #: 617.761.2201
A copy of any notices of default shall be sent to:
Foley, Hoag & Eliot LLP
One Post Office Square
Boston, MA 02109
Attention: Robert L. Birnbaum, Esq.
Phone #: 617.832.1000
Fax #: 617.832.7000
Landlord: With a copy to:
Wellesley Office Park Equity Office Properties
c/o Equity Office Properties Two North Riverside Plaza
65 William Street Suite 2200
Wellesley, MA 02181 Chicago, Illinois 60606
Attention: Building Manager Attention: Northeast Regional
Counsel
Rent (defined in Section IV.A) is payable to the order of EQUITY
OFFICE PROPERTIES at the following address:
EOP Operating Limited Partnership, as agent
P.O. Box 30162
Hartford, CT 06150-0162
N. "Business Day(s)" are Monday through Friday of each week, exclusive of
New Year's Day, Memorial Day, Independence Day, Labor Day,
Thanksgiving Day and Christmas Day ("Holidays"). Landlord may
designate additional Holidays, provided that the additional Holidays
are commonly recognized by other office buildings in the area where
the Building is located.
O. "Landlord Work" means the work that Landlord is obligated to perform
in the Premises pursuant to the work letter agreement (the "Work
Letter") attached as EXHIBIT D.
P. "Law(s)" means all applicable statutes, codes, ordinances, orders,
rules and regulations of any municipal or governmental entity.
Q. "Normal Business Hours" for the Building are 8 A.M. to 6 P.M. on
Business Days and 8 A.M. to 1 P.M. on Saturdays.
R. "Property" means the Building and the parcel of land on which it is
located described in EXHIBIT G.
S. "Base Building Work" shall mean the work that Landlord is obligated to
perform as described in the Base Building Scope attached as EXHIBIT M.
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II. LEASE GRANT.
Landlord leases the Premises to Tenant and Tenant leases the Premises from
Landlord, together with the right in common with others to use any portions of
the Building and Property that are designated by Landlord for the common use of
tenants and others, such as sidewalks, common corridors, elevator foyers, and
other portions of the Building and Property that reasonably necessary for access
to the Building and the Premises; unreserved parking areas; restrooms; and
vending areas (the "Common Areas").
III. ADJUSTMENT OF COMMENCEMENT DATE; POSSESSION.
A. The Landlord Work with respect to each of the One Riverside Center
Premises and the Two Riverside Center Premises shall be deemed to be
"Substantially Complete" on the date that all of the following
conditions have been satisfied (or would have been satisfied absent
any Tenant Delays [hereinafter defined]): (i) All of the Landlord's
Work with respect to the One Riverside Center Premises or the Two
Riverside Center Premises (as the case may be) has been performed (as
evidenced by Landlord's architect's certificate of substantial
completion as hereinbelow provided), other than any minor details of
construction, mechanical adjustment or any other matter, the
noncompletion of which does not materially interfere with Tenant's use
and occupancy of the One Riverside Center Premises or the Two
Riverside Center Premises (as the case may be) as more particularly
set forth below and in Section III.C. below ("Punchlist Items").
Landlord acknowledges that the construction of demising walls, and
installation of glass partitions, doors and carpet and the completion
of other work that is necessary to allow Tenant to install its
furniture and equipment in the One Riverside Center Premises or the
Two Riverside Center Premises (as the case may be) shall not be
considered to be Punchlist Items but shall be considered conditions
precedent to Substantial Completion; (ii) Landlord has received a
temporary or permanent (non-conditional) certificate of occupancy with
respect to the One Riverside Center Premises or the Two Riverside
Center Premises (as the case may be), (iii) the Base Building Work in
One Riverside Center or Two Riverside Center (as the case may be) and
a means of safe ingress and egress and all facilities reasonably
necessary to Tenant's use and occupancy of the One Riverside Center
Premises or the Two Riverside Center Premises (as the case may be),
including corridors, elevators and stairways, heating, ventilating,
air-conditioning, fire/life safety, Building security systems,
sanitary, water, electrical, lighting, telephone and data to the
demarcation room (ready for connection to Tenant's internal system)
and power facilities, have been installed and are in good operating
order and available to Tenant in accordance with Landlord's
obligations under the Lease; (iv) the ground floor lobby in the
Building has been substantially completed, subject to Punchlist Items,
and lobby furniture shall have been installed, (v) there is adequate
parking available to provide Tenant parking spaces at the Property
based on a ratio of 3 spaces for each 1000 rentable square feet of
Premises, (vi) a cafeteria or other food service provider is open for
business in the Building, (vii) workout facilities are open for use in
the Building, and (viii) parking lot and outdoor lighting is installed
and operational. If Landlord has not obtained a permanent
non-conditional certificate of occupancy as of the Commencement Date,
Landlord will obtain the same within a reasonable time after the
Commencement Date.
From time to time upon request by Tenant or Tenant's designated
representative, Landlord shall advise Tenant of the progress of the
Landlord Work and Base Building Work in the Premises and the
approximate date on which Landlord Work with respect to each portion
of the Premises will be Substantially Complete. In addition, whether
or not Tenant requests the same, Landlord will use reasonable efforts
to provide Tenant with at least 30 days prior notice of the date on
which Landlord reasonably believes the Landlord Work will be
Substantially Complete; provided that Landlord's failure to provide
such notice shall not be a default by Landlord or postpone the
Commencement Date or the Two Riverside Center Premises Commencement
Date (as the case may be). Tenant acknowledges that any such estimate
by Landlord shall not be binding on Landlord and shall not be
construed as anything more than a good faith estimate based upon the
circumstances known to Landlord at such time.
B. Notwithstanding anything herein to the contrary, if Landlord is
delayed in the performance of the Landlord Work as a result of any
Tenant Delay(s) (defined below), the Landlord Work shall be deemed to
be Substantially Complete on the date that Landlord could reasonably
have been expected to Substantially Complete the Landlord Work absent
any Tenant Delay, calculated by determining the actual number of days
that Substantial Completion of the Landlord Work was delayed by such
Tenant Delay(s).
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Landlord agrees to provide Tenant with written notice of any Tenant
Delay(s) as soon as reasonably possible after Landlord first becomes
aware of such Tenant Delay(s), which notice shall include reasonable
detail describing the cause of the Tenant Delay and, to the extent the
same can reasonably be determined at such time (e.g. a long lead time
item or changes to plans), Landlord's good faith estimate of the
length of the Tenant Delay. For purposes hereof, the term "Tenant
Delay" shall mean
1. Tenant's failure to furnish information in accordance with the
Work Letter or to respond to any reasonable request by Landlord
for any approval or information within any time period
prescribed, or if no time period is prescribed, then within five
(5) Business Days of such request, provided that a "Tenant Delay"
shall not be deemed to have occurred unless Tenant's failure to
respond or furnish information continues for one (1) additional
Business Day after written notice of such failure is given to
Tenant, which written notice may be delivered by messenger or
other form of personal delivery; or
2. Subject to the provisions of the Work Letter, Tenant's selection
of equipment or materials that have long lead times after first
being informed by Landlord that the selection may result in a
Tenant Delay, it being agreed that Landlord will use reasonable
efforts to identify and order such items as soon as possible
after receipt of Tenant's Design Development Plans (as defined in
the Work Letter). Notwithstanding the foregoing, if specific
materials for the Landlord Work are unavailable and there are no
reasonable substitutes available for such materials, such
circumstance shall be considered to be an event of Force Majeure,
and not a Tenant Delay. Aesthetics shall not be taken into
consideration in determining whether a particular item is
available without reasonable substitute, it being agreed that
such decision shall be made solely on the basis of functionality;
or
3. Tenant's failure to complete Plans (defined in the Work Letter)
by their respective due dates pursuant to the terms and
conditions of the Work Letter, or any changes to the Plans that
are requested by Tenant after approval of the Plans by Landlord;
or
4. Subject to subsection III.D. below, the performance of work in
the Premises (e.g. the installation of cabling, furniture and
equipment) by persons or entities employed by Tenant (all such
work and such persons or entities being subject to the prior
reasonable approval of Landlord) to the extent that the same
materially interferes with the completion of Landlord Work or
Base Building Work; or
5. Any delays caused by (i) an uncured Monetary Default (as defined
in Section XIX) by Tenant, including, without limitation,
Tenant's failure to provide Landlord with the Security Deposit,
or (ii) the voluntary or involuntary bankruptcy of Tenant; or
6. Subject to subsection III.D. below, any delay resulting from
Tenant's having taken possession of the Premises in accordance
with Section III.D. below prior to substantial completion of the
Landlord Work, which delay continues for one (1) Business Day
after Landlord provides Tenant with written notice of such delay,
which written notice may be delivered by messenger or other form
of personal delivery.
C. Subject to (i) Substantial Completion of the Landlord Work, (ii) the
correction of Punchlist Items set forth on a punch list mutually
prepared by Landlord and Tenant promptly following Substantial
Completion of the Landlord Work, (iii) latent defects, and (iv)
necessary corrections and adjustments to seasonal items such as
heating and air conditioning that are not readily discoverable by
Tenant on or about the date of Substantial Completion, by taking
possession of the One Riverside Center Premises or the Two Riverside
Center Premises (as the case may be) for the purpose of operating its
business therein, Tenant is deemed to have accepted such portion of
the Premises and agreed that such portion of the Premises is in good
order and satisfactory condition, with no representation or warranty
by Landlord as to the condition of such portion of the Premises or the
Building or suitability thereof for Tenant's use. Tenant shall be
liable for all costs necessary to correct damage caused by Tenant in
moving and installing its furniture, equipment or other personal
property in the Premises. Notwithstanding anything herein to the
contrary, Landlord's obligation to correct any latent defects with
respect to items that Tenant is required to maintain and repair
pursuant to Section IX.A. shall be limited to the terms and conditions
of any warranties received by Landlord in connection with the
performance of the Landlord Work, it being agreed that Landlord shall
obtain a 1 year warranty of workmanship for the Landlord Work. Within
45 days following the Substantial Completion of the Landlord Work,
Landlord and Tenant shall
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conduct a second inspection of such portion of the Premises and
prepare a second punch list with respect to any items that were not
adequately completed from the first punch list and any items that were
not reasonably discoverable during the first inspection (including,
without limitation, latent defects). Landlord shall use good faith
efforts to correct any items listed on the first and second punch list
as soon as reasonably possible. The cost of correcting any Punchlist
Items shall be included as part of the contract price for the Landlord
Work, it being understood that the performance of punchlist work shall
not be considered to be a change order or otherwise result in an
additional cost to Tenant. Landlord shall use reasonable efforts to
cause the Punch List Items to be completed (and to perform work in
general) in a manner that minimizes the level of interference with
Tenant's use of the Premises; provided that Landlord shall not be
obligated to incur any additional costs to complete the Punchlist
Items or to perform necessary maintenance and repairs at times other
than Normal Business Hours.
D. If Tenant takes possession of the One Riverside Center Premises or the
Two Riverside Center Premises before the Commencement Date or the Two
Riverside Center Premises Commencement Date, respectively, such
possession shall be subject to the terms and conditions of this Lease
and Tenant shall pay Rent (defined in Section IV.A.) to Landlord for
each day of possession before the Commencement Date; provided,
however, except for the cost of services requested by Tenant, Tenant
shall not be required to pay Rent for any days of possession before
the Commencement Date unless Tenant shall be actively using the
Premises for the conduct of Tenant's business. Notwithstanding
anything herein to the contrary, Landlord agrees that Tenant shall
have access to each portion of the Premises at least thirty (30) days
prior to the Commencement Date or the Two Riverside Center Premises
Commencement Date, as the case may be (the "Early Access Period") for
the sole purpose of installing voice and data cabling and equipment
for Tenant's data center, build lab and LAN closets. Landlord and
Tenant agree to work together in good faith to schedule appropriate
times for Tenant's contractors and employees to install such cable and
equipment during the Early Access Period so as to allow the Landlord
Work and the permitted installation work of Tenant to be performed on
schedule and minimize or eliminate any Tenant Delay(s); provided that,
if Tenant performs within such schedule, such installation work shall
not be deemed to contribute to Tenant Delay(s). If, in Landlord's
reasonable discretion, such work can be performed without adversely
affecting the performance of the Landlord Work or adversely affecting
the date on which Landlord can reasonably expect to receive a
certificate of occupancy for the Premises, Landlord will permit Tenant
to commence installing its other furniture, equipment and personal
property in the Premises during the Early Access Period.
E. Late Completion Penalties and Termination Rights.
-------------------------------------------------
1. If Landlord fails to commence the performance of the Landlord
Work on or before June 1, 2000 (the "First Termination Date"), Tenant
may terminate this Lease by giving Landlord written notice of
termination on or before the date on which Landlord commences to
perform Landlord Work in the Premises.
2. If the Commencement Date has not occurred on or before September
1, 2000 (the "One Riverside Premises Outside Completion Date"), Tenant
shall be entitled to a rent abatement (the "Late Completion
Abatement") following the Commencement Date of $13,078.45 for every
day in the period beginning on the One Riverside Premises Outside
Completion Date and ending on the earlier to occur of (i) the
Commencement Date, or (ii) January 1, 2001. If the Two Riverside
Center Premises Commencement Date has not occurred on or before
October 1, 2000 (the "Two Riverside Center Premises Outside Completion
Date"), Tenant shall be entitled to a rent abatement (also referred to
as a "Late Completion Abatement") following the Two Riverside Center
Premises Commencement Date of $4,392.00 for every day in the period
beginning on the Two Riverside Center Premises Outside Completion Date
and ending on the Two Riverside Premises Center Commencement Date,
unless this Lease is sooner terminated. In addition, if all of the
Additional Abatement Conditions (hereinafter defined) occur, Tenant
shall be entitled to receive a rent abatement following the
Commencement Date in a amount equal to the Additional Late Completion
Abatement (hereinafter defined). The Additional Late Completion
Abatement shall be applied against Rent due under the Lease from and
after the full application of the Late Completion Abatement. For
purposes hereof:
a. The "Additional Abatement Conditions" are: (i) the
Commencement Date (i.e. with respect to the One Riverside
Center Premises) does not occur by the
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Outside Completion Date; (ii) Tenant has entered into (1)
one or more subleases or assignments with third parties
(each being referred to as a "Alewife Sublease") for all or
a portion of the premises currently leased by Tenant at One
Alewife Center, Cambridge, MA (the "One Alewife Premises"
and such lease being referred to herein as the "One Alewife
Lease"), and/or (2) an agreement with the landlord of the
One Alewife Premises for the recapture of the One Alewife
Premises or a portion thereof (the "Alewife Recapture");
(iii) as a result of Landlord's failure to complete the
Landlord Work in the One Riverside Center Premises and
Tenant's inability to move into the One Riverside Center
Premises, Tenant is unable to deliver possession of any
premises under a Alewife Sublease or the Alewife Recapture
on or before the later to occur of (y) the Outside
Commencement Date, or (z) the commencement date of the
Alewife Sublease and/or the surrender date under the Alewife
Recapture, as the case may be; and (iv) as a result of
Tenant's inability to deliver possession on or before the
later of the dates described in (iii), the
subtenant/assignee under the Alewife Sublease terminates the
Alewife Sublease, and/or Tenant incurs penalties/damages
under the One Alewife Lease or the Alewife Recapture (such
penalties/damages being referred to herein as the "Alewife
Penalties").
b. The "Additional Late Completion Abatement" shall be an
amount equal to the lesser of: (i) $500,000.00 or (ii) the
total sum of the Alewife Sublease Lost Rent (hereinafter
defined) and the Alewife Penalties. The Alewife Sublease
Lost Rent shall be calculated separately for each Alewife
Sublease that satisfies the Additional Abatement Conditions
and added together to determine the total Alewife Sublease
Lost Rent. Tenant agrees to use reasonable efforts to
mitigate the amount of any Alewife Sublease Lost Rent. The
Alewife Sublease Lost Rent with respect to each individual
Alewife Sublease that satisfies the Additional Abatement
Conditions shall be an amount determined in accordance with
the following formula:
A - B = The Alewife Sublease Lost Rent
A = the total amount of rental that was payable under the
Alewife Sublease for the term of the Alewife Sublease
(exclusive of any unexercised renewal or extension options).
B = the total amount of rental that Tenant is entitled to
receive in connection with one or more subleases or
assignments (exclusive of any unexercised renewal or
extension options) that are entered into after the
termination of the Alewife Sublease with respect to the
portion of the One Alewife Premises that was covered by the
Alewife Sublease. Tenant may deduct from such total all
reasonable and customary expenses directly incurred by
Tenant attributable to such replacement subleases or
assignments, including brokerage fees, legal fees and
construction costs. If Tenant re-sublets/re-assigns less
than all of the space under a terminated Alewife Sublease,
the Alewife Sublease Lost Rent will be calculated separately
for each portion of the space that was (or wasn't')
re-sublet/re-assigned. For the purpose of calculating any
Alewife Sublease Lost Rent, it shall be assumed that all
rental is paid when due under each replacement sublease or
assignment, it being agreed that the risk of non-payment
under any replacement sublease or assignment shall be borne
by Tenant, not Landlord. Upon request by either party,
Landlord and Tenant shall enter into an amendment to this
Lease to document the total Alewife Sublease Lost Rent and
Alewife Penalties.
3. If the Commencement Date (i.e. with respect to the One Riverside
Center Premises) does not occur by January 1, 2001 (the "Second
Termination Date"), Tenant may terminate this Lease with respect to
the entire Premises by giving Landlord written notice of termination
on or before the earlier to occur of: (i) five (5) Business Days after
the Second Termination Date; and (ii) the Commencement Date.
Notwithstanding anything herein to the contrary, if Landlord
determines that it will be unable to cause the Commencement Date to
occur by the Second Termination Date, Landlord shall have the right to
immediately cease its performance of the Landlord Work and provide
Tenant with written notice (the "Outside Extension Notice") of such
inability, which Outside Extension Notice shall set forth the date on
which Landlord reasonably believes that the Commencement Date will
occur. Upon receipt of the Outside Extension Notice, Tenant shall have
the right to terminate this Lease by providing written notice of
termination to Landlord within five (5) Business Days after the
receipt of the Outside Extension Notice. In the event that Tenant does
not terminate this Lease within such five (5) Business Day period, the
Second Termination Date shall automatically be amended to be the date
set forth in Landlord's Outside Extension Notice.
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4. In the event Tenant terminates this Lease pursuant to subsections
III.E.1 or III.E.3 above, this Lease shall be deemed null and void and
of no further force and effect and Landlord shall promptly refund any
Security Deposit and any portion of the Excess Costs (defined in the
Work Letter attached hereto as EXHIBIT D) previously advanced by
Tenant under this Lease and, so long as Tenant has not previously
defaulted under any of its obligations under the Work Letter, the
parties hereto shall have no further responsibilities or obligations
to each other with respect to this Lease. Landlord and Tenant
acknowledge and agree that: (i) the determination of the Commencement
Date and the Two Riverside Premises Commencement Date shall take into
consideration the effect of any Tenant Delays; and (ii) the First
Termination Date, Outside Completion Date, Two Riverside Premises
Outside Completion Date and Second Termination Date shall be postponed
by the number of days the Commencement Date is delayed due to events
of Force Majeure.
IV. RENT.
A. PAYMENTS. As consideration for this Lease, Tenant shall pay Landlord,
without any setoff or deduction, the total amount of Base Rent and
Additional Rent due for the Term. "Additional Rent" means all sums
(exclusive of Base Rent) that Tenant is required to pay Landlord.
Additional Rent and Base Rent are sometimes collectively referred to
as "Rent". Tenant shall pay and be liable for all rental, sales and
use taxes (but excluding income taxes), if any, imposed upon or
measured by Rent under applicable Law. Base Rent and recurring monthly
charges of Additional Rent shall be due and payable in advance on the
first day of each calendar month without notice or demand. All other
items of Rent shall be due and payable by Tenant on or before 30 days
after notice by Landlord. All payments of Rent shall be by good and
sufficient check or by other means (such as electronic transfer)
acceptable to Landlord. If Tenant fails to pay any item or installment
of Rent when due, Tenant shall pay Landlord an administration fee
equal to 5% of the past due Rent, provided that Tenant shall be
entitled to a grace period of 5 days for the first 2 late payments of
Rent in a given calendar year. If the Term commences on a day other
than the first day of a calendar month or terminates on a day other
than the last day of a calendar month, the monthly Base Rent and
Tenant's Pro Rata Share of any Tax Excess (defined in Section IV.D.)
or Expense Excess (defined in Section IV.B.) for the month shall be
prorated based on the number of days in such calendar month.
Landlord's acceptance of less than the correct amount of Rent shall be
considered a payment on account of the earliest Rent due. No
endorsement or statement on a check or letter accompanying a check or
payment shall be considered an accord and satisfaction, and either
party may accept the check or payment without prejudice to that
party's right to recover the balance or pursue other available
remedies. Tenant's covenant to pay Rent is independent of every other
covenant in this Lease.
B. EXPENSE EXCESS. Tenant shall pay Tenant's Pro Rata Share of the
amount, if any, by which Expenses (defined in Section IV.C.) for each
calendar year during the Term (beginning on the day following the last
day of the Expense Base Year) exceed Expenses for the Expense Base
Year (the "Expense Excess"). If Expenses in any calendar year decrease
below the amount of Expenses for the Expense Base Year, Tenant's Pro
Rata Share of Expenses for that calendar year shall be $0. Landlord
shall provide Tenant with a good faith estimate of the Expense Excess
for each calendar year during the Term. On or before the first day of
each month, Tenant shall pay to Landlord a monthly installment equal
to one-twelfth of Tenant's Pro Rata Share of Landlord's estimate of
the Expense Excess. If Landlord determines that its good faith
estimate of the Expense Excess was incorrect by a material amount,
Landlord may provide Tenant with a revised estimate. After its receipt
of the revised estimate, Tenant's monthly payments shall be based upon
the revised estimate; provided, however, Landlord shall submit no more
than two such revisions in any calendar year. If Landlord does not
provide Tenant with an estimate of the Expense Excess by January 1 of
a calendar year, Tenant shall continue to pay monthly installments
based on the previous year's estimate(s) until Landlord provides
Tenant with the new estimate. Upon delivery of the new estimate, an
adjustment shall be made for any month for which Tenant paid monthly
installments based on the previous year's estimate(s). Tenant shall
pay Landlord the amount of any underpayment within 30 days after
receipt of the new
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estimate. Any overpayment shall be refunded to Tenant within 30 days
or credited against the next due future installment(s) of Rent.
As soon as practical following the end of each calendar year, Landlord
shall furnish Tenant with a reasonably detailed statement of the
actual Expenses and Expense Excess for the prior calendar year.
Notwithstanding the foregoing, Landlord shall use reasonable efforts
to provide Tenant with such statement no later than May 1st of each
prior calendar year. If Landlord fails to provide Tenant with a
statement by September 1st following each prior calendar year and such
failure continues for 30 days after Landlord's receipt of a written
notice from Tenant specifically requesting that Landlord furnish
Tenant with a copy of such year end statement, Landlord shall be
deemed to have waived its right to reconcile Expenses for such
calendar year and recover any underpayment of Expenses from Tenant.
Such waiver shall not be construed as to release Landlord of its
obligation to furnish Tenant with a reconciliation of Expenses for
such calendar year and to reimburse Tenant for any overpayment of
Expenses. Tenant's written notice to Landlord shall clearly state that
Landlord's failure to furnish a reconciliation of Expenses for the
calendar year in question within 30 days shall be deemed to be a
waiver of Landlord's right to recover any underpayment of Expenses
from Tenant with respect to such calendar year.
If the estimated Expense Excess for the prior calendar year is more
than the actual Expense Excess for the prior calendar year, Landlord
shall apply any overpayment by Tenant against Rent due or next
becoming due, provided if the Term expires before the determination of
the overpayment, Landlord shall, within 30 days after the delivery of
the statement, refund any overpayment to Tenant after first deducting
the amount of any Rent due. If the estimated Expense Excess for the
prior calendar year is less than the actual Expense Excess for such
prior year, Tenant shall pay Landlord, within 30 days after its
receipt of the statement of Expenses, any underpayment for the prior
calendar year.
C. EXPENSES DEFINED. "Expenses" means all costs and expenses (other than
those expressly excluded herein) incurred in each calendar year in
connection with operating, maintaining, repairing, and managing the
Building and the Property, including, but not limited to:
1. Labor costs, including, wages, salaries, social security and
employment taxes, medical and other types of insurance, uniforms,
training, and retirement and pension plans, specifically
excluding the personnel costs of any employee above the grade of
general manager and the salaries of officers and executives of
Landlord to the extent not directly connected with the operation
of the Property.
2. Management fees in connection with the management of the
Building, the cost of equipping and maintaining a management
office, accounting and bookkeeping services, legal fees not
attributable to leasing, lease enforcement or collection
activity, and other overhead and administrative costs. Landlord,
by itself or through an affiliate, shall have the right to
directly perform or provide any services under this Lease
(including management services), provided that the cost of any
such services shall not exceed the cost that would have been
incurred had Landlord entered into an arms-length contract for
such services with an unaffiliated entity of comparable skill and
experience.
3. The cost of services, including amounts paid to service providers
and the rental and purchase cost of parts, supplies, tools and
equipment. Except with respect to items that are rented by
Landlord on an emergency basis in connection with the
interruption of services, Expenses shall not include the rental
cost of any items which are (or, if purchased, would be deemed)
capital improvements (other than capital improvements permitted
under subsection 6 below).
4. Premiums and deductibles paid by Landlord for insurance,
including workers compensation, fire and extended coverage,
earthquake, general liability, rental loss, elevator, boiler and
other insurance customarily carried from time to time by owners
of comparable office buildings.
5. Electrical Costs (defined below) and charges for water, gas,
steam and sewer, but excluding those charges for which Landlord
is entitled to be reimbursed by tenants (other than through
Expenses). "Electrical Costs" means: (a) charges paid by Landlord
for electricity; (b) costs reasonably incurred in connection with
an energy
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management program for the Property; and (c) if and to the extent
permitted by Law, a fee for the services provided by Landlord in
connection with the selection of utility companies and the
negotiation and administration of contracts for electricity,
provided that such fee shall not exceed 50% of any savings
obtained by Landlord. Electrical Costs shall be adjusted as
follows: (i) amounts received by Landlord as reimbursement for
above standard electrical consumption shall be deducted from
Electrical Costs; (ii) the cost of electricity incurred to
provide overtime HVAC to specific tenants (as reasonably
estimated by Landlord) shall be deducted from Electrical Costs;
and (iii) if Tenant is billed directly for the cost of building
standard electricity to the Premises as a separate charge in
addition to Base Rent, the cost of electricity to individual
tenant spaces in the Building shall be deducted from Electrical
Costs.
6. The amortized cost of capital improvements (as distinguished from
replacement parts or components installed in the ordinary course
of business) made to the Property which are: (a) performed
primarily to reduce Expenses or otherwise improve the operating
efficiency of the Property; or (b) required to comply with any
Laws that are enacted, or first interpreted to apply to the
Property, after the date of this Lease. The cost of such capital
improvements shall be amortized by Landlord over the lesser of
the Payback Period (defined below) or the useful life of the
capital improvement as reasonably determined by Landlord (taking
into account the number of hours during which such equipment is
in use). The amortized cost of capital improvements may, at
Landlord's option, include actual or imputed interest at the rate
that Landlord would reasonably be required to pay to finance the
cost of the capital improvement. "Payback Period" means the
reasonably estimated period of time that it takes for the cost
savings resulting from a capital improvement to equal the total
cost of the capital improvement. Notwithstanding the foregoing,
the portion of the annual amortized costs to be included in
Expenses in any calendar year with respect to a capital
improvement which is intended to reduce expenses or improve the
operating efficiency of the Property or Building shall equal the
lesser of: a) such annual amortized costs; and b) the projected
annual amortized reduction in Expenses for that portion of the
amortization period of the capital improvement which falls within
the Term (based on the total cost savings for such period, as
reasonably estimated by Landlord). Upon request by Tenant,
Landlord shall provide Tenant with such information as Tenant
reasonably requests concerning Landlord's projected cost savings,
including an analysis of actual savings and the facts and
assumptions that formed the basis of Landlord's projected
savings.
If Landlord incurs Expenses for the Property together with one or more
other buildings or properties, whether pursuant to a reciprocal
easement agreement, common area agreement or otherwise, the shared
costs and expenses shall be equitably prorated and apportioned between
the Property and the other buildings or properties. Expenses shall not
include: (i) the cost of capital improvements (except as set forth
above); (ii) depreciation; (iii) interest (except as provided above
for the amortization of capital improvements); (iv) principal payments
of mortgage and other non-operating debts of Landlord; (v) the cost of
repairs or other work to the extent Landlord is reimbursed or entitled
to reimbursement by insurance or condemnation proceeds; (vi) costs in
connection with leasing space in the Building, including brokerage
commissions; advertising and promotional expenditures and costs to
prepare or perform work in tenant space in the Building (other than
repairs and maintenance of the type described in Section IX.B.); (vii)
lease concessions, including rental abatements and construction
allowances, granted to specific tenants; (viii) costs incurred in
connection with the sale, financing or refinancing of the Building;
(ix) Taxes (defined in Section IV.E); (x) costs, expenses, fines,
interest and penalties incurred due to the late payment of Taxes
(defined in Section IV.E) or Expenses or due to the violation of Law;
(xi) organizational expenses associated with the creation and
operation of the entity which constitutes Landlord; (xii) any
penalties or damages that Landlord pays to Tenant under this Lease or
to other tenants in the Building under their respective leases; (xiii)
expenses for any item or service not available to Tenant but provided
to certain other tenant(s) in the Building; (xiv) expenses for any
item or service which Tenant separately pays to Landlord; (xv) any
cost incurred due to the adjudicated negligence or willful misconduct
of the Landlord, its agents and employees; (xvi) rent payable under
any ground lease; (xvii) reserves not expended in the calendar year
for which Expenses are calculated; (xviii) expenses for the
replacement of any item to the extent that the cost of replacing such
item is covered by a valid and enforceable warranty or guaranty (as
determined in Landlord's reasonable judgment); (xix) the initial costs
incurred in connection with furnishing or decorating (including,
without limitation, the purchase of artwork) the
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Common Areas (including, without limitation, the atrium); (xx) the
cost of installing, operating and maintaining any specialty service
such as a cafeteria/restaurant, retail store, sundry shop, newsstand
or concession, provided that Expenses may include costs incurred in
connection with the operation of a health club or similar amenities
(other than conference facilities) commonly available at first class
office buildings; (xxi) any costs in connection with the testing,
monitoring or remediation of hazardous materials and/or substances
existing at the Property as of the execution of this Lease; (xxii) the
cost of correcting defects in the initial construction of the
Building; (xxiii) insurance premiums to the extent any unusual tenant
activity causes Landlord's existing insurance premiums to increase or
requires the Landlord to purchase additional insurance, but only to
the extent such additional cost can be identified by the insurer;
(xxiv) amounts paid to Landlord or to subsidiaries or affiliates of
Landlord for goods and services in the Building to the extent the same
exceed the cost of such goods and services rendered on a competitive
basis by unaffiliated third parties having comparable skill and
experience; or (xxv) items or services which Tenant is required under
this Lease to pay to a third party (e.g. separately metered
utilities). If the Building is not at least 95% occupied during any
calendar year or if Landlord is not supplying services to at least 95%
of the total Rentable Square Footage of the Building at any time
during a calendar year, Expenses shall, at Landlord's option, be
determined as if the Building had been 95% occupied and Landlord had
been supplying services to 95% of the Rentable Square Footage of the
Building during that calendar year. If Tenant pays for its Pro Rata
Share of Expenses based on increases over a "Expense Base Year" and
Expenses for a calendar year are determined as provided in the prior
sentence, Expenses for the Expense Base Year shall also be determined
as if the Building had been 95% occupied and Landlord had been
supplying services to 95% of the Rentable Square Footage of the
Building. The extrapolation of Expenses under this Section shall be
performed by appropriately adjusting the cost of those components of
Expenses that are impacted by changes in the occupancy of the
Building.
D. TAX EXCESS. Tenant shall pay Tenant's Pro Rata Share of the amount, if
any, by which Taxes (defined in Section IV.E.) for each Fiscal Year
during the Term exceed Taxes for the Tax Base Year (the "Tax Excess").
If Taxes in any Fiscal Year decrease below the amount of Taxes for the
Tax Base Year, Tenant's Pro Rata Share of Taxes for that Fiscal Year
shall be $0. Landlord shall provide Tenant with a good faith estimate
of the Tax Excess for each Fiscal Year during the Term. On or before
the first day of each month, Tenant shall pay to Landlord a monthly
installment equal to one-twelfth of Tenant's Pro Rata Share of
Landlord's estimate of the Tax Excess. If Landlord determines that its
good faith estimate of the Tax Excess was incorrect by a material
amount, Landlord may provide Tenant with a revised estimate. After its
receipt of the revised estimate, Tenant's monthly payments shall be
based upon the revised estimate. If Landlord does not provide Tenant
with an estimate of the Tax Excess by the start of each new Fiscal
Year, Tenant shall continue to pay monthly installments based on the
previous year's estimate(s) until Landlord provides Tenant with the
new estimate. Upon delivery of the new estimate, an adjustment shall
be made for any month for which Tenant paid monthly installments based
on the previous year's estimate(s). Tenant shall pay Landlord the
amount of any underpayment within 30 days after receipt of the new
estimate. Any overpayment shall be refunded to Tenant within 30 days
or credited against the next due future installment(s) of Additional
Rent.
As soon as is practical following the end of each Fiscal Year (but in
no event later than 4 months following the end of such Fiscal Year),
Landlord shall furnish Tenant with a statement of the actual Taxes and
Tax Excess for the prior Fiscal Year. If the estimated Tax Excess for
the prior Fiscal Year is more than the actual Tax Excess for the prior
Fiscal Year, Landlord shall apply any overpayment by Tenant against
Rent due or next becoming due, provided if the Term expires before the
determination of the overpayment, Landlord shall refund, within 30
days after the delivery of the statement, any overpayment to Tenant
after first deducting the amount of any Rent due. If the estimated Tax
Excess for the prior Fiscal Year is less than the actual Tax Excess
for such prior year, Tenant shall pay Landlord, within 30 days after
its receipt of the statement of Taxes, any underpayment for the prior
Fiscal Year.
E. TAXES DEFINED. "Taxes" shall mean: (1) all real estate taxes and other
assessments on the Building and/or Property, including, but not
limited to, assessments for special improvement districts and building
improvement districts, taxes and assessments levied in substitution or
supplementation in whole or in part of any such taxes and assessments
and the Property's share of any real estate taxes and assessments
under any reciprocal easement agreement, common area agreement or
similar agreement as
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to the Property; (2) all personal property taxes for property that is
owned by Landlord and used in connection with the operation,
maintenance and repair of the Property; and (3) all costs and fees
incurred in connection with seeking reductions in any tax liabilities
described in (1) and (2), including, without limitation, any costs
incurred by Landlord for compliance, review and appeal of tax
liabilities. Notwithstanding the foregoing, Landlord shall not incur
any costs to contest tax liabilities unless Landlord believes that
there is a reasonable likelihood that such contest will be successful
in obtaining an abatement or reduction that will exceed the cost of
such contest. Without limitation, Taxes shall not include any income,
capital levy, franchise, capital stock, documentary stamp, excise,
gift, estate or inheritance tax. If an assessment is payable in
installments, Landlord shall elect to pay such Tax in installments
over the longest period permitted by Law without penalty, and Taxes
for the year shall include the amount of the installment and any
interest due and payable during that year. Taxes for that year shall,
at Landlord's election, include either the amount accrued, assessed or
otherwise imposed for the year or the amount due and payable for that
year, provided that Landlord's election shall be applied consistently
throughout the Term. If a change in Taxes is obtained for any year of
the Term during which Tenant paid Tenant's Pro Rata Share of any Tax
Excess, then Taxes for that year will be retroactively adjusted and
Landlord shall provide Tenant with a credit, if any, against Rent
based on the adjustment, or if the Term shall have ended and Tenant
shall have provided Landlord with its current address, refund the
excess to Tenant within 30 days. Likewise, if a change is obtained for
Taxes for the Tax Base Year, Taxes for the Tax Base Year shall be
restated and the Tax Excess for all subsequent years shall be
recomputed. Tenant shall pay Landlord the amount of Tenant's Pro Rata
Share of any such increase in the Tax Excess within 30 days after
Tenant's receipt of a statement from Landlord.
F. AUDIT RIGHTS. Tenant may, within 90 days after receiving Landlord's
statement of Expenses or Taxes, give Landlord written notice ("Review
Notice") that Tenant intends to review Landlord's records of the
Expenses for that calendar year or Taxes for that Fiscal Year. Within
a reasonable time after receipt of the Review Notice, Landlord shall
make all pertinent records available for inspection that are
reasonably necessary for Tenant to conduct its review. If any records
are maintained at a location other than the office of the Building,
Tenant may either inspect the records at such other location or pay
for the reasonable cost of copying and shipping the records. If Tenant
retains an agent to review Landlord's records, the agent must be a
licensed CPA or with a licensed CPA firm. Tenant shall be solely
responsible for all costs, expenses and fees incurred for the audit.
Within 60 days after the records are made available to Tenant, Tenant
shall have the right to give Landlord written notice (an "Objection
Notice") stating in reasonable detail any objection to Landlord's
statement of Expenses or Taxes for that year. If Tenant fails to give
Landlord an Objection Notice within the 60 day period or fails to
provide Landlord with a Review Notice within the 90 day period
described above, Tenant shall be deemed to have approved Landlord's
statement of Expenses or Taxes, as the case may be, and shall be
barred from raising any claims regarding the Expenses or Taxes, as the
case may be, for that year. If Tenant provides Landlord with a timely
Objection Notice, Landlord and Tenant shall work together in good
faith to resolve any issues raised in Tenant's Objection Notice. If
Landlord and Tenant determine that Expenses for the calendar year or
Taxes for the Fiscal Year are less than reported, Landlord shall
provide Tenant with a credit against the next installment of Rent in
the amount of the overpayment by Tenant, or, if no Rent is thereafter
due, Landlord shall promptly pay such amount to Tenant. In addition,
if Landlord and Tenant determine that Landlord's statement of Expenses
or Taxes for the Building for the calendar year in question were
overstated by five percent (5%) or more, Landlord shall be required to
reimburse Tenant for any reasonable third party audit costs incurred
by Tenant. Likewise, if Landlord and Tenant determine that Expenses
for the calendar year or Taxes for the Fiscal Year are greater than
reported, Tenant shall pay Landlord the amount of any underpayment
within 30 days. The records obtained by Tenant shall be treated as
confidential. In no event shall Tenant be permitted to examine
Landlord's records or to dispute any statement of Expenses unless
Tenant has paid and continues to pay all Rent when due.
V. COMPLIANCE WITH LAWS; USE.
A. The Premises shall be used only for the Permitted Use and for no other
use whatsoever. Tenant shall not use or permit the use of the Premises
for any purpose which is illegal, dangerous to persons or property or
which, in Landlord's reasonable opinion, unreasonably disturbs any
other tenants of the Building or interferes with the operation of the
Building. Tenant shall comply with all Laws, including the Americans
with
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Disabilities Act ("ADA"), regarding (i) the operation of Tenant's
business, (ii) the use of the Premises for purposes other than general
office use, (iii) the condition of the Premises (other than conditions
that are the responsibility of Landlord under Section IX.B.), and (iv)
the configuration of the Premises. Notwithstanding the foregoing,
Landlord shall be responsible for constructing the Landlord Work and
Base Building Work in compliance with all Laws, including Title III of
the Americans with Disabilities Act, provided that Tenant, not
Landlord, shall be responsible for the correction of any violations
that arise out of a failure by Tenant's architect to prepare the Plans
(defined in the Work Letter attached hereto as EXHIBIT D) in strict
compliance with all Laws, including the ADA. In addition, Landlord's
obligation with respect to the Premises shall be limited to violations
that arise out of the Landlord Work and/or the condition of the
Premises prior to the installation of any furniture, equipment and
other personal property of Tenant. Landlord shall have the right to
contest any alleged violation in good faith, including, without
limitation, the right to apply for and obtain a waiver or deferment of
compliance, the right to assert any and all defenses allowed by law
and the right to appeal any decisions, judgments or rulings to the
fullest extent permitted by law. Landlord, after the exhaustion of any
and all rights to appeal or contest, will make all repairs, additions,
alterations or improvements necessary to comply with the terms of any
final order or judgment. Tenant, within 10 days after receipt, shall
provide Landlord with copies of any notices it receives regarding a
violation or alleged violation of any Laws. Tenant shall reimburse and
compensate Landlord for all expenditures made by, or damages or fines
sustained or incurred by, Landlord due to any violations of Laws by
Tenant or any Tenant Related Parties (as defined in Section XIV) with
respect to the Premises. Tenant shall comply with the rules and
regulations of the Building attached as EXHIBIT B and such other
reasonable rules and regulations adopted by Landlord from time to
time. Tenant shall also cause its agents, contractors, subcontractors,
employees, customers, and subtenants to comply with all rules and
regulations, including, without limitation, any rules and regulations
established by Landlord in connection with any recycling program
implemented by Landlord at the Building. Landlord shall not knowingly
discriminate against Tenant in Landlord's enforcement of the rules and
regulations and shall use reasonable efforts to uniformly enforce the
rules and regulations against all tenants and occupants of the
Building.
B. Nothing herein shall require Tenant to perform any alterations,
additions or improvements which are necessary to comply with Laws with
respect to the Common Areas, unless such requirement to comply relates
to the Common Areas on any floor on which the Premises are located and
arises directly out of the performance of work by Tenant in the
Premises or Tenant's particular manner of use of the Premises for
purposes other than general office use. In addition, nothing herein
shall require Tenant to comply with Laws or requirements of public
authorities which require the installation of new or additional
mechanical, electrical, plumbing or fire/life safety systems on a
Building-wide basis without reference to the particular use of Tenant
or any Alterations (defined in Section IX.C. below) performed by
Tenant subsequent to the Commencement Date ("Building-Wide Laws").
Landlord will, at Landlord's expense (except to the extent properly
included in Expenses), perform all acts required to comply with such
Building-Wide Laws as the same affect the Premises and the Building.
VI. SECURITY DEPOSIT.
A. The Security Deposit shall, at the option of Tenant, be in either the
form of cash, a letter of credit or any combination thereof. The first
fifty percent (50%) of the Security Deposit (i.e. $4,238,500.00) shall
be delivered to Landlord by Tenant upon the execution of this Lease by
Tenant. The remaining fifty percent (50%) of the Security Deposit
shall be delivered to Landlord by Tenant during the performance of the
Landlord Work in accordance with the following schedule: (i)
$1,412,833.00 shall be delivered to Landlord on or before January 1,
2000; (ii) $1,412,833.00 shall be delivered to Landlord on or before
April 1, 2000; and (iii) $1,412,834.00 shall be delivered to Landlord
on or before the Commencement Date. The Security Deposit shall be held
by Landlord without liability for interest (unless required by Law) as
security for the performance of Tenant's obligations; provided,
however, that any portion of the cash Security Deposit in excess of
the then current monthly installment of Base Rent shall be placed in a
separate interest-bearing account with a FDIC-insured financial
institution, with all interest to accrue to the benefit of Tenant,
and, provided that no default shall have occurred and be continuing,
to be paid or credited to Tenant annually. Landlord shall provide
Tenant with the name of the institution and account number in which
such cash portion of the Security Deposit is held. The Security
Deposit is not an advance payment of Rent or a measure of Tenant's
liability for damages. Landlord may, from time to time, without
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prejudice to any other remedy, use all or a portion of the Security
Deposit to satisfy past due Rent or to cure any default by Tenant for
which the cure period has expired. If Landlord uses the Security
Deposit, Tenant shall on demand restore the Security Deposit to its
original amount. Landlord shall return any unapplied portion of the
Security Deposit to Tenant within 30 days after the later to occur of:
(1) the date Tenant surrenders possession of the Premises to Landlord
in accordance with this Lease; or (2) the Termination Date. In the
event that Landlord reasonably believes that the estimated Expense
Excess for the calendar year in which the Termination Date occurs or
the estimated Tax Excess for the Fiscal Year in which the Termination
Date occurs is less than the actual Expense Excess or Tax Excess for
such calendar year or Fiscal Year, Landlord shall have the right to
withhold the reasonably estimated shortfall from the Security Deposit
to be returned to Tenant. In order to be entitled to withhold the
reasonably estimated shortfall, Landlord shall be required to provide
Tenant with documentation that is reasonably sufficient to demonstrate
that a shortfall is likely to occur. Upon the determination of the
actual Expense Excess or Tax Excess for the calendar year or Fiscal
Year in question, Landlord shall perform a final reconciliation of
such amounts in accordance with the terms of Article IV. If Tenant is
entitled to a return of the Security Deposit, then to the extent such
Security Deposit is in the form of a letter of credit, Landlord shall
return the letter of credit accompanied by a letter from Landlord to
the issuing bank advising such bank that Tenant has the right to
surrender the letter of credit and that Landlord has no further
interest therein. If Landlord transfers its interest in the Premises,
Landlord shall assign the Security Deposit to the transferee and,
following the assignment, Landlord shall have no further liability for
the return of the Security Deposit. Notwithstanding the foregoing,
Landlord shall not be released from liability with respect to the
Security Deposit unless such assignee of the Security Deposit has
agreed in writing to be liable for Landlord's obligations hereunder
with respect to the Security Deposit. Landlord shall not be required
to keep the Security Deposit separate from its other accounts.
B. If any portion of the Security Deposit is in the form of a letter of
credit, such letter of credit shall (a) be in the form and substance
of the sample letter of credit attached hereto as Exhibit I; (b) name
Landlord as its beneficiary, (c) expire no earlier than thirty (30)
days after the Termination Date (as the same may be extended), and (d)
be drawn on Citibank, N.A., Silicon Valley East Bank or another
FDIC-insured financial institution reasonably satisfactory to
Landlord. If the initial term of the letter of credit will expire
prior to thirty (30) days prior to the Termination Date, Tenant shall
from time to time, as necessary, renew or replace the original and any
subsequent letter of credit not less than thirty (30) days prior to
its stated expiration date so that it will remain in full force and
effect until thirty (30) days after the Termination Date. If Tenant
fails to furnish such renewal or replacement at least thirty (30) days
prior to the stated expiration date of the letter of credit then held
by Landlord, Landlord may draw upon such letter of credit and hold the
proceeds thereof (such proceeds to be segregated and held in an
interest bearing account as described above) as a Security Deposit
pursuant to the terms of this Article VI. Following any such draw upon
the letter of credit, however, Tenant shall have the right to
substitute a letter of credit meeting the requirements set forth
herein (or other enumerated form of collateral) for the cash Security
Deposit then held by Landlord. Any renewal of or replacement for the
original or any subsequent letter of credit shall meet the
requirements for the original letter of credit as set forth above.
Provided that the letter of credit permits partial draws, Landlord
shall not draw upon the letter of credit (or other form of Security
Deposit) for an amount that is in excess of the amount necessary to
cure Tenant's default under this Lease. If the letter of credit does
not permit partial draws, Landlord shall hold any excess as a cash
Security Deposit in accordance with the provisions of Subsection A.
Tenant, from time to time, shall have the right to substitute a letter
of credit for any portion of the Security Deposit that is held by
Landlord in the form of cash. Tenant, from time to time, shall also
have the right to substitute cash for any portion of the Security
Deposit that is held by Landlord in the form of a letter of credit.
C. Notwithstanding anything herein to the contrary, provided Tenant is
not in default under this Lease as of the third (3rd) anniversary of
the Commencement Date (i.e. the expiration of the 3rd lease year), the
amount of the Security Deposit shall reduce from $8,477,000.00 to
$6,661,231.00 effective as of the 3rd anniversary of the Commencement
Date. If the Security Deposit is provided by Tenant in the form of
cash, Landlord shall return the reduced portion of the Security
Deposit to Tenant within thirty (30) days following the 3rd
anniversary of the Commencement Date. If the Security Deposit is
provided in the form of a letter of credit, such reduction shall be
accomplished by having Tenant provide Landlord with a substitute
letter of credit in the reduced amount. If the Security Deposit is
provided through a combination of cash and letter of
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credit, Tenant, by written notice to Landlord, shall advise Landlord
as to the method that will be used to effectuate the reduction of the
letter of credit.
D. In addition to the reduction of the Security Deposit described in
Section VI.C. above, the amount of the Security Deposit shall be
subject to further reduction effective as of the 4th, 5th, 6th and 7th
anniversaries of the Commencement Date (each referred to as an
"Anniversary Date") as follows:
1) If Tenant reported a profit for the 4 consecutive quarters
immediately preceding the applicable Anniversary Date, the amount of
the Security Deposit shall reduce by $1,211,133.00 effective as of
such Anniversary Date. Such reduction shall be accomplished in the
manner referred to in Section VI.C. above, provided that Landlord
shall not be required to refund any portion of the Security Deposit or
to accept a substitute letter of credit unless and until Tenant has
provided Landlord with audited financial statements evidencing that
Tenant is entitled to a reduction of the Security Deposit in
accordance with the terms hereof.
2) If Tenant did not report a profit for the 4 consecutive quarters
immediately preceding the applicable Anniversary Date but did report a
profit for 3 quarters within such period, the amount of the Security
Deposit shall reduce by $605,567.00 effective as such Anniversary
Date. Such reduction shall be accomplished in the manner referred to
in Section VI.C. above, provided that Landlord shall not be required
to refund any portion of the Security Deposit or to accept a
substitute letter of credit unless and until Tenant has provided
Landlord with audited financial statements evidencing that Tenant is
entitled to a reduction of the Security Deposit in accordance with the
terms hereof.
3) If Tenant is not entitled to a reduction of the Security Deposit
under D.1. or D.2. above, Tenant shall not be entitled to a reduction
of the Security Deposit with respect to the applicable Anniversary
Date. Tenant shall, however, be entitled to a reduction of the
Security Deposit with respect to any future Anniversary Dates where
the conditions for a reduction have been satisfied. Notwithstanding
anything herein to the contrary, in no event shall the Security
Deposit be reduced below the sum of: (i) $1,816,699.00, plus (ii) the
amount of any increase in the Security Deposit pursuant to Section
VI.E. below.
E. In the event that Tenant leases additional square footage pursuant to
its First Expansion Option, Second Expansion Option or Right of First
Offer, the Security Deposit shall automatically increase by an amount
determined in accordance with the following formula:
(X divided by Y) x Z = increase in the Security Deposit
X = the amount of the Security Deposit then held by Landlord
Y = the then current rentable square footage of the Premises
Z = the rentable square footage of the additional space
For example, assume: (i) the Premises consists of 270,446 rentable
square feet; (ii) the Security Deposit then held by Landlord is
$6,661,231.00; and (iii) Tenant leases 20,000 rentable square feet
that is in addition to the existing Premises. Under this example, the
Security Deposit would be increased by $492,610.80. Tenant will be
required to pay Landlord for the increase in the Security Deposit on
or before the execution of the amendment adding the additional space
to the Premises. Tenant shall have the right to determine whether the
increase in the Security Deposit will be provided in the form of cash,
letter of credit or a combination thereof.
VII. SERVICES TO BE FURNISHED BY LANDLORD.
A. Landlord agrees to furnish Tenant with the following services: (1)
Water service for use in the lavatories on each floor on which the
Premises are located; (2) Heat and air conditioning in season during
Normal Business Hours in accordance with the specifications contained
in the Base Building Scope attached hereto as Exhibit M, at such
temperatures and in such amounts as are standard for comparable
buildings or as required by governmental authority. Tenant, upon such
advance notice as is reasonably required by Landlord, shall have the
right to receive HVAC service during hours other than Normal Business
Hours. Tenant shall pay Landlord a hourly charge for each hour of HVAC
service that is requested and received by Tenant after Normal Business
Hours. Such charge shall reflect the actual cost to Landlord of
providing the HVAC service, as
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such cost is reasonably determined by Landlord; (3) Maintenance and
repair of the Property as described in Section IX.B.; (4) Janitor
service on Business Days in accordance with the specifications
attached hereto as EXHIBIT N (or such reasonably comparable
specifications as Landlord may designate from time to time). If
Tenant's use, floor covering or other improvements require special
services in excess of the standard services for the Building, and if
such special services are requested by Tenant or otherwise required to
keep the Premises in a reasonably clean condition, Landlord shall
cause such special services to be furnished and Tenant shall pay the
actual additional cost attributable to the special services to
Landlord (without mark-up) or, at Landlord's election, to the provider
of such special services; (5) Elevator service; (6) Electricity to the
Premises for general office use, in accordance with and subject to the
terms and conditions in Article X and EXHIBIT M; and (7) such other
services as Landlord reasonably determines are necessary or
appropriate for the Property.
B. Landlord's failure to furnish, or any interruption or termination of,
services due to the application of Laws, the failure of any equipment,
the performance of repairs, improvements or alterations, or the
occurrence of any event or cause beyond the reasonable control of
Landlord (a "Service Failure") shall not render Landlord liable to
Tenant, constitute a constructive eviction of Tenant, give rise to an
abatement of Rent, nor relieve Tenant from the obligation to fulfill
any covenant or agreement. However, if the Premises, or a material
portion of the Premises, is made untenantable for a period in excess
of 3 consecutive Business Days as a result of the Service Failure,
then Tenant, as its sole remedy, shall be entitled to receive an
abatement of Rent payable hereunder during the period beginning on the
4th consecutive Business Day of the Service Failure and ending on the
day the service has been restored. If the entire Premises has not been
rendered untenantable by the Service Failure, the amount of abatement
that Tenant is entitled to receive shall be prorated based upon the
percentage of the Premises rendered untenantable and not used by
Tenant. In no event, however, shall Landlord be liable to Tenant for
any loss or damage, including the theft of Tenant's Property (defined
in Article XV), arising out of or in connection with the failure of
any security services, personnel or equipment. Landlord agrees to use
reasonable efforts to restore any interruption or termination of
services.
VIII. LEASEHOLD IMPROVEMENTS.
A. Except for Tenant's Property (as defined in Section XV), all
improvements to the Premises (collectively, "Leasehold Improvements")
shall be owned by Landlord and shall remain upon the Premises without
compensation to Tenant. However, Landlord, by written notice to Tenant
within 180 days prior to the Termination Date, may require Tenant to
remove, at Tenant's expense: (1) Cable (defined in Section IX.A)
installed by or for the exclusive benefit of Tenant and located in the
Premises or other portions of the Building; and (2) subject to Section
VIII.B. below, any Leasehold Improvements that are performed by or for
the benefit of Tenant and, in Landlord's reasonable judgment, are of a
nature that would require removal and repair costs that are materially
in excess of the removal and repair costs associated with standard
office improvements (collectively referred to as "Required
Removables"). Without limitation, it is agreed that Required
Removables include internal stairways, raised floors, personal baths
and showers, vaults, rolling file systems and structural alterations
and modifications of any type. The Required Removables designated by
Landlord shall be removed by Tenant before the Termination Date,
provided that upon prior written notice to Landlord, Tenant may remain
in the Premises for up to 5 days after the Termination Date for the
sole purpose of removing the Required Removables. Tenant's possession
of the Premises shall be subject to all of the terms and conditions of
this Lease, including the obligation to pay Rent on a per diem basis
at the rate in effect for the last month of the Term. Tenant shall
repair damage caused by the installation or removal of Required
Removables. If Tenant fails to remove any Required Removables or
perform related repairs in a timely manner, Landlord, at Tenant's
expense, may remove and dispose of the Required Removables and perform
the required repairs. Tenant, within 30 days after receipt of an
invoice, shall reimburse Landlord for the reasonable costs incurred by
Landlord.
B. Notwithstanding Section VIII.A. to the contrary and except as provided
below with respect to the Landlord Work, Tenant, at the time it
requests approval for a proposed Alteration (defined in Section IX.C),
may request in writing that Landlord advise Tenant whether the
Alteration or any portion of the Alteration will be designated as a
Required Removable. Within 10 days after receipt of Tenant's request,
Landlord shall advise Tenant in writing as to which portions of the
Alteration, if any, will be considered to be Required Removables.
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With respect to the Landlord Work, Landlord shall notify Tenant in
writing of any Required Removables within 5 Business Days after the
date on which Landlord approves Tenant's Design Development Plans
(defined in the Work Letter attached hereto as EXHIBIT D); provided
that any internal staircase shall be considered to be a Required
Removable regardless of whether Landlord designates the same as a
Required Removable in a written notice to Tenant and regardless of
whether Landlord provides Tenant with 180 days prior notice of removal
in accordance with Section VIII.A. above. Except with respect to any
internal staircase, Landlord shall have no right to require the
removal of any Alterations or Landlord Work not so identified as
Required Removables pursuant to this Subsection VIII.B.
IX. REPAIRS AND ALTERATIONS.
A. TENANT'S REPAIR OBLIGATIONS. Tenant shall, at its sole cost and
expense, promptly perform all maintenance and repairs to the Premises
that are not Landlord's express responsibility under this Lease, and
shall keep the Premises in good condition and repair, reasonable wear
and tear excepted, and subject to the provisions of Section XVII
(Casualty Damage) and XVIII (Condemnation) of this Lease. Tenant's
repair obligations include, without limitation, repairs to: (1) floor
covering; (2) interior partitions; (3) doors; (4) the interior side of
demising walls; (5) electronic, phone and data cabling and related
equipment (collectively, "Cable") that is installed by or for the
exclusive benefit of Tenant and located in the Premises or other
portions of the Building; (6) supplemental air conditioning units,
private showers and kitchens, including hot water heaters, plumbing,
and similar facilities serving Tenant exclusively; and (7) Alterations
performed by contractors retained by Tenant, including related HVAC
balancing. All work shall be performed in accordance with the rules
and procedures described in Section IX.C. below. If Tenant fails to
make any repairs to the Premises for more than 30 days after notice
from Landlord (although notice shall not be required if there is an
emergency) (which 30-day period shall be extended for such additional
time as shall be reasonably necessary under the circumstances provided
that Tenant commences cure within such 30-day period and is diligently
prosecuting completion of the same), Landlord may make the repairs,
and Tenant shall pay the reasonable cost of the repairs to Landlord
within 30 days after receipt of an invoice, together with an
administrative charge in an amount equal to 10% of the cost of the
repairs.
B. LANDLORD'S REPAIR OBLIGATIONS. Landlord shall keep and maintain in
good repair and working order and make repairs to and perform
maintenance upon: (1) structural elements of the Building; (2)
mechanical (including HVAC), electrical, plumbing and fire/life safety
systems serving the Building in general; (3) Common Areas; (4) the
roof of the Building; (5) exterior windows of the Building; and (6)
elevators serving the Building. Landlord shall promptly make repairs
(considering the nature and urgency of the repair) for which Landlord
is responsible. In addition, Landlord may elect, at the expense of
Tenant, to repair any damage or injury to the Building caused by
moving property of Tenant in or out of the Building, or by
installation or removal of furniture or other property, or by misuse
by, neglect or improper conduct of Tenant or any Tenant Related
Parties (defined in Section XIV.B. herein).
C. ALTERATIONS. Tenant shall not make alterations, additions or
improvements to the Premises or install any Cable in the Premises or
other portions of the Building (collectively referred to as
"Alterations") without first obtaining the written consent of Landlord
in each instance, which consent shall not be unreasonably withheld or
delayed. However, Landlord's consent shall not be required for any
Alteration that satisfies all of the following criteria (a
"Non-Material Alteration"): (1) with respect to the portion of the
Premises located on the first floor, is not visible from the exterior
of the Premises or Building; (2) will not affect the systems or
structure of the Building; and (3) does not legally require the
issuance of a building permit. Without limiting the foregoing, it is
agreed that Tenant shall have the right to install voice and data
cabling in the Premises without the consent of Landlord; provided that
if Tenant requires access to the Building telecommunication closets,
electrical closets or similar areas, the manner in which Tenant
accesses such areas and connects its equipment to the Building
equipment shall be subject to Landlord's approval, which approval
shall not be unreasonably withheld or delayed. However, even though
consent is not required, the performance of Non-Material Alterations,
unless otherwise indicated herein, shall be subject to all the other
provisions of this Section IX.C. Prior to starting work, Tenant shall
furnish Landlord with plans and specifications reasonably acceptable
to Landlord (except for Non-Material Alterations); names of
contractors reasonably acceptable to Landlord (provided that
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Landlord may designate specific contractors with respect to Building
systems, provided further, that the rates charged by such contractors
are competitive with market rates); copies of contracts; necessary
permits and approvals; evidence of contractor's and subcontractor's
insurance in amounts reasonably required by Landlord; and any security
for performance that is reasonably required by Landlord. Changes to
the plans and specifications must also be submitted to Landlord for
its approval. Alterations shall be constructed in a good and
workmanlike manner using materials of a quality that is at least equal
to the quality designated by Landlord as the minimum standard for the
Building. Landlord may designate reasonable rules, regulations and
procedures for the performance of work in the Building and, to the
extent reasonably necessary to avoid disruption to the occupants of
the Building, shall have the right to designate the time when
Alterations may be performed. Except with respect to Non-Material
Alterations, Tenant shall reimburse Landlord within 30 days after
receipt of an invoice for sums paid by Landlord for third party
examination of Tenant's plans for Alterations. In addition, within 30
days after receipt of an invoice from Landlord, Tenant shall pay
Landlord a fee for Landlord's oversight and coordination of any
Alterations (other than Non-Material Alterations) equal to 5% of the
cost of the Alterations. Upon completion, Tenant shall furnish
"as-built" plans (except for Non-Material Alterations), completion
affidavits, full and final waivers of lien and receipted bills
covering all labor and materials. Tenant shall assure Landlord that
the Alterations comply with all insurance requirements and Laws.
Landlord's approval of an Alteration shall not be a representation by
Landlord that the Alteration complies with applicable Laws or will be
adequate for Tenant's use. Tenant shall pay, as an additional charge,
the entire increase in real estate taxes on the Building which shall,
at any time prior to or after the Commencement Date, result from or be
attributable to any Alteration made by or for the account of Tenant in
excess of the building standard improvements for the Building.
X. USE OF ELECTRICAL SERVICES BY TENANT.
A. All electricity used by Tenant in the Premises shall be paid for by
Tenant as Additional Rent within thirty (30) days after receipt of an
invoice from Landlord. Tenant's electricity charge for each month
shall be an amount computed by applying the kilowatt hours shown on
the submeter in the Premises for the billing period in question to
Landlord's Monthly Cost Rate, as such term is hereinafter defined. As
used herein, the term "Landlord's Monthly Cost Rate" shall mean the
per kilowatt hour charge for the relevant billing period (carried to
six decimal places) determined by dividing the total amount charged
for electrical service to the Building by the utility provider(s)
servicing the Building for the relevant monthly billing period by the
total kilowatt hours consumed by the Building for such monthly period
carried to six decimal places. If any tax is imposed on Landlord's
receipt from the sale or resale of electric energy by any federal,
state or municipal authority, Tenant covenants and agrees that, where
permitted by law, Tenant's pro rata share of such taxes based upon
kilowatt hours consumed with respect to the Premises shall be passed
on to, and included in the bill of, and paid by, Tenant to Landlord.
Landlord, as part of the Landlord Work, shall install any necessary
sub-meters (as well as any electrical panels, transformers, bus duct
plug and related equipment) in the Premises at Tenant's sole cost and
expense. In the event Tenant shall consume (or request that it be
allowed to consume) electrical service in excess of the tenant
electrical design load specifications that are included within the
Base Building Scope (attached hereto as EXHIBIT M), Landlord shall
cooperate with Tenant to provide such excess usage, which cooperation
may be conditioned upon such conditions as Landlord reasonably
determines to be necessary (including the installation of utility
service upgrades, submeters, air handlers or cooling units), and all
such additional usage (to the extent permitted by Law), installation
and maintenance thereof shall be paid for by Tenant as Additional
Rent.
B. Electrical service to the Premises may be furnished by one or more
companies providing electrical generation, transmission and
distribution services, and the cost of electricity may consist of
several different components or separate charges for such services,
such as generation, distribution and stranded cost charges. Landlord
shall have the exclusive right to select any company providing
electrical service to the Premises, to aggregate the electrical
service for the Property and Premises with other buildings, to
purchase electricity through a broker and/or buyers group and to
change the providers and manner of purchasing electricity. Landlord
shall be entitled to receive a fee (if permitted by Law) for the
selection of utility companies and the negotiation and administration
of contracts for electricity, provided that the amount of such fee
shall not exceed 50% of any identifiable savings obtained by Landlord
when compared to the
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electricity rates that would have been applicable to the Premises if
Landlord had not provided such service(s).
XI. ENTRY BY LANDLORD.
Landlord, its agents, contractors and representatives may enter the
Premises to inspect or show the Premises, to clean and make repairs, alterations
or additions to the Premises, and to conduct or facilitate repairs, alterations
or additions to any portion of the Building, including other tenants' premises.
Except in emergencies or to provide janitorial and other Building services after
Normal Business Hours, Landlord shall provide Tenant with reasonable prior
notice of entry into the Premises, which may be given orally. If reasonably
necessary for the protection and safety of Tenant and its employees, Landlord
shall have the right to temporarily close all or a portion of the Premises to
perform repairs, alterations and additions. However, except in emergencies,
Landlord will not close the Premises if the work can reasonably be completed on
weekends and after Normal Business Hours. Entry by Landlord shall not constitute
constructive eviction or entitle Tenant to an abatement or reduction of Rent.
Landlord shall use reasonable efforts in the exercise of its rights hereunder
not to interfere with Tenant's use of the Premises, and in the event that
Landlord temporarily closes all or a part of the Premises, Landlord shall use
due diligence to complete any work in the Premises and to re-open the closed
portion of the Premises as soon as possible. Notwithstanding the foregoing,
unless the closure of all or a part of the Premises shall be due to Tenant's
default under the terms of this Lease, if the Premises, or a material portion
thereof, are closed by Landlord to perform repairs alterations or additions for
a period in excess of 3 consecutive Business Days, then Tenant, as its sole
remedy, shall be entitled to receive an abatement of Rent payable hereunder
during the period beginning on the 4th consecutive Business Day of such closure
and ending on the day such closed portion of the Premises has been re-opened. If
less than entire Premises have been so closed, the amount of abatement that
Tenant is entitled to receive shall be prorated based upon the percentage of the
Premises unavailable for Tenant's use.
XII. ASSIGNMENT AND SUBLETTING.
A. Except in connection with a Permitted Transfer (defined in Section
XII.E. below), Tenant shall not assign, sublease, transfer or encumber
any interest in this Lease or allow any third party to use any portion
of the Premises (collectively or individually, a "Transfer") without
the prior written consent of Landlord, which consent shall not be
unreasonably withheld, conditioned or delayed if Landlord does not
elect to exercise its recapture rights under Section XII.B below.
Without limitation, it is agreed that Landlord's consent shall not be
considered unreasonably withheld if: (1) the proposed transferee's net
worth is less than $43,000,000.00, provided that such criteria shall
only be applicable to an assignee of this Lease, and shall not be
applicable to a subtenant or other occupant of the Premises; (2) the
proposed transferee's business is not suitable for the Building
considering the Building's prestige, (3) if the proposed transferee
intends to use all or a portion of the Premises for any retail or
quasi-retail use (e.g. an executive suites or temporary help business)
or for the general office use of a company other than a software or
computer company, such use would result in a violation of another
tenant's rights; provided, however, the parties agree that this
condition shall not be construed to imply that Tenant or any
transferee shall have the right to use the Premises for a retail or
quasi-retail use; (4) the proposed transferee is a governmental agency
or occupant of the Building; provided that Landlord will not withhold
its consent solely because the proposed subtenant or assignee is an
occupant of the Building if Landlord does not have space available for
lease in the Building that is comparable (based upon the available
term and size of the available space) to the space Tenant desires to
sublet or assign; (5) Tenant is in default after the expiration of the
notice and cure periods in this Lease; (6) any portion of the Building
or Premises would likely become subject to additional or different
Laws as a consequence of the proposed Transfer; provided that Landlord
will not refuse consent solely for such reasons if Tenant agrees to
pay for 100% of any related legal compliance costs, including any
costs with respect to any period after the Termination Date; or (7)
Landlord has commenced negotiations with the proposed transferee for
other space in the Building which is comparable in terms of available
term and size to the space that Tenant proposes to transfer. For
purposes hereof, the term "commenced negotiations" shall mean that
Landlord, within six (6) months prior to the date on which Tenant
requests consent to a Transfer, has shown such proposed transferee
space in the Building and has submitted a written proposal to such
proposed transferee. Upon written request of Tenant from time to time,
Landlord shall advise Tenant in writing as to whether Landlord has
granted any exclusive or other restrictive use rights that would allow
Landlord to refuse consent to a proposed transferee in
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accordance with subsection XII.A.(3) above. Such list of rights shall
be binding on Landlord for a period of 6 months after delivery to
Tenant and, during such 6 month period, Landlord shall not be entitled
to refuse consent to a proposed Transfer based solely upon a violation
of any exclusive or restrictive use right that is not included on such
list. Tenant shall not be entitled to receive monetary damages based
upon a claim that Landlord unreasonably withheld its consent to a
proposed Transfer and Tenant's sole remedy shall be an action to
enforce any such provision through specific performance or declaratory
judgment. Any attempted Transfer in violation of this Article shall,
at Landlord's option, be void. Consent by Landlord to one or more
Transfer(s) shall not operate as a waiver of Landlord's rights to
approve any subsequent Transfers. In no event shall any Transfer or
Permitted Transfer (hereinafter defined) release or relieve Tenant
from any obligation under this Lease.
B. As part of its request for Landlord's consent to a Transfer, Tenant
shall provide Landlord with financial statements for the proposed
transferee, a complete copy of the proposed assignment, sublease and
other contractual documents and such other information as Landlord may
reasonably request. Landlord shall, by written notice to Tenant within
10 Business Days of its receipt of the required information and
documentation, either: (1) consent to the Transfer by the execution of
a consent agreement in a form reasonably designated by Landlord or
reasonably refuse to consent to the Transfer in writing; or (2)
recapture the space that Tenant desires to Transfer; which recapture
shall be effective only with respect to the portion of the Term
covered by the proposed Transfer; provided if there would be less than
six months remaining in the Term following the expiration of the
proposed Transfer, Landlord shall be entitled to recapture the space
in question for the entire remaining portion of the Term.
Notwithstanding the foregoing, Landlord shall not have the right to:
(a) recapture any portion of the Premises that is being transferred
pursuant to a Permitted Transfer (hereinafter defined); or (b)
recapture a portion of the Premises in connection with a proposed
sublease for space in One Riverside Center or Two Riverside Center if
the space proposed for sublease does not include at least 1 full floor
of space in One Riverside Center or Two Riverside Center. If a
proposed sublease includes more than 1 full floor, Landlord shall only
have the right to recapture space in full floor increments. For
example, if Tenant proposes to enter into a sublease for space that
includes 1 full floor plus 10,000 square feet on another floor,
Landlord shall have the right to recapture the full floor that Tenant
proposes to sublet, but not the 10,000 square foot portion of the
space that is proposed for sublease. Any such recapture shall be
effective on the proposed effective date of the Transfer for which
Tenant requested consent. Tenant shall pay Landlord a review fee of
$750.00 for Landlord's review of any Permitted Transfer or requested
Transfer, provided if Landlord's actual reasonable costs and expenses
(including reasonable attorney's fees) exceed $750.00, Tenant shall
reimburse Landlord for its actual reasonable costs and expenses in
lieu of a fixed review fee.
C. Tenant shall pay Landlord 50% of all rent and other consideration
which Tenant receives as a result of a Transfer that is in excess of
the Rent payable to Landlord for the portion of the Premises and Term
covered by the Transfer. Tenant shall pay Landlord for Landlord's
share of any excess within 30 days after Tenant's receipt of such
excess consideration. Tenant may deduct from the excess all reasonable
and customary expenses directly incurred by Tenant attributable to the
Transfer including Landlord's review fee, brokerage fees, legal fees
and construction costs. If Tenant is in Monetary Default (defined in
Section XIX.A. below), Landlord may require that all sublease payments
be made directly to Landlord, in which case Tenant shall receive a
credit against Rent in the amount of any payments received (less
Landlord's share of any excess).
Landlord and Tenant acknowledge that, during the first fifteen (15)
months of the Term (the "Reduced Rent Period"), Tenant, in accordance
with Section I.D., pays Base Rent based on less than the entire
rentable square footage of the Premises. The portion of the Premises
for which Tenant is not required to pay Base Rent during the Reduced
Rent Period is referred to as the "Reduced Rent Premises". Subject to
adjustment in accordance with Section I.C., during months 1 - 6 of the
Term, the Reduced Rent Premises shall consist of 76,419 rentable
square feet and, during months 7 - 15 of the Term, the Reduced Rent
Premises shall consist of 38,209 rentable square feet. Any space in
the Premises assigned or sublet by Tenant during the first 15 months
of the Term (regardless of whether such space in located in the One
Riverside Center Premises or the Two Riverside Center Premises) shall
first be attributable to the Reduced Rent Premises, and if the area of
the space so assigned or sublet exceeds the Reduced Rent Premises,
then to the Premises. Notwithstanding the first paragraph of Section
XII.C. above to the contrary, Landlord shall not have the right to
participate in sublease profits in connection
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with any Reduced Rent Premises during the Reduced Rent Period.
Landlord shall, however, have the right to participate is sublease
profits with respect to (i) any portion of the Premises that is not,
from time to time, considered to be Reduced Rent Premises, and (ii)
any portion of the Term that does not fall within the Reduced Rent
Period. For example, if Tenant sublets 100,000 rentable square feet
for the first 24 months of the Term: (iii) during months 1-6, Landlord
shall be entitled to 50% of any sublet profits with respect to 23,581
rentable square feet of such sublet space; (iv) during months 7- 15,
Landlord shall be entitled to 50% of any sublet profits with respect
to 61,791 rentable square feet of such sublet space; and (v) beginning
with the first day of month 16 of the Term, Landlord shall be entitled
to 50% of any sublet profits with respect to the entire sublet
premises. Notwithstanding anything in Section XII.B. above to the
contrary, Landlord shall not be entitled to recapture any portion of
the Reduced Rent Premises that is sublet for a term beginning at any
time during the Reduced Rent Period.
D. Except as provided below with respect to a Permitted Transfer, if
Tenant is a corporation, limited liability company, partnership, or
similar entity, and if the entity which owns or controls a majority of
the voting shares/rights at any time changes for any reason (including
but not limited to a merger, consolidation or reorganization), such
change of ownership or control shall constitute a Transfer. The
foregoing shall not apply so long as Tenant is an entity whose
outstanding stock is listed on a recognized security exchange, or if
at least 80% of its voting stock is owned by another entity, the
voting stock of which is so listed.
E. Tenant may assign its entire interest under this Lease or sublet the
Premises or any portion thereof to a wholly owned corporation,
partnership or other legal entity or affiliate, subsidiary or parent
of Tenant or to any successor to Tenant by purchase, merger,
consolidation or reorganization (hereinafter, collectively, referred
to as "Permitted Transfer") without the consent of Landlord, provided:
(i) Tenant is not in default under this Lease beyond notice and
applicable cure periods; (ii) if such proposed transferee is a
successor to Tenant by purchase, merger, consolidation or
reorganization, the continuing or surviving entity shall own all or
substantially all of the assets of Tenant; (iii) such proposed
transferee operates the business in the Premises for the Permitted Use
and no other purpose; and (iv) in no event shall any Permitted
Transfer release or relieve Tenant from any of its obligations under
this Lease. In addition, if the proposed transferee is a successor to
Tenant by purchase, merger, consolidation or reorganization and the
continuing or surviving entity does not have a net worth which is at
least equal to the lesser of Thirty-Two Million Two Hundred Fifty
Thousand Dollars ($32,250,000.00) or the net worth of Tenant
immediately prior to such purchase, merger, consolidation or
reorganization, then Tenant shall be required to increase the amount
of the Security Deposit by an amount determined in accordance with the
following formula:
A x B = Increase in Security Deposit
A = the percentage decrease in Tenant's net worth as calculated by
comparing (1) the lesser of $32,250,000.00 and Tenant's net worth
immediately prior to the purchase, merger, consolidation or
reorganization to (2) Tenant's net worth immediately following the
purchase, merger, consolidation or reorganization
B = The Security Deposit in effect on the closing date of the
purchase, merger, consolidation or reorganization
For example: If Tenant's net worth decreases by 20% as a result of a
purchase, merger, consolidation or reorganization, the amount of the
Security Deposit shall be increased by 20%. In no event, however,
shall the Security Deposit be increased to be more than $12,111,000
during the first 3 lease years of the Term or to be more than
$8,478,000 at any time after the first 3 lease years of the Term;
provided that such maximum amounts shall be increased on a dollar for
dollar basis by any increase in the Security Deposit under Section
VI.D above. Tenant shall give Landlord written notice at least thirty
(30) days prior to the effective date of such Permitted Transfer;
provided that if the Permitted Transfer is being treated as
confidential by Tenant, Tenant shall provide Landlord with written
notice within thirty (30) days after the first to occur of the closing
date of the Permitted Transfer and the date that the occurrence or
proposed occurrence of the Permitted Transfer becomes public
knowledge. As used herein: (a) "parent" shall mean a company which
owns a majority of Tenant's voting equity; (b) "subsidiary" shall mean
an entity wholly owned by Tenant or at least fifty-one percent (51%)
of whose voting equity is owned by Tenant; (c) "affiliate" shall mean
an entity controlled, controlling or
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under common control with Tenant; and (d) "net worth" shall mean
Tenant's total assets minus Tenant's total liabilities calculated at
the period of time in question. Notwithstanding the provisions of
subsection C, above, any Permitted Transfer shall be deemed to be of
non-Reduced Rent Premises, and if the area of such space so assigned
or sublet exceeds the non-Reduced Rent Premises, then to the Reduced
Rent Premises.
XIII. LIENS.
Tenant shall not permit mechanic's or other liens to be placed upon the
Property, Premises or Tenant's leasehold interest in connection with any work or
service done or purportedly done by or for benefit of Tenant. If a lien is so
placed, Tenant shall, within 10 days of notice from Landlord of the filing of
the lien, fully discharge the lien by settling the claim which resulted in the
lien or by bonding or insuring over the lien in the manner prescribed by the
applicable lien Law. If Tenant fails to discharge the lien or to bond over or
insure the same, then, in addition to any other right or remedy of Landlord,
Landlord may bond or insure over the lien or otherwise discharge the lien.
Tenant shall reimburse Landlord for any amount paid by Landlord to bond or
insure over the lien or discharge the lien, including, without limitation,
reasonable attorneys' fees (if and to the extent permitted by Law) within 30
days after receipt of an invoice from Landlord.
XIV. INDEMNITY AND WAIVER OF CLAIMS.
A. Except to the extent caused by the negligence or willful misconduct of
Landlord or any Landlord Related Parties (defined below), Tenant shall
indemnify, defend and hold Landlord, its trustees, members,
principals, beneficiaries, partners, officers, directors, employees,
Mortgagee(s) (defined in Article XXVI) and agents ("Landlord Related
Parties") harmless against and from all liabilities, obligations,
damages, penalties, claims, actions, costs, charges and expenses,
including, without limitation, reasonable attorneys' fees and other
professional fees (if and to the extent permitted by Law), which may
be imposed upon, incurred by or asserted against Landlord or any of
the Landlord Related Parties and to the extent caused by and arising
out of or in connection with any acts or omissions (including
violations of Law) of Tenant, the Tenant Related Parties (defined
below) or any of Tenant's transferees, contractors or licensees.
B. Except to the extent caused by the negligence or willful misconduct of
Tenant or any Tenant Related Parties (defined below), Landlord shall
indemnify, defend and hold Tenant, its trustees, members, principals,
beneficiaries, partners, officers, directors, employees and agents
("Tenant Related Parties") harmless against and from all liabilities,
obligations, damages, penalties, claims, actions, costs, charges and
expenses, including, without limitation, reasonable attorneys' fees
and other professional fees (if and to the extent permitted by Law),
which may be imposed upon, incurred by or asserted against Tenant or
any of the Tenant Related Parties and to the extent caused by and
arising out of or in connection with the acts or omissions (including
violations of Law) of Landlord, the Landlord Related Parties or any of
Landlord's contractors.
C. Landlord and the Landlord Related Parties shall not be liable for, and
Tenant waives, all claims for loss or damage to Tenant's business or
loss, theft or damage to Tenant's Property (defined in Article XV) or
the property of any person claiming by, through or under Tenant
resulting from: (1) wind or weather; (2) the failure of any sprinkler,
heating or air-conditioning equipment, any electric wiring or any gas,
water or steam pipes; (3) the backing up of any sewer pipe or
downspout; (4) the bursting, leaking or running of any tank, water
closet, drain or other pipe; (5) water, snow or ice upon or coming
through the roof, skylight, stairs, doorways, windows, walks or any
other place upon or near the Building; (6) any act or omission of any
party other than Landlord or Landlord Related Parties; and (7) any
causes not reasonably within the control of Landlord. Tenant shall
insure itself against such losses under Article XV below.
XV. INSURANCE.
Tenant shall carry and maintain the following insurance ("Tenant's
Insurance"), at its sole cost and expense: (1) Commercial General Liability
Insurance applicable to the Premises and its appurtenances providing, on an
occurrence basis, a minimum combined single limit of $2,000,000.00; (2) All Risk
Property/Business Interruption Insurance, including flood and earthquake,
written at replacement cost value and with a replacement cost endorsement
covering all of Tenant's trade fixtures, equipment, furniture and other personal
property within
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the Premises ("Tenant's Property"); (3) Workers' Compensation Insurance as
required by the state in which the Premises is located and in amounts as may be
required by applicable statute; and (4) Employers Liability Coverage of at least
$1,000,000.00 per occurrence. Any company writing any of Tenant's Insurance
shall have an A.M. Best rating of not less than A-VIII. All Commercial General
Liability Insurance policies shall name Tenant as a named insured and Landlord
(or any successor), Equity Office Properties Trust, a Maryland real estate
investment trust, EOP Operating Limited Partnership, a Delaware limited
partnership, Beacon Property Management Corporation, a Delaware corporation and
their respective members, principals, beneficiaries, partners, officers,
directors, employees, and agents, and other designees of Landlord as the
interest of such designees shall appear, as additional insureds. All policies of
Tenant's Insurance shall contain endorsements that the insurer(s) shall give
Landlord and its designees at least 30 days' advance written notice of any
change, cancellation, termination or lapse of insurance. Tenant shall provide
Landlord with a certificate of insurance evidencing Tenant's Insurance prior to
the earlier to occur of the Commencement Date or the date Tenant is provided
with possession of the Premises for any reason, and upon renewals at least 15
days prior to the expiration of the insurance coverage. Landlord shall maintain
so called All Risk property insurance on the Building at replacement cost value,
as reasonably estimated by Landlord. Except as specifically provided to the
contrary, the limits of either party's insurance shall not limit such party's
liability under this Lease.
XVI. SUBROGATION.
Notwithstanding anything in this Lease to the contrary, Landlord and Tenant
hereby waive and shall cause their respective insurance carriers to waive any
and all rights of recovery, claim, action or causes of action against the other
and their respective trustees, principals, beneficiaries, partners, officers,
directors, agents, and employees, for any loss or damage that may occur to
Landlord or Tenant or any party claiming by, through or under Landlord or
Tenant, as the case may be, with respect to Tenant's Property, the Building, the
Premises, any additions or improvements to the Building or Premises, or any
contents thereof, including all rights of recovery, claims, actions or causes of
action arising out of the negligence of Landlord or any Landlord Related Parties
or the negligence of Tenant or any Tenant Related Parties, which loss or damage
is (or would have been, had the insurance required by this Lease been carried)
covered by insurance.
XVII. CASUALTY DAMAGE.
A. If all or any part of the Premises is damaged by fire or other
casualty, Tenant shall immediately notify Landlord in writing. During
any period of time that all or more than 1,000 rentable square feet of
the Premises is rendered untenantable as a result of a fire or other
casualty, the Rent shall abate for the portion of the Premises that is
untenantable and not used by Tenant. Landlord shall have the right to
terminate this Lease if: (1) One Riverside Center shall be damaged so
that, in Landlord's reasonable judgment, substantial alteration or
reconstruction costing 50% or more of the replacement cost of One
Riverside Center shall be required, or the Building shall be damaged
so that, in Landlord's reasonable judgment, substantial alteration or
reconstruction of the Building costing 50% or more of the replacement
cost of the Building shall be required (whether or not the Premises
has been damaged); (2) Landlord is not permitted by Law to rebuild the
Building in substantially the same form as existed before the fire or
casualty; or (3) a material uninsured loss to the Building occurs that
arises out of a casualty of a type that is not covered under typical
"all-risk" property insurance for the area in which the Building is
located. In addition, if Two Riverside Center or Three Riverside
Center shall be damaged so that, in Landlord's reasonable judgment,
substantial alteration or reconstruction costing 75% or more of the
replacement cost of Two Riverside Center or Three Riverside Center, as
the case may be, shall be required, Landlord shall have the right to
terminate this Lease with respect to the portion of the Premises
located with such damaged portion of the Building. Notwithstanding the
foregoing, except with respect to a casualty only affecting the
Premises, Landlord's termination rights herein are conditioned upon
Landlord's termination of all other tenancies within the Building
where (i) the premises under such tenancies are similarly affected by
the fire or other casualty, and (ii) Landlord has the right to
terminate the lease with respect to such tenancy. Landlord may
exercise its right to terminate this Lease by notifying Tenant in
writing within 90 days after the date of the casualty. If this Lease
shall not be terminated by either party pursuant to this Article XVII,
Landlord shall commence and proceed with reasonable diligence to
repair and restore the Building and the Leasehold Improvements
(excluding any Alterations that were performed by Tenant in violation
of this Lease). However, in no event shall Landlord be required to
spend more than the insurance proceeds received by Landlord
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plus any deductible maintained by Landlord and any insurance proceeds
that would have been received by Landlord but for a Mortgagee's
(defined in Article XXVI) failure to release the same to Landlord;
provided, that Landlord carries the insurance required by this Lease.
Landlord shall not be liable for any loss or damage to Tenant's
Property or to the business of Tenant resulting in any way from the
fire or other casualty or from the repair and restoration of the
damage. Landlord and Tenant hereby waive the provisions of any Law
relating to the matters addressed in this Article, and agree that
their respective rights for damage to or destruction of the Premises
shall be those specifically provided in this Lease.
B. If all or any portion of the Premises shall be made untenantable by
fire or other casualty, Landlord shall, within 90 days of the date of
the fire or other casualty, cause a general contractor selected by
Landlord and reasonably acceptable to Tenant to provide Landlord and
Tenant with a written estimate of the amount of time required to
substantially complete the repair and restoration of the Premises and
make the Premises tenantable again, using standard working methods
("Completion Estimate"). If (1) the Completion Estimate indicates that
the Premises cannot be made tenantable within 360 days from the date
of the fire or other casualty, or (2) more than 50% of the Premises
have been made untenantable by the fire or other casualty and less
than one year will be remaining in the Term following the expected
date of completion of restoration of the Premises as indicated in the
Completion Estimate, then regardless of anything in Section XVII.A
above to the contrary, either party shall have the right to terminate
this Lease by giving written notice to the other of such election
within 10 days after receipt of the Completion Estimate. Tenant,
however, shall not have the right to terminate this Lease if the fire
or casualty was caused by the negligence or intentional misconduct of
Tenant, Tenant Related Parties or any of Tenant's transferees,
contractors or licensees. If substantially all of the Premises was
rendered untenantable by the fire or other casualty and Landlord does
not substantially complete the repair and restoration of the Premises
within two (2) months after the expiration of the estimated period of
time set forth in the Completion Estimate, which period shall be
extended to the extent of any Reconstruction Delays, then Tenant may
terminate this Lease by written notice to Landlord within fifteen (15)
days after the expiration of such period, as the same may be extended.
For purposes of this Lease, the term "Reconstruction Delays" shall
mean: (i) any delays caused by Tenant; and (ii) any delays caused by
events of Force Majeure. Notwithstanding the provisions of this
Subsection XVII.B. to the contrary, if the fire or casualty only
affected the portion of the Premises located in Two Riverside Center
or Three Riverside Center, and did not affect any portion of the
Premises located in One Riverside Center, the termination rights set
forth in this Subsection XVII.B shall be limited to the portion of the
Premises located within such damaged portion of the Building.
XVIII. CONDEMNATION.
Either party may terminate this Lease if the whole or any material part of
the Premises shall be taken or condemned for any public or quasi-public use
under Law or by eminent domain (a "Taking"). Landlord shall also have the right
to terminate this Lease if there is a Taking of any portion of the Building or
Property which would leave the remainder of the Building unsuitable for use as
an office building in a manner comparable to the Building's use prior to the
Taking. In order to exercise its right to terminate the Lease, Landlord or
Tenant, as the case may be, must provide written notice of termination to the
other within 45 days after the terminating party first receives notice of the
Taking. Any such termination shall be effective as of the date the physical
taking of the Premises or the portion of the Building or Property occurs. If
this Lease is not terminated, the Rentable Square Footage of the Building, the
Rentable Square Footage of the Premises and Tenant's Pro Rata Share shall, if
applicable, be appropriately adjusted. In addition, Rent for any portion of the
Premises taken or condemned shall be abated during the unexpired Term of this
Lease effective when the physical taking of the portion of the Premises occurs.
All compensation awarded for a Taking, or sale proceeds, shall be the property
of Landlord, any right to receive compensation or proceeds being expressly
waived by Tenant. However, Tenant may file a separate claim at its sole cost and
expense for Tenant's Property, the unamortized value of any Excess Costs
(defined in the Work Letter attached hereto as EXHIBIT D) and Tenant's
reasonable relocation expenses, provided the filing of the claim does not
diminish the award which would otherwise be receivable by Landlord.
XIX. EVENTS OF DEFAULT.
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Tenant shall be considered to be in default of this Lease upon the
occurrence of any of the following events of default:
A. Tenant's failure to pay when due all or any portion of the Rent, if
the failure continues for 5 days after written notice to Tenant
("Monetary Default").
B. Tenant's failure (other than a Monetary Default) to comply with any
term, provision or covenant of this Lease, if the failure is not cured
within 30 days after written notice to Tenant. However, if Tenant's
failure to comply cannot reasonably be cured within 30 days, Tenant
shall be allowed additional time (not to exceed 120 days) as is
reasonably necessary to cure the failure so long as: (1) Tenant
commences to cure the failure within 30 days, and (2) Tenant
diligently pursues a course of action that will cure the failure and
bring Tenant back into compliance with the Lease. However, if Tenant's
failure to comply creates a hazardous condition, the failure must be
cured immediately upon notice to Tenant. In addition, if Landlord
provides Tenant with notice of Tenant's failure to comply with any
particular term, provision or covenant of the Lease on 3 occasions
during any 12 month period, Tenant's subsequent violation of such
term, provision or covenant shall, at Landlord's option, be an
immediate event of default by Tenant which shall not require written
notice or a cure period.
C. Tenant becomes insolvent, makes a transfer in fraud of creditors or
makes an assignment for the benefit of creditors, or admits in writing
its inability to pay its debts when due.
D. The leasehold estate is taken by process or operation of Law and is
not released within 30 days of such taking.
XX. REMEDIES.
A. While any default is continuing, Landlord shall have the right without
notice or demand (except as provided in Article XIX) to exercise any
of its rights and remedies at Law or in equity, including any one or
more of the remedies set forth below. Tenant shall not have the right
to cure a default after the date on which Landlord has notified Tenant
of its election to terminate this Lease, terminate Tenant's right of
possession or exercise any other of Landlord's rights at Law or in
equity.
1. Terminate this Lease, in which case Tenant shall immediately
surrender the Premises to Landlord. If Tenant fails to surrender
the Premises, Landlord may, in compliance with applicable Law and
without prejudice to any other right or remedy, enter upon and
take possession of the Premises and expel and remove Tenant,
Tenant's Property and any party occupying all or any part of the
Premises. Tenant shall pay Landlord on demand the amount of all
past due Rent and other direct losses and damages (but
specifically excluding indirect or consequential damages) which
Landlord may suffer as a result of Tenant's default, whether by
Landlord's inability to relet the Premises on reasonably
satisfactory terms or otherwise, including, without limitation,
all Costs of Reletting (defined below) and any deficiency that
may arise from reletting or the failure to relet the Premises.
"Costs of Reletting" shall include all reasonable costs and
expenses incurred by Landlord in reletting or attempting to relet
the Premises, including, without limitation, reasonable legal
fees, brokerage commissions, the cost of alterations and the
value of other concessions or allowances granted to a new tenant.
2. Terminate Tenant's right to possession of the Premises and, in
compliance with applicable Law, expel and remove Tenant, Tenant's
Property and any parties occupying all or any part of the
Premises. Landlord may (but, except as provided in Section XX.C.
below, shall not be obligated to) relet all or any part of the
Premises, without notice to Tenant, for a term that may be
greater or less than the balance of the Term and on such
conditions (which may include concessions, free rent and
alterations of the Premises) and for such uses as Landlord in its
absolute discretion shall determine. Landlord may collect and
receive all rents and other income from the reletting. Tenant
shall pay Landlord on demand all past due Rent, all Costs of
Reletting and any deficiency arising from the reletting or
failure to relet the Premises. Landlord shall not be responsible
or liable for the failure to relet all or any part of the
Premises or for the failure to collect any Rent. The re-entry or
taking of possession of the Premises shall not be construed as an
election by Landlord to terminate this Lease unless a written
notice of termination is given to Tenant.
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3. In lieu of calculating damages under Sections XX.A.1 or XX.A.2
above, Landlord may elect to receive as damages the sum of (a)
all Rent accrued through the date of termination of this Lease or
Tenant's right to possession, and (b) an amount equal to the
total Rent that Tenant would have been required to pay for the
remainder of the Term discounted to present value at the Prime
Rate (defined in Section XX.B. below) then in effect, minus the
then present fair rental value of the Premises for the remainder
of the Term, similarly discounted, after deducting all
anticipated Costs of Reletting.
B. Unless expressly provided in this Lease, the repossession or
re-entering of all or any part of the Premises shall not relieve
Tenant of its liabilities and obligations under the Lease. No right or
remedy of Landlord shall be exclusive of any other right or remedy.
Each right and remedy shall be cumulative and in addition to any other
right and remedy now or subsequently available to Landlord at Law or
in equity. If Landlord declares Tenant to be in default, Landlord
shall be entitled to receive interest on any unpaid item of Rent at a
rate equal to the Prime Rate plus 4%. For purposes hereof, the "Prime
Rate" shall be the per annum interest rate publicly announced as its
prime or base rate by a federally insured bank selected by Landlord in
the state in which the Building is located. Forbearance by Landlord to
enforce one or more remedies shall not constitute a waiver of any
uncured default.
C. Landlord agrees to use reasonable efforts to mitigate damages,
provided that such reasonable efforts shall not require Landlord to
relet the Premises in preference to any other space in the Building or
to relet the Premises to any party that Landlord could reasonably
reject as a transferee pursuant to Article XII hereof.
XXI. LIMITATION OF LIABILITY.
A. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS LEASE, THE
LIABILITY OF LANDLORD (AND OF ANY SUCCESSOR LANDLORD) TO TENANT SHALL
BE LIMITED TO THE INTEREST OF LANDLORD IN THE PROPERTY. TENANT SHALL
LOOK SOLELY TO LANDLORD'S INTEREST IN THE PROPERTY FOR THE RECOVERY OF
ANY JUDGMENT OR AWARD AGAINST LANDLORD. NEITHER LANDLORD NOR ANY
LANDLORD RELATED PARTY SHALL BE PERSONALLY LIABLE FOR ANY JUDGMENT OR
DEFICIENCY. BEFORE FILING SUIT FOR AN ALLEGED DEFAULT BY LANDLORD,
TENANT SHALL GIVE LANDLORD AND THE MORTGAGEE(S) (DEFINED IN ARTICLE
XXVI BELOW) WHOM TENANT HAS BEEN NOTIFIED HOLD MORTGAGES (DEFINED IN
ARTICLE XXVI BELOW) ON THE PROPERTY, BUILDING OR PREMISES, NOTICE AND
REASONABLE TIME (NOT TO EXCEED 30 DAYS AFTER THE EXPIRATION OF ANY
LANDLORD CURE PERIODS) TO CURE THE ALLEGED DEFAULT. NOTHING HEREIN
SHALL LIMIT TENANT'S RIGHT TO BRING AN ACTION IN EQUITY AGAINST
LANDLORD. IN NO EVENT, HOWEVER, SHALL TENANT BE ENTITLED TO BRING ANY
SUCH ACTION AGAINST ANY TRUSTEE, MEMBER, PRINCIPAL, BENEFICIARY,
PARTNER, OFFICER, DIRECTOR OR EMPLOYEE OF LANDLORD, OR MORTGAGEE
(UNLESS SUCH MORTGAGEE IS IN POSSESSION OF THE PREMISES, BUILDING OR
PROPERTY, OR HAS BECOME THE LANDLORD).
B. WITHOUT LIMITING THE SCOPE OF SECTION XXI.A. ABOVE (I) AND EXCEPT AS
SPECIFICALLY PROVIDED IN SECTION III.E (LATE COMPLETION PENALTIES) TO
THE CONTRARY, IN NO EVENT SHALL LANDLORD OR ANY MORTGAGEES OR LANDLORD
RELATED PARTIES EVER BE LIABLE FOR ANY CONSEQUENTIAL OR INCIDENTAL
DAMAGES OR ANY LOST PROFITS OF TENANT, AND (II) EXCEPT AS SPECIFICALLY
PROVIDED IN SECTION XXV (HOLDOVER) TO THE CONTRARY, IN NO EVENT SHALL
TENANT OR TENANT RELATED PARTIES EVER BE LIABLE FOR ANY CONSEQUENTIAL
OR INCIDENTAL DAMAGES OR LOST PROFITS OF LANDLORD. THE PARTIES AGREE
THAT THE EXCLUSION OF LOST PROFITS FROM DAMAGES SHALL NOT BE CONSTRUED
AS TO LIMIT LANDLORD'S RIGHT TO COLLECT PAST AND FUTURE RENT DAMAGES
UNDER SECTION XX.
XXII. NO WAIVER.
Either party's failure to declare a default immediately upon its
occurrence, or delay in taking action for a default shall not constitute a
waiver of the default, nor shall it constitute an
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estoppel unless such default is subsequently cured. Either party's failure to
enforce its rights for a default shall not constitute a waiver of its rights
regarding any subsequent default. Receipt by Landlord of Tenant's keys to the
Premises shall not constitute an acceptance or surrender of the Premises.
XXIII. QUIET ENJOYMENT.
Tenant shall, and may peacefully have, hold and enjoy the Premises, subject
to the terms of this Lease, provided Tenant pays the Rent and fully performs all
of its covenants and agreements. This covenant and all other covenants of
Landlord shall be binding upon Landlord and its successors only during its or
their respective periods of ownership of the Building, and shall not be a
personal covenant of Landlord or the Landlord Related Parties.
XXIV. RELOCATION.
Intentionally Omitted.
XXV. HOLDING OVER.
Except for any permitted occupancy by Tenant under Article VIII, if Tenant
fails to surrender the Premises at the expiration or earlier termination of this
Lease, occupancy of the Premises after the termination or expiration shall be
that of a tenancy at sufferance. Tenant's occupancy of the Premises during the
holdover shall be subject to all the terms and provisions of this Lease and
Tenant shall pay an amount (on a per month basis without reduction for partial
months during the holdover) equal to 150% of the greater of: (1) the sum of the
Base Rent and Additional Rent due for the period immediately preceding the
holdover; or (2) the fair market gross rental for the Premises as reasonably
determined by Landlord. No holdover by Tenant or payment by Tenant after the
expiration or early termination of this Lease shall be construed to extend the
Term or prevent Landlord from immediate recovery of possession of the Premises
by summary proceedings or otherwise. In addition to the payment of the amounts
provided above, if Landlord is unable to deliver possession of the Premises to a
new tenant, or to perform improvements for a new tenant, as a result of Tenant's
holdover and Tenant fails to vacate the Premises within 60 days after the later
of (i) the Termination Date, or (ii) the date Landlord notifies Tenant of
Landlord's inability to deliver possession, or perform improvements, Tenant
shall be liable to Landlord for all damages, including, without limitation,
consequential damages, that Landlord suffers from the holdover.
XXVI. SUBORDINATION TO MORTGAGES; ESTOPPEL CERTIFICATE.
A. Subject to the provisions of subsection B. below, Tenant accepts this
Lease subordinate to any mortgage(s), deed(s) of trust, ground
lease(s) or other lien(s) subsequently arising upon the Premises, the
Building or the Property, and to renewals, modifications, refinancings
and extensions thereof (collectively referred to as a "Mortgage"). The
party having the benefit of a Mortgage shall be referred to as a
"Mortgagee". This clause shall be self-operative, but upon request
from a Mortgagee, Tenant shall execute a commercially reasonable
subordination agreement in favor of the Mortgagee. In lieu of having
the Mortgage be superior to this Lease, a Mortgagee shall have the
right at any time to subordinate its Mortgage to this Lease. If
requested by a successor-in-interest to all or a part of Landlord's
interest in the Lease, Tenant shall, without charge, attorn to the
successor-in-interest; provided that such successor-in-interest
assumes Landlord's obligations under this Lease with respect to the
period from and after the date attornment is required. Landlord and
Tenant shall each, within 10 days after receipt of a written request
from the other, execute and deliver an estoppel certificate to those
parties as are reasonably requested by the other (including a
Mortgagee or prospective purchaser). The estoppel certificate shall
include a statement certifying that this Lease is unmodified (except
as identified in the estoppel certificate) and in full force and
effect, describing the dates to which Rent and other charges have been
paid, representing that, to such party's actual knowledge, there is no
default (or stating the nature of the alleged default) and indicating
other matters with respect to the Lease that may reasonably be
requested.
B. Landlord hereby represents that the Building is not currently
encumbered by a Mortgage. Landlord will use reasonable efforts to
obtain a non-disturbance, subordination and attornment agreement in
favor of Tenant from any future Mortgagee on such Mortgagee's then
current standard form of agreement. Notwithstanding the foregoing,
Tenant shall have the right to attempt to negotiate commercially
reasonable changes to such future Mortgagee's form of non-disturbance,
subordination and attornment
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agreement. Upon agreement between Tenant and such future Mortgagee,
Tenant will execute such non-disturbance, subordination and attornment
agreement and return the same to the future Mortgagee for execution.
In the event that Tenant and any future Mortgagee are unable to agree
upon the terms and conditions of the non-disturbance, subordination
and attornment agreement, Tenant, upon request of such future
Mortgagee, agrees to enter into a non-disturbance, subordination and
attornment agreement on the form attached hereto as EXHIBIT J.
Landlord's failure to obtain a non-disturbance, subordination and
attornment agreement for Tenant from any future Mortgagee shall have
no effect on the rights, obligations and liabilities of Landlord and
Tenant or be considered to be a default by Landlord hereunder,
provided that if such future Mortgagee is unwilling to enter into a
non-disturbance, subordination and attornment agreement with Tenant
(either on a negotiated form or the form attached hereto as EXHIBIT
J), this Lease shall not be subordinated to the Mortgage held by the
future Mortgagee. If, however, Tenant is unwilling to negotiate with
the Mortgagee in good faith or to enter into such non-disturbance,
subordination and attornment agreement on the form attached hereto as
EXHIBIT J, such refusal shall be considered to be a default hereunder
by Tenant and Landlord shall have no further obligation to attempt to
obtain a non-disturbance, subordination and attornment from such
future Mortgagee.
XXVII. ATTORNEYS' FEES.
If either party institutes a suit against the other for violation of or to
enforce any covenant or condition of this Lease, or if either party intervenes
in any suit in which the other is a party to enforce or protect its interest or
rights, the prevailing party shall be entitled to all of its costs and expenses,
including, without limitation, reasonable attorneys' fees.
XXVIII. NOTICE.
If a demand, request, approval, consent, invoice or notice (collectively
referred to as a "notice") shall or may be given to either party by the other,
the notice shall be in writing and delivered by hand or sent by registered or
certified mail with return receipt requested, or sent by overnight or same day
courier service at the party's respective Notice Address(es) set forth in
Article I, except that if Tenant has vacated the Premises (or if the Notice
Address for Tenant is other than the Premises, and Tenant has vacated such
address) without providing Landlord a new Notice Address, Landlord may serve
notice in any manner described in this Article or in any other manner permitted
by Law. Each notice shall be deemed to have been received or given on the
earlier to occur of actual delivery or the date on which delivery is refused,
or, if Tenant has vacated the Premises or the other Notice Address of Tenant
without providing a new Notice Address, three (3) days after notice is deposited
in the U.S. mail or with a courier service in the manner described above. Either
party may, at any time, change its Notice Address by giving the other party
written notice of the new address in the manner described in this Article.
XXIX. EXCEPTED RIGHTS.
This Lease does not grant any rights to light or air over or about the
Building. Subject to the specific rights granted to Tenant in this Lease,
including, without limitation, Tenant's rights with respect to the use of the
Building risers and roof, Landlord excepts and reserves exclusively to itself
the use of: (1) roofs, (2) telephone, electrical and janitorial closets, (3)
equipment rooms, Building risers or similar areas that are used by Landlord for
the provision of Building services, (4) rights to the land and improvements
below the floor of the Premises, (5) the improvements and air rights above the
Premises; provided that Landlord may not add any additional floors to One
Riverside Center or Two Riverside Center, (6) the improvements and air rights
outside the demising walls of the Premises, and (7) the areas within the
Premises used for the installation of utility lines and other installations
serving occupants of the Building. Landlord has the right to change the
Building's name or address, provided that Landlord shall use reasonable efforts
to provide Tenant with at least 180 days prior notice with respect to a change
in the Building's street address that will prohibit Tenant from receiving mail
at the current address and in the event Landlord fails to provide Tenant with at
least 180 days prior notice, Landlord shall reimburse Tenant for the cost of
replacing all business stationery and promotional materials on hand (not to
exceed a two month's supply) at the effective date of such change. Landlord also
has the right to make such other changes to the Property and Building as
Landlord deems appropriate, provided the changes do not materially affect
Tenant's ability to use the Premises for the Permitted Use or materially affect
Tenant's use of the Premises as a first class office building. Landlord shall
also have the right (but not the obligation) to temporarily close the Building
if Landlord reasonably determines that there is an imminent danger of
significant damage to the Building or of personal injury to Landlord's
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employees or the occupants of the Building. The circumstances under which
Landlord may temporarily close the Building shall include, without limitation,
electrical interruptions, hurricanes and civil disturbances. A closure of the
Building under such circumstances shall not constitute a constructive eviction
nor entitle Tenant to an abatement or reduction of Rent, except as otherwise
provided herein in this Lease.
XXX. SURRENDER OF PREMISES.
At the expiration or earlier termination of this Lease or Tenant's right of
possession, Tenant shall remove Tenant's Property (defined in Article XV) from
the Premises, and quit and surrender the Premises to Landlord, broom clean, and
in good order, condition and repair, ordinary wear and tear excepted and subject
to the provisions of Articles XVII and XVIII. Tenant shall also be required to
remove the Required Removables in accordance with Article VIII. If Tenant fails
to remove any of Tenant's Property within 2 days after the termination of this
Lease or of Tenant's right to possession, Landlord, at Tenant's sole cost and
expense, shall be entitled (but not obligated) to remove and store such Tenant's
Property. Landlord shall not be responsible for the value, preservation or
safekeeping of such Tenant's Property. Tenant shall pay Landlord, upon demand,
the expenses and storage charges incurred for such Tenant's Property. In
addition, if Tenant fails to remove any of Tenant's Property from the Premises
or storage, as the case may be, within 30 days after written notice, Landlord
may deem all or any part of such Tenant's Property to be abandoned, and title to
such Tenant's Property shall be deemed to be immediately vested in Landlord.
XXXI. MISCELLANEOUS.
A. This Lease and the rights and obligations of the parties shall be
interpreted, construed and enforced in accordance with the Laws of the
state in which the Building is located and Landlord and Tenant hereby
irrevocably consent to the jurisdiction and proper venue of such
state. If any term or provision of this Lease shall to any extent be
invalid or unenforceable, the remainder of this Lease shall not be
affected, and each provision of this Lease shall be valid and enforced
to the fullest extent permitted by Law. The headings and titles to the
Articles and Sections of this Lease are for convenience only and shall
have no effect on the interpretation of any part of the Lease.
B. Tenant shall not record this Lease. Landlord, however, agrees to
execute and to deliver to Tenant for recordation or registration, at
Tenant's cost and expense, a memorandum or notice of this Lease in the
form attached hereto as EXHIBIT F. If this Lease is terminated before
the Term expires, upon Landlord's request the parties shall execute,
deliver and record an instrument acknowledging the above and the date
of the termination of this Lease, and Tenant appoints Landlord its
attorney-in-fact in its name and behalf to execute the instrument if
Tenant shall fail to execute and deliver the instrument after
Landlord's request therefor within 10 days.
C. Landlord and Tenant hereby waive any right to trial by jury in any
proceeding based upon a breach of this Lease.
D. Whenever a period of time is prescribed for the taking of an action by
Landlord or Tenant, the period of time for the performance of such
action shall be extended by the number of days that the performance is
actually delayed due to strikes, acts of God, shortages of labor or
materials, war, civil disturbances and other causes beyond the
reasonable control of the performing party (but in no event shall the
term include economic or financing difficulties) ("Force Majeure").
However, events of Force Majeure shall not extend any period of time
for the payment of Rent or other sums payable by either party or any
period of time for the written exercise of an option or right by
either party. Notwithstanding anything herein to the contrary, except
with respect to war, civil disturbance, fires, earthquakes, tornadoes,
hurricanes and events that are commonly considered to be "acts of
God", the number of days of Force Majeure delay with respect to each
individual event of Force Majeure shall be limited to 60 days. For
example, with respect to Landlord's performance of the Landlord Work,
Landlord will not be able to claim more than 60 days of Force Majeure
delay in connection with a strike by any individual construction trade
or more than 60 days of Force Majeure delay in connection with the
shortage of any particular type of materials. However, the number of
days of Force Majeure delay in connection with any individual trade
shall not be counted against the number of days of Force Majeure delay
for an unrelated trade or an unrelated cause (such as a shortage of
materials).
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<PAGE> 34
E. Landlord shall have the right to transfer and assign, in whole or in
part, all of its rights and obligations under this Lease and in the
Building and/or Property referred to herein, and upon such transfer
and such successor's written assumption of Landlord's obligations
under this Lease, Landlord shall be released from any further
obligations hereunder, and Tenant agrees to look solely to the
successor in interest of Landlord for the performance of such
obligations.
F. Tenant represents that it has dealt directly with and only with the
Broker as a broker in connection with this Lease. Tenant shall
indemnify and hold Landlord and the Landlord Related Parties harmless
from all claims of any other brokers claiming to have represented
Tenant in connection with this Lease. Landlord agrees to indemnify and
hold Tenant and the Tenant Related Parties harmless from all claims of
any brokers claiming to have represented Landlord in connection with
this Lease. Landlord shall be responsible for the payment of a
brokerage commission to Broker in connection with this Lease in
accordance with the terms of a separate agreement by and between
Landlord and Broker.
G. (i). Tenant covenants, warrants and represents that: (1) each
individual executing, attesting and/or delivering this Lease on behalf
of Tenant is authorized to do so on behalf of Tenant; (2) this Lease
is binding upon Tenant; and (3) Tenant is duly organized and legally
existing in the state of its organization and is qualified to do
business in the state in which the Premises are located. If there is
more than one Tenant, or if Tenant is comprised of more than one party
or entity, the obligations imposed upon Tenant shall be joint and
several obligations of all the parties and entities. If Tenant is a
partnership, then each present and future partner shall be personally
bound by and upon all of the covenants, agreements, terms, provisions
and conditions to be performed by Tenant. Landlord may request (and
Tenant shall comply) that Tenant, at the time that Tenant admits any
new partner to its partnership, require each new partner to execute an
agreement in form and substance satisfactory to Landlord under which
the new partner shall agree to be personally bound by and upon all of
the covenants, agreements, terms, provisions and conditions to be
performed by Tenant, without regard to when the new partner is
admitted to the partnership (or when any obligations under any of
covenants, agreements, terms, provisions and conditions accrue).
Notices, payments and agreements given or made by, with or to any one
person or entity shall be deemed to have been given or made by, with
and to all of them.
(ii). Landlord covenants, warrants and represents that: (1) each
individual executing, attesting and/or delivering this Lease on behalf
of Landlord is authorized to do so on behalf of Landlord; (2) this
Lease is binding upon Landlord; and (3) Landlord is duly organized and
legally existing in the state of its organization and is qualified to
do business in the state in which the Premises are located.
H. Time is of the essence with respect to Tenant's exercise of any
expansion, renewal or extension rights granted to Tenant. This Lease
shall create only the relationship of landlord and tenant between the
parties, and not a partnership, joint venture or any other
relationship. This Lease and the covenants and conditions in this
Lease shall inure only to the benefit of and be binding only upon
Landlord and Tenant and their permitted successors and assigns.
I. The expiration of the Term, whether by lapse of time or otherwise,
shall not relieve either party of any obligations which accrued prior
to or which may continue to accrue after the expiration or early
termination of this Lease. Without limiting the scope of the prior
sentence, it is agreed that Tenant's obligations under Sections IV.A,
IV.B., IV.D, VIII, XIV, XX, XXV and XXX and Landlord's obligations
under Sections IV.B., IV.D., VI, XIV, and XX shall survive the
expiration or early termination of this Lease.
J. Landlord has delivered a copy of this Lease to Tenant for Tenant's
review only, and the delivery of it does not constitute an offer to
Tenant or an option. This Lease shall not be effective against any
party hereto until an original copy of this Lease has been signed by
both parties.
K. All understandings and agreements previously made between the parties
are superseded by this Lease, and neither party is relying upon any
warranty, statement or representation not contained in this Lease.
This Lease may be modified only by a written agreement signed by
Landlord and Tenant.
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<PAGE> 35
L. Tenant, within 15 days after request, but not more than once in any 12
month period, shall provide Landlord with a current financial
statement and such other information as Landlord may reasonably
request in order to create a "business profile" of Tenant and
determine Tenant's ability to fulfill its obligations under this
Lease. Landlord, however, shall not require Tenant to provide such
information unless Landlord is requested to produce the information in
connection with a proposed financing or sale of the Building. Upon
written request by Tenant, Landlord shall enter into a commercially
reasonable confidentiality agreement covering any confidential
information that is disclosed by Tenant.
M. Landlord shall be in default under this Lease if Landlord fails to
perform any of its obligations hereunder and said failure continues
for a period of thirty (30) days after written notice from Tenant to
Landlord describing the default in reasonable detail (provided that if
such failure cannot reasonably be cured within thirty (30) days,
Landlord shall be in default hereunder only if Landlord fails to
commence to cure such default within thirty (30) days after notice
from Tenant or having commenced the curative action within thirty (30)
days, fails to diligently pursue same). Notwithstanding the foregoing
cure period, Landlord shall be obligated to commence to cure an
emergency situation that creates an imminent danger of bodily harm to
any persons or an imminent danger of harm to property or material
interference with Tenant's business operations as soon as reasonably
possible following the date on which Landlord first became aware of
such situation. Except to the extent the same have been waived by
Tenant under the Lease, Tenant, following notice to Landlord and the
expiration of the applicable cure period, shall be entitled to pursue
any and all applicable remedies provided by Massachusetts law in
connection with such default by Landlord hereunder. In lieu of
exercising its rights and remedies under Massachusetts law, Tenant
shall have the right to cure a default by Landlord under the limited
circumstances where all of the following conditions exist (the "Self
Help Conditions"): 1) all or substantially all of the Premises have
been rendered unusable by Tenant for the Permitted Use as a result of
Landlord's default; 2) Landlord has failed to cure the Landlord
default within applicable notice and cure periods and, in addition,
Landlord is not actively attempting to cure the default; 3) prior to
curing the default, Tenant provides Landlord with written notice of
the fact that Tenant intends to cure the default on Landlord's behalf;
4) if there is a Mortgage on the Building, Tenant has provided such
Mortgagee with notice of Landlord's default and has allowed such
Mortgagee an opportunity to cure such default in accordance with the
terms of any subordination, non-disturbance and attornment agreement
(or similar agreement) between Tenant and such Mortgagee; 5) the
action required to cure the default does not require Tenant to have
access to the premises of any other tenant or occupant of the
Building; and 6) the action required to cure the default does not
involve the performance of work with respect to any Building systems
(e.g. mechanical, electrical, plumbing, fire/life safety, card access)
that are then operational and serving any other tenants or occupants
of the Building. If all of the Self Help Conditions exist and Tenant
elects to cure the default of Landlord, any such curative work must be
performed by contractors that have previously performed similar work
for Landlord in the Building, provided that the identity of such
contractors are made known to Tenant. In addition, if Landlord has a
warranty or service and maintenance agreement for a particular item
that requires service, repair or replacement as part of the curative
work (and Tenant is aware of such warranty or contract), Tenant shall
contract with the issuer of such warranty or contract for the
performance of the curative work so as not to adversely affect such
warranty or contract. In attempting to cure any default by Landlord,
Tenant shall pursue the least expensive course of action that can
reasonably be expected to cure the default in question and shall
perform only so much work as is reasonable necessary to cure the
default. Tenant, in accordance with the terms of Article XIV, shall
indemnify Landlord for any and all liabilities, obligations, damages,
penalties, claims, actions, costs, charges and expenses in connection
with the performance of such work, including any claims by tenants or
occupants of the Building that are adversely affected by the
performance of the work. Upon completion of the curative work by
Tenant and receipt of paid invoices, Landlord shall reimburse Tenant
for all expenses reasonably incurred by Tenant in curing Landlord's
default. If Landlord fails to repay Tenant for such costs within
fifteen (15) days after Landlord's receipt of the paid invoices,
Tenant shall be entitled to pursue its remedies under Massachusetts
law for payment of such amount.
XXXII. ENTIRE AGREEMENT.
This Lease and the following exhibits and attachments constitute the entire
agreement between the parties and supersede all prior agreements and
understandings related to the Premises, including all lease proposals, letters
of intent and other documents: EXHIBIT A (Outline and Location of
32
<PAGE> 36
First Floor Premises in One Riverside Center), EXHIBIT A1 (Outline and Location
of Second Floor Premises in One Riverside Center), EXHIBIT A2 (Outline and
Location of Third Floor Premises in One Riverside Center), EXHIBIT A3 (Outline
and Location of First Floor Premises in Two Riverside Center), EXHIBIT A4
(Outline and Location of Second Floor Premises in Two Riverside Center) EXHIBIT
B (Rules and Regulations), EXHIBIT C (Commencement Letter), EXHIBIT D (Work
Letter Agreement), EXHIBIT E (Additional Provisions) and EXHIBIT F (Notice of
Lease), EXHIBIT G (Legal Description of Property), EXHIBIT H (Building Plan),
EXHIBIT I (Sample Letter of Credit), EXHIBIT J (Form of Non-Disturbance
Agreement. EXHIBIT K (Location of Parking Structure Sign), EXHIBIT L (Location
of One Riverside Center Sign), EXHIBIT M (Base Building Scope), EXHIBIT N
(Sample Cleaning Specifications), EXHIBIT O (Entry Signage), EXHIBIT P (First
Expansion Space).
Landlord and Tenant have executed this Lease as of the day and year first
above written.
WITNESS/ATTEST: LANDLORD:
EOP-RIVERSIDE PROJECT, L.L.C, A DELAWARE
LIMITED LIABILITY COMPANY
By: Beacon Property Management Corporation, a
Delaware corporation, its managing member
/s/ Kathleen M. Steidinger
- ------------------------------ By: /S/ Michael A. Steele
-------------------------------
Name (print):
---------------- Name: Michael A. Steele
Kathleen M. Steidinger -------------------------------
- ------------------------------
Title: President
/s/ John C. Schneider -------------------------------
- ------------------------------
Name (print):
----------------
John C. Schneider
- ------------------------------
WITNESS/ATTEST: TENANT:
ALLAIRE CORPORATION, A CORPORATION ORGANIZED
/s/ Eric J. Smith UNDER THE LAWS OF THE STATE OF DELAWARE
- ------------------------------ By: David A. Gerth
------------------------------------
Name (print): Eric J. Smith
-----------------
/s/ JoAnne Trayers Name: David A. Gerth
- ------------------------------ ------------------------------------
Name (print): JoAnne Trayers Title: CFO & VP Finance & Operations
----------------- ------------------------------------
- ------------------
33
<PAGE> 37
EXHIBIT A
OUTLINE AND LOCATION OF THE FIRST FLOOR PREMISES IN ONE RIVERSIDE CENTER
------------------------------------------------------------------------
This Exhibit is attached to and made a part of the Lease dated as of 23rd,
November, 1999, by and between EOP-RIVERSIDE PROJECT, L.L.C, A DELAWARE LIMITED
LIABILITY COMPANY ("Landlord") and ALLAIRE CORPORATION, A CORPORATION ORGANIZED
UNDER THE LAWS OF THE STATE OF DELAWARE ("Tenant") for space in the Building
located at 275 Grove Street, Newton, MA.
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<PAGE> 38
EXHIBIT A-1
OUTLINE AND LOCATION OF THE SECOND FLOOR PREMISES IN ONE RIVERSIDE CENTER
-------------------------------------------------------------------------
This Exhibit is attached to and made a part of the Lease dated as of 23rd,
November, 1999, by and between EOP-RIVERSIDE PROJECT, L.L.C, A DELAWARE LIMITED
LIABILITY COMPANY ("Landlord") and ALLAIRE CORPORATION, A CORPORATION ORGANIZED
UNDER THE LAWS OF THE STATE OF DELAWARE ("Tenant") for space in the Building
located at 275 Grove Street, Newton, MA.
2
<PAGE> 39
EXHIBIT A-2
OUTLINE AND LOCATION OF THE THIRD FLOOR PREMISES IN ONE RIVERSIDE CENTER
------------------------------------------------------------------------
This Exhibit is attached to and made a part of the Lease dated as 23rd,
November, 1999, by and between EOP-RIVERSIDE PROJECT, L.L.C, A DELAWARE LIMITED
LIABILITY COMPANY ("Landlord") and ALLAIRE CORPORATION, A CORPORATION ORGANIZED
UNDER THE LAWS OF THE STATE OF DELAWARE ("Tenant") for space in the Building
located at 275 Grove Street, Newton, MA.
3
<PAGE> 40
EXHIBIT A-3
OUTLINE AND LOCATION OF THE FIRST FLOOR PREMISES IN TWO RIVERSIDE CENTER
------------------------------------------------------------------------
This Exhibit is attached to and made a part of the Lease dated as of 23rd,
November, 1999, by and between EOP-RIVERSIDE PROJECT, L.L.C, A DELAWARE LIMITED
LIABILITY COMPANY ("Landlord") and ALLAIRE CORPORATION, A CORPORATION ORGANIZED
UNDER THE LAWS OF THE STATE OF DELAWARE ("Tenant") for space in the Building
located at 275 Grove Street, Newton, MA.
4
<PAGE> 41
EXHIBIT A-4
OUTLINE AND LOCATION OF THE SECOND FLOOR PREMISES IN TWO RIVERSIDE CENTER
-------------------------------------------------------------------------
This Exhibit is attached to and made a part of the Lease dated as of 23rd,
November, 1999, by and between EOP-RIVERSIDE PROJECT, L.L.C, A DELAWARE LIMITED
LIABILITY COMPANY ("Landlord") and ALLAIRE CORPORATION, A CORPORATION ORGANIZED
UNDER THE LAWS OF THE STATE OF DELAWARE ("Tenant") for space in the Building
located at 275 Grove Street, Newton, MA.
5
<PAGE> 42
EXHIBIT B
BUILDING RULES AND REGULATIONS
------------------------------
The following rules and regulations shall apply, where applicable, to the
Premises, the Building, the parking garage (if any), the Property and the
appurtenances. Capitalized terms have the same meaning as defined in the Lease.
1. Sidewalks, doorways, vestibules, halls, stairways and other similar areas
not within the premises of any tenant of the Building shall not be
obstructed by Tenant or used by Tenant for any purpose other than ingress
and egress to and from the Premises. No rubbish, litter, trash, or material
shall be placed, emptied, or thrown in those areas. At no time shall Tenant
permit Tenant's employees to loiter in Common Areas or elsewhere about the
Building or Property.
2. Plumbing fixtures and appliances shall be used only for the purposes for
which designed, and no sweepings, rubbish, rags or other unsuitable
material shall be thrown or placed in the fixtures or appliances. Damage
resulting to fixtures or appliances by the improper use by Tenant, its
agents, employees or invitees, shall be paid for by Tenant, and Landlord
shall not be responsible for the damage.
3. No signs, advertisements or notices shall be painted or affixed to windows,
doors or other parts of the Building, except those of such color, size,
style and in such places as are first approved in writing by Landlord.
Except in connection with the hanging of lightweight pictures and wall
decorations, no nails, hooks or screws shall be inserted into any part of
the Premises or Building except by the Building maintenance personnel or
otherwise in accordance with the terms of Section IX.C.
4. Landlord shall provide and maintain in the first floor (main lobby) of the
Building an alphabetical directory board or other directory device listing
tenants, and no other directory shall be permitted unless previously
consented to by Landlord in writing.
5. Tenant shall not place any lock(s) on any door in the Premises or Building
without Landlord's prior written consent (which consent shall not be
unreasonably withheld or delayed) and Landlord shall have the right to
retain at all times and to use keys to all locks within and into the
Premises. A reasonable number of keys to the locks on the entry doors in
the Premises shall be furnished by Landlord to Tenant at Tenant's cost, and
Tenant shall not make any duplicate keys. All keys shall be returned to
Landlord at the expiration or early termination of this Lease.
6. All contractors, contractor's representatives and installation technicians
performing work in the Building shall be subject to Landlord's prior
approval (which approval shall not be unreasonably withheld or delayed) and
shall be required to comply with Landlord's standard rules, regulations,
policies and procedures, which may be revised from time to time. Landlord
has no obligation to allow any particular telecommunication service
provider to have access to the Building or to the Premises, although
Landlord agrees that Tenant may receive telecommunications service from MCI
(or successor entity), and MCI (or successor entity) shall have access to
the Building and the Premises for such purposes. Notwithstanding the
foregoing, if Tenant wishes to receive telecommunications services from a
different provider(s), Tenant shall have the right to advise Landlord of
the provider or providers from whom Tenant would like to receive service at
the Premises. Following receipt of such advice, Landlord shall use good
faith efforts to enter into an agreement with such provider(s) on
commercially reasonable terms and conditions for the Boston Suburban area,
and upon Landlord's entering into such agreement, such provider(s) shall be
permitted access to the Building and/or the Premises in order to provide
telecommunications services to Tenant.
7. Movement in or out of the Building of furniture or office equipment, or
dispatch or receipt by Tenant of merchandise or materials requiring the use
of elevators, stairways, lobby areas or loading dock areas, shall be
restricted to hours designated by Landlord, the City of Newton or any other
governmental authority having jurisdiction over the Building and Property.
Tenant shall obtain Landlord's prior approval (which approval shall not be
unreasonably withheld or delayed) by providing a detailed listing of the
activity. If approved by Landlord, the activity shall be under the
supervision of Landlord and performed in the manner required by Landlord.
Tenant shall assume all risk for damage to articles moved and injury to any
persons resulting from the activity. If equipment,
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<PAGE> 43
property, or personnel of Landlord or of any other party is damaged or
injured as a result of or in connection with the activity, Tenant shall be
solely liable for any resulting damage or loss.
8. Landlord shall have the right to approve the weight, size, or location of
heavy equipment or articles in and about the Premises. Damage to the
Building by the installation, maintenance, operation, existence or removal
of property of Tenant shall be repaired at Tenant's sole expense.
9. Corridor doors, when not in use, shall be kept closed.
10. Tenant shall not: (1) make or permit any improper, objectionable or
unpleasant noises or odors in the Building, or otherwise interfere in any
way with other tenants or persons having business with them; (2) solicit
business or distribute, or cause to be distributed, in any portion of the
Building, handbills, promotional materials or other advertising; or (3)
conduct or permit other activities in the Building that might, in
Landlord's sole opinion, constitute a nuisance.
11. No animals, except those assisting handicapped persons, shall be brought
into the Building or kept in or about the Premises.
12. No inflammable, explosive or dangerous fluids or substances shall be used
or kept by Tenant in the Premises, Building or about the Property. Except
for reasonable amounts of office and cleaning supplies which Tenant agrees
to store on the Premises in compliance with applicable Law, Tenant shall
not, without Landlord's prior written consent, use, store, install, spill,
remove, release or dispose of, within or about the Premises or any other
portion of the Property, any asbestos-containing materials or any solid,
liquid or gaseous material now or subsequently considered toxic or
hazardous under the provisions of 42 U.S.C. Section 9601 et seq., M.G.L. c.
21C, M.G.L. c. 21E or any other applicable environmental Law which may now
or later be in effect. Tenant shall comply with all Laws pertaining to and
governing the use of these materials by Tenant, and shall remain solely
liable for the costs of abatement and removal.
13. Tenant shall not use or occupy the Premises in any manner or for any
purpose which might injure the reputation or impair the present or future
value of the Premises or the Building. Tenant shall not use, or permit any
part of the Premises to be used, for lodging, sleeping or for any illegal
purpose.
14. Tenant shall not knowingly take any action which would violate Landlord's
labor contracts or which would cause a work stoppage, picketing, labor
disruption or dispute, or interfere with Landlord's or any other tenant's
or occupant's business or with the rights and privileges of any person
lawfully in the Building ("Labor Disruption"). Tenant shall take the
actions reasonably necessary to resolve the Labor Disruption, and shall
have pickets removed and, at the request of Landlord, immediately terminate
any work in the Premises that gave rise to the Labor Disruption, until
Landlord gives its written consent for the work to resume. Tenant shall
have no claim for damages against Landlord or any of the Landlord Related
Parties.
15. Tenant shall not install, operate or maintain in the Premises or in any
other area of the Building, electrical equipment that would overload the
electrical system beyond its capacity for proper, efficient and safe
operation as determined solely by Landlord. Tenant shall not furnish
cooling or heating to the Premises, including, without limitation, the use
of electronic or gas heating devices, without Landlord's prior written
consent. Tenant shall not use more than its proportionate share of
telephone lines and other telecommunication facilities available to service
the Building, unless Tenant, at its sole cost and expense, causes
additional lines and telecommunications to be installed, subject to the
terms and conditions of this Lease.
16. Tenant shall not operate or permit to be operated a coin or token operated
vending machine or similar device (including, without limitation,
telephones, lockers, toilets, scales, amusement devices and machines for
sale of beverages, foods, candy, cigarettes and other goods), except for
machines for the exclusive use of Tenant's employees.
17. Bicycles and other vehicles are not permitted inside the Building or on the
walkways outside the Building, except in areas designated by Landlord.
2
<PAGE> 44
18. Landlord may from time to time adopt systems and procedures for the
security and safety of the Building, its occupants, entry, use and
contents. Tenant, its agents, employees, contractors, guests and invitees
shall comply with Landlord's systems and procedures.
19. Landlord shall have the right to prohibit the use of the name of the
Building or any other publicity by Tenant that in Landlord's sole opinion
may impair the reputation of the Building or its desirability. Upon written
notice from Landlord, Tenant shall refrain from and discontinue such
publicity immediately.
20. Tenant shall not canvass, solicit or peddle in or about the Building or the
Property.
21. Neither Tenant nor its agents, employees, contractors, guests or invitees
shall smoke or permit smoking in the Common Areas, unless the Common Areas
have been declared a designated smoking area by Landlord, nor shall the
above parties allow smoke from the Premises to emanate into the Common
Areas or any other part of the Building. Landlord shall have the right to
designate the Building (including the Premises) as a non-smoking building.
22. Landlord shall have the right to designate and approve standard window
coverings for the Premises and to establish rules to assure that the
Building presents a uniform exterior appearance. Tenant shall ensure, to
the extent reasonably practicable, that window coverings are closed on
windows in the Premises while they are exposed to the direct rays of the
sun.
23. Deliveries to and from the Premises shall be made only at the times, in the
areas and through the entrances and exits designated by Landlord. Tenant
shall not make deliveries to or from the Premises in a manner that might
interfere with the use by any other tenant of its premises or of the Common
Areas, any pedestrian use, or any use which is inconsistent with good
business practice.
24. The work of cleaning personnel shall not be hindered by Tenant after 5:30
P.M., and cleaning work may be done at any time when the offices are
vacant. Windows, doors and fixtures may be cleaned at any time. Tenant
shall provide adequate waste and rubbish receptacles to prevent
unreasonable hardship to the cleaning service. Tenant shall participate in
Landlord's waste recycling program for the Building.
3
<PAGE> 45
EXHIBIT C
COMMENCEMENT LETTER
-------------------
(EXAMPLE)
Date:
Allaire Corporation
Suite ____________________________________
One Riverside Center
275 Grove Street
Newton, MA
Re: Commencement Letter with respect to that certain Lease dated as of , 1999,
by and between EOP-RIVERSIDE PROJECT, L.L.C, A DELAWARE LIMITED LIABILITY
COMPANY, as Landlord, and ALLAIRE CORPORATION, A CORPORATION ORGANIZED
UNDER THE LAWS OF THE STATE OF DELAWARE, as Tenant, for 270,446 rentable
square feet space in the Building located at 275 Grove Street, Newton, MA.,
a notice of which has been recorded with the Middlesex (South) Registry of
Deeds in Book _____, Page _____.
Dear: :
In accordance with the terms and conditions of the above referenced Lease,
Tenant accepts possession of the Premises and agrees:
1. The Commencement Date of the Lease is ;
2. The Termination Date of the Lease is (unless
sooner terminated or extended pursuant to the Lease).
Please acknowledge your acceptance of possession and agreement to the terms
set forth above by signing all 3 counterparts of this Commencement Letter in the
space provided and returning 2 fully executed counterparts to my attention.
Sincerely,
Property Manager
Agreed and Accepted:
Tenant: ALLAIRE CORPORATION, A CORPORATION ORGANIZED UNDER THE
LAWS OF THE STATE OF DELAWARE
By:
-------------------------
Name:
-----------------------
Title:
----------------------
Date:
-----------------------
1
<PAGE> 46
STATE OF ILLINOIS
ss
- ---------------------, --------------------, ------
[County]
Then personally appeared the above-named _____________, the _______________
of Beacon Property Management Corporation, a Delaware corporation, the managing
member of EOP-Riverside Project, L.L.C., a Delaware limited liability company,
known to me to be the person described in and who executed the foregoing
instrument and acknowledged the same to be his free act and deed and that of
said Beacon Property Management Corporation as the managing member of
EOP-Riverside Project, L.L.C., before me,
---------------------------------
Notary Public
My Commission Expires:
COMMONWEALTH OF MASSACHUSETTS
ss
- ---------------------, --------------------, ------
[County]
Then personally appeared the above-named _____________, the _______________
of Allaire Corporation, a Delaware corporation, known to me to be the person
described in and who executed the foregoing instrument and acknowledged the same
to be his free act and deed and that of said Allaire Corporation, before me,
---------------------------------
Notary Public
My Commission Expires:
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EXHIBIT D
WORK LETTER
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This Exhibit is attached to and made a part of the Lease dated as of 23rd,
November, 1999, by and between EOP-RIVERSIDE PROJECT, L.L.C, A DELAWARE LIMITED
LIABILITY COMPANY ("Landlord") and ALLAIRE CORPORATION, A CORPORATION ORGANIZED
UNDER THE LAWS OF THE STATE OF DELAWARE ("Tenant") for space in the Building
located at 275 Grove Street, Newton, MA..
1. This Work Letter shall set forth the obligations of Landlord and Tenant
with respect to the preparation of the Premises for Tenant's occupancy.
With the exception of Landlord's obligation to perform Base Building Work,
all improvements described in this Work Letter to be constructed in and
upon the Premises by Landlord are hereinafter referred to as the "Landlord
Work." It is agreed that construction of the Landlord Work will be
completed at Tenant's sole cost and expense, subject to the Allowance (as
defined below). Landlord shall enter into separate direct contracts for the
Landlord Work in the One Riverside Center Premises and the Two Riverside
Center Premises with a general contractor(s) selected by Landlord and
acceptable to Tenant, Tenant hereby agreeing that the selection of ADP
Marshall is acceptable to Tenant. Landlord and Tenant agree that the
identity of the general contractor for the One Riverside Center Premises
and the Two Riverside Center Premises may be different. The contract with
respect to the One Riverside Center Premises shall be entered into on the
basis of the cost of work plus a three (3%) percent fee with a guaranteed
maximum price, which price shall be inclusive of contractor's general
conditions and overhead in the amount of Four Hundred Twenty-Seven Thousand
Seven Hundred Seventy-Five Dollars ($427,775.00). In the event the Cost of
the Landlord Work (defined below) with respect to the One Riverside Center
Premises is less than the agreed upon guaranteed maximum price, the general
contractor shall be entitled to receive 30% of the difference between the
guaranteed maximum price and the actual cost of the Landlord Work; provided
that in no event shall the general contractor's share of such savings
exceed an amount equal to 20% of the amount of the general contractor's 3%
fee with respect to the Landlord Work in the One Riverside Center Premises.
The balance of such savings shall accrue to Tenant through a reduced Cost
of Landlord Work (hereinafter defined). Landlord, Tenant and the general
contractor shall work together in good faith to negotiate a mutually
acceptable fee and general conditions arrangement with respect to the
Landlord Work to be performed in the Two Riverside Center Premises, it
being agreed that such arrangement has not been agreed to by the parties as
of the date hereof. The financial terms and conditions of the contracts for
the One Riverside Center Premises and Two Riverside Center Premises
(including the guaranteed maximum price, and required retainage) and the
terms of the general contractor's warranty (if Landlord does not obtain at
least a one year warranty] shall be subject to Tenant's prior review and
approval, such approval not to be unreasonably withheld, conditioned or
delayed. The guaranteed maximum price of said contracts shall equal the
Cost of Landlord Work (as defined in paragraph 5, below) with respect to
the One Riverside Center Premises or Two Riverside Center Premises, as the
case may be. Landlord shall have the right to require the general
contractor to pay commercially reasonable late completion penalties in the
event that ADP Marshall fails to complete the Landlord Work on or before
the Target Commencement Date or Two Riverside Center Premises Target
Commencement Date, as the case may be. The determination of whether a
particular penalty provision is "commercially reasonable" shall take into
consideration industry customs. Landlord agrees that each contract shall
provide that all subcontracts shall be competitively bid to qualified
subcontractors reasonably acceptable to Tenant. With respect to all
portions of Landlord Work, Landlord or contractor shall provide Tenant with
a list identifying at least three (3) responsible and qualified
subcontractors to whom a portion of the Landlord Work is to be bid. Tenant
shall have the right to identify additional qualified subcontractors for
inclusion on such list. In order to be considered "qualified" hereunder, a
subcontractor must: (a) be licensed to perform all aspects of the Landlord
Work on which such subcontractor will submit a bid, (b) be capable of being
bonded for all aspects of the Landlord Work on which such subcontractor
will submit a bid, (c) maintain insurance of the types and amounts required
by Landlord for the performance of the Landlord Work, (d) have a proven
track record of on time completion of projects of comparable size and
complexity in the Boston metropolitan and suburban area, as set forth on a
resume to be submitted by such subcontractor to Landlord, (e) have
sufficient personnel (including key supervisory personnel) dedicated to the
performance of those
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portions of the Landlord Work on which such subcontractor will submit a
bid, taking into consideration the possibility of overtime and the
possibility that work may have to be performed following the targeted
completion date, (f) not be a party to any contractual disputes or
mechanics lien claims involving Landlord or any of its affiliated entities,
and (g) submit a bid in strict compliance with the criteria set forth in
Landlord's bid package. Unless otherwise agreed to by Tenant, Landlord
agrees to award subcontracts to the lowest qualified bidder, provided that
such bid accurately incorporates and reflects all of the criteria for bids
issued by Landlord or Landlord's general contractor.
2. Tenant shall be solely responsible for the timely preparation and
submission to Landlord of all architectural, electrical and mechanical
construction drawings, plans and specifications (called "Plans") necessary
to construct the Landlord Work, which Plans shall be subject to reasonable
approval by Landlord and Landlord's architect and engineers and shall
comply with their requirements to avoid aesthetic or other conflicts with
the design and function of the balance of the Building; provided, however,
neither Landlord, nor its architect or engineer shall have any approval
rights over aesthetic aspects of Landlord Work unless the same are visible
from the exterior of the Building or the interior of the Building atrium.
Tenant shall be responsible for all elements of the design of the Plans
(including, without limitation, compliance with law, functionality of
design, the structural integrity of the design, the configuration of the
Premises and the placement of Tenant's furniture, appliances and
equipment), and Landlord's approval of the Plans shall in no event relieve
Tenant of the responsibility for such design; provided, however, if
Landlord, Landlord's architect, engineer or contractor shall observe that
any of the Plans are at variance with any applicable law, code, rule or
regulation, Landlord, or its architect or contractor shall promptly notify
Tenant and Tenant's architect in writing of such variance. Tenant shall
have the right to submit Plans at one or more times and in one or more
stages (for example, but not by way of limitation, proposed space plans may
be submitted for approval prior to proposed engineering drawings, and
proposed mechanical drawings may, in accordance with standard industry
practice, be submitted in one or more portions). Within ten (10) Business
Days after Landlord receives any such proposed Plans, or such portion
thereof as has been submitted, Landlord shall either approve or disapprove
the same (such approval not to be unreasonably withheld, conditioned or
delayed). In the event of a disapproval by Landlord, Landlord shall
describe in reasonable detail the grounds for such disapproval, and Tenant
shall make those changes necessary in order to correct the problem(s) noted
by Landlord in Landlord's notice of disapproval and shall return the
drawings to Landlord, which Landlord shall approve or disapprove within
five (5) Business Days after Landlord receives the revised Plans. This
procedure shall be repeated until the Plans are finally approved by
Landlord and written approval has been delivered to and received by Tenant.
Notwithstanding the foregoing, Tenant shall submit to Landlord, for
Landlord's review and approval (such approval not to be unreasonably
withheld, conditioned or delayed): (i) Tenant's proposed "Design
Development Plans" with respect to the Landlord Work in the One Riverside
Center Premises by no later than November 12, 1999; and (ii) Tenant's
proposed "Design Development Plans" with respect to the Landlord Work in
the Two Riverside Center Premises by no later than February 14, 2000. For
purposes hereof, the term "Design Development Plans" shall mean plans that
are at least 80% complete so as to allow Landlord to order necessary Long
Lead Items, as defined in paragraph 6 below.
3. Landlord agrees to submit to Tenant, within ten (10) calendar days after
receipt of Tenant's proposed Design Development Plans, an estimate of the
anticipated cost of Landlord Work. Such estimate shall not be binding upon
the parties.
4. Tenant shall provide Landlord with final construction Plans (i.e. 100%
complete) for the Landlord Work on or before: (i) December 10, 1999, with
respect to the Landlord Work in the One Riverside Center Premises; and (ii)
March 10, 2000, with respect to the Landlord Work in the Two Riverside
Center Premises. Provided, that the final construction Plans are materially
consistent with the Design Development Plans approved by Landlord, Landlord
shall approve the final construction Plans on or before (a) December 15,
1999 with respect to the Landlord Work in the One Riverside Center
Premises, and (b) March 15, 2000 with respect to the Landlord Work in the
Two Riverside Center Premises (each of such dates being referred to as the
"Plans Due Date"). Notwithstanding the fact that the same defined terms of
"Design Development Plans", "Plans", "Landlord Work", "Plans Due Date",
"Cost of Landlord Work", "Long Lead Items" and "Change" are used with
respect to both the One Riverside Center Premises and the Two Riverside
Center Premises, Landlord and Tenant acknowledge that (x) the Landlord Work
with respect to the One Riverside Center Premises and Two Riverside Center
Premises shall be performed under separate contracts and,
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accordingly, the terms and conditions of this Work Letter will be applied
separately with respect to each such contract, (y) any late completion
penalties payable by Landlord under Article III of the Lease shall be
calculated separately with respect to the One Riverside Center Premises and
the Two Riverside Center Premises, and (z) any Tenant Delays for which
Tenant is responsible shall be calculated separately with respect to the
One Riverside Center Premises and the Two Riverside Center Premises. Time
is of the essence in respect of preparation and submission of Plans by
Tenant, and the review and approval of the same by Landlord. In the event
the final construction Plans with respect to the One Riverside Center
Premises are not fully completed and approved by the Plans Due Date due to
(a) Tenant's failure to submit the final construction Plans on or before
December 10, 1999, or (b) the failure of the final construction Plans to be
materially consistent with the Design Development Plans approved by
Landlord, Tenant shall be responsible for one (1) day of Tenant Delay (as
defined in the Lease) for each day during the period beginning on the day
following the Plans Due Date and ending on the date final construction
Plans are approved. In the event the final construction Plans with respect
to the Two Riverside Center Premises are not fully completed and approved
by the Plans Due Date due to (a) Tenant's failure to submit the final
construction Plans on or before March 10, 2000, or (b) the failure of the
final construction Plans to be materially consistent with the Design
Development Plans approved by Landlord, Tenant shall be responsible for one
(1) day of Tenant Delay (as defined in the Lease) for each day during the
period beginning on the day following the Plans Due Date and ending on the
date final construction Plans are approved.
5. Upon approval of the final construction Plans, the contractor shall solicit
bids for Landlord Work from the list of subcontractors described in
paragraph 1, above, as such list may have been reviewed and supplemented by
Tenant. Landlord shall review all bids (together with back-up documentation
and qualifications) with Tenant. Landlord shall within three (3) Business
Days after receipt of such bids select the subcontractor for such portion
of Landlord Work. Upon selection of all such subcontractors, Landlord and
Tenant, together with the general contractor, shall within three (3)
Business Days, mutually agree upon the cost of Landlord Work (which cost
shall include the cost of labor and materials, the general contractor's
fee, general conditions and permit fees). Upon agreement between Landlord,
Tenant and the general contractor as to the total cost of the Landlord
Work, (a) such total cost shall be deemed to be the "Cost of the Landlord
Work"; (b) Landlord and the general contractor shall enter into the
construction contract described in paragraph 1, above; and (c) Landlord
shall cause the general contractor to commence construction of Landlord
Work in accordance with the approved Plans.
6. Based upon the Design Development Plans submitted by Tenant to Landlord,
Landlord and Tenant will identify all portions of Landlord Work that are
"critical" or "long lead" items (hereinafter, "Long Lead Items"); provided,
however, Landlord and Tenant agree that, as of the date hereof, the
following items are Long Lead Items: mechanical, electrical and plumbing
fixtures and equipment; doors, door frames and related hardware; and
carpeting. Landlord and Tenant acknowledge that, in order to complete the
Landlord Work by the Target Completion Date or Two Riverside Center
Premises Target Commencement Date, as the case may be, it will be necessary
for Landlord to order certain Long Lead Items prior to completion of final
construction Plans. As such, prior to the completion of final construction
Plans, Landlord shall have the right to solicit bids and award subcontracts
for Long Lead Items in accordance with the procedures described in
paragraphs 1 and 6 above. Landlord shall submit to Tenant for its review
all bids (together with back-up documentation and qualifications) received
by Landlord or contractor with respect such Long Lead Items. Landlord shall
within three Business Days after receipt of such bids select the
subcontractor for such Long Lead Items. Upon selection of such
subcontractors, (a) the cost of such Long Lead Items shall be fixed and
binding upon Tenant, and shall be incorporated into the determination of
the Cost of Landlord Work, and (b) Landlord may begin construction with
respect to such Long Lead Items.
7. If Tenant shall desire any change, addition or alteration in any of the
Plans (collectively referred to as a "Change, Tenant shall describe the
proposed Change to Landlord in writing, together with necessary revisions
to the Plans. Within three (3) Business Days after receipt of Tenant's
request for a Change, Landlord shall notify Tenant in writing of its
approval or disapproval of the Change (such approval not to be unreasonably
withheld or conditioned), together with (a) an analysis of the additional
cost or saving involved and the period of time, if any, that the change
will affect or delay the date on which the Landlord Work will be
Substantially Complete ("Landlord's Analysis"), and (b)
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an authorization for Tenant's signature (the "Change Authorization"). In
the event of a disapproval by Landlord, Landlord shall describe in
reasonable detail the grounds for such disapproval. Upon receipt of such
disapproval Tenant shall either make those changes necessary in order to
correct the problem(s) noted by Landlord in Landlord's notice of
disapproval or withdraw its request for a Change. If Tenant elects to
revise the Plans, Landlord shall provide Tenant with written notice of
approval or disapproval within three (3) Business Days after Landlord
receives the revised Plans. This procedure shall be repeated until the
Changes are finally approved by Landlord or withdrawn by Tenant. Upon
Landlord's approval of the Change, Tenant may, within three (3) Business
Days, send its signed Change Authorization instructing Landlord to proceed
with such Change, in which event Landlord shall cause the Change to be
made. In the absence of such signed Change Authorization, Landlord shall
continue work on the Premises disregarding the requested Change. In the
event Landlord's Analysis indicated that the authorized Change would result
in an increase or savings in the Cost of Landlord Work, such increase or
savings shall be added to or subtracted from the "Excess Costs" described
in the following paragraph. In addition, if Landlord's Analysis indicated
that the authorized Change would result in a delay or time savings with
respect to the date on which Landlord Work would be Substantially Complete
but for such Change, the net delay shall be deemed a Tenant Delay (as
defined in the Lease).
8. Landlord, provided Tenant is not in default under this Lease after the
delivery of notice and the expiration of any applicable cure periods,
agrees to provide Tenant with an allowance (the "Allowance") in an amount
not to exceed Six Million Seven Hundred Sixty-One Thousand One Hundred
Fifty and 00/100 Dollars ($6,761,150.00) (i.e., Twenty-Five and 00/100
Dollars [$25.00] per rentable square foot of the Premises) to be applied
toward the Cost of Landlord Work in the One Riverside Center Premises and
Two Riverside Center Premises. In the event the Allowance is not sufficient
to pay for the Cost of the Landlord Work in the One Riverside Center
Premises and Two Riverside Center Premises and any other costs to which
Tenant has previously elected to apply the Allowance in accordance with the
procedures outlined below (such amounts exceeding the Allowance being
herein referred to as the "Excess Costs"), Tenant shall pay to Landlord
such Excess Costs as provided herein. As Landlord Work is completed,
Landlord shall submit to Tenant's architect, but not more frequently than
monthly, applications for payment received from the general contractor,
along with such substantiation as the Tenant's architect may reasonably
request (including invoices from subcontractors and materialsmen). Within
five (5) Business Days after receipt of an application for payment,
Landlord's architect and Tenant's architect shall verify that the labor,
materials and/or equipment that is described in said application for
payment has been properly performed and/or incorporated into the Premises,
and shall promptly notify Tenant and Landlord of the same. Within five (5)
Business Days after Tenant's receipt of such verification, Tenant shall
make payment to Landlord in an amount equal to the product of the amount
specified in the application for payment (or such other amount as Tenant's
architect and Landlord's architect shall determine is properly due)
multiplied by a fraction, the numerator of which is the Excess Costs, and
the denominator of which is the total Cost of Landlord Work for the One
Riverside Center Premises and Two Riverside Center Premises. In no event
shall Tenant be required to make a payment for any labor, materials and/or
equipment that has not been performed and/or incorporated into the
Premises. The amounts payable by Tenant hereunder constitute Rent payable
pursuant to the Lease, and the failure to timely pay the same shall
constitute a default under the Lease.
9. In the event the Allowance exceeds the total Cost of Landlord Work in the
One Riverside Center Premises and Two Riverside Center Premises, Tenant
shall be entitled to apply any remaining Allowance toward the cost of
cabling and wiring in the Premises. Any unused portion of the Allowance
that is not applied toward the Cost of the Landlord Work or the cost of
wiring and cabling shall accrue to the sole benefit of Landlord, it being
agreed that Tenant shall not be entitled to any credit, offset, abatement
or payment with respect thereto. Landlord shall pay the Allowance directly
to the contractors retained to perform the Landlord Work; provided,
however, Landlord shall not make any payment without Landlord's architect
and Tenant's architect having first verified that the labor, materials
and/or equipment that is described in said application for payment has been
properly performed and/or incorporated into the Premises, and that the
requested amount is properly due. Notwithstanding the foregoing, if
Landlord's architect and Tenant's architect can not agree as to whether a
particular payment, or portion thereof, is properly due, Landlord shall
have the right to make payment with respect only to the portion of the
request for payment that is not in dispute. If Landlord withholds payment
of any amount based on the improper recommendation of Tenant's
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architect, Tenant shall indemnify Landlord for any mechanics liens or other
claims that are asserted as a result of Landlord's failure to pay that
portion of the Cost of the Landlord Work that is withheld. In addition, any
slow down or stoppage of the performance of Landlord Work as a result of
the improper recommendation of Tenant's architect (without the concurrence
of Landlord's architect) to withhold any such payment shall be considered
to be a Tenant Delay. Any portion of the Allowance that Tenant elects to
apply toward costs not directly relating to the Landlord Work (i.e. the
cost of cabling and wiring) shall be paid to Tenant within thirty (30) days
after Landlord's receipt of paid invoices from Tenant evidencing Tenant's
payment of the amounts to which the Allowance will be applied.
10. In addition to Landlord's obligation to provide Tenant with an Allowance,
Landlord, provided Tenant is not in default under the Lease after the
delivery of notice and the expiration of any applicable cure periods, shall
provide Tenant with an allowance (the "Architectural and Engineering
Allowance") in the amount of $540,892.00 (i.e., $2.00 per rentable square
foot of the Premises) to be applied toward the cost of architectural and
engineering services for the Premises contracted by Tenant. Landlord shall
disburse the Architectural and Engineering Allowance, or applicable portion
thereof, to Tenant within thirty (30) days after Landlord's receipt of
invoices and lien waivers from Tenant with respect to Tenant's actual
engineering and architectural fees as described above. Any unused portion
of the Architectural and Engineering Allowance may be applied toward the
Cost of the Landlord Work. Any unused portion that is not applied toward
the Cost of Landlord Work shall accrue to the sole benefit of Landlord, it
being agreed that Tenant shall not be entitled to any credit, offset,
abatement or payment with respect thereto.
11. In addition to the Landlord Work, Landlord shall be responsible for
performing the Base Building Work in the Premises as described in the Base
Building Scope attached to the Lease as EXHIBIT M. All Base Building Work
shall be performed at Landlord's sole cost and expense. In no event shall
the cost of the Base Building Work be applied against or deducted from the
Allowance or Architectural and Engineering Allowance. Notwithstanding the
foregoing, Landlord shall have the right to change the plans and
specifications for the Base Building Work from time to time, provided that
Landlord shall not materially reduce the overall quality of the Base
Building Work; provided, further, that Tenant shall have the right to
approve any such changes that materially affect Tenant's occupancy,
operation or design of the Premises, which approval shall not be
unreasonably withheld or delayed.
12. Tenant's architect and/or construction representative and Landlord's
architect and/or construction representative shall meet weekly to discuss
the progress of the construction of Landlord Work and the expected dates on
which the One Riverside Center Premises and the Two Riverside Center
Premises, as the case may be, will be Substantially Complete. In addition,
Tenant's architect and/or construction representative shall be permitted to
attend regularly scheduled job meetings during the course of construction
of Landlord Work in the One Riverside Center Premises and Two Riverside
Center Premises and shall be provided with copies of the minutes of all job
meetings relating to the Landlord Work in the One Riverside Center Premises
and Two Riverside Center Premises, which minutes shall include information
relating to the date on which each such portion of the Premises will be
Substantially Complete.
13. As used in this EXHIBIT D, the word "architect" shall include an interior
designer or space planner.
14. This Exhibit D shall not be deemed applicable to any additional space added
to the original Premises at any time or from time to time, whether by any
options under the Lease or otherwise, or to any portion of the original
Premises or any additions to the Premises in the event of a renewal or
extension of the original Term of this Lease, whether by any options under
the Lease or otherwise.
15. All Landlord's Work and Base Building Work shall be performed in a good and
workmanlike manner using quality materials in compliance with all
applicable Laws; provided that Tenant, not Landlord, shall be responsible
for the cost of correcting of any violations of Law with respect to the
Landlord Work that arise out of a failure by Tenant's architect to prepare
the Plans in strict compliance with all Laws, including the ADA.
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Landlord and Tenant have executed this exhibit as of the day and year first
above written.
WITNESS/ATTEST: LANDLORD:
EOP-RIVERSIDE PROJECT, L.L.C, A DELAWARE LIMITED
LIABILITY COMPANY
By: Beacon Property Management Corporation, a
Delaware corporation, its managing member
/s/ Kathleen M. Steidinger
- ----------------------------- By: /s/ Michael A. Steele
-------------------------
Name (print):
--------------- Name: Michael A. Steele
Kathleen M. Steidinger -------------------------
- -----------------------------
Title: President
/s/ John C. Schneider -------------------------
- -----------------------------
Name (print):
---------------
John C. Schneider
- -----------------------------
WITNESS/ATTEST: TENANT:
ALLAIRE CORPORATION, A CORPORATION ORGANIZED
/s/ Eric J. Smith UNDER THE LAWS OF THE STATE OF DELAWARE
- ----------------------------- By: David A. Gerth
------------------------------
Name (print): Eric J. Smith
--------------- Name: David A. Gerth
/s/ JoAnne Trayers ------------------------------
- -----------------------------
Title: CFO & VP Finance & Operations
Name (print): JoAnne Trayers ------------------------------
---------------
- -----------------------------
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EXHIBIT E
ADDITIONAL PROVISIONS
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This Exhibit is attached to and made a part of the Lease dated as of 23rd,
November, 1999, by and between EOP-RIVERSIDE PROJECT, L.L.C, A DELAWARE LIMITED
LIABILITY COMPANY ("Landlord") and ALLAIRE CORPORATION, A CORPORATION ORGANIZED
UNDER THE LAWS OF THE STATE OF DELAWARE ("Tenant") for space in the Building
located at 275 Grove Street, Newton, MA.
I. FIRST RENEWAL OPTION.
---------------------
A. Tenant shall have the right to extend the Term (the "First Renewal
Option") for one additional period of 5 years commencing on the day
following the Termination Date of the initial Term and ending on the
5th anniversary of the Termination Date (the "First Renewal Term"),
if:
1. Landlord receives notice of exercise of the First Renewal Option
("Initial First Renewal Notice") on or before to the last day of
the 105th full calendar month following the Commencement Date;
and
2. Tenant is not in default under the Lease beyond any applicable
notice and cure periods at the time that Tenant delivers its
Initial First Renewal Notice or at the time Tenant delivers its
First Binding Notice (hereinafter defined); and
3. No more than thirty percent (30%) of the Premises is sublet
(except in connection with a Permitted Transfer) at the time that
Tenant delivers its Initial First Renewal Notice or at the time
Tenant delivers its First Binding Notice; and
4. The Lease has not been assigned (except in connection with a
Permitted Transfer) prior to the date that Tenant delivers its
Initial First Renewal Notice or prior to the date Tenant delivers
its First Binding Notice.
B. The initial Base Rent rate per rentable square foot for the Premises
during the First Renewal Term shall equal the Prevailing Market
(hereinafter defined) rate per rentable square foot for the Premises.
C. Tenant shall pay Additional Rent (i.e. Tenant's Pro Rata Share of
Expense Excess and Tenant's Pro Rata Share of Tax Excess) for the
Premises during the First Renewal Term in accordance with Article IV
of the Lease.
D. Within 30 days after receipt of Tenant's Initial First Renewal Notice,
Landlord shall advise Tenant of the applicable Base Rent rate for the
Premises for the First Renewal Term (a "Prevailing Market Notice"),
provided in no event shall Landlord be required to provide Tenant with
a Prevailing Market Notice prior to the last day of the 105th full
calendar month following the Commencement Date. Tenant, within 15 days
after the date on which Tenant receives the Prevailing Market Notice,
shall either (i) give Landlord final binding written notice ("First
Binding Notice") of Tenant's exercise of its option, or (ii) if Tenant
disagrees with Landlord's determination, provide Landlord with written
notice of rejection (the "Rejection Notice"). If Tenant fails to
provide Landlord with either a First Binding Notice or Rejection
Notice within such 15 day period, Tenant's First Renewal Option shall
be null and void
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and of no further force and effect. If Tenant provides Landlord with a
First Binding Notice, Landlord and Tenant shall enter into the First
Renewal Amendment upon the terms and conditions set forth herein. If
Tenant provides Landlord with a Rejection Notice, Landlord and Tenant
shall work together in good faith to agree upon the Prevailing Market
Base Rent rate for the Premises during the First Renewal Term. Upon
agreement Tenant shall provide Landlord with First Binding Notice and
Landlord and Tenant shall enter into the First Renewal Amendment
(hereinafter defined) in accordance with the terms and conditions
hereof. Notwithstanding the foregoing, if Landlord and Tenant are
unable to agree upon the Prevailing Market Base Rent rate for the
Premises within 30 days after the date on which Tenant provides
Landlord with a Rejection Notice, Tenant shall have the option to
withdraw its Initial First Renewal Notice by giving Landlord written
notice of such withdrawal within 10 days after the expiration of such
30 day period. If Tenant elects to withdraw its Initial First Renewal
Notice, Tenant's right to extend the term of the Lease shall be null
and void and of no further force and effect. If Landlord and Tenant
cannot agree upon Prevailing Market Base Rent within the 30 day period
described above and, in addition, Tenant does not elect to withdraw
its Initial First Renewal Notice, Landlord and Tenant, within 20 days
after the expiration of the 30 day period, shall each simultaneously
submit to the other, in a sealed envelope, its good faith estimate of
the Prevailing Market Base Rent rate for the Premises during the First
Renewal Term (collectively referred to as the "Estimates"). If the
higher of such Estimates is not more than 105% of the lower of such
Estimates, then Prevailing Market Base Rent rate shall be the average
of the two Estimates. If the Prevailing Market Base Rent rate is not
resolved by the exchange of Estimates, Landlord and Tenant, within 7
days after the exchange of Estimates, shall each select a appraiser to
determine which of the two Estimates most closely reflects the
Prevailing Market Base Rent rate for the Premises during the First
Renewal Term. Each appraiser so selected shall be certified as an MAI
appraiser or as an ASA appraiser and shall have had at least 5 years
experience within the previous 10 years as a real estate appraiser
working in the Newton, Massachusetts area, with working knowledge of
current rental rates and practices. For purposes of this Lease, an
"MAI" appraiser means an individual who holds an MAI designation
conferred by, and is an independent member of, the American Institute
of Real Estate Appraisers (or its successor organization, or in the
event there is no successor organization, the organization and
designation most similar), and an "ASA" appraiser means an individual
who holds the Senior Member designation conferred by, and is an
independent member of, the American Society of Appraisers (or its
successor organization, or, in the event there is no successor
organization, the organization and designation most similar). Upon
selection, Landlord's and Tenant's appraisers shall work together in
good faith to agree upon which of the two Estimates most closely
reflects the Prevailing Market Base Rent rate. The Estimate chosen by
such appraisers shall be binding on both Landlord and Tenant as the
Base Rent rate for the First Renewal Term. If either Landlord or
Tenant fails to appoint an appraiser within the 7 day period referred
to above, the appraiser appointed by the other party shall be the sole
appraiser for the purposes hereof. If the two appraisers cannot agree
upon which of the two Estimates most closely reflects the Prevailing
Market Base Rent within the 20 days after their appointment, then,
within 10 days after the expiration of such 20 day period, the 2
appraisers shall select a third appraiser meeting the aforementioned
criteria. Once the third appraiser has been selected as provided for
above, then, as soon thereafter as practicable but in any case within
14 days, the third appraiser shall make his determination of which of
the two Estimates most closely reflects the Prevailing Market Base
Rent rate and such Estimate shall be binding on both Landlord and
Tenant as the Base Rent rate for the First Renewal Term. If the third
appraiser believes that expert advice would materially assist him, he
may retain one or more qualified persons, to provide such expert
advice. The parties shall share equally in the costs of the third
appraiser and of any experts retained by the third appraiser. Any fees
of any counsel or experts engaged directly by Landlord or Tenant,
however, shall be borne by the party retaining such counsel or expert.
In the event that the Prevailing Market Base Rent rate has not been
determined by the end of the initial Term, Tenant shall continue to
pay Base Rent upon the terms and conditions in effect for the last
month of the initial Term until such time as the Prevailing Market
Base Rent rate has been determined. Upon such determination, the Base
Rent for the First Renewal Term shall be retroactively adjusted to the
commencement of the First Renewal Term. If such adjustment results in
an underpayment of Base Rent by Tenant, Tenant shall pay Landlord the
amount of such underpayment within 30 days after the determination
thereof. If such adjustment results in an overpayment of Base Rent by
Tenant, Landlord shall credit such overpayment against the next
installment of Base Rent due under the Lease and, to the extent
necessary, any subsequent installments until the entire amount of such
overpayment has been credited against Base Rent.
E. If Tenant is entitled to and properly exercises its First Renewal
Option, Landlord shall prepare an amendment (the "First Renewal
Amendment") to reflect changes in the Base Rent, Term, Termination
Date and other appropriate terms. The First Renewal Amendment shall
be:
1. sent to Tenant within a reasonable time after receipt of the
First Binding Notice or the determination of Prevailing Market
Base Rent pursuant to the appraisal procedure described above;
and
2. revised by Landlord to address any requested changes by Tenant
that
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are reasonably necessary to accurately reflect the terms and
conditions hereof; and
3. executed by Tenant and returned to Landlord within fifteen (15)
days after such First Renewal Amendment (together with such
changes described in the immediately preceding paragraph) is
delivered to Tenant by Landlord who shall promptly countersign
the same and return a fully executed counterpart to Tenant.
An otherwise valid exercise of the First Renewal Option shall be fully
effective whether or not the First Renewal Amendment is executed.
F. For purposes of this Section I and Section II (Second Renewal Option)
below only, "Prevailing Market" shall mean the arms length fair market
annual base rental rate per rentable square foot under renewal leases
and renewal amendments entered into on or about the date on which the
Prevailing Market is being determined hereunder for space comparable
to the Premises in the Building and office buildings comparable to the
Building in the Route 128 western submarket of Newton, Wellesley and
Waltham. The determination of Prevailing Market Base Rent rate shall
take into account any material economic differences between this Lease
and the renewal leases and renewal amendments that are being used for
comparison purposes, including: (i) the value of any amenities (e.g.
parking, cafeteria) offered by Landlord or any comparison landlord
(i.e. offered by one, but not the other) without an additional charge
over base rent, (ii) the value of any economic concessions (e.g rental
abatements, refurbishment allowances) offered by a comparison landlord
and not offered by Landlord, it being understood that Tenant shall not
be entitled to receive any economic concessions during the First
Renewal Term; (iii) the difference (on a rentable square foot basis)
between any broker commissions payable by Landlord in connection with
the First Renewal Term and any brokerage commissions payable by
another landlord in connection with a comparison renewal lease or
renewal amendment; and (iv) the differences in the way Landlord and
the landlord under any comparison renewal lease or renewal amendment
is reimbursed for operating expenses and taxes. The determination of
Prevailing Market shall also take into consideration any reasonably
anticipated changes in the Prevailing Market rate from the time such
Prevailing Market rate is being determined and the time such
Prevailing Market Base Rent rate will become effective under this
Lease. Notwithstanding anything herein to the contrary, if any
comparison renewal lease or renewal amendment provides for an
improvement allowance or refurbishment allowance, the effect of such
allowance on the Prevailing Market rate shall be determined by
comparing the rental value of the Premises in its "as-is" condition
against the actual or anticipated rental value of the comparison
premises after such premises have been improved by the expenditure of
the improvement allowance or refurbishment allowance. For example, if,
after the expenditure of the improvement allowance or refurbishment
allowance, the comparison premises are improved to a condition that is
not materially better or materially worse than the "as-is" condition
of the Premises (i.e. the buildout of the two spaces is comparable),
the grant of such improvement allowance or refurbishment allowance
shall not be taken into consideration in the determination of the ---
Prevailing Market rate. However, if the expenditure of the improvement
allowance or refurbishment allowance would bring the comparison
premises into a condition that is materially better or materially
worse than the "as-is" condition of the Premises, then the difference
between the condition of the two premises and the affect on the rental
value shall be taken into consideration in the determination of the
Prevailing Market rate. However, the actual dollar per square foot
improvement allowance or refurbishment allowance shall not be used as
the basis for comparison.
II. SECOND RENEWAL OPTION.
----------------------
A. Tenant shall have the right to extend the First Renewal Term (the
"Second Renewal Option") for one additional period of 5 years
commencing on the day following the Termination Date of the First
Renewal Term and ending on the 5th anniversary of the Termination Date
of the First Renewal Term (the "Second Renewal Term"), if:
1. Landlord receives notice of exercise of the Second Renewal Option
("Initial Second Renewal Notice") on or before to the last day of
the 45th full calendar month of the First Renewal Term; and
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2. Tenant is not in default under the Lease beyond any applicable
notice and cure periods at the time that Tenant delivers its
Initial Second Renewal Notice or at the time Tenant delivers its
Second Binding Notice (hereinafter defined); and
3. No more than thirty percent (30%) of the Premises is sublet
(except in connection with a Permitted Transfer) at the time that
Tenant delivers its Initial Second Renewal Notice or at the time
Tenant delivers its Second Binding Notice; and
4. The Lease has not been assigned (except in connection with a
Permitted Transfer) prior to the date that Tenant delivers its
Initial Second Renewal Notice or prior to the date Tenant
delivers its Second Binding Notice; and
5. Tenant has previously extended the Term of the Lease for the
First Renewal Term.
B. The initial Base Rent rate per rentable square foot for the Premises
during the Second Renewal Term shall equal the Prevailing Market rate
per rentable square foot for the Premises as defined in Section I.E
above, provided that any references to the First Renewal Term in
Section I.E. shall be deemed to refer to the Second Renewal Term.
C. Tenant shall pay Additional Rent (i.e. Tenant's Pro Rata Share of
Expense Excess and Tenant's Pro Rata Share of Tax Excess) for the
Premises during the Second Renewal Term in accordance with Article IV
of the Lease.
D. Within 30 days after receipt of Tenant's Initial Second Renewal
Notice, Landlord shall advise Tenant of the applicable Base Rent rate
for the Premises for the Second Renewal Term (a "Prevailing Market
Notice"), provided in no event shall Landlord be required to provide
Tenant with a Prevailing Market Notice prior to the last day of the
45th full calendar month of the First Renewal Term. Tenant, within 15
days after the date on which Tenant receives the Prevailing Market
Notice, shall either (i) give Landlord final binding written notice
("Second Binding Notice") of Tenant's exercise of its option, or (ii)
if Tenant disagrees with Landlord's determination, provide Landlord
with written notice of rejection (the "Rejection Notice"). If Tenant
fails to provide Landlord with either a Second Binding Notice or
Rejection Notice within such 15 day period, Tenant's Second Renewal
Option shall be null and void and of no further force and effect. If
Tenant provides Landlord with a Second Binding Notice, Landlord and
Tenant shall enter into the Second Renewal Amendment upon the terms
and conditions set forth herein. If Tenant provides Landlord with a
Rejection Notice, Landlord and Tenant shall work together in good
faith to agree upon the Prevailing Market Base Rent rate for the
Premises during the Second Renewal Term. Upon agreement Tenant shall
provide Landlord with Second Binding Notice and Landlord and Tenant
shall enter into the Second Renewal Amendment (hereinafter defined) in
accordance with the terms and conditions hereof. Notwithstanding the
foregoing, if Landlord and Tenant are unable to agree upon the
Prevailing Market Base Rent rate for the Premises within 30 days after
the date on which Tenant provides Landlord with a Rejection Notice,
Tenant shall have the option to withdraw its Initial Second Renewal
Notice by giving Landlord written notice of such withdrawal within 10
days after the expiration of such 30 day period. If Tenant elects to
withdraw its Initial Second Renewal Notice, Tenant's right to extend
the term of the Lease shall be null and void and of no further force
and effect. If Landlord and Tenant cannot agree upon Prevailing Market
Base Rent within the 30 day period described above and, in addition,
Tenant does not elect to withdraw its Initial Second Renewal Notice,
the Prevailing Market Base Rent rate for the Premises during the
Second Renewal Term shall be determined by binding arbitration in
accordance with the procedures described in Section I above.
E. If Tenant is entitled to and properly exercises its Second Renewal
Option, Landlord shall prepare an amendment (the "Second Renewal
Amendment") to reflect changes in the Base Rent, Term, Termination
Date and other appropriate terms. The Second Renewal Amendment shall
be:
1. sent to Tenant within a reasonable time after receipt of the
Second Binding Notice or the determination of Prevailing Market
Base Rent pursuant to the appraisal procedure described above;
and
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2. revised by Landlord to address any requested changes by Tenant
that are reasonably necessary to accurately reflect the terms and
conditions hereof; and
3. executed by Tenant and returned to Landlord within fifteen (15)
days after such Second Renewal Amendment (together with such
changes described in the immediately preceding paragraph) is
delivered to Tenant by Landlord who shall promptly countersign
the same and return a fully executed counterpart to Tenant.
An otherwise valid exercise of the Second Renewal Option shall be
fully effective whether or not the Second Renewal Amendment is
executed.
III. CONDITIONAL RIGHT OF FIRST OFFER.
---------------------------------
A. During the period beginning on the Commencement Date, Tenant shall
have the "Right of First Offer" with respect to any space that becomes
Available for Lease (hereinafter defined) in Two Riverside Center and
Three Riverside Center (the "Offering Space"). Such Right of First
Offer, however, shall only be applicable with respect to space in Two
Riverside Center and Three Riverside Center that either: (i) has been
previously leased by Landlord to a third party (the "Original Third
Party Tenant") and such lease with an Original Third Party Tenant
being referred to as a "Third Party Lease"), or (ii) has not been
leased by Landlord within twenty-four (24) full calendar months
following the Commencement Date ("Unleased Space"). Leases or license
agreements that are entered into by Landlord for storage purposes or
as temporary space while a third party's permanent space is being
constructed shall not be a Third Party Lease for the purposes hereof.
Offering Space that has been leased to an Original Third Party Tenant
shall be deemed to be "Available for Lease" when Landlord has
determined that (w) the Original Third Party Tenant leasing the
Offering Space or portion thereof will not extend or renew the term of
its lease for the Offering Space or portion thereof (but in any event
not later than the first to occur of (i) 90 days after the expiration
of any renewal or extension option (if applicable) in a Third Party
Lease that was not exercised by the tenant thereunder, or (ii) the
expiration of the term of the Third Party Lease), and (x) all Superior
Rights (hereinafter defined) with respect to such portion of the
Offering Space have lapsed or been waived. Offering Space that is
considered to be Unleased Space shall be deemed to be "Available for
Lease" when Landlord has determined that (y) Landlord has not entered
into a lease for such Offering Space within twenty-four (24) full
calendar months following the Commencement Date, and (z) all Superior
Rights (hereinafter defined) with respect to such portion of the
Offering Space have lapsed or been waived.
Within a reasonable time after Landlord has determined that a
particular portion of the Offering Space is Available for Lease (but
prior to leasing such portion of the Offering Space to a third party
other than the Original Third Party Tenant or a party with Superior
Rights), Landlord shall advise Tenant (the "Advice") of the square
footage and location of such portion of the Offering Space and the
terms (i.e. Base Rent and Additional Rent) under which Landlord is
prepared to lease such Offering Space to Tenant for the remainder of
the Term, which terms shall reflect the Prevailing Market (hereinafter
defined) rate for such Offering Space as reasonably determined by
Landlord. Tenant may lease such portion of the Offering Space in its
entirety only, under such terms, by delivering written notice of
exercise to Landlord ("Notice of Exercise") within 10 days after the
date of the Advice. In the event that separate leases of Offering
Space expire simultaneously, the premises under each expiring lease
shall be considered to be a separate parcel of Offering Space that
must be separately offered to Tenant in accordance with the terms
hereof.
Notwithstanding anything herein to the contrary, Tenant shall have no
such Right of First Offer and Landlord need not provide Tenant with an
Advice, if:
1. Tenant is in default under the Lease beyond any applicable notice
and cure periods at the time Landlord would otherwise deliver the
Advice; or
2. more than fifteen percent (15%) of the Premises is sublet (except
in connection with a Permitted Transfer) at the time Landlord
would otherwise deliver the Advice; or
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3. the Lease has been assigned (except in connection with a
Permitted Transfer) prior to the date Landlord would otherwise
deliver the Advice; or
4. the Offering Space is not intended for the exclusive use of
Tenant during the Term; or
5. the Offering Space is not Available for Lease, meaning that (i)
the Original Third Party Tenant is interested in extending or
renewing its lease for the Offering Space or entering into a new
lease for such Offering Space, or (ii) the Offering Space is
subject to Superior Rights.
B. 1. The term for the Offering Space shall commence upon the
commencement date stated in the Advice (provided that full
possession of the Offering Space is delivered to Tenant) and
expire on the Termination Date. Upon commencement, such Offering
Space shall be considered a part of the Premises, provided that
all of the terms stated in the Advice shall govern Tenant's
leasing of the Offering Space and only to the extent that they do
not conflict with the Advice, the terms and conditions of this
Lease shall apply to the Offering Space.
2. Tenant shall pay Base Rent and Additional Rent for the Offering
Space in accordance with the terms and conditions of the Advice,
which terms and conditions shall reflect the Prevailing Market
rate for the Offering Space as determined in Landlord's
reasonable judgment.
3. The Offering Space (including improvements and personalty, if
any) shall be accepted by Tenant in its condition and as-built
configuration existing on the earlier of the date Tenant takes
possession of the Offering Space or as of the date the term for
such Offering Space commences, provided that such Offering Space
shall be delivered to Tenant in broom clean condition and free of
claims and possession of third parties.
C. 1. TERMINATION OF RIGHT OF FIRST OFFER WITH RESPECT TO SPECIFIC
OFFERING SPACE. The rights of Tenant hereunder with respect to any
portion of the Offering Space for which is Available for Lease shall
terminate on the earlier to occur of: (i) Tenant's failure to exercise
its Right of First Offer within the 10 day period provided in
paragraph A above, and (ii) the date Landlord would have provided
Tenant an Advice if Tenant had not been in violation of one or more of
conditions (1) through (4) set forth in Paragraph A above.
Notwithstanding the foregoing, if (i) Tenant was entitled to exercise
its Right of First Offer, but failed to provide Landlord with a Notice
of Exercise within the 10 day period provided in paragraph A above,
and (ii) Landlord does not enter into a lease for such portion of the
Offering Space within a period of 9 months following the date of the
Advice, Tenant shall once again have a Right of First Offer in
accordance with this Section III with respect to such portion of the
Offering Space. In addition, Tenant shall once again have the Right of
First Offer with respect to such Offering Space if, within such 9
month period, Landlord proposes to lease the Offering Space to a
prospective tenant on terms that are substantially different than
those set forth in the Advice. For purposes hereof, the terms offered
to a prospect shall be deemed to be substantially the same (i.e. not
different) as those set forth in the Advice as long as there is no
more than a 5% reduction in the "bottom line" cost per rentable square
foot of the Offering Space to the prospect when compared with the
"bottom line" cost per rentable square foot under the Advice,
considering all of the economic terms of the both deals, respectively,
including, without limitation, the length of term, the net rent, any
tax or expense escalation or other financial escalation, brokerage
commissions and any construction allowance, improvement allowance or
other financial concessions.
2. TERMINATION OF RIGHT OF FIRST OFFER WITH RESPECT TO ALL OFFERING
SPACE. Tenant's Right of First Offer shall terminate as follows: (i)
if Tenant fails to provide Landlord with an Initial First Renewal
Notice, Tenant's Right of First Offer shall terminate as of the last
day on which Tenant was entitled to provide such Initial First Renewal
Notice; (ii) if Tenant provides Landlord with an Initial First Renewal
Notice but fails to provide Landlord with a First Binding Notice,
Tenant's Right of First Offer shall terminate as of the last day on
which Tenant was entitled to provide such First Binding Notice; (iii)
if the Lease is effectively extended for the
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First Renewal Term and Tenant fails to provide Landlord with an
Initial Second Renewal Notice, Tenant's Right of First Offer shall
terminate as of the last day on which Tenant was entitled to provide
such Second Renewal Notice; (iv) if the Lease is effectively extended
for the First Renewal Term and Tenant provides Landlord with an
Initial Second Renewal Notice but fails to provide Landlord with a
Second Binding Notice, Tenant's Right of First Offer shall terminate
as of the last day on which Tenant was entitled to provide such Second
Binding Notice; and (v) if the Lease is effectively extended for the
Second Renewal Term, Tenant's Right of First Offer shall terminate on
the second anniversary of the commencement of the Second Renewal Term.
3. ADDITIONAL CONDITION TO RIGHT OF FIRST OFFER If Landlord provides
Tenant with an Advice during the initial 10 year Term on a date that
is subsequent to the seventh (7th) anniversary of the Commencement
Date: (i) the proposed term for the Offering Space shall run until the
end of the First Renewal Term, and (ii) Tenant must concurrently
exercise (or have previously exercised) its First Renewal Option as a
condition to its exercise of its Right of First Offer. If Landlord
provides Tenant with an Advice during the First Renewal Term on a date
that is subsequent to the second (2nd) anniversary of the First
Renewal Term: (i) the proposed term for the Offering Space shall run
until the end of the Second Renewal Term, and (ii) Tenant must
concurrently exercise (or have previously exercised) its Second
Renewal Option as a condition to its exercise of its Right of First
Offer.
D. If Tenant is entitled to and properly exercises its Right of First
Offer, Landlord shall prepare an amendment (the "Offering Amendment")
to reflect changes in the Base Rent, Rentable Square Footage of the
Premises, Tenant's Pro Rata Share and other appropriate terms. The
Offering Amendment shall be:
1. sent to Tenant within a reasonable time after receipt of the
Notice of Exercise; and
2. revised by Landlord to address any requested changes by Tenant
that are reasonably necessary to accurately reflect the terms and
conditions hereof; and
3. executed by Tenant and returned to Landlord within fifteen (15)
days after such Offering Amendment (together with such changes
described in the immediately preceding paragraph) is delivered to
Tenant by Landlord who shall promptly countersign the same and
return a fully executed counterpart to Tenant.
An otherwise valid exercise of the Right of First Offer shall be fully
effective whether or not the Offering Amendment is executed.
E. For purposes hereof:
1. "Prevailing Market" shall mean the arms length fair market annual
base rental rate per rentable square foot, as determined in
Landlord's reasonable judgment, under leases and expansion
amendments entered into on or about the date on which the
Prevailing Market is being determined hereunder for space
comparable to the Offering Space in the Building. The
determination of Prevailing Market Base Rent rate shall take into
account any material economic differences between the fixed terms
of the Lease with respect to the Offering Space (e.g. the Term,
Tax Base Year and Expense Base Year) and the leases and expansion
amendments that are being used for comparison purposes,
including: (i) the value of any economic concessions (e.g rental
abatements, refurbishment allowances); (ii) the difference (on a
rentable square foot basis) between any broker commissions
payable by Landlord in connection with the Offering Space and any
brokerage commissions payable by Landlord with respect to a
comparison lease or amendment; and (iii) the differences in the
way Landlord is reimbursed for operating expenses and taxes. The
determination of Prevailing Market shall also take into
consideration any reasonably anticipated changes in the
Prevailing Market rate from the time such Prevailing Market rate
is being determined and the time such Prevailing Market Base Rent
rate will become effective under this Lease. Notwithstanding
anything herein to the contrary, if any comparison lease or
amendment provides for an improvement allowance or refurbishment
allowance, the effect of such allowance on the Prevailing Market
rate shall be determined by comparing the rental value of the
Offering Space in its "as-is" condition against the actual or
anticipated rental value of the comparison premises after such
premises have been improved by the expenditure of the improvement
allowance or refurbishment allowance. An example of how such
concept will be applied is set forth in Section I of this
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Exhibit E.
2. "Superior Rights" shall mean the following with respect to Two
Riverside Center and Three Riverside Center:
a. Two Riverside Center - Landlord shall be entitled to grant
up to 10,000 square feet of fixed expansion rights for space
in Two Riverside Center that are superior to Tenant's
Conditional Right of First Offer. For purposes hereof, the
term "fixed expansion rights" shall refer to the option of a
third party to lease space in Two Riverside Center, the
exercise of which is not contingent upon the space first
being available for lease or first being offered for lease
to another party. A fixed expansion right may be applicable
to either specifically identified space or space to be
identified at a later date. Likewise, the effective date
under a fixed expansion right may be a date certain or a
date to be determined. By way of example, Tenant's First
Expansion Option and Second Expansion Option would be
considered to be a fixed expansion option. Tenant's
Conditional Right of First Offer, on the other hand, would
not be considered to be a fixed expansion option.
b. Three Riverside Center - Tenant's Conditional Right of First
Offer shall be subject and subordinate to the right of first
offer granted to Harvard Vanguard Medical Associates, Inc.
("Harvard") for space in Three Riverside Center, regardless
of whether a lease with Harvard is executed subsequent to
the execution of this Lease. In addition, Landlord shall be
entitled to grant up to 20,000 square feet of fixed
expansion rights for space in Three Riverside Center that
are superior to Tenant's Conditional Right of First Offer.
Such 20,000 square foot amount shall be inclusive of all
space that is encumbered by any fixed expansion rights
granted to Harvard.
IV. FIRST EXPANSION OPTION.
-----------------------
A. Tenant shall have the option (the "First Expansion Option") to lease
the 32,152 rentable square feet of space on the third (3rd) floor of
Two Riverside Center as shown on Exhibit P attached hereto (the "First
Expansion Space"). Tenant acknowledges that the First Expansion Space
may be delivered to Tenant in up to two parcels, provided that (i) the
delivery of the last parcel of First Expansion Space shall occur no
later than nine (9) months after the deliver of the first parcel of
First Expansion Space, and (ii) no single parcel of First Expansion
Space shall contain less than 5,000 rentable square feet of space.
Tenant's right to exercise its First Expansion Option shall be subject
to the following conditions:
1. Landlord receives written notice (the "First Expansion Notice")
from Tenant of the exercise of its First Expansion Option on or
before the last day of the sixty-ninth (69th) full calendar month
of the Lease Term; and
2. Tenant is not in default under this Lease beyond any applicable
notice and cure periods at the time Landlord receives the First
Expansion Notice; and
3. no more than fifteen percent (15%) of the Premises is sublet
(except in connection with a Permitted Transfer) at the time
Landlord receives the First Expansion Notice; and
4. this Lease has not been assigned (except in connection with a
Permitted Transfer) prior to the time Landlord receives the First
Expansion Notice; and
5. the First Expansion Space is intended for the exclusive use of
Tenant only during the Term.
B. 1. The initial annual Base Rent rate per square foot for the First
Expansion Space shall equal the Prevailing Market rate per rentable
square foot for the First Expansion Space as defined in Section III.E
above, provided that any references to the Offering Space in Section
III.E. shall be deemed to refer to the First Expansion Space. Base
Rent attributable to the First Expansion Space shall be payable in
monthly installments in accordance with the terms and conditions of
Article IV of the Lease. Within 30 days after receipt of Tenant's
First Expansion Notice, Landlord shall advise Tenant of the size and
location of the First Expansion Space, the date the First Expansion
Space will be available for occupancy and the applicable
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Prevailing Market Base Rent rate for the First Expansion Space (the
"Prevailing Market Notice"), provided in no event shall Landlord be
required to provide Tenant with a Prevailing Market Notice more than
twelve (12th) months prior to the date on which the First Expansion
Space will be available for occupancy by Tenant. If Tenant, in its
reasonable judgment, determines that the rate set forth in Landlord's
Prevailing Market Notice does not accurately reflect the Prevailing
Market Base Rent rate for the First Expansion Space, Tenant shall
provide Landlord with written notice of rejection (the "Expansion
Space Rejection Notice") within 15 days after the date of Landlord's
Prevailing Market Notice. If Tenant provides Landlord with an
Expansion Space Rejection Notice within such 15 day period, Landlord
and Tenant shall work together in good faith to determine the
Prevailing Market Base Rent rate for the First Expansion Space.
Notwithstanding the foregoing, if Landlord and Tenant fail to agree
upon the Prevailing Market Base Rent rate for the First Expansion
Space within 30 days after the date of the Expansion Space Rejection
Notice, Tenant shall have the option to withdraw its First Expansion
Notice by giving Landlord written notice of such withdrawal within 10
days after the expiration of such 30 day period. If Tenant elects to
withdraw (or is deemed to have withdrawn) its First Expansion Notice,
Tenant's right to lease the First Expansion Space shall be null and
void and of no further force and effect. If Landlord and Tenant cannot
agree upon Prevailing Market Base Rent rate within the 30 day period
described above and, in addition, the First Expansion Notice is not
withdrawn, the Prevailing Market Base Rent rate for the First
Expansion Space shall be determined by an exchange of Estimates or by
binding arbitration in accordance with the procedures described in
Section I for the determination of the Prevailing Market Base Rent
rate for the Renewal Term, provided, that, the determination of the
Prevailing Market Base Rent shall take into account that the term of
the First Expansion Space is an initial term and not a renewal or
extension term. Notwithstanding anything herein to the contrary, the
determination of the Prevailing Market Base Rent shall take into
account the Additional Rent that Tenant is required to pay in
Subsection IV.B.2. below.
2. Tenant shall pay Additional Rent (i.e. Tenant's Pro Rata Share of
Expense Excess and Tenant's Pro Rata Share of Tax Excess) for the
First Expansion Space on the same terms and conditions set forth in
Article IV this Lease, including the Tax Base Year and Expense Base
Year. Tenant's Pro Rata Share shall increase appropriately to account
for the addition of the First Expansion Space.
C. The term for the First Expansion Space shall commence on the date
Landlord provides Tenant with full possession of the First Expansion
Space (or the applicable parcel thereof) in its entirety for the
purpose of allowing Tenant to occupy the First Expansion Space for the
Permitted Use or for the performance of improvements therein. Subject
to causes beyond Landlord's control (e.g. a holdover by a then
existing tenant), Landlord agrees to provide Tenant with full
possession of the First Expansion Space (or the applicable parcel
thereof) upon the day following the expiration date of the First
Expansion Lease (hereinafter defined) for such First Expansion Space
or portion thereof. For purposes hereof, the term "First Expansion
Lease" shall mean a lease for the First Expansion Space, or portion
thereof, that is entered by and between Landlord and a third party
tenant. Landlord shall not enter into any First Expansion Leases that
have a term in excess of seven (7) years (including renewals and
extensions) unless Landlord reserves the right to relocate such third
party or terminate such First Expansion Lease on or before the last
day of the seventh (7th) year of such First Expansion Lease. The term
for the First Expansion Space shall expire on the Termination Date.
Upon the commencement of the term for the First Expansion Space, or
applicable portion thereof, the First Expansion Space shall be
considered Premises, subject to all the terms and conditions of this
Lease, except that no allowances, credits, abatements or other
concessions (if any) set forth in this Lease for the initial Premises
shall apply to the First Expansion Space. If Tenant does not provide
Landlord with an First Expansion Notice on or before the date set
forth above or if Tenant is not entitled to exercise its First
Expansion Option due to a violation of one of the conditions set forth
in paragraph A above, Tenant's First Expansion Option shall be deemed
to be null and void and Tenant shall have no further rights to lease
the First Expansion Space hereunder.
D. If Tenant is entitled to and properly exercises the First Expansion
Option, Landlord shall prepare an amendment (the "First Expansion
Amendment") to reflect the commencement date(s) of the term for the
First Expansion Space and the changes in Base Rent, Rentable Square
Footage of the Premises, Tenant's Pro Rata Share
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and other appropriate terms. The First Expansion Amendment shall be:
1. sent to Tenant within a reasonable time after receipt of the
First Expansion Notice; and
2. revised by Landlord to address any requested changes by Tenant
that are reasonably necessary to accurately reflect the terms and
conditions hereof; and
3. executed by Tenant and returned to Landlord within fifteen (15)
days after such First Expansion Amendment (together with such
changes described in the immediately preceding paragraph) is
delivered to Tenant by Landlord who shall promptly countersign
the same and return a fully executed counterpart to Tenant.
An otherwise valid exercise of the First Expansion Option shall be
fully effective whether or not the First Expansion Amendment is
executed.
V. INTENTIONALLY OMITTED.
----------------------
VI. PARKING.
--------
A. During the initial Term, Landlord shall make parking spaces available
to Tenant at the Property based on a ratio of 3 parking spaces per
1,000 rentable square feet of Premises leased by Tenant from time to
time (the "Parking Ratio"). Tenant acknowledges that handicapped
parking spaces and visitor parking spaces are included within the
Parking Ratio of 3 spaces per 1,000 rentable square feet. In other
words, Tenant's Pro Rata Share of the total amount of visitor and
handicapped parking spaces for the entire Property shall be deducted
from the number of parking spaces that Tenant is entitled to use based
on the Parking Ratio. Landlord, in its sole discretion, shall have the
right to allocate Tenant's parking rights between the surface parking
areas, the parking structure and the executive parking garage beneath
One Riverside Center (collectively referred to at the "Parking
Areas"), provided that not less than 69 of Tenant's parking spaces
(exclusive of handicapped parking spaces) shall be located in the
executive parking garage beneath the Building. As of the date hereof,
it is contemplated that Tenant's parking spaces will be allocated as
follows: 573 spaces in the parking structure, 169 spaces in the
surface parking areas and 69 spaces in the executive parking garage.
Tenant shall not have the right to lease or otherwise use more than
its share of parking spaces. Landlord shall have the right to
establish such rules and regulations as Landlord reasonably elects to
monitor the use of parking spaces by Tenant and other tenants,
visitors and invitees and to assure, to the extent reasonably
possible, that such parties are parking in the specific areas (e.g.
surface areas, parking structure or garage) designated by Landlord and
Tenant is not exceeding the Parking Ratio. Without limitation,
Landlord shall have the right to implement a system of parking passes,
parking stickers, card key access or any other system reasonably
designated by Landlord. Tenant shall be responsible for assuring that
its visitors, employees, subtenants and invitees comply with the rules
and regulations designated by Landlord. Landlord shall have the right
to require Tenant to institute and operate a subsidized MBTA pass
program at the Premises to encourage Tenant's employees to use public
transportation.
B. Landlord shall have the right to institute a parking management
program (the "Program") to monitor and enforce the use of parking
spaces by Tenant, the other tenants and occupants of the Building and
their respective employees and guests. Without limitation, the Program
may provide for: (i) the imposition of uniform fines to tenants
(including Tenant) and occupants whose use of the Parking Areas
exceeds the Parking Ratio on any given day; (ii) the implementation of
an automated or manually operated access system that would prohibit a
vehicle of a specific tenant or occupant (including their respective
employees) from entering all or a particular portion of the Parking
Areas at any time during which the tenant is using parking spaces in
excess of the Parking Ratio; (iii) the implementation of a system
where all or a portion of each tenant's spaces are designated as
reserved spaces, provided that any such system will
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be implemented in such a way as to not discriminate against Tenant
with respect to the number of spaces at are designated as reserved
(based on a percentage of the total spaces) and the location of such
reserved spaces; (iv) the implementation of a system where all or a
portion of the parking spaces are designated as valet park spaces; (v)
the implementation of a system where tenants and occupants are
required to display parking stickers for the use of all or any portion
of the Parking Areas; and/or (vi) the implementation of a system for
towing the vehicles of specific tenants or occupants (including their
respective employees) that are in violation of any terms of the
Program, including, without limitation, the provisions of the Program
with respect to the Parking Ratio, reserved parking areas, parking
stickers, handicapped and visitor parking and card access. All towing
shall be done without any liability to Landlord and at the sole risk,
cost, expense and liability of the vehicle owner and the tenant or
occupant that employs the vehicle owner. In is agreed that Tenant
shall be deemed to be in violation of the Parking Ratio if Tenant
exceeds the Parking Ratio as a whole with respect to all available
spaces or exceeds the applicable number of spaces that is designated
as to a particular portion of the Parking Area (i.e. surface parking
areas, parking structure and the executive parking garage). Landlord
shall have the right, in its sole discretion, to designate the rules,
regulations and terms of the Program and to change the rules,
regulations and terms from time to time. Notwithstanding the
foregoing, Landlord agrees to use reasonable efforts to enforce the
Program in manner that does not discriminate against any individual
tenant or group of tenants. In addition, Landlord shall be obligated
to provide Tenant with written notice of the rules, regulations and
terms of the Program, including any changes to the Program that are
enacted from time to time.
C. During the initial Term, Tenant shall not be required to pay Landlord
for the right to use the designated Parking Areas and spaces.
Thereafter, Tenant shall be required to pay the prevailing market rate
(if any) for parking. The cost of maintaining, operating and repairing
the Parking Areas shall, however, be considered an Expense. If during
any renewal Term, Tenant shall pay for parking, the cost of
maintaining, operating and repairing the Parking Areas shall be
excluded from Expenses.
D. Except for particular spaces and areas designated by Landlord for
reserved parking, all parking in the Parking Areas shall be on an
unreserved, first-come, first-served basis.
E. Landlord shall not be responsible for money, jewelry, automobiles or
other personal property lost in or stolen from the Parking Areas
regardless of whether such loss or theft occurs when the Parking Areas
or other areas therein are locked or otherwise secured. Except as
caused by the negligence or willful misconduct of Landlord and without
limiting the terms of the preceding sentence, Landlord shall not be
liable for any loss, injury or damage to persons using the Parking
Areas or automobiles or other property therein, it being agreed that,
to the fullest extent permitted by law, the Parking Areas shall be
used at the sole risk of Tenant and its employees.
F. Landlord shall have the right from time to time to designate
reasonable rules and regulations regarding the Parking Area and the
use thereof, including, but not limited to, rules and regulations
controlling the flow of traffic to and from various parking areas, the
angle and direction of parking, the hours during which cars can be
parked on the roof of the garage and the like. Tenant shall comply
with and cause its employees to comply with all such rules and
regulations as well as all reasonable additions and amendments
thereto.
G. Tenant shall not store or permit its employees to store any
automobiles in the Parking Areas without the prior written consent of
Landlord. Except for emergency repairs, Tenant and its employees shall
not perform any work on any automobiles while located in the Parking
Areas. If it is necessary for Tenant or its employees to leave an
automobile in the Parking Areas overnight, Tenant shall provide
Landlord with prior notice thereof designating the license plate
number and model of such automobile.
H. Landlord shall have the right upon reasonable prior notice (except in
the event of an emergency) to temporarily close portions of the
Parking Areas in order to
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perform necessary repairs, maintenance and improvements to the Parking
Areas. In such event, Landlord shall use reasonable efforts to make
substitute parking available.
I. Tenant shall be required to use reasonable efforts to comply with the
provisions of the Program, paragraphs F and G above and the other
terms of this Section. Tenant's failure to comply, however, shall not
be considered to be a default under the Lease unless Tenant's conduct
is materially detrimental to the operation of the Building. Landlord
shall, however, be entitled to exercise all of its rights and remedies
provided under the Program, including, without limitation, towing
vehicles. In addition, if any individual violates the terms of the
Program on more than 3 occasions in any 12 month period, Landlord
shall have the right to cause Tenant to terminate and reassign the
parking privileges of such individual.
VII. HAZARDOUS MATERIALS.
--------------------
A. Except as disclosed hereby, Landlord represents, to the best of its
knowledge, that the Premises will on the Commencement Date be free of
Hazardous Materials (as defined below) in amounts that violate
applicable Laws, and that Landlord, at Landlord's sole cost and
expense following notice of any violation, will cause the Premises to
be in full compliance with any and all applicable Laws relating to
asbestos, PCB's and other Hazardous Materials. Notwithstanding the
foregoing, Tenant, at its sole cost and expense, shall be responsible
for correcting any violations of applicable Laws with respect to any
asbestos, PCB's and other Hazardous Materials that are introduced into
the Building or Premises by Tenant or any Tenant Related Parties.
Tenant shall not use, generate, manufacture, store or dispose of, on
or about the Premises, or transport to or from the Premises, any
flammable explosives, radioactive materials, hazardous wastes, toxic
substances, or any related materials or substances, including, without
limitation, any substance defined as or included in the definition of
"hazardous substances" under any applicable federal, state or local
law, regulation or ordinance (collectively, "Hazardous Materials").
B. Notwithstanding the provisions of Subsection VII.A above, Tenant and
Landlord shall have the right to use and store on the Premises and the
Building, and transport to and from the Premises and the Building,
those Hazardous Materials which are generally used in the ordinary
course in first class office buildings (collectively, "Permitted
Materials"); provided, however, that such party's use, storage and
transport thereof is in compliance with all applicable Laws.
C. Landlord agrees to defend, fully indemnify, and hold entirely free and
harmless Tenant from and against all claims, judgments, damages,
penalties, fines, costs, liabilities, or losses (including, without
limitation, sums paid in settlement of claims, attorneys' fees,
consultant fees, and expert fees) which arise before, during or after
the Term and which are imposed on, paid by, or asserted against Tenant
by reason of the presence or suspected presence of Hazardous Materials
in the soil, groundwater, or soil vapor on or about the Premises,
except to the extent that the Hazardous Material is present as a
result of Tenant's activities on the Premises.
D. Tenant agrees to defend, fully indemnify, and hold entirely free and
harmless Landlord from and against all claims, judgments, damages,
penalties, fines, costs, liabilities, or losses (including, without
limitation, sums paid in settlement of claims, attorneys' fees,
consultant fees, and expert fees) which arise during or after the Term
and which are imposed on, paid by, or asserted against Landlord by
reason of the presence or suspected presence of Hazardous Materials in
the soil, groundwater, or soil vapor on or about the Premises to the
extent that the Hazardous Material is present as a result of Tenant's
activities on the Premises during the Term.
E. Notwithstanding anything in this Lease to the contrary, in no event
shall any Mortgagee (defined in Subsection XXVI.A. of the Lease) be
liable for any of the obligations of Landlord under Subsection VII.C.
above.
F. Notwithstanding anything in this Lease to the contrary, Tenant shall
not be responsible under this Lease in any respect whatsoever for any
condition involving
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Hazardous Materials on or about the Premises, the Building or the land
thereunder, except to the extent resulting from Tenant's activities.
VIII. MONUMENT SIGN.
--------------
A. Tenant shall have the right to be identified on a multi-tenant
monument sign installed by Landlord, if any, on the exterior grounds
of the Property (the "Monument Sign"), if: (1) Landlord is entitled to
install the Monument Sign; and (2) at the time the Monument Sign is
installed, Tenant is not in violation of any of the Monument Signage
Conditions. Landlord shall be responsible for obtaining any applicable
governmental approvals for the Monument Sign. If Landlord elects to
install more than one (1) Monument Sign, Tenant shall only be entitled
to be identified on one (1) Monument Sign. Landlord shall have the
right to designate the Monument Sign on which Tenant will be
identified, provided that Landlord shall use reasonable efforts to
give Tenant identity on the Monument Sign closest to the entrance of
One Riverside Center. Tenant acknowledges that there are no guaranties
that Landlord will obtain any necessary approvals to install a
Monument Sign and that Landlord's and Tenant's efforts to obtain
approval to install other Tenant signs described herein might conflict
with Landlord's efforts to attempt to obtain approval for the Monument
Sign. Tenant further acknowledges that Landlord does not currently
intend to install or attempt to obtain approval for a multi-tenant
Monument Sign, but, instead, will seek approval for a monument sign
that lists the name and address of the Building, as well as the name
"Equity Office" or "Equity Office Properties".
B. All costs in connection with the initial design, fabrication and
installation of the Monument Sign shall be borne by Landlord. All
costs in connection with the design, fabrication and installation of
any Tenant identification on the Monument Sign (the "Tenant
Identification") shall be borne by Tenant. Tenant shall submit to
Landlord reasonably detailed drawings of the proposed Tenant
Identification, including without limitation, the size, material,
shape and lettering for review and approval by Landlord.
Notwithstanding the foregoing, Landlord shall have the right to
designate standard sizes, materials, shapes and lettering for any
tenant identification on the Monument Sign, which standards may differ
depending on the square footage of the tenant that is being identified
on the Monument Sign. Tenant shall reimburse Landlord for any costs
associated with Landlord's review of the Tenant Identification. Tenant
will be responsible for the repair and maintenance of the Tenant
Identification and for Tenant's proportionate share of any costs
incurred by Landlord to maintain and repair the Monument Sign. Such
proportionate share shall be determined based on the number of tenants
that are identified on the Monument Sign from time to time. Landlord,
upon the expiration date or sooner termination of this Lease, shall
have the right to remove the Tenant Identification. In addition,
Landlord shall have the right to remove the Tenant Identification, if,
at any time during the Lease Term, Tenant is in violation of any of
the Monument Signage Conditions. For purposes hereof, the "Monument
Signage Conditions" are: (1) Tenant has not assigned this Lease
(except in connection with a Permitted Transfer), (2) Tenant has not
sublet more than 35% of the Premises (except in connection with a
Permitted Transfer), (3) Tenant and any Permitted Transferee are using
at least 65% of the Premises for the Permitted Use, (4) Tenant is not
in default under any term or condition of the Lease after the delivery
of notice and the expiration of any applicable cure periods.
Notwithstanding the foregoing, if the Monument Sign is a
"multi-tenant" monument sign (i.e. it includes the name of at least
one (1) tenant in addition to Tenant), condition (1) prohibiting an
assignment of the Lease shall not be applicable and an assignee of
Tenant's interest under the Lease shall be entitled to substitute its
name for the name of Tenant on the Monument Sign. The name of Landlord
or its managing agent shall not be considered to be a tenant name for
the purpose of determining whether the Monument Sign is a multi-tenant
monument sign.
IX. DIRECTORY AND ENTRY SIGNAGE.
----------------------------
A. Tenant shall have the right to install, at its sole cost and expense,
signage in the atrium of the Building over the entrance to One
Riverside Center, the approximate size, design and location of which
shall be in accordance with Exhibit O hereto (the "Atrium Sign"). All
costs in connection with the Atrium Sign, including any costs for the
design, installation, supervision of installation, wiring,
maintenance, repair and
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removal of the Atrium Sign, will be at Tenant's expense. Except to the
extent previously submitted to and approved by Landlord, Tenant shall
submit to Landlord reasonably detailed drawings of the proposed Atrium
Sign, including without limitation, the size, material, shape and
lettering for review and approval by Landlord, which approval Landlord
agrees not to withhold to the extent that such drawings are consistent
with Exhibit O. The Atrium Sign shall conform to the standards of
design and motif established by Landlord for the exterior of the
Building and the Property on which it is located. Tenant shall
reimburse Landlord for any costs associated with Landlord's review and
supervision as hereinbefore provided including, but not limited to,
engineers and other professional consultants. Tenant will be
responsible for the repair of any damage that the installation of the
Atrium Sign may cause to the Building or Property. Tenant agrees upon
the expiration date or sooner termination of this Lease, upon
Landlord's request, to remove the Atrium Sign and to repair and
restore any damage to the Building and Property at Tenant's expense.
In addition, Landlord shall have the right to remove the Atrium Sign
at Tenant's sole cost and expense, if, at any time during the Lease
Term: (1) Tenant sublets more than 35% of the Premises (except in
connection with a Permitted Transfer), (2) Tenant and any Permitted
Transferee cease to occupy at least 65% of the Premises, or (3) Tenant
defaults under any term or condition of the Lease and fails to cure
such default within any applicable grace period. An assignee of
Tenant's entire interest under this Lease shall be entitled to
substitute its name for the name of Tenant on such Atrium Sign,
provided that such replacement Atrium Sign shall be subject to the
same approval process set forth herein for the original Atrium Sign.
B. Landlord shall provide and install, at Landlord's cost, any Building
standard suite numbers and Building standard Tenant identification
signage on or adjacent to the main entry door to the Premises on each
floor on which the Premises are located. Notwithstanding the
foregoing, Tenant, at its sole cost and expense, shall have the right
to install additional custom signage identifying Tenant on any full
floors leased by Tenant, provided that such signage is not visible
from outside the Building. Tenant shall also be entitled to its
proportionate share of lines on the main building directory. Tenant
shall not be charged a fee for the initial installation of any names
on the Building directory. Tenant shall, however, be required to pay
Landlord's then standard fee (which fee must be reasonable) for any
additional names to be added to the Building directory or any
replacement of previously existing names.
X. PARKING STRUCTURE SIGNAGE.
--------------------------
A. Provided that Landlord is able to obtain all necessary building
permits and zoning, regulatory and governmental approvals, Tenant
shall have the right to install one (1) exclusive sign identifying
Tenant on the side wall of the top level of the structured parking
facility (the "Parking Structure Sign"). The approximate location and
size of the Parking Structure Sign is shown on Exhibit K hereto.
Tenant's right to install the Parking Structure Sign shall, however,
be subject to the satisfaction of all of the Parking Signage
Conditions (defined in subsection X.B. below). The application for the
Parking Structure Sign shall be made as part of a joint application
for all requests for signage at the Building. In the event that
Landlord's joint application for signage is not approved, Landlord
shall work with Tenant and any other tenants represented in such
application to agree upon an alternative signage plan that is
reasonably acceptable to all parties and to the City of Newton.
Landlord shall have the right to retain legal counsel and consultants
to represent the joint interests of Tenant, Landlord and any other
tenants who have been granted signage rights and Tenant agrees to pay
its proportionate share of such costs based on the number of signs for
which approval is being requested. Tenant acknowledges that Landlord
cannot guaranty that Tenant will receive the necessary permits and
approvals to allow Tenant to install the Parking Structure Sign.
Landlord, however, shall diligently advocate approval of the proposed
signage plan for the Building. Tenant agrees to use reasonable efforts
to complete its specifications for the proposed Parking Structure Sign
so as to allow a joint signage application to be submitted for
approval in January, 2000 (or earlier if reasonably possible).
B. All costs in connection with the Parking Structure Sign, including any
costs for the design, installation, supervision of installation,
wiring, maintenance, repair and removal of the Parking Structure Sign,
will be at Tenant's expense. Tenant shall submit to Landlord
reasonably detailed drawings of the proposed Parking
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Structure Sign, including without limitation, the size, material,
shape and lettering for review and approval by Landlord. The Parking
Structure Sign shall conform to the standards of design and motif
established by Landlord for the exterior of the Building and the
Property on which it is located. Tenant shall reimburse Landlord for
any costs associated with Landlord's review and supervision as
hereinbefore provided including, but not limited to, engineers and
other professional consultants. Tenant will be responsible for the
repair of any damage that the installation of the Parking Structure
Sign may cause to the Building or Property. Tenant agrees upon the
expiration date or sooner termination of this Lease, upon Landlord's
request, to remove the Parking Structure Sign and to repair and
restore any damage to the Building and Property at Tenant's expense.
In addition, Landlord shall have the right to remove the Parking
Structure Sign at Tenant's sole cost and expense, if, at any time
during the Lease Term: (1) Tenant sublets more than 35% of the
Premises (except in connection with a Permitted Transfer), (2) Tenant
and any Permitted Transferee cease to occupy at least 65% of the
Premises, or (3) Tenant defaults under any term or condition of the
Lease and fails to cure such default within any applicable grace
period.
C. For purposes hereof, the "Parking Signage Conditions" shall mean: (1)
Tenant has not sublet more than 35% of the Premises (except in
connection with a Permitted Transfer) prior to the date on which
Tenant receives all necessary approvals and permits to install the
Parking Structure Sign; (2) Tenant and any Permitted Transferee are in
actual occupancy of at least 65% of the Premises on the date on which
Tenant receives all necessary approvals and permits to install the
Parking Structure Sign; (3) Tenant is not in default under any term or
condition of the Lease after notice and the expiration of applicable
grace periods on the date on which Tenant receives all necessary
approvals and permits to install the Sign; and (4) Tenant obtains all
necessary permits and approvals to install the Parking Structure Sign.
Landlord acknowledges that Tenant shall have the right to transfer its
rights to the Parking Structure Sign in connection with a Permitted
Transfer or an assignment of Tenant's entire interest in the Lease to
an assignee approved by Landlord pursuant to the terms and conditions
of the Lease, provided that such replacement Parking Structure Sign
shall be subject to the same approval process set forth herein for the
original Parking Structure Sign.
XI. ONE RIVERSIDE SIGNAGE.
----------------------
A. Provided that Landlord is able to obtain all necessary building
permits and zoning, regulatory and governmental approvals, Tenant
shall have the right to install one (1) exclusive sign identifying
Tenant on the facade of One Riverside Center (the "One Riverside
Center Sign"). The approximate location and size of the One Riverside
Center Sign is shown on Exhibit L hereto. Tenant's right to install
the One Riverside Center Sign shall, however, be subject to the
satisfaction of all of the One Riverside Signage Conditions (defined
in subsection XI.B. below). The application for the One Riverside
Center Sign shall be made as part of a joint application for all
requests for signage at the Building. In the event that Landlord's
joint application for signage is not approved, Landlord shall work
with Tenant and any other tenants represented in such application to
agree upon an alternative signage plan that is reasonably acceptable
to all parties and to the City of Newton. Landlord shall have the
right to retain legal counsel and consultants to represent the joint
interests of Tenant, Landlord and any other tenants who have been
granted signage rights and Tenant agrees to pay its proportionate
share of such costs based on the number of signs for which approval is
being requested. Tenant acknowledges that Landlord cannot guaranty
that Tenant will receive the necessary permits and approvals to allow
Tenant to install the One Riverside Center Sign. Landlord, however,
shall diligently advocate approval of the proposed signage plan for
the Building. Tenant agrees to use reasonable efforts to complete its
specifications for the proposed One Riverside Center Sign so as to
allow a joint signage application to be submitted for approval in
January, 2000 (or earlier if reasonably possible).
B. All costs in connection with the One Riverside Center Sign, including
any costs for the design, installation, supervision of installation,
wiring, maintenance, repair and removal of the One Riverside Center
Sign, will be at Tenant's expense. Tenant shall submit to Landlord
reasonably detailed drawings of the proposed One Riverside
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Center Sign, including without limitation, the size, material, shape
and lettering for review and approval by Landlord. The One Riverside
Center Sign shall conform to the standards of design and motif
established by Landlord for the exterior of the Building and the
Property on which it is located. Tenant shall reimburse Landlord for
any costs associated with Landlord's review and supervision as
hereinbefore provided including, but not limited to, engineers and
other professional consultants. Tenant will be responsible for the
repair of any damage that the installation of the One Riverside Center
Sign may cause to the Building or Property. Tenant agrees upon the
expiration date or sooner termination of this Lease, upon Landlord's
request, to remove the One Riverside Center Sign and to repair and
restore any damage to the Building and Property at Tenant's expense.
In addition, Landlord shall have the right to remove the One Riverside
Center Sign at Tenant's sole cost and expense, if, at any time during
the Lease Term: (1) Tenant sublets more than 35% of the Premises
(except in connection with a Permitted Transfer), (2) Tenant and any
Permitted Transferee cease to occupy at least 65% of the Premises, or
(3) Tenant defaults under any term or condition of the Lease and fails
to cure such default within any applicable grace period.
C. For purposes hereof, the "Riverside Center Signage Conditions" shall
mean: (1) Tenant has not sublet more than 35% of the Premises (except
in connection with a Permitted Transfer) prior to the date on which
Tenant receives all necessary approvals and permits to install the One
Riverside Center Sign; (2) Tenant and any Permitted Transferee are in
actual occupancy of at least 65% of the Premises on the date on which
Tenant receives all necessary approvals and permits to install the One
Riverside Center Sign; (3) Tenant is not in default under any term or
condition of the Lease after notice and the expiration of applicable
grace periods on the date on which Tenant receives all necessary
approvals and permits to install the Sign; and (4) Tenant obtains all
necessary permits and approvals to install the One Riverside Center
Sign. Landlord acknowledges that Tenant shall have the right to
transfer its rights to the One Riverside Center Sign in connection
with a Permitted Transfer or an assignment of Tenant's entire interest
in the Lease to an assignee approved by Landlord pursuant to the terms
and conditions of the Lease, provided that such replacement One
Riverside Center Sign shall be subject to the same approval process
set forth herein for the original One Riverside Center Sign.
XII. THREE RIVERSIDE SIGNAGE.
------------------------
A. Provided that Tenant and any Permitted Transferee are in actual
occupancy of not less than fifty percent (50%) of the total rentable
square footage of Three Riverside Center, Tenant shall have the right
to install one (1) non- exclusive sign identifying Tenant on the
facade of Three Riverside Center (the "Three Riverside Center Sign"),
the size and location of which shall be reasonably designated by
Landlord. Tenant's right to install the Three Riverside Center Sign
shall, however, be subject to the satisfaction of all of the Three
Riverside Signage Conditions (defined in subsection XII.B. below).
Tenant, at its sole cost and expense, shall obtain all necessary
building permits and zoning, regulatory and governmental approval in
connection with the Three Riverside Center Sign. All costs in
connection with the Three Riverside Center Sign, including any costs
for the design, installation, supervision of installation, wiring,
maintenance, repair and removal of the Three Riverside Center Sign,
will be at Tenant's expense. Tenant shall submit to Landlord
reasonably detailed drawings of the proposed Three Riverside Center
Sign, including without limitation, the size, material, shape and
lettering for review and approval by Landlord. The Three Riverside
Center Sign shall conform to the standards of design and motif
established by Landlord for the exterior of the Building and the
Property on which it is located. Tenant shall reimburse Landlord for
any costs associated with Landlord's review and supervision as
hereinbefore provided including, but not limited to, engineers and
other professional consultants. Tenant will be responsible for the
repair of any damage that the installation of the Three Riverside
Center Sign may cause to the Building or Property. Tenant agrees upon
the expiration date or sooner termination of this Lease, upon
Landlord's request, to remove the Three Riverside Center Sign and to
repair and restore any damage to the Building and Property at Tenant's
expense. In addition, Landlord shall have the right to remove the
Three Riverside Center Sign at Tenant's sole cost and expense, if, at
any time during the Lease Term: (1) Tenant assigns this Lease (except
in connection with a Permitted Transfer), (2) Tenant sublets more than
33% of the Premises (except in connection with a Permitted Transfer),
(3) Tenant and any Permitted Transferee ceases to occupy at least 67%
of the Premises, (4) Tenant and any Permitted Transferee
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<PAGE> 69
cease to occupy at least 50% of the total rentable square footage of
Three Riverside Center, or (5) Tenant defaults under any term or
condition of the Lease and fails to cure such default within any
applicable grace period.
B. For purposes hereof, the "Riverside Center Signage Conditions" shall
mean: (1) Tenant has not assigned its interest in this Lease (except
in connection with a Permitted Transfer) prior to the date on which
Tenant receives all necessary approvals and permits to install the
Three Riverside Center Sign; (2) Tenant has not sublet more than 33%
of the Premises (except in connection with a Permitted Transfer) prior
to the date on which Tenant receives all necessary approvals and
permits to install the Three Riverside Center Sign; (3) Tenant and any
Permitted Transferee are in actual occupancy of at least 67% of the
Premises on the date on which Tenant receives all necessary approvals
and permits to install the Three Riverside Center Sign; (4) Tenant is
not in default under any term or condition of the Lease after notice
and the expiration of applicable grace periods on the date on which
Tenant receives all necessary approvals and permits to install the
Sign; (5) Tenant obtains all necessary permits and approvals to
install the Three Riverside Center Sign; and (6) Tenant and any
Permitted Transferee are in occupancy of not less than 50% of the
total rentable square footage of Three Riverside Center. Tenant
acknowledges that, with the exception of a Permitted Transfer, under
no circumstances shall Tenant have the right to transfer, sell or
assign any of its rights to the Three Riverside Center Sign.
XIII. SUPPLEMENTAL HVAC UNITS AND ANTENNA/DISHES.
-------------------------------------------
A. Tenant shall have the appurtenant right to use space on the roof of
the Building (the "Roof Space") for the purpose of installing,
operating and maintaining up to a total of ten (10), in the aggregate,
supplemental HVAC units (collectively referred to as the "HVAC Unit")
and/or satellite dishes or antenna (collectively referred to as the
"Dish/Antenna"). The HVAC Unit and Dish/Antenna are sometimes
collectively referred to as "Roof Top Units". Tenant shall have the
right to determine how many of the 10 Roof Top Units are HVAC Units
and how many of the 10 Roof Top Units are Dish/Antenna. The exact
location of the roof space to be used by Tenant shall be designated by
Landlord, provided, however, Landlord shall take into consideration
the operating efficiency and/or functionality of the Roof Top Units
when making such designations. Notwithstanding the foregoing, Tenant's
right to install the Roof Top Units shall be subject to the reasonable
approval rights of Landlord and Landlord's architect with respect to
the plans and specifications for the Roof Top Units, including,
without limitation, the size, height and dimensions of the Roof Top
Units, the manner in which the Roof Top Units are is attached to the
roof of Building, the availability of Building condenser water and the
manner in which Tenant intends to access the Building condenser water,
if applicable, and the manner in which any cables are run to and from
the Roof Top Units. Tenant shall be solely responsible for obtaining
all necessary governmental and regulatory approvals and for the cost
of installing, operating, maintaining and removing the Roof Top Units.
At the request of Landlord, Landlord shall be entitled to oversee any
requests for governmental or regulatory approvals or to cause Tenant's
request for approvals to be submitted as part of a joint application
for approval with any other matters for which Landlord is seeking
approval with respect to the Building. The precise specifications and
a general description of the Roof Top Units along with all documents
Landlord reasonably requires to review the installation of the Roof
Top Units (the "Plans and Specifications") shall be submitted to
Landlord for Landlord's written approval no later than 60 days prior
to the date on which Tenant desires to install the Roof Top Units.
Tenant shall notify Landlord upon completion of the installation of
each of the Roof Top Units. If Landlord determines that the Roof Top
Units do not comply with the approved Plans and Specifications, that
the Building has been damaged during installation of the Roof Top
Units or that the installation was defective, Landlord shall notify
Tenant of any noncompliance or detected problems and Tenant shall
promptly commence and diligently prosecute cure of the defects. If
Tenant fails to promptly commence and diligently prosecute cure of the
defects, Landlord shall have the right, but not the obligation, to
cure the same, and Tenant shall pay to Landlord upon demand the cost
reasonably incurred by Landlord of correcting any defects and
repairing any damage to the Building caused by such installation. If
at any time Landlord, in its sole discretion, deems it necessary,
Tenant shall provide and install, at Tenant's sole cost and expense,
appropriate aesthetic screening, reasonably satisfactory to Landlord,
for the Roof Top Units (the "Aesthetic Screening"). Tenant shall pay
Landlord for the cost of all utilities consumed in the operation of
the Roof Top Units.
17
<PAGE> 70
B. Landlord agrees that Tenant, upon reasonable prior notice to Landlord,
shall have access to the Roof Space for the purpose of installing,
maintaining, repairing, replacing and removing the Roof Top Units and
the Aesthetic Screening, all of which shall be performed by Tenant or
Tenant's authorized representatives or contractors, which shall be
reasonably approved by Landlord, at Tenant's sole cost and risk. It is
agreed, however, that only authorized engineers, employees or properly
authorized contractors of Tenant, FCC (hereinafter defined)
inspectors, or persons under their direct supervision will be
permitted to have access to the Roof Space. Tenant further agrees to
exercise firm control over the people requiring access to the Roof
Space in order to keep to a minimum the number of people having access
to the Roof Space and the frequency of their visits.
C. It is further understood and agreed that the installation,
maintenance, operation and removal of the Roof Top Units may in no way
damage the Building or roof thereof, or interfere with the use of the
Building and roof by Landlord. Tenant agrees to be responsible for any
damage caused to the roof or any other part of the Building, which may
be caused by Tenant or any of its agents or representatives.
D. Tenant shall be responsible for the installation, operation,
cleanliness, maintenance and removal of the Roof Top Units and
appurtenances, all of which shall remain the personal property of
Tenant, and, notwithstanding anything in Article VIII of the Lease to
the contrary with respect to Required Removables, shall be removed by
Tenant at its own expense at the termination of said Lease. Tenant
shall repair any damage cause by such removal, including the patching
of any holes to match, as closely as possible, the color surrounding
the area where the equipment and appurtenances were attached. Such
maintenance and operation shall be performed in a manner to avoid any
interference with any other tenants or Landlord. Tenant agrees to
maintain all of Tenant's equipment placed on or about the Roof Space
in proper operating condition and maintain same in satisfactory
condition as to appearance and safety. Tenant agrees that at all times
during the term of this Lease, it will keep the Roof Space free of all
trash or waste materials by Tenant. Tenant must provide Landlord with
prior notice of any such installation, removal or repair and
coordinate such work with Landlord in order to avoid voiding or
otherwise adversely effecting any warranties granted to Landlord with
respect to the roof. If necessary, Tenant, at its sole cost and
expense, shall retain any contractor having a then existing warranty
in effect on the roof to perform such work (to the extent that it
involves the roof), or, at Tenant's option, to perform such work in
conjunction with Tenant's contractor. In the event Landlord
contemplates roof repairs that could effect Tenant's Roof Top Units or
requires access which requires temporary removal or relocation of the
Roof Top Units, or which may result in an interruption of the Tenant's
air conditioning service or antenna/satellite dish use, Landlord shall
formally notify Tenant at least thirty (30) days in advance (except in
the case of an emergency) prior to the commencement of such
contemplated work in order to allow Tenant to make other arrangements
for such services.
E. Landlord, at its sole cost and expense, reserves the right to relocate
the Roof Space with respect to Antenna/Dishes from time to time as
necessary during the Term. Notwithstanding the foregoing, Tenant, not
Landlord, shall be responsible for the cost of any relocation that is
necessitated by Landlord's performance of repairs or improvements to
the Building, provided that such improvements are not for the benefit
of any single tenant or occupant of the Building.
F. Tenant agrees to install only Antenna/Dishes of types and frequencies
which will not cause unreasonable interference to Landlord or existing
tenants of the Building. In the event Tenant's Antenna/Dish causes
such interference, Landlord shall work together with Tenant and any
other parties affected by such interference to reach a mutually
agreeable solution. In the event the parties cannot arrive at a
mutually agreeable solution in a prompt manner, Landlord shall have
the right to require Tenant to change the frequency on which it
transmits and/or receives and take any other steps necessary to
eliminate the interference. If said interference cannot be eliminated
within a reasonable period of time, in the judgment of Landlord, then
Tenant agrees to remove the Dish/Antenna from the Roof Space.
G. Tenant shall, at its sole cost and expense, and at its sole risk,
install, operate and maintain the Dish/Antenna in a good and
workmanlike manner, and in compliance with all Building, electric,
communication, and safety codes, ordinances, standards, regulations
and requirements, now in effect or hereafter promulgated, of the
Federal
18
<PAGE> 71
Government, including, without limitation, the Federal Communications
Commission (the "FCC"), the Federal Aviation Administration ("FAA") or
any successor agency of either the FCC or FAA having jurisdiction over
radio or telecommunications, and of the state, city and county in
which the Building is located. Under this Lease, the Landlord and its
agents assume no responsibility for the licensing, operation and/or
maintenance of Tenant's equipment. Tenant has the responsibility of
carrying out the terms of its FCC license in all respects. The
Dish/Antenna shall be connected to Landlord's power supply in strict
compliance with all applicable Building, electrical, fire and safety
codes. Neither Landlord nor its agents shall be liable to Tenant for
any stoppages or shortages of electrical power furnished to the
Dish/Antenna or the Roof Space because of any act, omission or
requirement of the public utility serving the Building, or the act or
omission of any other tenant, invitee or licensee or their respective
agents, employees or contractors, or for any other cause beyond the
reasonable control of Landlord, and Tenant shall not be entitled to
any rental abatement for any such stoppage or shortage of electrical
power. Neither Landlord nor its agents shall have any responsibility
or liability for the conduct or safety of any of Tenant's
representatives, repair, maintenance and engineering personnel while
in or on any part of the Building or the Roof Space.
H. Except as provided in the next sentence, Tenant shall not allow any
provider of telecommunication, video, data or related services
("Communication Services") to locate any equipment on the roof of the
Building or in the Roof Space for any purpose whatsoever, nor may
Tenant use the Roof Space and/or Dish/Antenna to provide Communication
Services to an unaffiliated tenant, occupant or licensee of another
building, or to facilitate the provision of Communication Services on
behalf of another Communication Services provider to an unaffiliated
tenant, occupant or licensee of the Building or any other building.
Notwithstanding the foregoing, Tenant may allow the Roof Space to be
used by a provider of Communication Services to Tenant, provided that
such provider enters into a license agreement for such space with
Landlord upon terms and conditions (including fees) that are
commercially reasonable for the suburban Boston area.
I. Tenant acknowledges that Landlord may at some time establish a
standard license agreement (the "License Agreement") with respect to
the use of roof space by tenants of the Building. Tenant, upon request
of Landlord, shall enter into such License Agreement with Landlord
provided that such agreement does not materially alter the rights or
obligations of Tenant hereunder with respect to the Roof Space.
J. Tenant specifically acknowledges and agrees that the terms and
conditions of Article XIV of the Lease (Indemnity and Waiver of
Claims) shall apply with full force and effect to the Roof Space and
any other portions of the roof accessed or utilized by Tenant, its
representatives, agents, employees or contractors.
K. If Tenant defaults under any of the terms and conditions of this
Section or the Lease, and Tenant fails to cure said default within the
time allowed by Article XIX of the Lease, Landlord shall be permitted
to exercise all remedies provided under the terms of the Lease,
including removing the Dish/Antenna, the appurtenances and the
Aesthetic Screening, if any, and restoring the Building and the Roof
Space to the condition that existed prior to the installation of the
Dish/Antenna, the appurtenances and the Aesthetic Screening, if any.
If Landlord removes the Dish/Antenna, the appurtenances and the
Aesthetic Screening, if any, as a result of an uncured default, Tenant
shall be liable for all costs and expenses Landlord incurs in removing
the Dish/Antenna, the appurtenances and the Aesthetic Screening, if
any, and repairing any damage to the Building, the roof of the
Building and the Roof Space caused by the installation, operation or
maintenance of the Dish/Antenna, the appurtenances, and the Aesthetic
Screening, if any.
XIV. BACK-UP GENERATOR.
------------------
A. Tenant shall have the appurtenant right to install a supplemental
generator (the "Generator") to provide emergency additional electrical
capacity to the Premises and an above ground fuel tank (the "Tank") to
provide fuel to such Generator. The Generator and Tank shall be
located in the southeast corner of Level A in One Riverside Center,
the exact location of which shall be designated by Landlord (the
"Generator Space"). Notwithstanding the foregoing, Tenant's right to
install the Generator and Tank shall be subject to Landlord's
reasonable approval of the manner in which the Generator and Tank are
installed, the manner in which any
19
<PAGE> 72
cables and lines are run to and from the Generator to the Premises and
the measures that will be taken to eliminate any vibrations or sound
disturbances from the operation of the Generator. Landlord shall have
the right to require an acceptable enclosure to hide or disguise the
existence of the Generator and Tank and to minimize any adverse effect
that the installation of the Generator and Tank may have on the
appearance of the Building and Property. Tenant shall be solely
responsible for obtaining all necessary governmental and regulatory
approvals and for the cost of installing, operating, maintaining and
removing the Generator and Tank. Tenant shall also be responsible for
the cost of all utilities and fuel consumed in the operation of the
Generator. Notwithstanding anything herein to the contrary, if Tenant
does not install the Generator and Tank on or before one (1) year
after the Commencement Date, Tenant's right to install and maintain
the Generator or Tank, as appropriate, on the Property shall be
subject to space being available for such purpose.
B. Tenant shall be responsible for assuring that the installation,
maintenance, operation and removal of the Generator and Tank will in
no way damage the Building or Property. Tenant agrees to be
responsible for any damage caused to the Building or Property in
connection with the installation, maintenance, operation or removal of
the Generator and Tank and, in accordance with the terms of Article
XIV of the Lease, to indemnify, defend and hold Landlord and any
Landlord Related Parties harmless from all liabilities, obligations,
damages, penalties, claims, costs, charges and expenses which may be
imposed upon, incurred by, or asserted against Landlord or any of the
Landlord Related Parties in connection with the installation,
maintenance, operation or removal of the Generator and Tank,
including, without limitation, any environmental and hazardous
materials claims.
C. Tenant shall be responsible for the installation, operation,
cleanliness, maintenance and removal of the Generator, Tank and
appurtenances, all of which shall remain the personal property of
Tenant, and, notwithstanding anything in Article VIII of the Lease to
the contrary with respect to Required Removables, shall be removed by
Tenant at its own expense at the termination of the Lease. Tenant
shall repair any damage caused by such removal, including the patching
of any holes to match, as closely as possible, the color surrounding
the area where the Generator, Tank and appurtenance were attached.
Such maintenance and operation shall be performed in a manner to avoid
any unreasonable interference with any other tenants or Landlord.
Tenant agrees to maintain the Generator and Tank, including without
limitation, any enclosure installed around the Generator and Tank, in
good condition and repair. Tenant shall be responsible for performing
any maintenance and improvements to any enclosure surrounding the
Generator and Tank so as to keep such enclosure in good condition.
D. Tenant, subject to the reasonable rules and regulations enacted by
Landlord, shall have access to the Generator and Tank and its
surrounding area for the purpose of installing, repairing, maintaining
and removing said Generator and Tank.
E. Tenant shall only test the Generator before or after normal business
hours and upon prior notice to Landlord.
XV. VACATION OR ABANDONMENT. Landlord hereby agrees that the vacation or
-----------------------
abandonment of the Premises by Tenant shall not constitute a default by
Tenant under the Lease so long as Tenant continues to pay Rent as required
hereunder. Notwithstanding the foregoing, Tenant, within thirty (30) days
following its vacation or abandonment of 75% or more of the Premises, shall
notify Landlord of its intentions regarding reoccupancy. If Tenant abandons
or vacates 75% or more of the Premises, Tenant shall use reasonable efforts
to sublet or assign the entire vacant portion of the Premises for the
remainder of the Lease Term to a party (or parties) that will occupy the
Premises in accordance with the terms and conditions of the Lease. Such
reasonable efforts shall require Tenant, at a minimum, to list the Premises
with a qualified real estate brokerage firm at least thirty (30) days prior
to such vacation or abandonment and to actively commence to market the
Premises within thirty (30) days after such listing. Tenant agrees to
provide Landlord a copy of an executed listing agreement between Tenant and
a qualified real estate brokerage firm. If Tenant fails to use reasonable
efforts to sublet or assign the Premises or, even if reasonable efforts are
used, fails to sublet or assign the majority of the vacated or abandoned
portion of the Premises within six (6) months after the date of such
abandonment or vacation, Landlord, at any time thereafter, shall have the
right to market the abandoned or vacated portion of the Premises for lease
and, upon obtaining a lessee
20
<PAGE> 73
for the Premises, recapture the Premises and terminate this Lease by notice
to Tenant. If Landlord terminates this Lease, Tenant, on a monthly basis
following receipt of an invoice from Landlord, shall pay Landlord an amount
equal to the difference between the Rent that was payable under this Lease
through the remainder of the then current Lease Term that was in effect
immediately prior to termination (without consideration of any unexercised
renewal options) and the rent actually received by Landlord for the
remainder of such Lease Term from any third party lessee of the Premises.
In addition, Tenant, within thirty (30) days after receipt of demand from
Landlord, shall reimburse Landlord for all of Landlords reasonable Costs of
Reletting the Premises.
XVI. INTENTIONALLY OMITTED
---------------------
XVII. BUILDING RISERS. Tenant shall have the right to use the vertical sleeves
---------------
in One Riverside Center and Two Riverside Center for Tenant's data and
telecommunication cabling and in connection with the rights granted to
Tenant with respect to the Roof Space. All such usage shall be in common
with Landlord and shall not adversely affect Landlord's right to use the
vertical sleeves for the operation of the Building (including the leasing,
licensing and granting of roof rights to third parties); provided that
Landlord shall not lease, license or grant any roof rights to third parties
to the extent that the same would have an adverse affect on Tenant's
ability to use the vertical sleeves in connection with the normal operation
of Tenant's business in the Premises.
Landlord and Tenant have executed this exhibit as of the day and year first
above written.
WITNESS/ATTEST: LANDLORD:
EOP-RIVERSIDE PROJECT, L.L.C, A DELAWARE LIMITED
LIABILITY COMPANY
By: Beacon Property Management Corporation, a
Delaware corporation, its managing member
/s/ Kathleen M. Steidinger
- ----------------------------- By: /s/ Michael A. Steele
-------------------------
Name (print):
--------------- Name: Michael A. Steele
Kathleen M. Steidinger -------------------------
- -----------------------------
Title: President
/s/ John C. Schneider -------------------------
- -----------------------------
Name (print):
---------------
John C. Schneider
- -----------------------------
WITNESS/ATTEST: TENANT:
ALLAIRE CORPORATION, A CORPORATION ORGANIZED
/s/ Eric J. Smith UNDER THE LAWS OF THE STATE OF DELAWARE
- ----------------------------- By: David A. Gerth
------------------------------
Name (print): Eric J. Smith
--------------- Name: David A. Gerth
/s/ JoAnne Trayers ------------------------------
- -----------------------------
Title: CFO & VP Finance & Operations
Name (print): JoAnne Trayers ------------------------------
---------------
- -----------------------------
21
<PAGE> 74
EXHIBIT F
NOTICE OF LEASE
---------------
Notice is hereby given, pursuant to the provisions of Chapter 183, Section
4 of the Massachusetts General Laws, of the following Lease:
Landlord:
- ---------
EOP-RIVERSIDE PROJECT, L.L.C, A DELAWARE LIMITED LIABILITY COMPANY
Tenant:
- -------
ALLAIRE CORPORATION, A CORPORATION ORGANIZED UNDER THE LAWS OF THE STATE OF
DELAWARE
Date of Lease Execution:
- ------------------------
November 23, 1999
- ------------------------------------
Description of Premises:
- ------------------------
Approximately 270,446 square feet of space on the 1st, 2nd and 3rd floors of the
building commonly known as One Riverside Center and the 1st and 2nd floors of
the building commonly known as Two Riverside Center ("Premises") shown on the
sketch plan attached hereto as Exhibit "A" and located at 275 Grove Street,
Newton, MA (the "Property") more particularly described on Exhibit "B" attached
hereto and made a part hereof.
Commencement Date:
- ------------------
The later to occur of (1) July 1, 2000; or (2) the date on which the Landlord
Work in the One Riverside Center Premises has been substantially completed, as
such date is determined pursuant to the Lease, or (3) the Landlord delivers full
possession of the Premises in One Riverside Center to Tenant. The Commencement
Date will be confirmed in a subsequent notice executed by Landlord and Tenant
and recorded in the Registry of Deeds.
Original Term:
- --------------
A period of ten (10) years beginning on the Commencement Date.
Option to Extend.
- -----------------
The Lease may be extended for two (2) successive additional period of five (5)
years each, subject to the terms and conditions of the Lease.
Expansion Option.
- -----------------
Tenant, subject to the terms and conditions of the Lease, has expansion rights
with respect to approximately 32,152 rentable square feet on the 3rd floor of
Two Riverside Center.
Right of First Offer.
- ---------------------
================================================================================
<PAGE> 75
Right of First Offer.
- ---------------------
Tenant, subject to the terms and conditions of the Lease, has the right of first
offer with respect all space in Two Riverside Center and Three Riverside Center.
Signage.
- --------
Tenant has certain rights, exclusive and non-exclusive, regarding signage on the
exterior of the certain buildings and structures located at the Property, all
upon terms and conditions set forth in the Lease.
Miscellaneous.
- --------------
The Lease sets forth additional rights, obligations, terms and conditions not
enumerated herein.
To the extent there is an inconsistency between the Lease and the Notice of
Lease, the Lease shall govern.
For Landlord's title, see deed recorded in Middlesex (South) Registry of Deeds
in Book 27596 at Page 171.
- --------------------------------------------------------------------------------
Riverside Center - Base Building Scope Description Page 24
<PAGE> 76
WITNESS the execution hereof as a sealed instrument as of the 23rd day of
November, 1999.
WITNESS/ATTEST: LANDLORD:
EOP-RIVERSIDE PROJECT, L.L.C, A DELAWARE LIMITED
LIABILITY COMPANY
By: Beacon Property Management Corporation, a
Delaware corporation, its managing member
/s/ Kathleen M. Steidinger
- ----------------------------- By: /s/ Michael A. Steele
-------------------------
Name (print):
--------------- Name: Michael A. Steele
Kathleen M. Steidinger -------------------------
- -----------------------------
Title: President
/s/ John C. Schneider -------------------------
- -----------------------------
Name (print):
---------------
John C. Schneider
- -----------------------------
WITNESS/ATTEST: TENANT:
ALLAIRE CORPORATION, A CORPORATION ORGANIZED
/s/ Eric J. Smith UNDER THE LAWS OF THE STATE OF DELAWARE
- ----------------------------- By: David A. Gerth
------------------------------
Name (print): Eric J. Smith
--------------- Name: David A. Gerth
/s/ JoAnne Trayers ------------------------------
- -----------------------------
Title: CFO & VP Finance & Operations
Name (print): JoAnne Trayers ------------------------------
---------------
- -----------------------------
================================================================================
<PAGE> 77
STATE OF ILLINOIS
Cook , ss November 23,
- ------------------------
1999
[County]
Then personally appeared the above-named Michael A. Steele, the President
of Beacon Property Management Corporation, a Delaware corporation, the managing
member of EOP-Riverside Project, L.L.C., a Delaware limited liability company,
known to me to be the person described in and who executed the foregoing
instrument and acknowledged the same to be his free act and deed and that of
said Beacon Property Management Corporation as the managing member of
EOP-Riverside Project, L.L.C., before me,
Kathleen M. Steidinger
----------------------
Notary Public
My Commission Expires:June 1, 2001
COMMONWEALTH OF MASSACHUSETTS
Middlesex , ss November 23, 1999
- --------------------
[County]
Then personally appeared the above-named David A. Gerth the CFO of Allaire
Corporation, a Delaware corporation, known to me to be the person described in
and who executed the foregoing instrument and acknowledged the same to be his
free act and deed and that of said Allaire Corporation, before me,
Victoria Reiff
Notary Public
My Commission Expires:2005
- --------------------------------------------------------------------------------
Riverside Center - Base Building Scope Description Page 2
<PAGE> 78
EXHIBIT G
LEGAL DESCRIPTION OF PROPERTY
-----------------------------
A certain parcel of land containing about four hundred eighty-seven
thousand six hundred (487,600) square feet on the northwesterly side of Grove
Street in that part of the City of Newton, County of Middlesex and Commonwealth
of Massachusetts, known as Riverside, bounded and described as follows:
EASTERLY by Grove Street, six hundred eighteen and twelve hundredths
(618.12') feet; SOUTHWESTERLY by land of the Boston and Albany Railroad
Company by a line forty-one and twenty-five hundredths (41.25') feet
northeasterly from and parallel to the base line of the Newton Highlands
Branch of the Boston and Albany Railroad filed September 20, 1884, by three
(3) courses, the first being two hundred forty-seven and seventy-four
hundredths (247.74') feet; the second being five hundred seventy-four and
seventy-five hundredths (574.75') feet; and the third being six hundred
thirty-eight and seventy-one hundredths (638.71') feet; NORTHWESTERLY by
land now or formerly of Lyman W. Gore and Minnie S. Gore, one hundred ten
and seventy hundredths (110.70') feet; NORTHEASTERLY by land now or
formerly of said Lyman W. Gore and Minnie S. Gore and land now or formerly
of Murdo Mackenzie and Mary Mackenzie, sixty-four and no hundredths
(64.00') feet; NORTHERLY by land of various owners and by Oakwood Road and
Williston Road, one thousand fifty-eight and thirty-five hundredths
(1,058.35') feet; said premises being shown within the lines tinted brown
upon a plan hereinafter mentioned; together with an easement consisting of
the right to install, use, maintain, repair and renew a 12 inch cast iron
sewer pipe under land of the Boston and Albany Railroad Company from the
above-described land to the City of Newton sewer on the southwesterly side
of the said Newton Highlands Branch as shown in purple on the said plan;
also the right to continue in use, maintain, repair and renew a three (3')
foot stone box culvert under land of the Boston and Albany Railroad Company
from the above-described land to Runaway Brook as shown in yellow on said
plan; said sewer and culvert to be installed, used maintained, repaired and
renewed with such materials and under such general structural conditions
and subject to such inspection as shall be approved by the District
Engineer of the Boston and Albany Railroad, or his duly authorized
representative.
The above described premises are shown on entitled "BOSTON & ALBANY
R.R...: RIVERSIDE LAND COVERED BY B. & A. R. R. CO. TO JORDAN MARSH
COMPANY," dated June 6, 1951, and signed by C. T. Gunsallus, District
Engineer, which plan is recorded with Middlesex South District Deeds, Book
7782, Page 62.
- --------------------------------------------------------------------------------
Riverside Center - Base Building Scope Description Page 3
<PAGE> 79
EXHIBIT H
BUILDING PLAN
- --------------------------------------------------------------------------------
Riverside Center - Base Building Scope Description Page 4
<PAGE> 80
EXHIBIT I
SAMPLE LETTER OF CREDIT
Irrevocable Standby
Letter of Credit
No. ______________________
Issuance Date:____________
Expiration Date:__________
Applicant:________________
Beneficiary
- -----------
[Insert Name of Owner]
- -------------------------------
- -------------------------------
- -------------------------------
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 proportedly 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;
- --------------------------------------------------------------------------------
Riverside Center - Base Building Scope Description Page 5
<PAGE> 81
(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.
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,
----------------------
[name]
----------------------
[title}
----------------------
- --------------------------------------------------------------------------------
Riverside Center - Base Building Scope Description Page 6
<PAGE> 82
EXHIBIT J
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
RECORDING REQUESTED BY:
- -----------------------
AND WHEN RECORDED MAIL TO:
- --------------------------
Loan No.:_________
SUBORDINATION, NON-DISTURBANCE
AND ATTORNMENT AGREEMENT
------------------------
This AGREEMENT made as of ____, 19__, among ______, (hereinafter referred
to as "Landlord" or "Borrower"),____________________________ (hereinafter
referred to as "Tenant"), and (hereinafter referred to as "Lender").
W I T N E S S E T H :
---------------------
WHEREAS, Lender has made or has committed to make a loan or loans
(collectively, the "Loan") to Landlord evidenced by a note (the "Note") to be
secured by a mortgage or deed of trust dated on or about the date hereof
(hereinafter referred to as the "Mortgage") and to be recorded among the real
estate records of ___________________________________, constituting a first
priority security title or lien upon the land described in EXHIBIT A attached
hereto and made a part hereof and the improvements thereon, as well as all of
Landlord's right, title, interest, estate and claim now owned or hereafter
acquired in, to or relating to the items described in (i) through (xii) in the
recitals of the Mortgage (collectively, the "Property"); and
WHEREAS, Landlord and Tenant have entered into a certain lease dated
_____________, ____, which lease provides for the direct payment of rents from
Tenant to Landlord for the use and occupancy of Suite(s) _______ of that
building (the "Building") on the Property located at ___________________________
(the "Premises") by Tenant, as more fully set forth in the lease (hereafter, the
lease and all existing and future amendments and modifications thereto, and
extensions thereof, shall be referred to as the "Lease"); and
WHEREAS, Lender wishes to obtain from Tenant certain assurances that Tenant
will attorn to the purchaser at a foreclosure sale in the event of a foreclosure
or to the holder of the Note and Mortgage in the event of such holder's exercise
of its rights under the Note and Mortgage or in the event such holder acquires
title to the Property by deed in lieu of foreclosure or otherwise; and
WHEREAS, Tenant wishes to obtain from Lender certain assurances that so
long as Tenant is not in default of Tenant's obligations to Landlord under the
Lease, that Tenant shall not be disturbed in its peaceful possession of the
Premises as a result of actions taken by Lender pursuant to its rights under the
Mortgage; and
WHEREAS, Tenant and Lender are both willing to provide such assurances to
each other upon and subject to the terms and conditions of this Agreement; and
WHEREAS, Landlord has entered into this Agreement to acknowledge its
agreement to all of the terms and conditions set forth herein.
- --------------------------------------------------------------------------------
Riverside Center - Base Building Scope Description Page 7
<PAGE> 83
NOW, THEREFORE, in consideration of the above, the mutual promises
hereinafter set forth, and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto mutually
agree as follows:
1. SUBORDINATION AND ATTORNMENT. The Lease and all of the rights of Tenant
----------------------------
thereunder shall be and are hereby declared to be and at all times hereafter
shall be and remain subordinate in all respects to the Mortgage and to all
renewals, modifications, consolidations, replacements and extensions thereof and
all of the rights of the Lender thereunder and all other documents securing the
Note. Notwithstanding such subordination, Tenant hereby agrees that the Lease
shall not terminate in the event of a foreclosure of the Mortgage, whether
judicial or nonjudicial or any other proceedings brought to enforce the Mortgage
or by deed in lieu of foreclosure and Tenant further agrees to attorn and to
recognize Lender (as mortgagee in possession or otherwise), or the purchaser at
such foreclosure sale, as Tenant's landlord for the balance of the term of the
Lease, in accordance with the terms and provisions thereof, but subject,
nevertheless, to the provisions of this Agreement, which Agreement shall be
controlling in the event of any conflict.
2. ESTOPPEL. Landlord and Tenant hereby agree that the Lease is valid,
--------
enforceable and in full force and effect, that as of the date hereof there are
no defaults by Landlord or Tenant, that there are no setoffs or counterclaims by
Tenant to the payment of rent due under the Lease, that all conditions to the
effectiveness or continuing effectiveness of the Lease required to be satisfied
as of the date hereof have been satisfied, that the Lease has not been modified
or amended except as set forth below (If none, state "None"):
__________________________________________________________________________
__________________________________________________________________________
________________________________________________________________________________
and that the Lease is a complete statement of the agreement of Tenant and
Landlord with respect to the Premises.
3. TENANT'S REPRESENTATIONS AND WARRANTIES. Tenant hereby represents and
---------------------------------------
warrants to Lender that is has not subordinated the Lease or any of its rights
thereunder to any lien, security title or security deed other than the Mortgage
and that it will not subordinate the Lease or its rights thereunder to any lien,
security title or security deed without the prior written consent of Lender,
which may be withheld by Lender in its sole, absolute discretion, without regard
to any reasonableness standard.
4. LENDER'S NOTICE AND CURE RIGHTS; LENDER'S RIGHT TO RENT. Tenant agrees
-------------------------------------------------------
with Lender that, from and after the date hereof until payment in full of the
indebtedness under the Note, Tenant will not terminate the Lease, discontinue or
abate the rent or exercise any other remedies as a result of a default by
Landlord under the Lease, without first giving the Lender notice and a
reasonable time, at Lender's option but without any obligation to do so, to cure
or to commence to cure such default. In no event shall the period for Lender to
cure or commence to cure be less than thirty (30) days (or any longer cure
period provided Landlord in the Lease), plus such time as may be required for
Lender or its successors and assigns to take possession of the Building or to
institute and complete foreclosure proceedings or otherwise acquire title to
such Building; provided, however, that such additional period for Lender to
obtain possession or to institute and complete foreclosure proceedings shall not
exceed ninety (90) days unless (i) Lender is diligently pursuing foreclosure
proceedings and (ii) the continuation of the Landlord default in question
neither unreasonably interferes with Tenant's use of the Premises nor imposes
any additional obligations on Tenant, in which case such additional period may
extend to up to one hundred eighty (180) days. Notwithstanding the foregoing, in
the event such default by Landlord under the Lease is not susceptible to cure by
the Lender, Tenant may, at its option, exercise all its rights under the Lease
(including, without limitation, the right to terminate the Lease or discontinue
or abate rent) with prior notice to Lender but without affording Lender the
opportunity to cure.
- --------------------------------------------------------------------------------
Riverside Center - Base Building Scope Description Page 8
<PAGE> 84
Tenant also agrees that, upon receipt of notice from Lender
or its successors and assigns that it/they has/have exercised its/their rights
under the Assignment of Leases and Rents executed by Landlord in favor of Lender
in connection with the Loan, all rent payments thereafter due under the Lease
shall be paid directly to Lender or its successors and assigns and any such
payments to the Lender shall be credited against the rent due under the Lease as
if made to the Landlord.
5. NON-DISTURBANCE. So long as Tenant is not in default under the Lease
---------------
beyond any notice and cure period provided in the Lease, then Lender agrees with
Tenant that in the event the interest of Landlord under the Lease is acquired by
Lender, or Lender acquires title to the Property or comes into possession of
said Property by reason of foreclosure or enforcement of the Mortgage or the
Note, or by a conveyance in lieu thereof, or by any other means, Tenant's
possession of the Premises and Tenant's rights, privileges and obligations under
the Lease shall not be disturbed, diminished or interfered with by Lender or any
party claiming through Lender during the term of the Lease, including any
extensions thereof permitted to Tenant, and the Lease shall continue in full
force and effect and shall not be terminated except in accordance with the terms
of the Lease. In the event Tenant defaults under the Lease or this Agreement
beyond applicable notice and cure periods, the obligations of Lender hereunder
shall, at Lender's election, become null and void and Lender may proceed to
extinguish the Lease and all of Tenant's rights and interests in and to the
Premises through foreclosure of the Mortgage.
Immediately upon the acquisition by Lender of possession or title to the
Property by reason of foreclosure or enforcement of the Mortgage or the Note, or
by a conveyance in lieu thereof, or as a result of any other means, Tenant
agrees to be bound to Lender under all of the terms, covenants, and conditions
of the Lease for the balance of the term thereof, including any extensions
thereof permitted to Tenant, with the same force and effect as if Lender were
the landlord under the Lease, and Tenant does hereby attorn to Lender as its
landlord, said attornment to be effective and self-operative without the
execution of any other instruments on the part of either party hereto.
Lender further agrees that if it obtains possession or title to the
Property during the Lease term, Lender shall be bound to Tenant under all of the
terms, covenants, and conditions of the Lease and Tenant shall, from and after
the occurrence of the events set forth above, have the same remedies that Tenant
might have had under the Lease against Landlord; provided; however, that Lender
shall not be:
a. liable to Tenant for damages for any act or omissions of Landlord or
any prior landlord occurring prior to Lender obtaining possession or
title to the Property; or
b. subject to any offsets, claims or defenses which Tenant might have
against Landlord or against any prior landlord which arise prior to,
or out of any events that occurred prior to, the date Lender obtains
possession or title to the Property (except any offset or deduction
expressly provided for in the Lease which amount is a sum certain
expressly set forth in the Lease); or
c. bound by any rent or additional rent or deposit, rental security or
any other sums which Tenant may have paid to Landlord or any other
landlord unless received by Lender; or
d. bound by any amendment or modification of the Lease made from and
after the date of this Agreement without Lender's prior written
consent; or
e. bound to the Tenant subsequent to the date upon which the Lender
transfers its interest in the Property to any third party; or
- --------------------------------------------------------------------------------
Riverside Center - Base Building Scope Description Page 9
<PAGE> 85
f. obligated or liable to Tenant with respect to the construction and
completion of any improvements in the Premises for tenant's use,
enjoyment or occupancy; provided, however, if, after succeeding to
Landlord's interest under the Lease Lender fails or refuses to
construct or complete any such improvements which Landlord would have
been obligated to construct or complete, Tenant shall be entitled to
exercise any and all remedies provided to Tenant by the Lease for a
failure by Landlord to construct or complete any such improvements; or
g. obligated or liable to Tenant for any moving, relocation or
refurbishment allowance or any payment or allowance for improvements
to the Premises of any part thereof; provided, however, if after
succeeding to Landlord's interest under the Lease Lender fails or
refuses to pay any such allowance, Tenant shall be entitled to
exercise any and all remedies provided to Tenant by the Lease for a
failure by Landlord to pay any such allowance; or
h. liable for the payment of any leasing commissions or other expenses
for which Landlord or any prior landlord incurred the obligation to
pay; or
i. bound or liable to Tenant under any notice given by Tenant to Landlord
or any prior landlord unless notice is also given simultaneously to
Lender as required by the terms of this Agreement; or
j. personally liable for any obligations of Landlord under the Lease to
which Lender succeeds, Lender's liability for the performance of such
obligations being limited at all times to its interest in the
Property.
6. OBLIGATIONS OF SUCCEEDING OWNER. Tenant hereby agrees that any entity or
-------------------------------
person which at any time hereafter becomes the Landlord under the Lease,
including, without limitation, Lender, as a result of Lender's exercise of its
right under the Mortgage, or a purchaser from Lender, shall be liable only for
the performance of the obligations of the Landlord under the Lease which arise
and accrue during the period of such entity's or person's ownership of the
Property.
7. NOTICES. All notices or other written communications required or
-------
permitted to be given pursuant to this Agreement shall be in writing, and shall
be deemed to have been properly given (i) upon delivery, if delivered in person
or by facsimile transmission with receipt acknowledged, (ii) one business day
after having been deposited for overnight delivery with any reputable overnight
courier service, or (iii) upon actual receipt (or upon refusal to accept
delivery or upon the date delivery is attempted and cannot be completed because
the party to whom it is sent can no longer be found at the then current notice
address) if sent by registered or certified mail, postage prepaid, addressed as
follows:
if given to Tenant, shall be addressed as follows:
Allaire Corporation
One Riverside Center
Newton, Massachusetts 02458
Attention: General Counsel
with a copy to:
Foley, Hoag & Eliot LLP
One Post Office Square
Boston, Massachusetts 02109
- --------------------------------------------------------------------------------
Riverside Center - Base Building Scope Description Page 10
<PAGE> 86
Attention: Robert L. Birnbaum, Esq.
and, if given to Landlord, shall be addressed as follows:
Equity Office Properties Trust
Two North Riverside Plaza
Suite 2200
Chicago, Illinois 60606
Attention: Associate General Counsel for Property
Operations
and, if given to Lender, shall be addressed as follows:
________________________
________________________
________________________
________________________
or addressed as such party may from time to time designate in a writing to the
other parties hereto and delivered in accordance with the provisions of this
Section 7.
8. MISCELLANEOUS. This Agreement may not be amended or modified in any
-------------
manner other than by an agreement in writing, signed by the parties hereto or
their respective successors in interest, and this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns. The words "foreclosure" and "foreclosure sale" as used
herein shall be deemed to include the acquisition of Landlord's estate in the
Property by any power of sale contained in the Mortgage, or by voluntary deed,
assignment or other conveyance or transfer in lieu of foreclosure; and the word
"Lender" shall include the Lender herein specifically named, any Co-Lender(s)
designated by Lender, and any of Lender(s)' successors and assigns, including
anyone who shall have succeeded to Landlord's interest in the Property or
acquired possession thereof by, through or under foreclosure of the Mortgage, or
by any other manner of enforcement of the Mortgage, or the Note or other
obligation secured thereby.
9. CONFLICTS WITH LEASE. This Agreement shall supersede, as between Tenant
--------------------
and Lender, all of the terms and provisions of the Lease which are inconsistent
with this Agreement, but shall not affect any obligations or liabilities of
Borrower, as landlord, under the Lease or diminish any of the rights or increase
any of the obligations of Tenant under the Lease.
10. GOVERNING LAW; VENUE. This Agreement shall be construed in accordance
--------------------
with the laws of the Commonwealth of Massachusetts and any litigation arising
out of this Agreement shall be brought in the courts of the Commonwealth of
Massachusetts or in the courts of the United States for the applicable District
within the Commonwealth of Massachusetts and all parties hereto consent to the
venue of such courts.
11. EFFECT OF AGREEMENT. Landlord joins in the execution and delivery of
-------------------
this Agreement for the purpose of evidencing its consent to the terms and
provisions hereof, and as between Landlord and Tenant, nothing herein contained
shall be deemed to alter or modify the Lease. Landlord authorizes and directs
Tenant to comply with any and all notices from Lender which directs Tenant to
make rent payments directly to Lender. As between Lender and Landlord, nothing
contained herein shall be deemed to alter or modify the terms and conditions of
the Note, the Mortgage, or any other document or agreement regarding the
mortgage loan made by Lender to Borrower.
- --------------------------------------------------------------------------------
Riverside Center - Base Building Scope Description Page 11
<PAGE> 87
12. CONSTRUCTION. All capitalized terms not otherwise defined herein shall
------------
have the meanings ascribed to such terms in the Mortgage.
14. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon Borrower,
----------------------
Tenant and Lender and their respective successors and assigns, and, subject to
any and all restrictions on transfer and assignment set forth in the Lease (as
to Tenant) or the Mortgage (as to Borrower), shall inure to the benefit of
Borrower, Tenant and Lender and their respective successors and assigns.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement under
seal as of the date first above written.
Signed, sealed and delivered TENANT:
as to Tenant in the presence of:
-------------------------------
- ----------------------------
Witness
By:____________________________
Name:__________________________
Title:_________________________
- ----------------------------
Witness
Attest:________________________
Name:__________________________
Title:_________________________
LENDER:
- ----------------------------
Witness
By:____________________________
Name:__________________________
Title:_________________________
- ----------------------------
Witness
WITNESS/ATTEST: BORROWER:
By:____________________________
Name:__________________________
Title:_________________________
- --------------------------------------------------------------------------------
Riverside Center - Base Building Scope Description Page 12
<PAGE> 88
- ----------------------------
Witness
- --------------------------------------------------------------------------------
Riverside Center - Base Building Scope Description Page 13
<PAGE> 89
EXHIBIT K
LOCATION OF PARKING STRUCTURE SIGN
- --------------------------------------------------------------------------------
Riverside Center - Base Building Scope Description Page 14
<PAGE> 90
EXHIBIT L
LOCATION OF ONE RIVERSIDE CENTER SIGN
- --------------------------------------------------------------------------------
Riverside Center - Base Building Scope Description Page 15
<PAGE> 91
EXHIBIT M
BASE BUILDING SCOPE
[EQUITY OFFICE LOGO]
BASE BUILDING SCOPE DESCRIPTION
RIVERSIDE CENTER
275 GROVE STREET
NEWTON, MASSACHUSETTS
January 13, 1999
revised April 6, 1999
revised September 21, 1999
- --------------------------------------------------------------------------------
Riverside Center - Base Building Scope Description Page 16
<PAGE> 92
Table of Contents
CODE REVIEW..............................................................3
Introduction...........................................................3
STRUCTURE................................................................9
Design Criteria...........................................................9
Foundations and Footings..................................................9
Ground Floor Slab Construction...........................................10
Superstructure...........................................................10
BUILDING ENVELOPE.......................................................10
Exterior Walls and Windows...............................................10
Exterior Entrance and Service Doors......................................10
Loading Dock.............................................................11
Roofing..................................................................11
Mechanical Penthouses....................................................11
INTERIOR CONSTRUCTION...................................................11
Grove Street Entrance Lobby / Atrium.....................................11
Interior Partitions......................................................12
Interior Doors...........................................................12
Elevators................................................................13
Exit Stairs..............................................................13
Toilet Rooms.............................................................13
Equipment and Furnishings................................................13
FINISH SCHEDULE.........................................................13
PLUMBING SYSTEMS........................................................14
Design Criteria/Code/Standards...........................................14
Plumbing Fixtures........................................................15
Domestic Water Distribution..............................................15
Piping...................................................................16
Type.....................................................................16
Joints...................................................................16
Domestic Water Equipment.................................................16
Sanitary Waste Systems...................................................16
Rain Water Drainage Systems..............................................16
HEATING, VENTILATING, AND AIR CONDITIONING (HVAC) SYSTEMS...............17
Design Criteria/Code/Standards...........................................17
Fuel Supply Systems......................................................17
Heat Generation Systems..................................................17
Cooling Systems..........................................................18
Air Distribution.........................................................18
Controls.................................................................18
FIRE PROTECTION SYSTEMS.................................................18
Design Criteria/Codes/Standards..........................................18
Fire Protection Sprinkler Systems........................................19
ELECTRICAL SYSTEMS......................................................19
Building Power Distribution..............................................19
Building Electrical Design Load..........................................20
Wiring Methods and Devices...............................................21
Lighting.................................................................22
Fire Alarm System........................................................22
Emergency Power Systems..................................................23
Telephone and Data Systems...............................................24
Security Systems.........................................................24
SITEWORK................................................................24
Site Improvements - Paved Areas..........................................24
SITE PLUMBING UTILITIES.................................................25
Water Supply and Distribution Systems....................................25
Sanitary Sewer Systems...................................................25
SITE ELECTRICAL DISTRIBUTION............................................25
Site Lighting............................................................25
================================================================================
<PAGE> 93
CODE REVIEW
INTRODUCTION
275 Grove Street, Ward 4, Auburndale, Section 43, Block 29, Lot 4 containing
approximately 487,578 square feet of land following special permit/site plan
approval of petition approval 40-97-2 is the rehabilitation of an existing
building. The proposed office structure will be four (4) stories above grade,
and the proposed garage structure will be five (5) stories above grade with two
(2) stories below grade.
The building is segmented into three (3) subbuildings: 1 Riverside Center to the
north, 2 Riverside Center to the southeast, and 3 Riverside Center to the
southwest. Each subbuilding contains a building core consisting of toilet rooms,
mechanical shaft, tenant electrical room, emergency electrical room, elevators,
and two (2) egress stairs.
The corresponding floors of the north and south subbuildings are at different
elevations. In order to resolve the elevational differences a "T" shaped,
split-level atrium was created to separate the north and south subbuildings.
Each subbuilding is entered through the atrium and half of the egress capacity
is exited through the atrium. The atrium is also accessible from the basement
parking garage within 1 Riverside Center via a shuttle elevator.
The office building, parking structure, and below grade parking garage will be
protected throughout by an automatic sprinkler system.
The following is a code analysis summary:
1. CODE REFERENCE
The following is a partial list of applicable codes and regulations.
The general contractor shall comply with all applicable codes,
ordinances, regulation, requirements of the special permit, and all
authorities having jurisdiction.
A. Commonwealth of Massachusetts State Building Code - 6th
Edition
B. Commonwealth of Massachusetts Architectural Access Board
(521 CMR)
C. American Disabilities Act (ADA)
D. Massachusetts Elevator Regulations (524 CMR)
E Massachusetts Fuel Gas and Plumbing Codes (248 CMR)
F. Massachusetts State Electric Code (527 CMR)
G. National Electric Code (NEC) Latest Edition
H. NFPA 101 (Chapter 14) - 1985 Edition
I. NFPA 13 - 1989 Edition
- --------------------------------------------------------------------------------
<PAGE> 94
2. OCCUPANCY TYPE
Existing occupancy is Use Group S-1, moderate hazard storage. After
renovation the occupancy will be classified as:
A. Business (Use Group B)
B. Low Hazard Storage (Public Garage, Group 2), Basement
Parking Level and Adjacent Parking Structure
C. The atrium will be subject to the requirements of 780 CMR
404.0, including fire protection, smoke control, enclosure,
fire alarm and egress.
3. CONSTRUCTION TYPE
The maximum single floor area is 161,358 square feet. For use Group B
occupancies this requires:
A. Type 1B construction: floor areas and height not limited.
4. BUILDING TYPE
A. Building Height Allowable: 51'-5" (not including skylight)
--------------------------
Building Height Actual: 51'-5"
-----------------------
B. Number of Stories Allowable: 4 stories
---------------------------
Number of Stories Actual: 4 stories
------------------------
C. Total Floor Area Allowable: 497,099 square feet
--------------------------
Total Floor Area Actual: 495,850 square feet
-----------------------
<TABLE>
<CAPTION>
FIRST FLOOR (NORTH) BLDG. 1 68,983 SF SECOND FLOOR (NORTH) BLDG. 1 69,858 SF
<S> <C> <C> <C> <C> <C> <C> <C>
(SW) Bldg. 2 29,129 SF (SW) Bldg. 2 29,354 SF
(SE) Bldg. 3 36,122 SF (SE) Bldg. 3 36,590 SF
-----------------------------
(Atrium) 24,375 SF Total 135,802 SF
------------------------------
Total 158,609 SF
Third Floor (North) Bldg. 1 69,858 SF Fourth Floor (SW) Bldg. 2 29,210 SF
(SW) Bldg. 2 29,354 SF (SE) Bldg. 3 36,427 SF
-----------------------------
(SE) Bldg. 3 36,590 SF Total 65,637 SF
------------------------------
Total 135,802 SF
</TABLE>
Note: Area calculations above developed for the Special Permit were based
upon Schematic Design drawings.
- --------------------------------------------------------------------------------
<PAGE> 95
D. Open Perimeter
The building has a fire separation distance of thirty (30) feet
on all sides, except at the parking garage. When there are two
buildings on a lot, the fire separation distance is measured to
an imaginary line between them and the fire separation distance,
measured perpendicular to the exterior wall of each building, is
the distance from the exterior wall to the imaginary line. Walls
of open parking structures containing openings must have a fire
separation distance greater than ten (10) feet. If the imaginary
line is placed ten (10) feet one (1) inch from the point closest
to the office building just inside the west curb line of the
north-south driveway between them, the fire separation distance
for the office building will be more than twenty seven (27) feet.
For a fire separation of greater than twenty five (25) to thirty
(30) feet, the area of unprotected openings in an exterior wall
of a building protected throughout by an automatic sprinkler
system is not limited. (Table 705.3)
No exterior wall rating is required (Table 705.2).
E. 100% Sprinklered: Yes
-----------------
5. FIRE RATINGS PROVIDED
A. Mechanical Shafts 2 hours (Table 603)
B. Elevator & Stair Shafts 2 hours (Table 602)
C. Exit Access Corridors 0 hours (Auto. Fire Sup. System
Section 1011.4)
D. Structural Columns 2 hours (Table 602)
E. Floor Construction 2 hours (Table 602) Including Beams
F. Roof Construction 1 1/2 hours (Table 602, less than 15')
G. Atrium Skylight 0 hours (Table 602, more than 20')
H. Elevator Machine Rooms 2 hours (Elevator Code)
I. Emergency Generator Room 2 hours (Fire Regulations)
J. Electrical Switchgear Rooms 2 hours (Electrical Code)
K. Atrium: Combination of 1 hour fire partition and tempered glass
wall will be protected by an automatic sprinkler system
6. INTERIOR FINISH REQUIREMENTS
A. Minimum Flame Spread Classification: walls and ceilings (Table 803.4)
---------------------------------------------------------------------
Use Group B
-----------
Vertical exits and passageways I
Corridors providing exit access II
Rooms or enclosed spaces III
- --------------------------------------------------------------------------------
<PAGE> 96
B. Minimum floor finish classifications (805.3)
Use Group B
-----------
Vertical exits and passageways II
Corridors providing exit access II
Rooms or enclosed spaces DOC-FF-1
C. Smoke Developed:
----------------
Smoke developed rating of all interior materials not to
exceed 450 (ASTM E84)
7. EGRESS ELEMENTS
A. Occupant load determined in accordance with 780 CMR 1008.00
Use Group B: Design occupant load, see chart below for
------------ typ. floor
Use Group S-2: 200 gross square feet per occupant
--------------
B. EGRESS WIDTH PER PERSON, WITH SPRINKLER SYSTEM (780 CMR 1009.2)
Stairways: 0.2 inches
----------
Doors, ramps, corridors: 0.15 inches
------------------------
C. Minimum number of exits per floor (780 CMR 1010.2)
500 occupants or less: 2
501 - 1,000 occupants: 3
D. Minimum width of passageways, aisleways, aisles and corridors is 44
inches (780 CMR 1011.3)
E. Minimum means of egress stairways shall be not less than 44 inches in
width (780 CMR 1014.3)
<TABLE>
<CAPTION>
AREA MAXIMUM STAIRWAYS
DESCRIPTION OCCUPANTS PROVIDED
===============================================================
Office Building Typical Floor
<S> <C> <C>
Building 1 400 4
Building 2 200 2
Building 3 240 2
</TABLE>
- --------------------------------------------------------------------------------
<PAGE> 97
<TABLE>
<CAPTION>
EGRESS CONVERGENCE MAXIMUM STAIRWAYS
(780 cmr 100.94) OCCUPANTS PROVIDED
=======================================================================
<S> <C> <C> <C>
Stairways N1 and N4
Basement 345 2 173 persons/stair
2nd Floor (North) 400 4 100 persons/stair
TOTAL/STAIR: 273 Persons Minimum door width = 41 Inches
</TABLE>
<TABLE>
<CAPTION>
PARKING STRUCTURE OCCUPANTS STAIRWAYS STAIR WIDTH DOOR WIDTH
=======================================================================
<S> <C> <C> <C> <C>
Typical Floor 254 2 25.4" 19.05"
</TABLE>
<TABLE>
<CAPTION>
EGRESS CONVERGENCE
(780 CMR 100.94) OCCUPANTS STAIRWAYS STAIR DOOR
WIDTH WIDTH
=======================================================================
<S> <C> <C>
Stairways G1 and G2
Basement 254 2
2nd Floor 254 2
TOTAL: 254 Persons Minimum door width = 51.9 Inches
</TABLE>
E. Length of Travel Allowable
Use Group B: 250 feet with sprinklers
-----------
Use Group S-2: 300 feet without sprinklers
-------------
Use Group S-2: 400 feet with sprinklers
-------------
G. Stairs Provided
Width: 44 inches (stringer to stringer)
------
Risers: 7 inches maximum
-------
Treads: 11 inches minimum
-------
Rails: 2'-10" (height above nosing)
------
2'-10" and 1'-7" at H.C. Ramps
Guardrails: 3'-6" AFF
-----------
8. TOILET FIXTURES
In each room one (1) water closet and one (1) lavatory is accessible
to persons in wheelchairs as per the Commonwealth of Massachusetts
Architectural Access Board (521CMR).
- --------------------------------------------------------------------------------
<PAGE> 98
Fixture Counts:
---------------
<TABLE>
<CAPTION>
Women Men
-----------------------------------------------------------------------------
Typical Floor Population W.C. Lav. W.C. Urinals Lav.
=============================================================================
<S> <C> <C> <C> <C> <C> <C>
Bldg. 1A 200 5 4 3 1 2
Bldg. 1B 200 5 4 3 1 2
Bldg. 2 200 5 4 3 1 2
Bldg. 3 240 6 4 3 1 2
</TABLE>
Drinking fountains required: 1 per core
----------------------------
Service sinks required: 1 per core
-----------------------
9. FIRE SUPPRESSION
A. The building is equipped throughout with an automatic sprinkler
system.
B. Fire extinguishers are placed throughout the building to comply w/
NFPA10.
C. Fire Alarm
THE BUILDING IS EQUIPPED WITH A FULLY ADDRESSABLE AUTOMATIC FIRE DETECTION,
ALARM, AND COMMUNICATION SYSTEM. THE SYSTEM INCLUDES THE
FOLLOWING FIRE DETECTION FEATURES: HVAC EQUIPMENT SMOKE
DETECTORS, SPRINKLER WATERFLOW SWITCHES, AND ELEVATOR LOBBY AND
MACHINE ROOM SMOKE DETECTORS. THE SYSTEM MAY BE ZONED SEPARATELY
TO ALLOW FOR DIRECTIONAL FLOW DURING AN ALARM. THE FIRE ALARM
SYSTEM ALSO INCLUDES VISUAL AND AUDIBLE NOTIFICATION THROUGHOUT.
10. EXTERIOR ACOUSTICS
Acoustical calculations performed by the acoustical engineer of record
indicate the noise produced by transformers, chillers, air conditioners,
mechanical/ventilation systems, HVAC equipment and similar devices comply
with the City of Newton noise ordinance and shall not exceed 51 d.b.a.
during the day and 48 d.b.a. during night as measured at the property line
or any location on immediately abutting residential properties.
11. SIGNAGE
A. Signage will be installed designating/restricting the parking spaces
in front of the building for short term guest parking only with
parking in those spaces restricted from use between 7 a.m. to 9 a.m.
B. Signage will be installed restricting the entry of vehicles for
parking on the roof of the garage from 9 p.m. to 6 a.m.
C. Signage will be installed prohibiting deliveries to the loading docks
from 10 p.m. to 6 a.m., 7 a.m. to 9 a.m. and 4 p.m. to 6 p.m. Signage
will also direct any truck seeking the use of the loading docks during
these time periods to leave the site.
- --------------------------------------------------------------------------------
<PAGE> 99
D. Signage will be installed to control the route of tractor-trailers and
large single body delivery trucks on the site. Signage will restrict
the exit of trucks from the site towards Route 128. U.S. Postal,
Federal Express, and United Parcel Service type vehicles will be
exempt from this condition.
E. Signage will be installed indicating the following: Right turns into
the site and left turns out of the site shall be permitted at the
northern driveway. The center driveway shall be used only as an
entrance. Only right turns out of the southernmost driveway shall be
permitted.
12. LIGHTING
A. Lighting controls will be employed in the garage lighting system to
turn off the top level of garage lighting no later than 9 p.m. and
turn on no earlier than 6 a.m. seven days a week. There are no light
poles on the roof of the garage. Emergency and security lighting are
excluded from this provision.
B. Lighting in the surface parking areas shall be shut off no later than
11 p.m., except for security lighting.
C. Lighting along the residential side of the property shall be focused
inward to the site on poles which are no higher than eighteen (18)
feet. The source of lighting throughout the site shall not be seen
from abutting properties. Lighting shall not overspill onto abutting
properties.
D. Roadway lighting to and from the garage will be provided by bollards
with directed light reflectors aimed downward. The sources of lighting
shall not be visible.
E. All lighting in the atrium shall be aimed downward and is designed to
minimize intrusion into the neighborhood at night.
13. GENERAL SPECIAL PERMIT PROVISIONS
A. The dumpster, trash compactor, trash recycling equipment, trash
bailer, and all trash removal equipment is located inside the
building.
B. Bicycles will be parked in the basement of the building.
STRUCTURE
DESIGN CRITERIA
The building is designed to support structural and seismic loads in accordance
with the Massachusetts State Building Code, as follows:
WIND LOADS: Zone 3, Exposure B, 21 psf and distributions
in accordance with section 1621.0.
SEISMIC LOADS: V=CsW, where Cs = 1.2AvS/(RT2/3)
SNOW LOADS: 30 psf plus drifting as required by code
The building is designed to support the following live loads:
FIRST FLOOR SLAB ON GRADE: 100 psf
FLOORS ABOVE GRADE: 80 psf + 20 psf partition allowance
HANGING LOAD ALLOWANCE: 10 psf total for ceiling, lighting,
mechanical, and electrical equipment.
FOUNDATIONS AND FOOTINGS
WALL FOUNDATIONS: Cast-in-place concrete walls on continuous strip footings
around perimeter of the building extending to at least 4'-0" below grade.
Perimeter insulation provided as required by code.
- --------------------------------------------------------------------------------
<PAGE> 100
COLUMN FOUNDATIONS: Interior columns are supported on cast-in-place
concrete spread footings. Concrete piers and pilasters at exterior wall are
supported on spread footings extending to at least 4'-0" below grade.
GROUND FLOOR SLAB CONSTRUCTION
SLABS ON GRADE: Cast-in-place concrete slabs reinforced with welded wire
fabric on 4" of compacted granular material over a vapor barrier on a
compacted base course.
ELEVATOR PIT: Cast-in-place concrete walls on a mat footing.
SUPERSTRUCTURE
EXISTING FLOORS LEVELS 'C', 'D','E', AND 'G': Cast-in-place 8" concrete
slabs with 45 1/2" deep drop panels at columns.
EXISTING COLUMNS AT LEVELS 'A', 'B', 'C', 'D': Cast-in-place concrete, 20"
diameter at interior and 16" square at perimeter and building expansion
joints.
EXISTING COLUMNS AT LEVELS 'G' AND 'J': Rolled steel, wide flange shapes,
prime-painted and left exposed.
NEW COLUMNS AT LEVELS 'E' AND 'H': Rolled steel, wide flange shapes,
prime-painted and left exposed
EXISTING ROOF CONSTRUCTION (SOUTH BUILDING): 1 1/2" deep metal roof deck
supported by open web bar joists (28" deep) and rolled steel girders (18"
deep).
NEW ROOF CONSTRUCTION (NORTH BUILDING): 1 1/2" deep, 20 gauge painted, type
B metal roof deck supported by rolled steel beams and rolled steel girders.
BUILDING ENVELOPE
EXTERIOR WALLS AND WINDOWS
ARCHITECTURAL PRE-CAST CONCRETE PANELS: The ground floor walls are pre-cast
concrete panels with an architectural finish. Joints are finished with
high-performance silicone sealant.
BRICK VENEER PANELS: Wall surfaces above the ground floor are standard
modular face brick veneer, supported by cold-formed metal framing. (ASTM C
216, Grade SW)
CURTAIN WALL PANELS: Curtain wall panels alternate with brick veneer
panels. Aluminum curtain wall frames are Kawneer 1600 or equal with a
high-performance fluoropolymer color 2-coat system (Kynar 500) finish and
glazed with 1 inch thick insulating glass with low-emissivity coating.
FIXED WINDOWS: Fixed punch windows are located in brick veneer panels.
Windows are fabricated from extruded aluminum framing with thermal break
construction and a high-performance fluoropolymer color 2-coat system
(Kynar 500) finish and glazed with 1 inch thick insulating glass with
low-emissivity coating.
LOUVERS: Louvers provided at mechanical rooms are extruded aluminum with a
high-performance fluoropolymer color 2-coat system (Kynar 500) finish.
INTERIOR FINISH: Insulation, vapor barrier, studs, and drywall provided.
Drywall taped and ready for tenant finishes.
WINDOW STOOLS: Tenant to provide painted hardwood or equal.
EXTERIOR ENTRANCE AND SERVICE DOORS
The three primary building entrances are identified by a bay of full-height
aluminum curtain wall, glazed with 1-inch thick insulating glass with
low-emissivity coating. Each entrance has a vestibule with thermal break
entrance doors providing thermal isolation from the exterior.
- --------------------------------------------------------------------------------
<PAGE> 101
EGRESS DOORS: Egress stairs discharge to the outside through glazed
aluminum doors matching the building exterior window system.
SERVICE DOORS: Extra heavy duty, 16 gauge, insulated seamless flush steel
doors, in fully welded, 14 gauge galvanized steel frames. Doors and frames
are finish painted.
LOADING DOCK
Each building has a loading dock, located at the rear of the building, equipped
with dock bumpers, truck restraints, and an overhead door. Yellow markings and
rubber bumpers meeting OSHA requirements are provided.
BUILDING 1: A scissors-type elevating dock platform 6'-0" x 9'-0"with a
capacity of 25,000 pounds, per ANSI MH14.1 is provided.
ROOFING
A fully adhered single-ply rubber roof membrane is provided.
MEMBRANE: .060" thick ethylene propylene diene monomer (EPDM) sheet
ELASTOMERIC FLASHING AND TUBING: Uncured .060" thick neoprene sheet tubing
at vertical and horizontal expansion conditions
ROOF INSULATION: 2-pound density, square-edged extruded polyisocyanurate
foam insulation board
MEMBRANE UNDERLAYMENT: "Dens-Deck" fiberglass faced gypsum sheathing
WALKWAY PROTECTION: shredded EPDM rubber walkway pads
MECHANICAL PENTHOUSES
STAIR BULKHEADS AND ELEVATOR MACHINE ROOMS ARE CLAD WITH PRE-FINISHED METAL
PANELS. ROOFTOP AIR HANDLERS ARE PREFABRICATED, SELF CONTAINED UNITS.
INTERIOR CONSTRUCTION
GROVE STREET ENTRANCE LOBBY / ATRIUM
The main entrance lobby and atrium is a four-story space overlooking a central
water feature, cafe seating, and newsstand. The atrium is enclosed by a full
height curtain wall at each end, and covered by a vaulted skylight.
FLOOR: Granite agglomerate tile and carpet.
WALLS: Combination of wood paneling with aluminum framed windows are
provided at the ground floor. Gypsum wallboard with aluminum framed windows
are provided at the upper floors.
CEILINGS: Custom vaulted skylight
INTERIOR DOORS: Full height glass entrance doors.
- --------------------------------------------------------------------------------
<PAGE> 102
INTERIOR PARTITIONS
Interior partitions for the base-building construction are of steel stud and
drywall construction. Fire-rated partitions are provided as required by the
Building Code. Gypsum board exposed to tenant areas has joints taped and filled,
and ready for TENANT FINISHES in the following areas: toilet rooms, janitors
closets, electrical closets, exitway stairs, exitway corridors, elevator shafts
and elevator machine rooms. The public side of the main entrance lobby and
atrium will be FINISHED as part of the base building.
EXIT STAIR ENCLOSURES: 2-hour rated; 3-5/8" deep (25 gauge) galvanized
steel studs; two (2) layers of 5/8" gypsum board both sides, or 2-hour
rated 8" concrete masonry units with one (1) layer of 5/8" gypsum board on
both sides.
ELEVATOR SHAFT: 2-hour rated shaft wall, or 2-hour rated 8" concrete
masonry units with one (1) layer of 5/8" gypsum board on both sides.
SERVICE SHAFT ENCLOSURES: 2-hour rated shaft wall, or 2-hour rated 8"
concrete masonry units with one (1) layer of 5/8" gypsum board on both
sides.
Non-rated partitions are constructed of 3-5/8" deep, (25 gauge) galvanized
steel studs with one (1) layer of 5/8" gypsum board both sides.
COLUMNAR ENCLOSURES: All new and existing FREESTANDING columns are exposed.
ALL COLUMNS ENGAGED WITH THE EXTERIOR WALL ARE ENCLOSED WITH ONE (1) LAYER
OF 5/8" GYPSUM BOARD ON STEEL STUDS.
INTERIOR DOORS
DOORS AND FRAMES: Doors are 1-3/4" solid core wood, 7-ply construction with
WITH MAHOGANY VENEER. Door frames are 16 gauge pressed metal. Doors and
frames are primed and painted.
DOOR HARDWARE: Base building interior doors are provided with heavy duty
commercial grade, mortised locksets and latchsets with lever handles. All
Base Building doors are furnished with locks, except at toilet rooms and
stairs.
- --------------------------------------------------------------------------------
<PAGE> 103
ELEVATORS
The following elevators are provided.
<TABLE>
<CAPTION>
Geared Hydraulic Total
Traction
=================================================================
<S> <C> <C> <C>
Building 1 4 0 4
Building 2 2 0 2
Building 3 3 0 3
Atrium 0 2 2
Parking Structure 2 0 2
-----------------------------------------------------------------
Total 11 2 13
Cab Capacity 3,500 lbs varies -
Cab Speed 150 fpm varies -
</TABLE>
HOIST WAY DOORS AND FRAMES: Polished stainless steel at ground floor
lobbies. Factory baked enamel at all other lobbies.
CAB FINISHES: Carpet floor, millwork, interior panels, and ceiling.
EXIT STAIRS
Exit stairs consist of concrete-filled steel pan treads and platforms, steel
railings and handrails, constructed to NAAMM (National Association of
Architectural Metal Manufactures) "Commercial" grade.
* Exposed steel is primed and painted with semi-gloss paint.
* Exposed concrete treads and landings are sealed with clear sealer.
* Walls are painted with latex eggshell finish paint.
TOILET ROOMS
Fully accessible toilet rooms are provided on each floor.
FLOOR: 2"x 2" ceramic mosaic tile.
WALLS: 4"x 4" glazed ceramic tile on the "wet" wall, full height stalls,
and to underside of counter at lavatory wall. Multi-color fleck paint, and
4x4 ceramic tile base are provided at the remaining walls. A mirror is
located above the lavatory counter.
CEILING: Painted 5/8" gypsum wallboard
TOILET PARTITIONS: Overhead hung, steel panels with powder coat finish.
LAVATORY COUNTER: Polished granite agglomerate
PLUMBING FIXTURES: White vitreous china
TOILET ACCESSORIES: Stainless steel, durable accessories.
EQUIPMENT AND FURNISHINGS
FIRE EXTINGUISHERS: Portable multi-purpose dry type, 20A-60BC extinguishers
in cabinets ARE PROVIDED WITHIN COMMON AREAS, at appropriate locations
conforming to NFPA 13. Fully recessed cabinet; painted steel trim and door
with DSA glass pane.
WINDOW BLINDS: Vertical slat PVC blinds are provided at all exterior AND
ATRIUM windows WITHIN TENANT AREAS to maintain a uniform appearance from
the exterior.
FINISH SCHEDULE
- --------------------------------------------------------------------------------
<PAGE> 104
<TABLE>
<CAPTION>
----------------------------------------------------------------------------------------------------------------------------------
ROOM FLOOR BASE WALLS CEILING
----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Entrance Lobby / Atrium Tile, Tile Curtain wall, wood panels and wallboard Custom Skylight
carpet with alum. Windows
----------------------------------------------------------------------------------------------------------------------------------
Toilet Rooms Porcelain Mosaic Tile 4"x 4" glazed wall tile on "wet" walls; Painted gypsum wall board
Tile, 2"X 2" latex paint at other walls; mirror
above lavatory counter
----------------------------------------------------------------------------------------------------------------------------------
Stairways Sealed Concrete Vinyl Latex Paint Gypsum wall board (@
underside of roof)
----------------------------------------------------------------------------------------------------------------------------------
Electrical Closets Sealed Concrete Vinyl Solid color latex paint Exposed Structure
----------------------------------------------------------------------------------------------------------------------------------
Elevator Machine Room Sealed Concrete Vinyl Solid color latex paint Exposed Structure
----------------------------------------------------------------------------------------------------------------------------------
Tenant Spaces Unsealed Concrete None Refer to interior partitions description Exposed Structure
for areas provided with gypsum wall board
----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
PLUMBING SYSTEMS
DESIGN CRITERIA/CODE/STANDARDS
Plumbing fixture quantity based upon designed occupancy of each floor.
- --------------------------------------------------------------------------------
<PAGE> 105
The following codes, standards and references shall be utilized as applicable:
Massachusetts Uniform State Plumbing Code 248 CMR 2.00.
Massachusetts Fuel Gas Code 248 CMR 3.00 through 8.00.
Commonwealth of Massachusetts State Building Code, Sixth (6th) Edition.
National Electric Code (NEC)
Local Ordinances, Regulations of the City of Newton.
Insurance Underwriter.
American Society of Heating, Refrigerating and Air Conditioning Engineers
(ASHRAE).
Massachusetts Water Resources Authority (MWRA).
PLUMBING FIXTURES
TOILET ROOM FIXTURES: Fixtures are commercial grade, white vitreous china,
wall hung, and/or countertop mounted, low consumption type. Wall hung
fixtures are provided with floor mounted commercial grade fixture carriers.
WATER CLOSETS AND URINALS: Flush valve operated with chrome-plated, brass
construction, low consumption flush valves.
LAVATORY FAUCETS: Automatic metering and tempering, self-closing faucets of
chrome-plated brass construction.
ELECTRIC WATER COOLERS: Bi-level, wall mounted
JANITORS' SINK: Molded fiberglass
DOMESTIC WATER DISTRIBUTION
Domestic cold water is metered at the service entry point and distributed to
toilet room fixtures, janitor's closets, and electric water coolers, and "wet"
columns..
WATER HEATING: Electric water heaters are provided on the lowest floor of
each building in the janitor's closet to serve the toilet rooms. Tenants
requiring hot water must provide water heaters supplied by cold water from
the "wet" columns.
EXTERIOR WALL HYDRANTS: A complete system of exterior wall hydrants will be
provided and spaced along the building exterior at 100-foot intervals. Each
wall hydrant will be served by a 3/4" cold water line with shutoff valve.
BACKFLOW PREVENTERS: Installed at each connection to base building
mechanical equipment mounted in accordance with DEP requirements, complete
with air gap fitting and drip piping.
PIPING INSULATION: Cold water, hot water, hot water recirculation and
horizontal storm drainage piping is insulated with pre-formed fiberglass
pipe insulation with all-service jacket and molded elbow fittings.
- --------------------------------------------------------------------------------
<PAGE> 106
"WET" COLUMNS: Cold water risers are provided remote from the toilet room
cores as follows:
Building 1A: 2
Building 1B: 2
Building 2: 2
Building 3: 2
PIPING TYPE JOINTS
Cold Water Type "L" Hard Copper 95/5 (Lead Free)
Hot Water Type "L" Hard Copper 95/5 (Lead Free)
Hot Water Recirculation Type "L" Hard Copper 95/5 (Lead Free)
Underground Water Service Cement Lined Ductile Iron, Mechanical
Class 52
DOMESTIC WATER EQUIPMENT
WATER HEATERS: Electric storage type with hot water recirculation including,
element, controls, vacuum, temperature, and pressure relief valves piped to a
floor drain. Heaters are located in the closest janitor's closet.
SANITARY WASTE SYSTEMS
Sanitary drainage systems collects liquid wastes from plumbing fixtures and
floor drains. The systems are trapped and vented. Soil and vent stacks are
provided at "wet" columns.
Floor drains are installed in all toilet rooms containing two or more flushing
fixtures, all mechanical rooms, penthouses, and other areas containing
mechanical equipment.
Drainage systems includes a complete system of gravity vents to maintain trap
seals, with extensions to the atmosphere above the roof.
RAIN WATER DRAINAGE SYSTEMS
Rain water is collected at each roof into roof drains with internal vertical
storm conductors to underground collection network.
Roof drains are located at low points of sloped roof areas. Inside the building,
drain piping is sloped at 1/8" per foot. Piping is 12" in diameter or smaller.
- --------------------------------------------------------------------------------
<PAGE> 107
HEATING, VENTILATING, AND AIR CONDITIONING (HVAC) SYSTEMS
DESIGN CRITERIA/CODE/STANDARDS
OUTDOOR DESIGN CONDITIONS:
Summer: 88(0) F.D.B./74(0) F.W.B.
Winter: 0(0) F
INDOOR DESIGN CONDITIONS:
Summer: 78(0) F.D.B./50% RH
Winter: 72(0) F.D.B.
OUTSIDE AIR VENTILATION: Outside air will be introduced as required by
ASHRAE 62-1989, "Ventilation for Acceptable Indoor Air Quality."
The HVAC loads will be based on the following assumptions:
Lighting Load (including task lighting) 2.0 watts/ RSF
Computers & Miscellaneous Cooling Loads 4.0 watts/ RSF
Occupancy 1 PERSON/175 RSF
FUEL SUPPLY SYSTEMS
The heating fuel source is electricity.
The cooling fuel source is electricity.
Domestic hot water is provided by electric hot water heaters.
HEAT GENERATION SYSTEMS
After unoccupied periods the building will be heated to occupied temperatures by
using the fan powered terminal units in a morning warm-up mode. During the
warm-up, the rooftop units will operate at full speed and the return dampers
shall be open.
During occupied hours the heat loss through the exterior walls will be offset by
fan powered variable air volume (VAV) boxes equipped with electric heating
coils. The loss through the roof will be offset by electric unit heaters located
in the ceiling plenum. During unoccupied hours the equipment setpoints will
automatically be reduced.
Electric plenum heaters are provided above the parking garage ceiling beneath
Building 1.
- --------------------------------------------------------------------------------
<PAGE> 108
COOLING SYSTEMS
Ventilation is available during occupied hours from the eight (8) rooftop units
(RTUs). These packaged units have electrically driven evaporative mechanical
cooling. The units provide variable air volume (VAV) with variable frequency
drives. Each unit is equipped with smoke detectors and smoke dampers in
accordance with the building code.
<TABLE>
<CAPTION>
Units Tonnage per Unit Total Tonnage
----- ---------------- -------------
<S> <C> <C> <C>
Building 1 4 150 600
Building 2 2 225 450
Building 3 2 225 450
-------------
1,500
</TABLE>
Each RTU is mounted on roof curbs specifically designed to dampen vibration and
sound from entering the building.
AIR DISTRIBUTION
The HVAC system was designed assuming the following tenant system design:
Vertical air distribution is via medium pressure (3 inch) galvanized sheet metal
risers from the rooftop units. Horizontal branch STUBS on each floor will extend
20'-0" from THE vertical risers. The Tenant will provide all ductwork downstream
from the horizontal STUBS. The Landlord will provide VAV boxes for fit-up of
tenant areas per the following criteria. The cost of installation, thermostats,
electrical wiring, and controls, to be funded within the TIW Allowance.
* The perimeter zones TO be designed for one (1) fan powered VAV box per
1,200 RSF.
* The perimeter zones TO be 12 feet deep (as measured from the exterior
wall).
All interior spaces will be designed for one (1) VAV box per 2,000 RSF. The
ceiling cavity will be used as a return air plenum.
The lobby is provided with fan powered VAV boxes connected by low-pressure
distribution ductwork to linear diffusers.
Toilet rooms and janitor closets are exhausted by low pressure ductwork
connected to roof mounted exhaust fans.
CONTROLS
A computer driven, direct digital control (DDC) energy management system is
provided. Independent temperature controls modulate each VAV box to maintain
setpoint. The system supports the following operational features:
* Scheduling of occupied hours.
* Economizer cycle for the RTU to use outside air for cooling when
possible.
* RTU on/off alarm.
* Toilet exhaust fan on/off.
FIRE PROTECTION SYSTEMS
DESIGN CRITERIA/CODES/STANDARDS
The building is designed to be full-sprinklered throughout using a wet-pipe
sprinkler system. A dry pipe system for unheated parking garage areas will be
provided.
Primary risers and horizontal branches are provided. Distribution piping and
pendant heads are provided in common areas, toilet rooms, electric closets,
janitor's closets, stairs, and the mechanical penthouse. The system, including
future tenant work, is designed to meet the following codes and performance
criteria.
* Automatic sprinkler system is classified as ordinary hazard group 1
occupancy and is designed with a minimum design density of .15 GPM per
square foot over the hydraulically most remote 1,500 SF. Maximum
protection area per sprinkler head shall be 130 SF. Hose allowance
shall be 250 GPM. A minimum of 10 psi cushion
- --------------------------------------------------------------------------------
<PAGE> 109
between required pressure and available pressure shall be maintained.
TENANT AREAS: General distribution piping and upturned heads are provided.
Tenant is responsible for any additional piping, swing arms, and pendant heads
required to accommodate tenant fit-out.
THE FOLLOWING CODES, STANDARDS, AND REFERENCES SHALL BE UTILIZED AS APPLICABLE:
Commonwealth of Massachusetts State Building Code (CMR 780) Sixth
Edition (6th Edition).
National Electric Code (NEC).
Local Ordinances, Regulations of the Town of Newton.
National Fire Protection Association (NFPA).
Insurance Underwriter.
FIRE PROTECTION SPRINKLER SYSTEMS
The service pipes are equipped with double check valve assemblies. Risers are
equipped with wet-pipe sprinkler alarm valves with trim, electric bells, water
motor gongs, excess pressure pumps, main shut-off OS & Y gate valves with
supervisory/tamper switches, and fire department Siamese connections.
ELECTRICAL SYSTEMS
BUILDING POWER DISTRIBUTION
MAIN ELECTRICAL SWITCHBOARDS: Power distribution assemblies rated at
277/480 volt, 3 phase 4 wire with main protective devices, utility metering
compartments, digital metering units to monitor voltage, current, and
demand kW, and distribution sections with feeder protective devices.
- --------------------------------------------------------------------------------
<PAGE> 110
Main switchboards current ratings are as follows:
<TABLE>
<S> <C>
Building 1 4,000 amp
Building 2 3,000 amp
Building 3 3,000 amp
Parking Structure 1,200 amp
</TABLE>
Main protective devices are an insulated case circuit breaker 100% rated,
with solid state tripping capable of adjusting long time, short time, and
ground fault protection characteristics.
Feeder protective devices are group mounted, molded case circuit breakers.
Main switchboards short circuit rating are 65,000 amp RMS.
BUILDING ELECTRICAL DESIGN LOAD
<TABLE>
<CAPTION>
Building 1
----------
<S> <C>
Site lighting 10 kW
Base bldg. cooling, 600 tons A/C 900 kW
Base bldg. heating 500 kW
Common area lighting and power 95 kW
Elevators 210 kW
Tenant lighting at 2.0 W/SF 420 kW
Tenant receptacles at 4.0 W/SF 840 kW
Tenant heating at 6.0 W/SF 1,260 kW
--------
Total Building 1 Load 4,235 KW
Building 2
----------
Site lighting 15 kW
Base bldg. cooling, 450 tons A/C 625 kW
Base bldg. heating 475 kW
Common area lighting and power 50 kW
Elevators 85 kW
Tenant lighting at 2.0 W/SF 250 kW
Tenant receptacles at 4.0 W/SF 500 kW
Tenant heating at 6.0 W/SF 750 kW
--------
Total Building 2 Load 2,750 KW
</TABLE>
- --------------------------------------------------------------------------------
<PAGE> 111
<TABLE>
<CAPTION>
Building 3
----------
<S> <C>
Base bldg. cooling, 450 tons A/C 625 kW
Base bldg. heating 425 kW
Common area lighting and power 50 kW
Elevators 125 kW
Tenant lighting at 2.0 W/SF 300 kW
Tenant receptacles at 4.0 W/SF 600 kW
Tenant heating at 6.0 W/SF 900 kW
--------
Total Building 3 Load 3,025 KW
PARKING STRUCTURE ELECTRICAL DESIGN LOAD
Lighting and power 115 kW
Ventilation 30 kW
Heating 70 kW
Elevators 150 kW
Other 28 kW
--------
Total Parking Structure Load 393 KW
</TABLE>
BASE BUILDING POWER DISTRIBUTION: The HVAC rooftop units are power fed
directly from the main switchboard.
Two (2) sets of "house" 277/480-volt power, lighting, and 120/208-volt
receptacle panelboards are installed in the first floor and top floor
electrical closets.
TENANT POWER DISTRIBUTION: One tenant electrical distribution closet is
provided per building core on each floor. One (1) vertical power
distribution bus duct riser is provided at each building core. Lighting
panels, dry-type transformers, and 120/208-volt receptacle panels shall be
furnished and installed by the Tenant.
The tenant shall install a check meter at each bus duct riser connection to
monitor energy use.
PANELBOARDS: Dead front, circuit breaker type manufactured in accordance
with UL standards. Circuit breakers are molded-case type with an
interrupting rating determined on the basis of short-circuit study
calculations.
WIRING METHODS AND DEVICES
CONDUCTORS: Copper with 75 degrees C insulation, rated for 600 volts, types
THHN, THWN, or XHHW. Minimum size wire for power and lighting circuits
shall be No. 12 AWG. Metal-clad MC type cable is allowed for installation
above the ceiling from the junction boxes to the wall outlets/switches.
Wiring between junction boxes and branch circuit home runs shall be in EMT.
CONDUITS: Steel conduit and electric metal tubing (EMT) at a minimum size
of 1/2 inch. Flexible metal conduit of short lengths (maximum 24 inches)
shall be provided at all motors and equipment subject to vibration or
movement.
DEVICES: Duplex receptacles shall be 20 ampere, 120 volt grounding type,
specifications grade, UL listed, equal to Hubbell 5352 or 5362. Toggle
switches shall be 20 ampere, 120/277 volt, specification grade, UL listed.
GROUNDING: All exposed, noncurrent carrying metallic parts of electrical
equipment, the raceway system, and the neutral conductor of the wiring
system shall be grounded in accordance with the Massachusetts Electrical
Code.
Separate copper equipment grounding conductor with green outer jacket shall
be installed with all feeder and branch circuits.
MATERIALS: All materials shall be UL listed.
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<PAGE> 112
LIGHTING
INTERIOR LIGHTING: The building lobby, exit ways, stairs, mechanical
penthouse, janitors closets, and electrical closets are illuminated by
energy-efficient fluorescent fixtures with T8 type lamps and electronic
ballasts. All recessed down lights are provided with compact fluorescent
lamps.
ILLUMINATION LEVELS:
Main Entrance Lobby 20-25 FC
Mechanical and Utility Rooms 20 FC
Exit Stairs 15 FC
LAMPS: Energy efficient fluorescent T8 type with 3,500 K color.
BALLASTS: Electronic type, 277-volt, sound rating Class A, with input
harmonic distortion of 20% or less.
EMERGENCY/EGRESS LIGHTING: The building lobby, stairs, and toilet rooms are
illuminated by fluorescent light fixtures connected to normal/emergency
standby generator power system. Emergency lighting and exit signs in tenant
areas are to be provided by the Tenant, and connected to base building
normal/emergency standby generator system..
EXTERIOR LIGHTING: Building wall lighting is installed at exit doors and as
required to illuminate pedestrian walks adjacent to the building.
FIRE ALARM SYSTEM
BASE BUILDING SYSTEM: Non-coded, analog addressable type, Class A
supervised, manual and automatic fire alarm system. Fire alarm devices in
the tenant areas shall be provided by the Tenant and shall be compatible
with the base building fire alarm control panel and wiring.
FIRE ALARM PANEL (FACP) SPARE CAPACITY: The FACP shall accommodate all
initiating circuits, indicating circuits and devices shown on the base
building drawings plus future tenant area devices.
The fire alarm control panels have alarm and annunciation capability in
case of activation of any manual fire alarm station or automatic activation
of any system smoke detector, heat detector, duct type smoke detector, or
sprinkler system water flow switch. The panels are sized to include alarm
zones as required. The respective alarm lamp zone in alarm will light at
the fire alarm control annunciator, installed recessed in the wall adjacent
to the main entrance. The fire alarm control panels are tied into the
municipal fire alarm system via an interior multi-zone master box that
shall annunciate each individual building. Manual stations and
audible/visual alarms are provided in accordance with NFPA and ADA
requirements.
Audible/visual alarms are the horn-strobe combination type, with horns
being the vibrating continuous type.
SMOKE DETECTORS: System smoke detectors are of the photoelectric type
operated on the light scattering principle. Smoke detectors are provided in
all electrical/telephone rooms, elevator machine room, elevator lobbies,
elevator shaft, and atrium.
Elevator lobbies, shaft, and machine room smoke detection initiates an
elevator recall sequence.
Duct type smoke detectors are provided in supply and/or return ducts of the
air-handling systems as required by NFPA-90A.
In the event of a power interruption, the system automatically transfers to
an integral emergency standby battery source.
The fire alarm master box is located in the main electrical room of South
Building (2B), and registers an alarm signal at the City of Newton Fire
Department.
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MANUAL PULL STATIONS: Dual-action addressable type, with key reset.
EMERGENCY POWER SYSTEMS
A 400 kW/500kVA diesel fired emergency generator is located beneath
Building 1 which will provide standby emergency power to support the
following loads within Buildings 1, 2, 3, and the Parking Structure:
* Code required egress lighting in the atrium, common elevator lobbies,
common corridors, mechanical and utility rooms, loading docks, the
Parking Garage within Building 1, and the Parking Structure.
* Panel boards with spare circuit breakers are provided at each core
electrical closet on each floor to accommodate egress lighting within
tenant areas.
* Atrium smoke exhaust/evacuation fan system
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<PAGE> 114
* Base building fire alarm system. Terminal cabinets are provided at
each electrical closet on each floor to accommodate fire alarm devices
within the tenant areas.
* Elevators A1 and A2 in the atrium. Auto recall only for all other
elevators.
There is no excess capacity to support any tenant loads other than those
described above.
TELEPHONE AND DATA SYSTEMS
BUILDING SERVICE: Underground six (6) 4" conduits encased in concrete and
manholes are provided from the Bell Atlantic riser poles at Grove Street to
serve the telephone/data system in all three sub-buildings. Each building
is served by four (4) 4" conduits installed from the main telephone room in
basement level of Building 1 to the first floor telephone closet of each
building core.
Sufficient capacity exists for additional service providers beyond Bell
Atlantic.
TENANT FACILITIES: Telephone/data systems including conduit, cables, jacks,
and hardware shall be furnished and installed by the Tenant.
SECURITY SYSTEMS
A base building security system is provided supporting the following
functions:
* Card readers and intercoms at all major building entries
* Surveillance cameras at all major building entries and loading docks
* Card readers at all ground floor elevator lobbies
* Contacts at all exterior doors
Tenant may provide supplemental security systems as required.
SITEWORK
SITE IMPROVEMENTS - PAVED AREAS
ROADS: Paved with 4" thick asphalt and edged with concrete or granite
curbs.
PARKING AREAS: Paved with 4" thick asphalt and edged with pre-cast concrete
or granite curbs.
PEDESTRIAN WALKS: Brick pavers or poured concrete with a broom swept
finish.
LANDSCAPING AND PLANTING: New trees and shrubs are hardy native species.
Planting areas adjacent to the building are provided with a built-in
irrigation system. Existing vegetation has been retained to the greatest
extent possible.
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<PAGE> 115
SITE PLUMBING UTILITIES
WATER SUPPLY AND DISTRIBUTION SYSTEMS
WATER MAIN: One (1) 8" diameter Class 52 ductile pipe loop connecting to
one (1) existing 8" main at Grove Street.
VALVES: City of Newton standard gate valve.
FIRE PROTECTION SYSTEM: Four (4) 8" diameter feeds to the building and one
(1) 8" diameter feed to the parking structure.
SANITARY SEWER SYSTEMS
THREE (3) GRAVITY SEWER CONNECTIONS RUN FROM THE MAIN BUILDING TO THE EXISTING
SANITARY CONNECTION ON THE UTILITY EASEMENT TO THE SOUTH OF THE
BUILDING. THE INTERIOR FLOOR DRAINS FOR THE GARAGE STRUCTURE PASS
THROUGH AN OIL/WATER SEPARATOR AND ARE PUMPED OUT TO A GRAVITY
SYSTEM CONNECTION IN THE UTILITY EASEMENT AREA TO THE SOUTH OF
THE BUILDING. THE INTERIOR FLOOR DRAINS FROM THE GARAGE IN THE
BUILDING ARE DISCHARGED BY GRAVITY THROUGH AN OIL/WATER SEPARATOR
TO THE SEWER IN GROVE STREET.
SITE ELECTRICAL DISTRIBUTION
Electrical power service is routed subgrade from the Boston Edison 13.8 kV
overhead primary line, located at Grove Street.
A duct bank of four (4) PVC concrete-encased conduits for the underground
primary feeder and utility manholes are furnished and installed in
compliance with the Boston Edison standards.
A total of four (4) pad-mounted transformers, one for each sub-building and
the parking structure are sized, furnished, and installed by Boston Edison
Co.
Utility metering for the sub-buildings and the parking structure will be
installed in accordance with BECo standards on the secondary 277/480-volt
side of the pad-mounted transformers.
The building and parking structure power service will be at the secondary
voltage 277/480 volt, 3 phase from exterior mounted transformers, located
as indicated on the electrical site plan. Secondary service feeders of
copper conductors will be installed underground in the concrete encased, 4"
PVC conduits, from each pad-mounted transformer to associated main
electrical switchboard, located in the main Electrical Rooms of the
building and parking garage.
SITE LIGHTING
Site lighting is provided in the form of building-mounted fixtures
illuminating the pedestrian sidewalks adjacent to the building,
freestanding fixtures on poles illuminating the roadway and parking areas,
and landscape lighting.
MINIMUM ILLUMINATION LEVEL: 0.5 FC
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<PAGE> 116
<TABLE>
<CAPTION>
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BUILDING COMPONENTS PROVIDED BY
-------------------------
SYSTEM DESCRIPTION LANDLORD TENANT
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
BUILDING SHELL
EXTERIOR WALLS AND WINDOWS
Architectural Pre-cast Concrete Wall Panels x
Aluminum Windows x
Curtain Wall x
Louvers & Grills x
Installation of interior gypsum board x
Taping and sanding of interior gypsum board x
Interior window stools x
ENTRANCES
Curtain Wall x
Entrance Doors x
EXTERIOR EXIT AND SERVICE DOORS
Exit Doors x
Service Doors x
LOADING DOCK
Truck Levelers x
Dock Bumpers x
Overhead Doors x
Trash Compactor x
ROOFING
Roofing Membrane x
Mechanical Penthouse x
Structural reinforcing for supplemental HVAC units x
Elevator Machine Room Penthouse x
Stair Penthouse x
INTERIORS
MAIN ENTRANCE LOBBIES
Flooring x
Wall finishes x
Ceiling x
Interior Doors x
INTERIOR PARTITIONS
Taping and sanding of gypsum board exposed to tenant x
Painting of gypsum board exposed to tenant areas x
Partition face exposed to public areas x
Toilet rooms x
Janitors closets x
Electrical and telephone closets x
Exitway stairs x
</TABLE>
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<PAGE> 117
<TABLE>
<CAPTION>
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BUILDING COMPONENTS PROVIDED BY
-------------------------
SYSTEM DESCRIPTION LANDLORD TENANT
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Elevator shafts and elevator machine rooms x
Mechanical shafts (Base Building) x
INTERIOR DOORS AND HARDWARE
Public area doors x
Toilet rooms, janitor's closets, electrical and telephone x
ELEVATORS AND CABS
Passenger Elevators x
Service Elevators x
EXIT STAIRS
Walls, flooring x
TOILET ROOMS
Walls, flooring, ceilings, toilet partitions x
Lavatory counter, plumbing fixtures, toilet accessories x
EQUIPMENT AND FURNISHINGS
Fire Extinguishers x
Window Blinds at exterior windows x
PLUMBING
PLUMBING FIXTURES
Water Closets x
Urinals x
Lavatories x
Electric Water Coolers (one per core) x
Janitor's Sink x
Roof Drains x
Wall Hydrants x
DOMESTIC WATER DISTRIBUTION FROM WET COLUMN TO TENANT SPACE
Water Meter x
Riser at "wet" columns x
Electric water heaters for toilet rooms x
Electric water heaters for tenant use x
SANITARY WASTE SYSTEMS
Riser at "wet" columns x
Toilet room floor drains x
NATURAL GAS SYSTEM
No service is provided to the site
COOLING SYSTEMS - BASE BUILDING
Toilet and janitor room exhaust x
COOLING SYSTEMS - TENANT AREAS
Perimeter zone fan powered VAV box per 1,200 sf x
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BUILDING COMPONENTS PROVIDED BY
-------------------------
SYSTEM DESCRIPTION LANDLORD TENANT
- -------------------------------------------------------------------------------------------------------------------------
Perimeter zone Ductwork FROM CORE TO VAV boxes x
Perimeter zone Diffusers and grilles x
Interior zone fan powered VAV box per 2,000 sf x
Interior zone Ductwork FROM CORE TO VAV boxes x
Interior zone Diffusers and grilles x
Diffusers and Grilles in tenant spaces x
CONTROLS & POWER SUPPLY
Public space controls & POWER x
Tenant space VAV box controls & POWER x
FIRE PROTECTION SYSTEMS
SPRINKLER SYSTEM
</TABLE>
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<PAGE> 118
<TABLE>
<S> <C> <C>
Primary Loops x
Distribution piping and heads at common areas, toilet x
rooms, electric closets, janitors' closets, egress
stairs
GENERAL DISTRIBUTION and UPTURNED heads in tenant areas x
MODIFICATION OF PIPING, SWING ARMS, AND PENDENT HEADS x
WITHIN TENANT AREAS TO ACCOMODATE FIT-OUT
ELECTRICAL SYSTEMS
ELECTRICAL SERVICE
Pad mounted transformers x
Utility metering x
Main electrical switchboards x
POWER DISTRIBUTION
Electrical distribution closets (one per core) x
Bus duct riser in each electrical closet x
Service from bus duct including electronic check meters for x
tenant areas
Panel boards to serve tenant areas x
CHECK METERS X
Step-down, dry-type transformers to serve tenant areas x
Base building life safety standby emergency generator, x
transfer switch(es), fuel piping and controls
Tenant standby emergency generator, transfer switch(es), x
fuel piping and controls
Emergency lighting panel boards for base building and x
tenant areas
FIRE ALARM SYSTEM
DEVICES WITHIN base building areas x
Devices within tenant areas x
</TABLE>
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<PAGE> 119
<TABLE>
<CAPTION>
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BUILDING COMPONENTS PROVIDED BY
-------------------------
SYSTEM DESCRIPTION LANDLORD TENANT
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
LIGHTING (GENERAL AND EMERGENCY)
Base building areas including exit ways, stairs, mechanical x
penthouse, janitors closet, electrical closet and
toilet room
Tenant area lighting x
TELEPHONE AND DATA SYSTEMS
Distribution closets and sleeves through floors (one per x
core)
</TABLE>
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<PAGE> 120
EXHIBIT N
SAMPLE CLEANING SPECIFICATIONS
A. General Cleaning (Monday through Friday)
1. All stone, ceramic, tile marble, terrazzo and other unwaxed flooring
to be swept nightly, using approved dust-down preparation.
2. All wood, linoleum, vinyl and similar types of floors to b swept or
dry mopped nightly,using dust-down preparation; all carpeting and rugs
in the main traffic areas (corridors, reception areas, etc.) to be
vacuumed nightly and all other carpeted to be vacuumed at least once
each week.
3. Wax all public areas monthly.
4. Hand dust all furniture, files and fixtures nightly.
5. Empty all waste and recycling receptacles nightly and remove waste
paper and waste materials, including folding paper boxes and cartons,
to a designated area.
6. Empty and clean all ashtrays and screen all sand urns nightly.
7. Wash and clean all water fountains and coolers nightly.
8. Hand dust all door and other ventilating louvers within reach, as
necessary, but not less often than monthly.
9. Dust all telephones as necessary.
10. Keep lockers and janitor sink rooms in a neat, orderly condition at
all times.
11. Wipe clean all bright metal work as necessary.
12. Check all stairwells throughout entire building nightly and keep in
clean condition.
13. Metal doors and trim of all public elevator cars to be properly
maintained and kept clean.
B. Common Area Lavatories
1. Sweep and wash all lavatory floors nightly, using proper non-scented
disinfects.
2. Clean all mirrors, powder shelves, bright work and enameled surfaces
in all lavatories nightly. Scour, wash and disinfect all basins, bowls
and urinals using non-scented disinfectants.
3. Police lavatories during the day with matron or porter to pick up
waste and replenish materials.
4. Wash all toilet seats nightly.
5. Fill toilet tissue holders nightly.
6. Empty paper towel receptacles nightly.
7. Empty sanitary disposal receptacles nightly.
8. Thoroughly clean all wall tile and stall surfaces as necessary.
C. High Dusting
Do all high dusting (not reached in nightly cleaning) quarterly which
includes the following:
1. Dust all pictures, frames, charts graphs, similar wall hangings.
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<PAGE> 121
2. Dust exposed pipes, ventilation and air conditioning louvers, ducts
and high moldings.
D. Window Cleaning
1. All exterior windows (except for any retail/commercial areas) from the
second floor and above will be cleaned twice per year , inside and
outside except when cleaning is rendered impracticable by inclement
weather.
2. Entrance door and elevators lobby glass to be cleaned daily and kept
in a clean condition at all times during the day.
3. Wipe down all metal window frames as necessary but not less often than
monthly.
E. Building Lobbies
1. Floors to be swept and washed or vacuumed nightly, and machine
scrubbed according to Building Standard frequency.
2. Carpeting in passenger elevator cabs to be vacuum cleaned nightly.
3. Lobby walls to be dusted as often as necessary, but not less than
weekly.
4. Screen and clean sand urns nightly.
5. Clean all painted metal work in a manner appropriate to original
finish.
F. Porter
Necessary number of day porters under supervision will be assigned for the
following services:
1. Service all public and building operating space throughout the
Building.
2. Keep elevator cars clean and neat during the day.
3. Maintain lobbies clean and, during wet weather, mop dry to the extent
practicable.
4. Dust and rub all elevator doors, frames, telephones booths and
directories daily.
5. Sweep sidewalks, ramps, etc. daily.
6. Clean roofs and setbacks as often as necessary.
7. Maintain fire hose and equipment clean.
8. Lay and remove lobby runners as necessary.
9. Replenish toilet tissue, towels and other supplies in lavatories.
10. Maintain fan rooms, motor rooms and air conditioning rooms in clean
condition.
11. Check stairways and keep same neat and clean during the day.
12. Clean exterior columns, exterior signs and metal work, standpipe and
sprinkler system, walkways and stairs as necessary.
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<PAGE> 122
EXHIBIT O
ENTRY SIGNAGE
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<PAGE> 123
EXHIBIT P
FIRST EXPANSION SPACE
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<PAGE> 1
Exhibit 10.24
THIRD LOAN MODIFICATION AGREEMENT
This Third Loan Modification Agreement is entered into as of November
30, 1999, by and between ALLAIRE CORPORATION, a Delaware corporation with its
principal place of business at One Alewife Center, Cambridge, Massachusetts
02140 ("Borrower") and SILICON VALLEY BANK, a California-chartered bank
("Bank"), with its principal place of business at 3003 Tasman Drive, Santa
Clara, CA 95054 and with a loan production office located at Wellesley Office
Park, 40 William Street, Suite 350, Wellesley, MA 02481, doing business under
the name "Silicon Valley East".
1. DESCRIPTION OF EXISTING INDEBTEDNESS. Among other indebtedness which
may be owing by Borrower to Bank, Borrower is indebted to Bank pursuant to a
loan arrangement dated as of March 26, 1998, evidenced by, among other
documents, a certain Loan and Security Agreement dated as of March 26, 1998, as
amended by certain Loan Modification Agreements dated as of August 6, 1998 and
December 9, 1998 (as amended, the "Loan Agreement"). The Loan Agreement
established in favor of the Borrower a revolving line of credit in the maximum
principal amount of Two Million Dollars ($2,000,000.00) (the "Committed
Revolving Line"). Capitalized terms used but not otherwise defined herein shall
have the same meaning as in the Loan Agreement.
Hereinafter, all indebtedness owing by Borrower to Bank shall be referred to as
the "Indebtedness".
2. DESCRIPTION OF COLLATERAL. Repayment of the Indebtedness is secured by
the Collateral as described in the Loan Agreement (together with any other
collateral security granted to Bank, the "Security Documents").
Hereinafter, the Security Documents, together with all other documents
evidencing or securing the Indebtedness shall be referred to as the "Existing
Loan Documents".
3. DESCRIPTION OF CHANGE IN TERMS.
1. MODIFICATION(S) TO LOAN AGREEMENT.
1. The Loan Agreement shall be amended by deleting the
following definition appearing in Section 1.1
thereof:
""Committed Revolving Line" means a credit
extension of up to Two Million Dollars
($2,000,000.00)."
and inserting in lieu thereof the following:
""Committed Revolving Line" means a credit
extension of up to Twelve Million Five
Hundred Thousand Dollars ($12,500,000.00),
less the face amount of outstanding Letters
of Credit issued pursuant to Section 2.1.2
hereof."
2. The Loan Agreement shall be amended by inserting
immediately after the definition of "ERISA" appearing
in Section 1.1 thereof the following definitions:
""Exchange Contract" has the meaning set
forth in Section 2.1.3.
"Foreign Exchange Reserve" has the meaning
set forth in Section 2.1.3."
<PAGE> 2
3. The Loan Agreement shall be amended by deleting the
following definition appearing in Section 1.1
thereof:
""Maturity Date" means the earlier of (i)
March 26, 1999 or (ii) the Equity Event."
and inserting in lieu thereof the following:
""Maturity Date" means November 30, 2000."
4. The Loan Agreement shall be amended by deleting the
following text appearing as the first sentence of
Section 2.1.1(a) thereof:
"Subject to and upon the terms and
conditions of this Agreement, Bank agrees to
make Advances to Borrower in an aggregate
outstanding amount not to exceed (i) the
Committed Revolving Line or the Borrowing
Base, whichever is less, minus (ii) the face
amount of all outstanding Letters of Credit
(including drawn but unreimbursed Letters of
Credit)."
and inserting in lieu thereof the following:
"Subject to and upon the terms and
conditions of this Agreement, Bank agrees to
make Advances to Borrower in an aggregate
outstanding amount not to exceed (i) the
Committed Revolving Line or the Borrowing
Base, whichever is less, minus (ii) the
Foreign Exchange Reserve."
5. The Loan Agreement shall be amended by deleting the
following text appearing as paragraph (a) in Section
2.1.2 thereof entitled "Letters of Credit":
"Subject to the terms and conditions of this
Agreement, Bank agrees to issue or cause to
be issued Letters of Credit for the account
of Borrower in an aggregate outstanding face
amount not to exceed (i) the lesser of the
Committed Revolving Line or the Borrowing
Base, minus (ii) the then outstanding
principal balance of the Advances; PROVIDED
that the face amount of outstanding Letters
of Credit (including drawn but unreimbursed
Letters of Credit and any Letter of Credit
Reserve) shall not in any case exceed Eight
Hundred Thousand Dollars ($800,000.00). Each
Letter of Credit shall have an expiry date
no later the Maturity Date. All Letters of
Credit shall be, in form and substance,
acceptable to Bank in its sole discretion
and shall be subject to the terms and
conditions of Bank's form of standard
Application and Letter of Credit Agreement."
and inserting in lieu thereof the following:
"Subject to the terms and conditions of this
Agreement, Bank agrees to issue or cause to
be issued Letters of Credit for the account
of Borrower provided that the aggregate
outstanding face amount of such Letters of
Credit shall not exceed (i) the Committed
Revolving Line, minus (ii) the then
outstanding principal balance of the
Advances, Foreign Exchange Reserve, and all
other Obligations hereunder (exclusive of
undrawn Letters of Credit). Each Letter of
2
<PAGE> 3
Credit shall have an expiry date no later
than two hundred seventy (270) days after
the Maturity Date provided that Borrower's
Letter of Credit reimbursement obligation
shall be secured by cash on terms acceptable
to Bank at any time after the Maturity Date
if the term of this Agreement is not
extended by Bank. All Letters of Credit
shall be, in form and substance, acceptable
to Bank in its sole discretion and shall be
subject to the terms and conditions of
Bank's form of standard Application and
Letter of Credit Agreement."
6. The Loan Agreement shall be amended by inserting
immediately after Section 2.1.2 thereof the following
new section entitled "Foreign Exchange Contracts;
Foreign Exchange Settlements":
"2.1.3 FOREIGN EXCHANGE CONTRACT; FOREIGN
EXCHANGE SETTLEMENTS.
(a) Subject to the terms of this Agreement,
Borrower may enter into foreign exchange
contracts with the Bank (the "Exchange
Contracts") not to exceed an aggregate
amount of Twelve Million Five Hundred
Thousand Dollars ($12,500,000.00) (the
"Contract Limit"), pursuant to which Bank
shall sell to or purchase from Borrower
foreign currency on a spot or future basis.
Borrower shall not request any Exchange
Contracts at any time it is out of
compliance with any of the provisions of
this Agreement. All Exchange Contracts must
provide for delivery of settlement on or
before the Maturity Date. The amount
available under the Committed Revolving Line
at any time shall be reduced by the
following amounts (the "Foreign Exchange
Reserve") on any given day (the
"Determination Date"): (i) on all
outstanding Exchange Contracts on which
delivery is to be effected or settlement
allowed more than two business days after
the Determination Date, 10% of the gross
amount of the Exchange Contracts; plus (ii)
on all outstanding Exchange Contracts on
which delivery is to be effected or
settlement allowed within two business days
after the Determination Date, 100% of the
gross amount of the Exchange Contracts.
(b) Bank may, in its discretion, terminate
the Exchange Contracts at any time (a) that
an Event of Default occurs or (b) that there
is no sufficient availability under the
Committed Revolving Line and Borrower does
not have available funds in its bank account
to satisfy the Foreign Exchange Reserve. If
Bank terminates the Exchange Contracts, and
without limitation of any applicable
indemnities, Borrower agrees to reimburse
Bank for any and all fees, costs and
expenses relating thereto or arising in
connection therewith.
(c) Borrower shall not permit the total
gross amount of all Exchange Contracts on
which delivery is to be effected and
settlement allowed in any two business day
period to be more than $300,000.00 (the
"Settlement Limit") nor shall Borrower
permit the total gross amount of all
Exchange Contracts to which Borrower is a
party, outstanding at any one time, to
exceed the Contract Limit. Notwithstanding
the above, however, the amount which may be
settled in any two (2) business day period
may be increased above the
3
<PAGE> 4
Settlement Limit up to, but in no event to
exceed, the amount of the Contract Limit
under either of the following circumstances:
(i) if there is sufficient
availability under the Committed
Revolving Line in the amount of the
Foreign Exchange Reserve as of each
Determination Date, provided that
Bank in advance shall reserve the
full amount of the Foreign Exchange
Reserve against the Committed
Revolving Line; or
(ii) if there is insufficient
availability under the Committed
Revolving Line, as to settlements
within any two (2) business day
period, provided that Bank, in its
sole discretion, may: (A) verify
good funds overseas prior to
crediting Borrower's deposit account
with Bank (in the case of Borrower's
sale of foreign currency); or (B)
debit Borrower's deposit account
with Bank prior to delivering
foreign currency overseas (in the
case of Borrower's purchase of
foreign currency).
(d) In the case of Borrower's purchase of
foreign currency, Borrower in advance shall
instruct Bank upon settlement either to
treat the settlement amount as an advance
under the Committed Revolving Line, or to
debit Borrower's account for the amount
settled.
(e) Borrower shall execute all standard form
applications and agreements of Bank in
connection with the Exchange Contracts and,
without limiting any of the terms of such
applications and agreements, Borrower will
pay all standard fees and charges of Bank in
connection with the Exchange Contracts.
(f) Without limiting any of the other terms
of this Agreement or any such standard form
applications and agreement of Bank, Borrower
agrees to indemnify Bank and hold it
harmless, from and against any and all
claims, debts, liabilities, demands,
obligations, actions, costs and expenses
(including, without limitation, reasonable
attorneys' fees and any costs arising out of
the failure of the Borrower to fulfill its
obligations on a timely basis) which the
Bank incurs arising out of or in any way
relating to any of the Exchange Contracts or
any transactions contemplated thereby
(collectively, the "Foreign Exchange
Costs"), provided, however, in no event
shall the Borrower be responsible for
Foreign Exchange Costs to the extent (i)
caused by the Bank's gross negligence or
willful misconduct, or (ii) attributable to
Exchange Contracts entered into by the Bank
for the benefit of other parties."
7. The Loan Agreement shall be amended by deleting the
following text appearing as Section 2.2 thereof
entitled "Overadvances":
"2.2 OVERADVANCES. If, at any time or for
any reason, the amount of Obligations owed
by Borrower to Bank pursuant to Section
2.1.1 or 2.1.2 of this Agreement is greater
than the lesser of (i) the
4
<PAGE> 5
Committed Revolving Line or (ii) the
Borrowing Base, Borrower shall immediately
pay to Bank, in cash, the amount of such
excess."
and inserting in lieu thereof the following:
"2.2 OVERADVANCES. If, at any time or for
any reason, the amount of Obligations owed
by Borrower to Bank pursuant to Section
2.1.1 and 2.1.3 of this Agreement is
greater than: (a) the lesser of (i) the
Committed Revolving Line or (ii) the
Borrowing Base, minus (b) the Foreign
Exchange Reserve, Borrower shall
immediately pay to Bank, in cash, the
amount of such excess."
8. The Loan Agreement shall be amended by deleting the
following text appearing as Section 2.3(a) thereof
entitled "Interest Rate":
"(a) INTEREST RATE. Except as set forth in
Section 2.3(b), any Advances shall bear
interest, on the average daily balance
thereof, at a per annum rate equal to One
percentage point (1.00%) above the Prime
Rate."
and inserting in lieu thereof the following:
"(a) INTEREST RATE. Except as set forth in
Section 2.3(b), any Advances shall bear
interest, effective as of November 30,
1999, on the average daily balance thereof,
at a per annum rate equal to the Prime
Rate."
9. The Loan Agreement shall be amended by deleting
Section 6.3 in its entirety and inserting in lieu
thereof the following:
"6.3 FINANCIAL STATEMENTS, REPORTS,
CERTIFICATES. Borrower shall deliver to
Bank: (a) as soon as available, but in any
event within forty-five (45) days after the
end of each quarter, a company prepared
consolidated balance sheet and income
statement covering Borrower's consolidated
operations during such period, in a form and
certified by an officer of Borrower
reasonably acceptable to Bank; (b) as soon
as available, but in any event within one
hundred twenty (120) days after the end of
Borrower's fiscal year, audited consolidated
financial statements of Borrower prepared in
accordance with GAAP, consistently applied,
together with an unqualified opinion on such
financial statements of an independent
certified public accounting firm reasonably
acceptable to Bank; (c) promptly upon
receipt of notice thereof, a report of any
legal actions pending or threatened against
Borrower or any Subsidiary that could result
in damages or costs to Borrower or any
Subsidiary of One Hundred Thousand
5
<PAGE> 6
Dollars ($100,000) or more; and (d) such
budgets, sales projections, operating plans
or other financial information as Bank may
reasonably request from time to time.
Within twenty-five (25) days after
the last day of each month with respect to
which either (i) Obligations under the
Committed Revolving Line are outstanding, or
(ii) Advances were made or Letters of Credit
were issued, Borrower shall deliver to Bank
a Borrowing Base Certificate signed by a
Responsible Officer in substantially the
form of EXHIBIT C hereto, together with aged
listings of accounts receivable (by invoice
date).
Within forty-five (45) days after
the last day of each quarter, Borrower shall
deliver to Bank with the quarterly financial
statements a Compliance Certificate signed
by a Responsible Officer in substantially
the form of EXHIBIT D hereto.
Bank shall have a right from time to
time hereafter to audit Borrower's Accounts
at Borrower's expense (subject to Section
2.5(c)), provided that such audits will be
conducted no more often than every twelve
(12) months unless an Event of Default has
occurred and is continuing."
10. The Loan Agreement shall be amended by deleting
Sections 6.8 and 6.9 in their entirety and inserting
in lieu thereof the following: 1.
"6.8 ADJUSTED QUICK RATIO. Borrower shall
maintain, as of the last day of each quarter
with respect to which either (i) Obligations
under the Committed Revolving Line are
outstanding, or (ii) Advances were made or
Letters of Credit were issued, a ratio of
Quick Assets to Current Liabilities of at
least 2.0 to 1.0. For calculation purposes
of this Section 6.8, Current Liabilities
shall (i) exclude "deferred maintenance
revenue" and (ii) include all Credit
Extensions under this Loan and Security
Agreement.
11. The Loan Agreement shall be amended by deleting the
following text appearing as the second sentence of
Section 7.2 entitled "Changes in Business, Ownership,
or Management, Business
Locations":
"Borrower will not, without at least thirty
(30) days prior written notification to
Bank, issue any equity (other than in
conjunction with stock-based awards granted
under the Borrower's 1997 Stock Incentive
Plan) relocate its chief executive office or
add any new offices or business locations."
and inserting in lieu thereof the following:
6
<PAGE> 7
"Borrower will not, without at least thirty
(30) days prior written notification to
Bank, issue any equity which results in a
material change in ownership or management
(other than in conjunction with stock-based
awards granted under the Borrower's Stock
Incentive Plans), relocate its chief
executive office or add any new offices or
business locations."
12. The Loan Agreement shall be amended by deleting the
following text appearing in Section 7.3 thereof
entitled "Mergers or Acquisitions":
"and (iv) the aggregate purchase price for
such transaction(s) will be a maximum amount
of $1,000,000.00,"
13. The Loan Agreement shall be amended by deleting the
following text appearing as Section 7.6 thereof:
"7.6 DISTRIBUTIONS. Pay any dividends or
make any other distribution or payment on
account of or in redemption, retirement or
purchase of any capital stock (other than
distributions and payments made in
conjunction with stock-based awards granted
under the Borrower's 1997 Stock Incentive
Plan)."
and inserting in lieu thereof the following:
"7.6 DISTRIBUTIONS. Pay any dividends or
make any other distribution or payment on
account of or in redemption, retirement or
purchase of any capital stock (other than
distributions and payments made in
conjunction with stock-based awards granted
under the Borrower's Stock Incentive
Plans)."
14. The Loan Agreement shall be amended by inserting
therein the following text to appear as the last
paragraph of Section 9.1 entitled "Rights and
Remedies":
"(k) Liquidate any Exchange Contracts not
yet settled and demand that Borrower
immediately deposit cash with Bank in an
amount sufficient to cover any losses
incurred by Bank due to liquidation of the
Exchange Contracts at the then prevailing
market price."
15. The Borrower hereby ratifies, confirms and reaffirms,
all and singular, the terms and conditions of a
certain Negative Pledge Agreement dated as of March
26, 1998 between Borrower and Bank, and acknowledges,
confirms and agrees that said Negative Pledge
Agreement shall remain in full force and effect.
16. The Borrowing Base Certificate appearing as EXHIBIT C
to the Loan Agreement is hereby replaced with the
Borrowing Base Certificate attached as EXHIBIT A
hereto.
17. The Compliance Certificate appearing as EXHIBIT D to
the Loan Agreement is hereby replaced with the
Compliance Certificate attached as EXHIBIT B hereto.
4. FEE. Borrower shall pay to Bank a modification fee equal to Thirty-One
Thousand Two Hundred Fifty Dollars ($31,250.00), which fee shall be due on the
date hereof and shall be deemed fully earned as of the date hereof.
7
<PAGE> 8
5. CONSISTENT CHANGES. The Existing Loan Documents are hereby amended
wherever necessary to reflect the changes described above.
6. RATIFICATION OF LOAN DOCUMENTS. Borrower hereby ratifies, confirms, and
reaffirms all terms and conditions of all security or other collateral granted
to the Bank, and confirms that the indebtedness secured thereby includes,
without limitation, the Indebtedness.
7. NO DEFENSES OF BORROWER. Borrower agrees that, as of this date, it has
no defenses against the obligations to pay any amounts under the Indebtedness.
8. CONTINUING VALIDITY. Borrower understands and agrees that in modifying
the existing Indebtedness, Bank is relying upon Borrower's representations,
warranties, and agreements, as set forth in the Existing Loan Documents. Except
as expressly modified pursuant to this Loan Modification Agreement, the terms of
the Existing Loan Documents remain unchanged and in full force and effect.
Bank's agreement to modifications to the existing Indebtedness pursuant to this
Loan Modification Agreement in no way shall obligate Bank to make any future
modifications to the Indebtedness. Nothing in this Loan Modification Agreement
shall constitute a satisfaction of the Indebtedness. It is the intention of Bank
and Borrower to retain as liable parties all makers of Existing Loan Documents,
unless the party is expressly released by Bank in writing. No maker will be
released by virtue of this Loan Modification Agreement.
9. JURISDICTION/VENUE. Borrower accepts for itself and in connection with
its properties, unconditionally, the non-exclusive jurisdiction of any state or
federal court of competent jurisdiction in the Commonwealth of Massachusetts in
any action, suit, or proceeding of any kind against it which arises out of or by
reason of this Loan Modification Agreement; provided, however, that if for any
reason Bank cannot avail itself of the courts of the Commonwealth of
Massachusetts, then venue shall lie in Santa Clara County, California.
10. COUNTERSIGNATURE. This Loan Modification Agreement shall become
effective only when it shall have been executed by Borrower and Bank (provided,
however, in no event shall this Loan Modification Agreement become effective
until signed by an officer of Bank in California).
8
<PAGE> 9
This Loan Modification Agreement is executed as a sealed instrument
under the laws of the Commonwealth of Massachusetts as of the date first written
above.
BORROWER: BANK:
ALLAIRE CORPORATION SILICON VALLEY BANK, doing
business as SILICON VALLEY EAST
By: /s/ David A. Gerth By: /s/ Michael Tramack
----------------------------------- --------------------------------
Name: David A. Gerth Name: Michael Tramack
----------------------------------- --------------------------------
Title: CFO Title: Assistant Vice President
----------------------------------- --------------------------------
SILICON VALLEY BANK
By: /s/ Michael Jordan
--------------------------------
Name: Michael Jordan
--------------------------------
Title: AVP
--------------------------------
(signed in Santa Clara County,
California)
9
<PAGE> 10
EXHIBIT A
BORROWING BASE CERTIFICATE
Borrower: ALLAIRE CORPORATION Bank: Silicon Valley Bank
Commitment Amount: $12,500,000.00, less the face amount of outstanding Letters
of Credit issued pursuant to Section 2.1.2
ACCOUNTS RECEIVABLE
1) Accounts Receivable Book Value as of $
-------- --------------------
2) Additions (please explain on reverse) $
--------------------
3) TOTAL ACCOUNTS RECEIVABLE $
--------------------
ACCOUNTS RECEIVABLE DEDUCTIONS (without duplication)
4) Amounts over 90 days due $
-------------------
5) Balance of 50% over 90 day accounts $
-------------------
6) Concentration Limits $
-------------------
7) Foreign Accounts $
-------------------
8) Governmental Accounts $
-------------------
9) Contra Accounts $
-------------------
10) Promotion or Demo Accounts $
-------------------
11) Intercompany/Employee Accounts $
-------------------
12) Other (please explain on reverse) $
-------------------
13) TOTAL ACCOUNTS RECEIVABLE DEDUCTIONS $
-------------------
14) Eligible Accounts (#3 minus #13) $
-------------------
15) LOAN VALUE OF ACCOUNTS (80.0% of #14) $
-------------------
BALANCES
16) Maximum Loan Amount $
-------------------
17) Total Funds Available [Lesser of #16 or #15] $
-------------------
18) Present balance owing on Line of Credit $
-------------------
19) Outstanding under Sublimits (F/E) $
-------------------
20) RESERVE POSITION (#17 minus #18 and #19) $
-------------------
The undersigned represents and warrants that the foregoing is true, complete and
correct, and that the information reflected in this Borrowing Base Certificate
complies with the representations and warranties set forth in the Loan and
Security Agreement between the undersigned and Silicon Valley Bank.
COMMENTS: ==================================
BANK USE ONLY
==================================
- ---------------------------
RECEIVED BY:____________________
By: _______________________
Authorized Signer DATE:________________
REVIEWED BY:____________________
COMPLIANCE STATUS: YES / NO
===================================
10
<PAGE> 11
EXHIBIT B
COMPLIANCE CERTIFICATE
TO: SILICON VALLEY BANK
FROM: ALLAIRE CORPORATION
The undersigned authorized officer of ALLAIRE CORPORATION hereby
certifies that in accordance with the terms and conditions of the Loan and
Security Agreement between Borrower and Bank (the "Agreement"), (i) Borrower is
in complete compliance for the period ending _________ with all required
covenants except as noted below and (ii) all representations and warranties of
Borrower stated in the Agreement are true and correct in all material respects
as of the date hereof. Attached herewith are the required documents supporting
the above certification. The Officer further certifies that these are prepared
in accordance with Generally Accepted Accounting Principles (GAAP) and are
consistently applied from one period to the next except as explained in an
accompanying letter or footnotes. The Officer expressly acknowledges that no
borrowings may be requested by the Borrower at any time or date of determination
that Borrower is not in compliance with any of the terms of the Agreement, and
that such compliance is determined not just at the date this certificate is
delivered.
PLEASE INDICATE COMPLIANCE STATUS BY CIRCLING YES/NO UNDER "COMPLIES" COLUMN.
<TABLE>
<CAPTION>
REPORTING COVENANT REQUIRED COMPLIES
------------------ -------- --------
<S> <C> <C> <C>
Financial statements & CC Quarterly 45 days Yes No
Annual (CPA Audited) FYE within 120 days (w/ CC) Yes No
Monthly BBC & A/R Agings Monthly within 25 days (when borrowing) Yes No
(by invoice date)
</TABLE>
<TABLE>
<CAPTION>
FINANCIAL COVENANT REQUIRED ACTUAL COMPLIES
------------------ -------- ------ --------
<S> <C> <C> <C> <C>
Maintain (quarterly):
Minimum Adjusted Quick Ratio 2.0:1.0 (when borrowing) ____:1.0 Yes No
Minimum Tangible Net Worth $1,5000,000 $________ Yes No
(when borrowing)
</TABLE>
==================================
BANK USE ONLY
==================================
RECEIVED BY:____________________
DATE:________________
REVIEWED BY:____________________
COMPLIANCE STATUS: YES / NO
===================================
COMMENTS REGARDING EXCEPTIONS:
Sincerely,
___________________ Date:_______________
SIGNATURE
- ------------------------
TITLE
<PAGE> 1
Exhibit 11.1
Computation of net loss per share and unaudited pro forma net loss per share
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
----------------------------------------------
1997 1998 1999
---- ---- ----
(in thousands, except per share data)
<S> <C> <C> <C>
Basic and diluted net loss per share:
Net loss $(11,536) $(17,139) $ (5,539)
======== ======== ========
Basic and diluted weighted average common shares outstanding 4,316 7,175 22,771
======== ======== ========
Basic and diluted net loss per share $ (2.67) $ (2.39) $ (0.24)
======== ======== ========
</TABLE>
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-------------------------
1998 1999
---- ----
(in thousands, except per share data)
<S> <C> <C>
Pro forma basic and diluted net loss per share:
Net loss $ (17,139) $ (5,539)
======= =======
Pro forma basic and diluted weighted average shares outstanding:
Shares attributable to common stock(1) 7,940 22,772
Shares attributable to the assumed conversion of convertible preferred
stock upon closing of the IPO 7,636 462
------- -------
Pro forma basic and diluted weighted average shares outstanding 15,576 23,234
======= =======
Pro forma basic and diluted loss per share $ (1.10) $ (0.24)
------- -------
</TABLE>
(1) Includes outstanding common stock subject to repurchase under a stock
restriction agreement which lapsed upon the consummation of the initial public
offering in January 1999.
<PAGE> 1
EXHIBIT 13
Allaire Corporation 1999
F I N A N C I A L
Statements
<PAGE> 2
table of
C O N T E N T S
20 Selected Consolidated Financial Data
21 Management's Discussion & Analysis of Financial
Condition and Results of Operations
28 Consolidated Balance Sheet
29 Consolidated Statement of Operations
30 Consolidated Statement of Redeemable Convertible
Preferred Stock and Stockholders' Equity (Deficit)
32 Consolidated Statement of Cash Flows
33 Notes to Financial Statements
47 Report of Independent Accountants
48 Corporate Information
<PAGE> 3
SELECTED CONSOLIDATED FINANCIAL DATA
The selected consolidated financial data set forth below have been derived from
Allaire's audited consolidated financial statements. These data should be read
in conjunction with Allaire's consolidated financial statements and notes
thereto and "Management's Discussion and Analysis of Financial Condition and
Results of Operations," appearing elsewhere in this document.
<TABLE>
<CAPTION>
May 5, 1995 to Year Ended December 31,
December 31, ----------------------------------------------
(In thousands, except per share data) 1995 1996 1997 1998 1999
------ ------- --------- --------- ---------
<S> <C> <C> <C> <C> <C>
CONSOLIDATED STATEMENT OF OPERATIONS DATA
Revenue:
Software license fees .............. $ -- $ 2,358 $ 7,133 $ 17,966 $ 45,555
Services ........................... -- -- 655 3,396 9,608
------ ------- --------- --------- ---------
Total revenue ................. -- 2,358 7,788 21,362 55,163
------ ------- --------- --------- ---------
Cost of revenue:
Software license fees .............. -- 234 973 1,937 2,525
Services ........................... -- 1,452 4,057 7,480
------ ------- --------- --------- ---------
Total cost of revenue ......... -- 234 2,425 5,994 10,005
------ ------- --------- --------- ---------
Gross profit ............................... -- 2,124 5,363 15,368 45,158
------ ------- --------- --------- ---------
Operating expenses:
Research and development ........... 65 1,109 4,984 8,027 12,873
Sales and marketing ................ 49 1,618 8,820 19,135 30,294
General and administrative ......... 74 1,437 3,410 4,946 7,148
Stock-based compensation ........... -- -- -- 412 263
Merger costs ....................... -- -- -- -- 2,930
------ ------- --------- --------- ---------
Total operating expenses ...... 188 4,164 17,214 32,520 53,508
------ ------- --------- --------- ---------
Loss from operations ....................... (188) (2,040) (11,851) (17,152) (8,350)
Interest income, net ....................... -- 13 315 13 2,811
------ ------- --------- --------- ---------
Net loss .................................. $ (188) $(2,027) $ (11,536) $ (17,139) $ (5,539)
====== ======= ========= ========= =========
Basic and diluted net loss per share ....... $(0.04) $ (0.58) $ (2.67) $ (2.39) $ (0.24)
Shares used in computing basic and
diluted net loss per share ......... 4,400 3,513 4,316 7,175 22,771
CONSOLIDATED BALANCE SHEET DATA
Cash and cash equivalents .................. $ 17 $ 595 $ 7,190 $ 3,247 $ 106,624
Working capital (deficit) .................. (231) 242 7,383 (9,691) 96,914
Total assets ............................... 119 2,160 17,094 12,708 133,540
Total long-term debt, net of current portion -- 50 1,251 1,193 547
Total redeemable convertible preferred stock -- 2,800 12,673 12,673 --
Total stockholders' equity (deficit) ....... (181) (1,747) (3,022) (18,882) 101,924
</TABLE>
All periods have been restated to reflect the mergers with Bright Tiger
Technologies and Live Software, which were accounted for as poolings of
interests. In addition, all share and per share data have been restated to
reflect the two-for-one stock split in March 2000.
-20-
<PAGE> 4
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
This Annual Report contains "forward-looking statements" within the meaning of
Section 27A of the Securities Act of 1933 and Section 21E of the Securities
Exchange Act of 1934. Any statements contained herein that are not statements of
historical fact may be deemed to be forward-looking statements. Without limiting
the foregoing, the words "believes,""anticipates,""plans,""expects" and similar
expressions are intended to identify forward-looking statements. The
forward-looking statements involve known and unknown risks, uncertainties and
other factors, including the factors set forth below in "Certain Factors that
may Affect Future Results," that may cause the actual results, performance and
achievements of Allaire to differ materially from those indicated by the
forward-looking statements.
OVERVIEW
Allaire develops, markets and supports Web application servers and related
software products that enable the development and deployment of sophisticated
e-business Web sites and applications. Allaire derives a majority of its revenue
from its three primary products, ColdFusion, JRun and HomeSite. In the fourth
quarter of 1999, Allaire released versions 4.5 of its ColdFusion and HomeSite
products, along with the introduction of a new packaged e-business application,
Allaire Spectra. Allaire's revenue is derived principally from license fees for
software products and, to a lesser extent, fees for a range of services
complementing these products, primarily training, consulting and technical
support. Software license fees include sales of licenses for the then-current
version of our products, product upgrades and subscriptions. Subscriptions
entitle the customer to all new releases for a specific product during the
subscription period, generally 12 to 24 months.
Revenue from sales of licenses to use Allaire's software products and product
upgrades is recognized upon delivery to customers, provided no significant
post-delivery obligations or uncertainties remain and collection of the related
receivable is probable. Revenue under arrangements where multiple products or
services are sold together under one contract is allocated to each element based
on their relative fair values, with these fair values being determined using the
price charged when that element is sold separately. For agreements with
specified upgrade rights, the revenue related to such upgrade rights is deferred
until the specified upgrade is delivered. We provide most of our distributors
with rights of return. An allowance for estimated future returns is recorded at
the time revenue is recognized based on our historical experience. Revenue from
subscription sales is recognized ratably over the term of the subscription
period. Services revenue is recognized as services are rendered or ratably over
the term of the service agreement.
Allaire generates its software license revenue through direct sales of
licenses to end users and through its indirect distribution channel. Direct
revenue is generated by Allaire's direct sales force and via its Web site.
The indirect distribution channel includes distributors, direct and original
equipment manufacturer resellers, system integrators and Allaire Alliance
members. Revenue generated by the indirect distribution channel accounted for
28%, 44%, and 53% of total revenue for 1997, 1998 and 1999, respectively.
Allaire anticipates that revenue derived from the indirect distribution
channel will continue to represent a significant percentage of total revenue.
Allaire primarily derives its international revenue through its indirect
distribution channel. International revenue outside of North America
accounted for 19%, 13% and 14% of total revenue for 1997, 1998 and 1999,
respectively.
In April 1999, Allaire completed a merger with Bright Tiger Technologies by
issuing 577,166 shares of its common stock for all of the issued and outstanding
equity securities of Bright Tiger. Bright Tiger provides software designed to
enhance the performance, availability and manageability of large-scale Internet
sites and Web applications. Allaire had previously licensed technology from
Bright Tiger that was incorporated in certain ColdFusion products. In June 1999,
Allaire completed a merger with Live Software by issuing 1,056,752 shares of its
common stock for all of the issued and outstanding equity securities of Live
Software. Live Software develops, markets and supports server-side Java
development and deployment technology. Live Software's principal product, JRun,
is a leading server-side Java development and deployment engine. Allaire
recorded merger related costs of $2.7 million in the quarter ended June 30, 1999
primarily related to professional fees, facility closings, severance packages
and related costs associated with these acquisitions. Allaire accounted for
these acquisitions as poolings of interests.
In December 1999, Allaire completed its merger with Valto Systems by issuing
450,000 shares of its common stock for all of the issued and outstanding equity
securities of Valto Systems. Valto Systems develops and markets Enterprise
JavaBeans (EJB) server technology. Allaire recorded merger related costs of
$230,000 in the quarter ended December 31, 1999 primarily related to
professional fees associated with this acquisition. Allaire accounted for this
acquisition as a pooling of interests. Acquired net liabilities of approximately
$37,000 have been recorded at historical amounts. Prior periods were not
restated due to immateriality, and accordingly, results of operations have been
included since the date of acquistion.
-21-
<PAGE> 5
RESULTS OF OPERATIONS
The following table sets forth for the periods indicated the percentage of total
revenue of certain line items included in Allaire's consolidated statement of
operations.
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31, 1997 1998 1999
------ ----- -----
<S> <C> <C> <C>
Revenue:
Software license fees ....... 91.6% 84.1% 82.6%
Services .................... 8.4 15.9 17.4
------ ----- -----
Total revenue ....................... 100.0 100.0 100.0
------ ----- -----
Cost of revenue:
Cost of software license fees 12.5 9.1 4.6
Cost of services ............ 18.6 19.0 13.5
------ ----- -----
Total cost of revenue ............... 31.1 28.1 18.1
------ ----- -----
Gross profit ........................ 68.9 71.9 81.9
------ ----- -----
Operating expenses:
Research and development .... 64.0 37.6 23.3
Sales and marketing ......... 113.2 89.6 54.9
General and administrative .. 43.8 23.1 13.0
Stock-based compensation .... 0.0 1.9 0.5
Merger costs ................ 0.0 0.0 5.3
------ ----- -----
Total operating expenses ............ 221.0 152.2 97.0
------ ----- -----
Loss from operations ................ (152.1) (80.3) (15.1)
Interest income, net ................ 4.0 0.1 5.1
------ ----- -----
Net loss ............................ (148.1)% (80.2)% (10.0)%
====== ===== =====
</TABLE>
YEARS ENDED DECEMBER 31, 1998 AND 1999
REVENUE
Total revenue increased 158% from $21.4 million for 1998 to $55.2 million for
1999.
SOFTWARE LICENSE FEES Revenue from software license fees increased 154% from
$18.0 million for 1998 to $45.6 million for 1999. The increase was primarily due
to an increase in the number of licenses sold to use Allaire's ColdFusion and
JRun products. Increases in product prices associated with the release of new
versions of our products during the fourth quarter of 1998 also contributed to
the growth in revenue.
SERVICES Revenue from services increased 183% from $3.4 million for 1998 to $9.6
million for 1999. The increase was primarily attributable to growth in training
revenue resulting from an increase in Allaire's installed customer base.
COST OF REVENUE
COST OF SOFTWARE LICENSE FEES Cost of software license fees includes costs of
product media duplication, manuals, packaging materials, licensed technology and
fees paid to third party vendors and agents for order fulfillment. Cost of
software license fees increased 30% from $1.9 million for 1998 to $2.5 million
for 1999. The increase in absolute dollars was due to higher unit sales volume.
The improvement in software license fees gross margins from 89% for 1998 to 94%
for 1999 was primarily attributable to economies of scale achieved with higher
sales volume in 1999.
-22-
<PAGE> 6
COST OF SERVICES Cost of services consists primarily of personnel costs. Cost of
services increased 84% from $4.1 million for 1998 to $7.5 million for 1999. The
increase in absolute dollars resulted primarily from the hiring of additional
employees and the use of contract trainers to support increased customer demand
for training classes and technical support. The improvement in services gross
margins from (19)% for 1998 to 22% for 1999 was primarily attributable to the
substantial growth in training revenue. Allaire anticipates that services gross
margins will decrease in the near term as Allaire invests in additional
resources to support Allaire Spectra, the Company's newly released packaged
e-business application product.
Overall gross margins are primarily affected by the mix of products licensed,
sales through direct versus indirect distribution channels, software license
fees revenue versus services revenue, and international revenue versus domestic
revenue. Allaire typically realizes higher gross margins on direct sales
relative to indirect distribution channel sales and higher gross margins on
software license fees relative to services revenue. As services revenue or
revenue derived through indirect distribution channels increase as a percentage
of total revenue, Allaire's gross margins may be adversely affected.
OPERATING EXPENSES
RESEARCH AND DEVELOPMENT Research and development expenses consist primarily of
employee salaries, fees for outside consultants and related costs associated
with the development of new products, the enhancement and localization of
existing products, quality assurance and testing. Research and development
expenses increased 60% from $8.0 million for 1998 to $12.9 million for 1999. The
increase primarily resulted from salaries associated with newly hired
development personnel and product development consulting costs. Allaire
anticipates that research and development expenses will continue to increase in
absolute dollars.
SALES AND MARKETING Sales and marketing expenses consist primarily of employee
salaries, commissions, and costs associated with marketing programs such as
trade shows, seminars, advertising and new product launch activities. Sales and
marketing expenses increased 58% from $19.1 million for 1998 to $30.3 million
for 1999. The increase was primarily attributable to costs associated with
additional direct sales, pre-sales support and marketing personnel, and an
increase in marketing programs, including promotions and advertising. Allaire
anticipates that sales and marketing expenses will continue to increase in
absolute dollars as it continues to expand its marketing programs and sales
force to support its brand awareness, product launches, international expansion
and increased focus on major account sales.
GENERAL AND ADMINISTRATIVE General and administrative expenses consist primarily
of employee salaries and other personnel related costs for executive and
financial personnel, as well as legal, accounting and insurance costs. General
and administrative expenses increased 45% from $4.9 million for 1998 to $7.1
million for 1999. The increase was primarily attributable to salaries associated
with newly hired personnel and related costs required to manage Allaire's growth
and facilities expansion. Allaire expects that its general and administrative
expenses will increase in absolute dollars as it continues to expand its
staffing to support expanding facilities and operations.
STOCK-BASED COMPENSATION The amount that the estimated fair market value of
Allaire's common stock exceeds the exercise price of stock options on the date
of grant is recorded as deferred compensation and amortized to stock-based
compensation expense as the options vest. Allaire recognized $412,000 of
stock-based compensation for 1998 compared to $263,000 of stock based
compensation for 1999. The decrease was primarily attributable to the grant of a
fully vested option with an exercise price substantially below fair market value
during the quarter ended March 31, 1998.
MERGER COSTS The merger costs of $2.9 million for 1999 relate to the mergers
with Bright Tiger, Live Software and Valto Systems. The costs include
professional fees, facility closings, severance packages and related costs
associated with these acquisitions.
INTEREST INCOME, NET
Interest income, net of interest expense, increased from $13,000 for 1998 to
$2.8 million for 1999. The increase was due to interest income earned from the
investment of the net cash proceeds from Allaire's initial public offering in
January 1999 and follow-on public offering in September 1999.
-23-
<PAGE> 7
PROVISION FOR INCOME TAXES
Allaire has incurred significant operating losses for all periods from inception
through September 30, 1999. Allaire has recorded a valuation allowance for the
full amount of its net deferred tax assets as the future realization of the tax
benefit is not sufficiently assured.
YEARS ENDED DECEMBER 31, 1997 AND 1998
REVENUE
Total revenue increased 174% from $7.8 million for 1997 to $21.4 million for
1998.
SOFTWARE LICENSE FEES Revenue from software license fees increased 152% from
$7.1 million for 1997 to $18.0 million for 1998. The increase was primarily due
to an increase in the number of licenses sold to use our software products
including HomeSite, which we began selling in March 1997, and ColdFusion Studio,
which was released in November 1997. The growth in unit sales was also
attributable to the establishment of relationships with key domestic and
international distribution partners during the second half of 1997. To a lesser
degree, the increase in revenue from software license fees resulted from an
increase in product price associated with the release of new versions of our
products during the second half of 1997 and the fourth quarter of 1998.
SERVICES Revenue from services increased 418% from $655,000 for 1997 to $3.4
million for 1998. The increase was primarily attributable to growth in training
revenue resulting from an increase in our installed customer base.
COST OF REVENUE
COST OF SOFTWARE LICENSE FEES Cost of software license fees increased 99% from
$973,000 for 1997 to $1.9 million for 1998. The increase in absolute dollars was
due to higher unit sales volume. The improvement in software license fees gross
margins from 86% for 1997 to 89% for 1998 was primarily attributable to
economies of scale achieved with higher sales volume in 1998.
COST OF SERVICES Cost of services increased 179% from $1.5 million for 1997 to
$4.1 million for 1998. The increase in absolute dollars resulted primarily from
the hiring of additional employees and the use of contract trainers to support
increased customer demand for training classes and technical support. The
improvement in services gross margins from (122)% for 1997 to (19)% for 1998 was
primarily attributable to the substantial growth in services revenue.
OPERATING EXPENSES
RESEARCH AND DEVELOPMENT Research and development expenses increased 61% from
$5.0 million for 1997 to $8.0 million for 1998. The increase primarily resulted
from salaries associated with newly hired development personnel and product
development consulting costs.
SALES AND MARKETING Sales and marketing expenses increased 117% from $8.8
million for 1997 to $19.1 million for 1998. The increase was primarily
attributable to costs associated with additional direct sales, pre-sales support
and marketing personnel, and, to a lesser extent, an increase in marketing
programs, including trade shows, seminars and product launch activities.
GENERAL AND ADMINISTRATIVE General and administrative expenses increased 45%
from $3.4 million for 1997 to $4.9 million for 1998. The increase was primarily
attributable to salaries associated with newly hired personnel and related costs
required to manage our growth and facilities expansion. In addition, we incurred
a charge of $400,000 in the fourth quarter of 1998 for costs relating to exiting
a facilities lease.
STOCK-BASED COMPENSATION The amount that the estimated fair market value of our
common stock exceeds the exercise price of stock options on the date of grant is
recorded as deferred compensation and amortized to stock-based compensation
expense as the options vest. We recognized zero and $412,000 of stock based
compensation for 1997 and 1998, respectively.
INTEREST INCOME, NET
Interest income, net of interest expense, decreased from $315,000 for 1997 to
$13,000 for 1998. The decrease was primarily due to an increase in interest
expense attributable to our capital lease and notes payable obligations.
-24-
<PAGE> 8
LIQUIDITY AND CAPITAL RESOURCES
In January 1999, Allaire sold 5,750,000 shares of its common stock through an
initial public offering. Net proceeds from the offering were approximately $52.3
million after deducting the underwriting discount and other offering expenses.
In September 1999, Allaire sold 2,000,000 shares of common stock and selling
stockholders sold 2,800,000 shares of common stock through a follow-on public
offering. Allaire's net proceeds from the offering were approximately $58.1
million after deducting the underwriting discount and other offering expenses.
Proceeds from this transaction were received by Allaire in October 1999. Prior
to these public offerings, Allaire had funded its operations primarily through
net cash proceeds from private placements of preferred stock. At December 31,
1999, Allaire had cash, cash equivalents and short-term investments of $119.0
million, up from $3.7 million at December 31, 1998.
Cash provided by operating activities for 1999 was $8.3 million, primarily
related to increases in accrued expenses and deferred revenue, offset by an
increase in accounts receivable and a net loss of $5.5 million. Cash used for
operating activities for 1998 was $9.2 million primarily related to a net loss
of $17.1 million, partially offset by increases in accrued expenses and deferred
revenue.
Cash used for investing activities for 1999 was $15.4 million, primarily
relating to net purchases of short-term investments. Cash provided by investing
activities for 1998 was $1.5 million, primarily relating to net sales of
short-term investments, partially offset by net property and equipment
purchases.
Cash provided by financing activities for 1999 was $110.5 million, primarily due
to common stock issuances. Cash provided by financing activities for 1998 was
$3.8 million, primarily due to the issuance of notes payable.
As of December 31, 1999, Allaire's primary commitments consisted of obligations
related to operating leases, $1.0 million of notes payable under equipment lines
and $159,000 of capital lease obligations.
In April 1999, Allaire completed a merger with Bright Tiger by issuing 577,166
shares of Allaire common stock for all of the issued and outstanding equity
securities of Bright Tiger. In connection with the merger, Allaire assumed and
paid off Bright Tiger debt obligations totaling approximately $2.6 million. In
June 1999, Allaire completed a merger with Live Software by issuing 1,056,752
shares of Allaire common stock for all of the issued and outstanding equity
securities of Live Software. In December 1999, Allaire completed a merger with
Valto Systems by issuing 450,000 shares of Allaire common stock for all of the
issued and outstanding equity securities of Valto Systems.
Allaire expects to experience significant growth in its operating expenses for
the foreseeable future in order to execute its business plan, particularly
research and development and sales and marketing expenses. As a result, Allaire
anticipates that such operating expenses, as well as planned capital
expenditures, will constitute a material use of its cash resources. In addition,
Allaire may utilize cash resources to fund acquisitions or investments in
complementary businesses, technologies or product lines. Allaire believes that
its current cash and cash equivalents and short-term investments will be
sufficient to meet its anticipated cash requirements for working capital and
capital expenditures for the foreseeable future.
YEAR 2000 COMPLIANCE
To date, Allaire has not incurred significant incremental costs in order to
comply with Year 2000 requirements and does not believe it will incur
significant incremental costs in the foreseeable future. However, there can be
no assurance that Year 2000 errors or defects will not be discovered in
Allaire's internal software systems and, if such errors or defects are
discovered, there can be no assurance that the costs of making such systems Year
2000 compliant will not have a material adverse effect on Allaire's business,
operating results and financial condition.
RECENTLY ISSUED ACCOUNTING PRONOUNCEMENTS
In June 1998, the FASB issued SFAS No. 133, "Accounting for Derivative
Instruments and Hedging Activities." The new standard establishes accounting and
reporting standards for derivative instruments, including certain derivative
instruments embedded in other contracts, (collectively referred to as
derivatives) and for hedging activities. SFAS No. 133 is effective for all
fiscal quarters of fiscal years beginning after June 15, 2000. Allaire does not
expect SFAS No. 133 to have a material affect on its financial position or
results of operations.
CERTAIN FACTORS THAT MAY AFFECT FUTURE RESULTS
ALLAIRE HAS SUBSTANTIAL NET LOSSES AND MAY NOT BE PROFITABLE IN THE FUTURE.
Allaire's limited operating history and the undeveloped nature of the market for
Web development products make predicting future revenue and operating results
difficult. Allaire has experienced substantial net losses in each fiscal year
since its inception and, as of December 31, 1999, had an accumulated deficit of
$36.7 million. These net losses and accumulated deficit resulted primarily from
the significant costs incurred in the development of Allaire's products and in
the preliminary establishment of its infrastructure. Although we recorded a
small profit for the quarter ended December 31, 1999, we cannot be certain that
we will continue to be profitable.
-25-
<PAGE> 9
DISAPPOINTING QUARTERLY REVENUE AND OPERATING RESULTS COULD CAUSE THE PRICE OF
ALLAIRE'S COMMON STOCK TO FALL. Allaire's quarterly revenue may fluctuate for
several reasons, including:
~ The market for web application server and packaged e-business
applications is in an early stage of development and it is therefore
difficult to accurately predict customer demand; and
~ The sales cycle for Allaire's products and services varies
substantially from customer to customer and, if Allaire's average
sales price continues to increase as expected, we expect the sales
cycle to lengthen. As a result, Allaire may have difficulty
determining whether and when we will receive license revenue from a
particular customer.
In addition, most of Allaire's expenses, such as employee compensation and rent,
are relatively fixed. Allaire's expense levels are based, in part, on its
expectations regarding future revenue increases. As a result, any shortfall in
revenue in relation to Allaire's expectations could cause significant changes in
its operating results from quarter to quarter and could result in quarterly
losses. If our quarterly operating results fall below the expectations of
investors or public market analysts, the price of our common stock could fall
substantially.
ALLAIRE OPERATES IN HIGHLY COMPETITIVE MARKETS AND MAY NOT BE ABLE TO COMPETE
EFFECTIVELY. The web application server and packaged e-business applications
market is intensely competitive and rapidly changing. Many of Allaire's current
and potential competitors have longer operating histories and substantially
greater financial, technical, marketing, distribution and other resources than
Allaire does and therefore may be able to respond more quickly than Allaire can
to new or changing opportunities, technologies, standards or customer
requirements. In the portion of the market with the highest product prices,
Allaire competes with large web and database platform companies that offer a
variety of software products. Allaire also competes with a number of
medium-sized and start-up companies that have introduced or that are developing
web application servers and packaged e-business applications. In the middle
range of the market where product prices are significantly lower, Allaire
competes primarily against Microsoft. Allaire expects that additional
competitors will enter the market with competing products as the size and
visibility of the market opportunity increases. Increased competition could
result in pricing pressures, reduced margins or the failure of Allaire's
products to achieve or maintain market acceptance.
If, in the future, a competitor chooses to bundle a competing web application
server or packaged e-business application with other products, the demand for
Allaire's products might be substantially reduced. In addition, new technologies
will likely increase the competitive pressures that Allaire faces. The
development of competing technologies by market participants or the emergence of
new industry standards may adversely affect Allaire's competitive position. As a
result of these and other factors, Allaire may not be able to compete
effectively with current or future competitors, which would have a material
adverse effect on its business, operating results and financial condition.
FUTURE SUCCESS WILL DEPEND ON ALLAIRE'S ABILITY TO MARKET AND SELL ALLAIRE
SPECTRA SUCCESSFULLY. Allaire expects that its future financial performance will
depend in part on sales of Allaire Spectra. Allaire announced the release of the
beta test version of Allaire Spectra on July 21, 1999 and began commercial
shipments in December 1999. Market acceptance of Allaire Spectra will depend on
the market for packaged e-business applications and customer demand for the
specific functionality of Allaire Spectra. If Allaire Spectra does not meet
customer needs or expectations, for whatever reason, Allaire's reputation could
be damaged, or it could be required to upgrade or enhance the product, which
could be costly and time consuming.
ALLAIRE'S FAILURE TO EXPAND ITS SALES FORCE AND DISTRIBUTION CHANNELS WOULD
ADVERSELY AFFECT ITS REVENUE GROWTH AND FINANCIAL CONDITION. To increase its
revenue, Allaire must increase the size of its sales force and the number of its
indirect channel partners, including original equipment manufacturers,
value-added resellers and systems integrators. A failure to do so could have a
material adverse effect on Allaire's business, operating results and financial
condition. There is intense competition for sales personnel in Allaire's
business, and there can be no assurance that Allaire will be successful in
attracting, integrating, motivating and retaining new sales personnel. Allaire's
existing or future channel partners may choose to devote greater resources to
marketing and supporting the products of other companies. In addition, Allaire
will need to resolve potential conflicts among its sales force and channel
partners.
ALLAIRE DEPENDS ON A SMALL NUMBER OF DISTRIBUTORS FOR A SIGNIFICANT PORTION OF
ITS REVENUE. Allaire derives a substantial portion of its revenue from a small
number of distributors. For the year ended December 31, 1999, revenue from the
indirect distribution channel accounted for 53% of Allaire's total revenue, and
one distributor, Ingram Micro, accounted for 37% of total revenue. For the year
ended December 31, 1998, revenue from Allaire's indirect distribution channel
accounted for 44% of total revenue and Ingram Micro accounted for 28% of total
revenue. The loss of, or a reduction in orders from, Ingram Micro or any other
significant distributor could have a material adverse effect on Allaire's
business, operating results and financial condition.
-26-
<PAGE> 10
ALLAIRE MAY EXPERIENCE LOST OR DELAYED SALES AS ITS SALES CYCLE LENGTHENS. A
longer sales cycle reduces Allaire's ability to forecast revenue levels and may
result in lost sales. Any delay or loss in sales of Allaire's products could
have a material adverse effect on its business, operating results and financial
condition, and could cause operating results to vary significantly from quarter
to quarter. As Allaire increases its sales and marketing focus on larger sales
to businesses and other large organizations, it expects that increased
executive-level involvement of information technology officers and other senior
managers of its customers will be required. Potential large sales may be
delayed, or lost altogether, because Allaire will have to provide a more
comprehensive education to prospective customers regarding the use and benefits
of its products. Allaire's customers' purchase decisions may be subject to
delays over which Allaire may have little or no control.
IF ALLAIRE IS UNABLE TO CONTINUE LICENSING TECHNOLOGY FOR ITS PRODUCTS FROM
THIRD PARTIES, ITS PRODUCT DEVELOPMENT EFFORTS COULD BE DELAYED. Allaire
licenses technology that is incorporated into its products from third parties.
The loss of access to this technology could result in delays in Allaire's
development and introduction of new products or enhancements until equivalent or
replacement technology could be accessed, if available, or developed internally,
if feasible. These delays could have a material adverse effect on its business,
operating results and financial condition. In light of the rapidly evolving
nature of web technology and Allaire's strategy to pursue industry partnerships,
Allaire believes that it will increasingly need to rely on technology from third
party vendors, such as Microsoft, which may also be competitors. There can be no
assurance that technology from others will continue to be available to Allaire
on commercially reasonable terms, if at all.
ALLAIRE'S FAILURE TO PROPERLY MANAGE ITS GROWTH COULD STRAIN ITS RESOURCES AND
ADVERSELY AFFECT ITS BUSINESS. Allaire's failure to manage its rapid growth
could have a material adverse effect on the quality of its products, its ability
to retain key personnel and its business, operating results and financial
condition. Allaire's revenue increased 158% for the year ended December 31, 1999
from the same period in 1998. The number of Allaire's employees increased from
93 at January 1, 1998 to 270 at January 1, 2000. To manage future growth
effectively Allaire must maintain and enhance its financial and accounting
systems and controls, integrate new personnel and manage expanded operations.
ALLAIRE'S BUSINESS COULD BE ADVERSELY AFFECTED IF ITS PRODUCTS FAIL TO PERFORM
PROPERLY. Software products as complex as Allaire's may contain undetected
errors or "bugs," which result in product failures or security breaches or
otherwise fail to perform in accordance with customer expectations. Errors in
certain of Allaire's products have been detected after the release of the
product. The occurrence of errors could result in loss of or delay in revenue,
loss of market share, failure to achieve market acceptance, diversion of
development resources, injury to Allaire's reputation, or damage to its efforts
to build brand awareness, any of which could have a material adverse effect on
its business, operating results and financial condition. In addition, any
failure in a customer's web application developed and deployed with Allaire's
products could result in a claim for substantial damages against Allaire,
regardless of Allaire's responsibility for the failure. Although Allaire
maintains general liability insurance, including coverage for errors and
omissions, there can be no assurance that its existing coverage will continue to
be available on reasonable terms or will be available in amounts sufficient to
cover one or more large claims, or that the insurer will not disclaim coverage
as to any future claim.
QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
As of December 31, 1999, Allaire was exposed to market risks which primarily
include changes in U.S. interest rates. Allaire maintains a significant portion
of its cash and cash equivalents and short-term investments in financial
instruments with purchased maturities of 12 months or less. We do not hold
derivative financial instruments or equity securities in our investment
portfolio. Our cash equivalents and short-term investments consist of
high-quality corporate and government debt. These financial instruments are
subject to interest rate risk and will decline in value if interest rates
increase. Due to the short duration of these financial instruments, an immediate
increase in interest rates would not have a material effect on Allaire's
financial condition or results of operations.
-27-
<PAGE> 11
CONSOLIDATED BALANCE SHEET
<TABLE>
<CAPTION>
December 31,
(In thousands, except share and per share data) 1998 1999
-------- ---------
ASSETS
Current assets:
<S> <C> <C>
Cash and cash equivalents ......................................................................... $ 3,247 $ 106,624
Short-term investments ............................................................................ 496 12,405
Accounts receivable, net of allowance for doubtful accounts and sales returns
of $502 and $701 at December 31, 1998 and 1999, respectively ............................... 3,196 7,926
Prepaid expenses and other current assets ......................................................... 1,094 1,028
-------- ---------
Total current assets .................................................................... 8,033 127,983
Property and equipment, net ....................................................................... 4,300 4,948
Other assets, net ................................................................................. 375 609
-------- ---------
Total assets ........................................................................................... $ 12,708 $ 133,540
======== =========
LIABILITIES, REDEEMABLE CONVERTIBLE PREFERRED STOCK
AND STOCKHOLDERS' EQUITY (DEFICIT)
Current liabilities:
Current portion of capital lease obligations ...................................................... $ 340 $ 159
Promissory notes .................................................................................. 1,500 --
Current portion of notes payable .................................................................. 1,564 488
Accounts payable .................................................................................. 3,326 3,358
Accrued expenses .................................................................................. 3,963 8,536
Accrued employee compensation and benefits ........................................................ 2,238 6,591
Deferred revenue .................................................................................. 4,793 11,937
-------- ---------
Total current liabilities ............................................................... 17,724 31,069
Capital lease obligations .............................................................................. 159 --
Notes payable .......................................................................................... 1,034 547
-------- ---------
Total liabilities ....................................................................... 18,917 31,616
-------- ---------
Commitments and contingencies (Note 14)
Redeemable convertible preferred stock:
Series B, $.01 par value;
Authorized: 514,306 shares at December 31, 1998, none at December 31, 1999
Issued and outstanding: 514,306 shares at December 31, 1998, none at December 31, 1999 ...... 2,325 --
Series C, $.01 par value;
Authorized: 169,200 shares at December 31, 1998, none at December 31, 1999
Issued and outstanding: 169,200 shares at December 31, 1998, none at December 31, 1999 ....... 1,000 --
Series D, $.01 par value;
Authorized: 2,500,000 shares at December 31, 1998, none at December 31, 1999
Issued and outstanding: 2,336,909 shares at December 31, 1998, none at December 31, 1999 ..... 9,348 --
-------- ---------
Total redeemable convertible preferred stock ........................................................... 12,673 --
-------- ---------
Stockholders' equity (deficit):
Preferred stock, $.01 par value; Authorized: none at December 31, 1998, 5,000,000 shares
at December 31, 1999
Series A convertible preferred stock, $.01 par value;
Authorized: 200,000 shares at December 31, 1998, none at December 31, 1999
Issued and outstanding: 88,463 at December 31, 1998, none at December 31, 1999 ............... 751 --
Common stock, $.01 par value;
Authorized: 35,000,000 shares at December 31, 1998 and December 31, 1999
Issued and outstanding: 9,718,768 shares issued and 9,711,934 outstanding at
December 31, 1998; 26,849,532 issued and 26,816,312 outstanding at December 31, 1999 .... 97 268
Additional paid-in capital ........................................................................ 12,316 139,050
Accumulated deficit ............................................................................... (31,170) (36,746)
Deferred compensation ............................................................................. (850) (638)
Stock subscriptions receivable .................................................................... (26) (10)
-------- ---------
Total stockholders' equity (deficit) ................................................................... (18,882) 101,924
-------- ---------
Total liabilities, redeemable convertible preferred stock and stockholders' equity (deficit) ........... $ 12,708 $ 133,540
======== =========
</TABLE>
See Accompanying Notes to Consolidated Financial Statements
-28-
<PAGE> 12
CONSOLIDATED STATEMENT OF OPERATIONS
<TABLE>
<CAPTION>
Year ended December 31,
(In thousands, except per share data) 1997 1998 1999
--------- --------- ---------
<S> <C> <C> <C>
Revenue:
Software license fees .................................... $ 7,133 $ 17,966 $ 45,555
Services ................................................. 655 3,396 9,608
--------- --------- ---------
Total revenue ....................................... 7,788 21,362 55,163
--------- --------- ---------
Cost of revenue:
Software license fees .................................... 973 1,937 2,525
Services ................................................. 1,452 4,057 7,480
--------- --------- ---------
Total cost of revenue ............................... 2,425 5,994 10,005
--------- --------- ---------
Gross profit ..................................................... 5,363 15,368 45,158
--------- --------- ---------
Operating expenses:
Research and development ................................. 4,984 8,027 12,873
Sales and marketing ...................................... 8,820 19,135 30,294
General and administrative ............................... 3,410 4,946 7,148
Stock-based compensation ................................. -- 412 263
Merger costs ............................................. -- -- 2,930
--------- --------- ---------
Total operating expenses ............................ 17,214 32,520 53,508
--------- --------- ---------
Loss from operations ............................................. (11,851) (17,152) (8,350)
Interest income, net ............................................. 315 13 2,811
--------- --------- ---------
Net loss ......................................................... $ (11,536) $ (17,139) $ (5,539)
========= ========= =========
Basic and diluted net loss per share ............................. $ (2.67) $ (2.39) $ (0.24)
Shares used in computing basic and diluted net loss per share .... 4,316 7,175 22,771
</TABLE>
-29-
<PAGE> 13
CONSOLIDATED STATEMENT OF REDEEMABLE CONVERTIBLE
PREFERRED STOCK AND STOCKHOLDERS' EQUITY (DEFICIT)
<TABLE>
<CAPTION>
Redeemable |
Convertible | Convertible
Preferred Stock | Preferred Stock Common Stock Additional
---------------------- | ------------------- ------------------ Paid-In
(In thousands, except share data) Shares Amount | Shares Amount Shares Par Value Capital
- --------------------------------- ------ ------ | ------ ------ ------ --------- -------
<S> <C> <C> | <C> <C> <C> <C> <C>
Balance, December 31, 1996 ......................... 593,449 $ 2,800 | 43,557 $ 177 6,091,140 $ 61 $ 342
Stock issued by pooled companies, net .............. | 1,270,730 13 10,208
Issuance of Series A convertible preferred |
stock in acquisition of Bradbury |
Software L.L.C. ............................... | 13,000 78
Issuance of Series C redeemable convertible |
preferred stock ............................... 84,600 500 |
Issuance of Series B redeemable convertible |
preferred stock ............................... 5,457 25 |
Issuance of Series D redeemable convertible |
preferred stock,net of issuance costs |
of $42 ........................................ 2,272,719 9,091 |
Issuance of Series D redeemable convertible |
preferred stock upon conversion of notes |
payable and accrued interest .................. 64,190 257 |
Repayment of stock subscription receivable ......... |
Net loss ........................................... |
--------- --------- | ------ ------ --------- ---- --------
Balance, December 31, 1997 ......................... 3,020,415 12,673 | 56,557 255 7,361,870 74 10,550
Stock issued by pooled companies, net .............. | 64,726 1 (13)
Issuance of Series A convertible preferred |
stock, net of issuance costs of $9 ............ | 31,906 496
Exercise of employee stock options ................. | 2,292,172 22 519
Repurchase of common stock held in treasury ........ | (2)
Deferred compensation relating to grants of |
stock options ................................. | 997
Compensation relating to grants of stock |
options ....................................... | 265
Dividend paid to shareholder ....................... |
Net loss ........................................... |
--------- --------- | ------ ------ --------- ---- --------
Balance, December 31, 1998 ......................... 3,020,415 12,673 | 88,463 751 9,718,768 97 12,316
Pooling of interests with Valto (Note 4) ........... | 450,000 4 (4)
Stock issued by pooled companies ................... | 212,322 2 1,969
Conversion of redeemable convertible preferred |
stock and convertible preferred stock to |
common stock .................................. (3,020,415) (12,673) | (88,463) (751) 7,697,882 77 13,347
Issuance of common stock in initial public |
offering, net of issuance costs of $5,200 ..... | 5,750,000 58 52,271
Issuance of common stock in follow-on public |
offering, net of issuance costs of $3,910 ..... | 2,000,000 20 58,070
Exercise of employee stock options ................. | 1,020,560 10 1,042
Repurchase of common stock held in treasury ........ | (12)
Deferred compensation relating to grants of |
stock options ................................. | 125
Compensation relating to grants of stock options ... | (74)
Repayment of stock subscription receivable ......... |
Net loss ........................................... |
--------- --------- | ------ ------ --------- ---- --------
Balance, December 31, 1999 ......................... - $ - | - $ - 26,849,532 $268 $139,050
========= ========= | ====== ====== ========== ==== ========
</TABLE>
See Accompanying Notes to Consolidated Financial Statements
-30-
<PAGE> 14
<TABLE>
<CAPTION>
Stock Total
Deferred Accumulated Subscriptions Stockholders'
(In thousands, except share data) Compensation Deficit Receiveable Equity (Deficit)
- --------------------------------- ------------ ------- ----------- ----------------
<S> <C> <C> <C> <C>
Balance, December 31, 1996 ......................... $ -- $ (2,307) $ (20) $ (1,747)
Stock issued by pooled companies, net .............. 10,221
Issuance of Series A convertible preferred
stock in acquisition of Bradbury
Software L.L.C. ............................... 78
Issuance of Series C redeemable convertible
preferred stock ...............................
Issuance of Series B redeemable convertible
preferred stock ...............................
Issuance of Series D redeemable convertible
preferred stock,net of issuance costs
of $42 ........................................ (42) (42)
Issuance of Series D redeemable convertible
preferred stock upon conversion of notes
payable and accrued interest ..................
Repayment of stock subscription receivable ......... 4 4
Net loss ........................................... (11,536) (11,536)
---- --------- ----- ---------
Balance, December 31, 1997 ......................... -- (13,885) (16) (3,022)
Stock issued by pooled companies, net .............. (10) (22)
Issuance of Series A convertible preferred
stock, net of issuance costs of $9 ............ 496
Exercise of employee stock options ................. 541
Repurchase of common stock held in treasury ........ (2)
Deferred compensation relating to grants of
stock options ................................. (997) --
Compensation relating to grants of stock
options ....................................... 147 412
Dividend paid to shareholder ....................... (146) (146)
Net loss ........................................... (17,139) (17,139)
---- --------- ----- ---------
Balance, December 31, 1998 ......................... (850) (31,170) (26) (18,882)
Pooling of interests with Valto (Note 4) ........... (37) (37)
Stock issued by pooled companies ................... 1,971
Conversion of redeemable convertible preferred
stock and convertible preferred stock to
common stock .................................. 12,673
Issuance of common stock in initial public
offering, net of issuance costs of $5,200 ..... 52,329
Issuance of common stock in follow-on public
offering, net of issuance costs of $3,910 ..... 58,090
Exercise of employee stock options ................. 1,052
Repurchase of common stock held in treasury ........ (12)
Deferred compensation relating to grants of
stock options ................................. (125) --
Compensation relating to grants of stock options ... 337 263
Repayment of stock subscription receivable ......... 16 16
Net loss ........................................... (5,539) (5,539)
----- --------- ----- ---------
Balance, December 31, 1999 ......................... $(638) $ (36,746) $ (10) $ 101,924
===== ========= ===== =========
</TABLE>
See Accompanying Notes to Consolidated Financial Statements
-31-
<PAGE> 15
<TABLE>
<CAPTION>
CONSOLIDATED STATEMENT OF CASH FLOWS
YEAR ENDED DECEMBER 31,
(In thousands, except share data) 1997 1998 1999
--------- --------- ----------
<S> <C> <C> <C>
Cash flows from operating activities:
Net loss $(11,536) $(17,139) $ (5,539)
Adjustments to reconcile net loss to net cash provided by (used for)
operating activities:
Depreciation and amortization 875 1,801 3,105
Interest converted into shares of preferred stock 5 -- --
Compensation expense relating to issuance of equity instruments -- 412 263
Changes in assets and liabilities:
Accounts receivable (815) (1,764) (4,730)
Prepaid expenses and other current assets (149) (858) 66
Other assets (68) (237) (465)
Accounts payable 1,310 1,514 32
Accrued expenses 2,233 3,571 8,411
Deferred revenue 1,204 3,481 7,111
-------- -------- ---------
Total adjustments 4,595 7,920 13,793
-------- -------- ---------
Net cash provided by (used for) operating activities (6,941) (9,219) 8,254
-------- -------- ---------
Cash flows from investing activities:
Purchases of short-term investments (8,817) (6,283) (80,422)
Proceeds from sales of short-term investments 4,100 10,504 68,513
Purchases of property and equipment (2,502) (2,720) (3,511)
Payment for acquisition of Bradbury Software L.L.C (252) -- --
-------- -------- ---------
Net cash provided by (used for) investing activities (7,471) 1,501 (15,420)
-------- -------- ---------
Cash flows from financing activities:
Proceeds from sale leaseback transaction 421 -- --
Proceeds from issuance of promissory notes -- 1,500 --
Principal payments on promissory notes -- -- (1,500)
Principal payments on capital lease obligations (165) (315) (340)
Proceeds from issuance of convertible notes payable 252 -- --
Proceeds from issuance of notes payable 808 1,891 --
Principal payments on notes payable (33) (168) (1,563)
Proceeds from sale of common stock 10,146 519 113,942
Proceeds from sale of redeemable convertible preferred stock, net of issuance costs 9,574 -- --
Proceeds from sale of convertible preferred stock, net of issuance costs -- 496 --
Payments to acquire treasury stock -- (2) (12)
Payment received on stock subscription receivable 4 -- 16
Payment of dividend to shareholders -- (146) --
-------- -------- ---------
Net cash provided by financing activities 21,007 3,775 110,543
-------- -------- ---------
Net increase (decrease) in cash and cash equivalents 6,595 (3,943) 103,377
Cash and cash equivalents, beginning of year 595 7,190 3,247
-------- -------- ---------
Cash and cash equivalents, end of year $ 7,190 $ 3,247 $ 106,624
======== ======== =========
Supplemental disclosure of cash flow information:
Cash paid for interest $ 75 $ 258 $ 325
Supplemental disclosure of non-cash investing and financing activities:
Series A convertible preferred stock issued in acquisition of Bradbury Software L.L.C $ 78 $ -- $ --
Conversion of note payable and related accrued interest of $5 into
64,190 shares of Series D redeemable convertible preferred stock $ 252 $ -- $ --
Capital lease obligations $ 979 $ -- $ --
Common stock issued for property and equipment $ 75 $ -- $ --
Conversion of redeemable convertible preferred stock to common stock $ -- $ -- $ 12,673
Conversion of Series A into common stock $ -- $ -- $ 751
Common stock issued in acquisition of Valto $ -- $ -- $ 2
</TABLE>
See Accompanying Notes to Consolidated Financial Statements
-32-
<PAGE> 16
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1: NATURE OF THE BUSINESS AND BASIS OF PRESENTATION
Allaire Corporation develops, markets and supports Web application servers and
related software products that enable the development and deployment of
sophisticated e-business Web sites and applications. Allaire's products
interoperate with emerging Web application technologies as well as key
enterprise information systems technologies, and include features and tools that
increase the productivity of Web developers.
Allaire was incorporated in the state of Minnesota in February 1996 as the
surviving entity of a reorganization of Allaire, L.L.C., a Minnesota limited
liability company originally formed in May 1995. At the time of the
reorganization, the members of Allaire, L.L.C. exchanged their existing
ownership interests for a proportionate number of shares of Allaire's common
stock and substantially all assets and liabilities of Allaire, L.L.C. were
transferred to Allaire at historical cost. In April 1997, Allaire was
reorganized as a Delaware corporation.
The consolidated financial statements include the accounts of Allaire and its
subsidiaries. All significant intercompany transactions have been eliminated.
Certain 1997 and 1998 amounts have been reclassified to conform to the 1999
method of presentation.
As described in Note 4, during 1999 Allaire completed three acquisitions, all of
which were accounted for as poolings of interests. Accordingly, the accompa
nying financial statements and notes have been restated for all periods
presented to include the two material poolings of interests acquisitions.
Allaire operates in one industry segment and is subject to risks and
uncertainties common to growing technology-based companies, including rapid
technological change, growth and commercial acceptance of the Internet,
dependence on principal products and third party technology, new product
development, new product introductions and other activities of competitors,
dependence on key personnel, reliance on a limited number of distributors,
international expansion, lengthening sales cycle and limited operating history.
2: SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
CASH, CASH EQUIVALENTS AND SHORT TERM INVESTMENTS Allaire considers all highly
liquid investments purchased with an original maturity of three months or less
to be cash equivalents. Allaire invests its excess cash, cash equivalents and
short term investments in money market funds, commercial paper and U.S. Treasury
securities which are subject to minimal credit and market risk. Allaire's cash
equivalents and short term investments are classified as available-for-sale and
recorded at amortized cost which approximates fair value. Gross unrealized and
realized gains or loss on sales of securities as of December 1998 and 1999 and
for the years ended December 31, 1997, 1998 and 1999 were not significant.
REVENUE RECOGNITION Allaire recognizes revenue from software license fees upon
delivery to customers provided no significant post-delivery obligations or
uncertainties remain and collection of the related receivable is probable.
Revenue under arrangements where multiple products or services are sold together
under one contract is allocated to each element based on their relative fair
values, with these fair values being determined using the price charged when
that element is sold separately. For arrangements that include specified upgrade
rights, the fair value of such upgrade right is deferred until the specified
upgrade is delivered. Allaire provides most of its distributors with certain
rights of return. An allowance for estimated future returns is recorded at the
time revenue is recognized based on Allaire's return policies and historical
experience. Allaire offers subscriptions that entitle customers to all new
releases for a specific product during the term of the subscription agreement.
Revenue from subscription sales is recognized ratably over the term of the
subscription agreement. Training and consulting services revenue is recognized
as services are rendered, and revenue under support agreements is recognized
ratably over the term of the support agreement. Revenue from long-term
consulting and service contracts are recognized over the term of the contract
using the percentage of completion method of accounting, based upon the
proportion of costs incurred to total estimated costs at completion.
FAIR VALUE OF FINANCIAL INSTRUMENTS The carrying amounts of Allaire's financial
instruments, which include cash equivalents, short term investments, accounts
receivable, accounts payable, accrued expenses, and notes payable, approximate
their fair values at December 31, 1999.
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<PAGE> 17
CONCENTRATIONS OF CREDIT RISK AND SIGNIFICANT CUSTOMERS Financial instruments
which potentially expose Allaire to concentrations of credit risk consist
primarily of trade accounts receivable. To minimize this risk, ongoing credit
evaluations of customers' financial condition are performed, although collateral
generally is not required. One customer accounted for 43% and 37% of gross
accounts receivable at December 31, 1998 and 1999, respectively. In addition,
this same customer accounted for 28% and 37% of total revenue for the years
ended December 31, 1998 and 1999, respectively. No single customer accounted for
10% of total revenue for the year ended December 31, 1997. Allaire maintains
reserves for potential credit losses and such losses, in the aggregate,
historically have not exceeded existing reserves.
RESEARCH AND DEVELOPMENT AND SOFTWARE DEVELOPMENT COSTS Costs incurred in the
research and development of Allaire's products are expensed as incurred, except
for certain software development costs. Costs associated with the development of
computer software are expensed prior to the establishment of technological
feasibility (as defined by Statement of Financial Accounting Standards ("SFAS")
No. 86, "Accounting for the Costs of Computer Software to be Sold, Leased or
Otherwise Marketed") and capitalized thereafter when material to Allaire's
financial position or results of operations. Allaire has capitalized no software
development costs since costs eligible for capitalization under SFAS No. 86 have
been insignificant.
PROPERTY AND EQUIPMENT Property and equipment are recorded at cost and
depreciated over their estimated useful lives, generally three to five years,
using the straight-line method. Equipment held under capital leases are stated
at the lower of fair market value of the related asset or the present value of
the minimum lease payments at the inception of the lease and are amortized on a
straight-line basis over the shorter of the life of the related asset or the
lease term. Repair and maintenance costs are expensed as incurred.
ACCOUNTING FOR STOCK-BASED COMPENSATION Allaire accounts for stock-based awards
to employees using the intrinsic value method as prescribed by Accounting
Principles Board ("APB") Opinion No. 25, "Accounting for Stock Issued to
Employees," and related interpretations. Accordingly, no compensation expense is
recorded for options issued to employees in fixed amounts and with fixed
exercise prices at least equal to the fair market value of Allaire's common
stock at the date of grant. Allaire has adopted the provisions of SFAS No. 123,
"Accounting for Stock-Based Compensation," through disclosure only (Note 10).
All stock-based awards to non-employees are accounted for at their fair value in
accordance with SFAS No. 123.
INCOME TAXES Prior to its reorganization as a C Corporation in February 1996
(Note 1), Allaire was treated as a partnership for federal and state income tax
purposes. Accordingly, no provision for corporate income taxes was recorded
during this period and all losses were passed through to Allaire's members. At
the time of its reorganization, Allaire adopted the liability method of
accounting for income taxes as set forth in SFAS No. 109, "Accounting for Income
Taxes."
ADVERTISING EXPENSE Allaire recognizes advertising expense as incurred.
Advertising expense was $842,000, $1,021,000 and $4,052,000 for the years ended
December 31, 1997, 1998 and 1999, respectively.
USE OF ESTIMATES The preparation of financial statements in conformity with
generally accepted accounting principles requires management to make estimates
and assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenues and expenses during the
reporting period. Actual results could differ from those estimates.
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<PAGE> 18
NET LOSS PER SHARE Net loss per share is computed under SFAS No. 128, "Earnings
Per Share." Basic net loss per share is computed using the weighted average
number of shares of common stock outstanding, excluding shares of common stock
subject to repurchase. Diluted net loss per share does not differ from basic net
loss per share since potential common shares from conversion of preferred stock,
stock options and warrants and outstanding shares of common stock subject to
repurchase are anti-dilutive for all periods presented. Pro forma basic and
diluted net loss per share have been calculated assuming the conversion of all
outstanding shares of preferred stock into common stock, as if the shares had
converted immediately upon their issuance. Unaudited pro forma basic and diluted
net loss per share for the years ended December 31, 1998 and 1999 was $(1.10)
and $(0.24), respectively. Shares used in computing unaudited pro forma basic
and diluted net loss per share for the years ended December 31, 1998 and 1999
were 15,577,000 and 23,234,000, respectively.
COMPREHENSIVE INCOME Allaire adopted SFAS No. 130 in 1998. SFAS No. 130
requires that a full set of general purpose financial statements be
expanded to include the reporting of "comprehensive income". Comprehensive
income is comprised of two components, net income and other comprehensive
income. During the years ended December 31, 1997, 1998, and 1999, Allaire had
no items qualifying as other comprehensive income; accordingly, the adoption
of SFAS No. 130 had no impact on Allaire's financial statements.
RECENTLY ISSUED ACCOUNTING PRONOUNCEMENTS In June 1998, the FASB issued SFAS No.
133, "Accounting for Derivative Instruments and Hedging Activities." The new
standard establishes accounting and reporting standards for derivative
instruments, including certain derivative instruments embedded in other
contracts, (collectively referred to as derivatives) and for hedging activities.
SFAS No. 133 is effective for all fiscal quarters of fiscal years beginning
after June 15, 2000. Allaire does not expect SFAS No. 133 to have a material
affect on its financial position or results of operations.
3. PUBLIC OFFERINGS
In January 1999, Allaire sold 5,750,000 shares of its common stock through an
initial public offering. Net proceeds from the offering were approximately $52.3
million after deducting the underwriting discount and other offering expenses.
At the time of the initial public offering, all of Allaire's outstanding
preferred stock automatically converted into 7,697,882 shares of common stock.
In September 1999, Allaire sold 2,000,000 shares of common stock and selling
stockholders sold 2,800,000 shares of common stock through a follow-on public
offering. The Company's net proceeds from the offering were approximately $58.1
million after deducting the underwriting discount and other offering expenses.
Proceeds from the transaction were received by Allaire in October 1999.
4. ACQUISITIONS
ACQUISITION OF BRADBURY SOFTWARE L.L.C. In March 1997, Allaire acquired the
business and substantially all of the assets of Bradbury Software L.L.C.
("Bradbury"), including all rights to Bradbury's HomeSite software product, in
exchange for $252,000 in cash and 13,000 shares of Allaire's Series A
convertible preferred stock valued at $78,000. The Bradbury acquisition was
accounted for under the purchase method of accounting. Accordingly, the purchase
price was allocated based upon the fair value of assets acquired and liabilities
assumed. The excess of the purchase price over the fair value of the net assets
acquired totaled $315,000. This amount has been included in other assets and is
being amortized using the straight-line method over a three-year period.
Amortization expense relating to this excess purchase price totaled $88,000,
$105,000 and $105,000 for the years ended December 31, 1997, 1998 and 1999,
respectively. The operating results of Bradbury have been included in the
financial statements since the date of the acquisition. Pro forma presentations
have not been included, as the acquisition was not material to the results of
operations of Allaire.
The former owner of Bradbury was entitled to additional cash payments of up to
$165,000, depending on the length of time he remains employed by Allaire. During
the years ended December 31, 1997 and 1998, a total of $82,000 and $83,000,
respectively, was earned and recorded as compensation expense under this
arrangement.
In order to finance the Bradbury acquisition, Allaire issued 10%
convertible notes payable totaling $252,000 and warrants to purchase 12,600
shares of Allaire's common stock at a price of $2.00 per share to two
stockholders (Note 9). All principal and accrued interest of $5,000 on these
notes was converted into 64,190 shares of Series D preferred stock in May 1997.
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<PAGE> 19
ACQUISITIONS OF BRIGHT TIGER AND LIVE SOFTWARE On April 12, 1999, Allaire
completed its acquisition of Bright Tiger Technologies, Inc. ("Bright Tiger"), a
Massachusetts company that develops and markets Web site resource management
software. In connection with the transaction, Allaire issued 577,166 shares of
its common stock for all of the issued and outstanding shares of Bright Tiger.
On June 25, 1999, Allaire completed its acquisition of Live Software, Inc.
("Live Software"), a California company that develops, markets and supports
server-side Java development and deployment technology. In connection with the
transaction, Allaire issued 1,056,752 shares of its common stock for all the
issued and outstanding shares of Live Software. These mergers were accounted for
as poolings of interests. Accordingly, Allaire's consolidated financial
statements have been restated to include the accounts and operations of Bright
Tiger and Live Software for all periods presented.
Revenues and net income of the combined entities for the three-month period
prior to these mergers are presented in the following table. Prior to these
mergers during the quarter ended March 31, 1999, the companies had intercompany
sales of $40,000. The intercompany sales have been eliminated and certain
amounts in the merged companies' financial statements were reclassified to
conform to Allaire's presentations.
Pro Forma Results
Three Months Ended March 31, 1999
-----------
Revenue: (unaudited)
Allaire $ 7,836,000
Bright Tiger 168,000
Live Software 693,000
-----------
Combined $ 8,697,000
===========
Net Income (Loss):
Allaire $(1,684,000)
Bright Tiger (1,199,000)
Live Software 267,000
-----------
Combined $(2,616,000)
===========
The following table represents a reconciliation of net revenues and net loss
previously reported by the combining companies to those presented in the
accompanying consolidated financial statements. Prior to the merger, during
1998, the companies had intercompany sales of $140,000. The intercompany sales
have been eliminated.
Years ended December 31, 1997 1998
------------ ------------
Revenue:
Allaire $ 7,650,000 $ 20,512,000
Bright Tiger 18,000 352,000
Live Software 120,000 498,000
------------ ------------
Combined $ 7,788,000 $ 21,362,000
============ ============
Net Income (Loss):
Allaire $ (7,425,000) $(10,770,000)
Bright Tiger (4,123,000) (6,342,000)
Live Software 12,000 (27,000)
------------ ------------
Combined $(11,536,000) $(17,139,000)
============ ============
ACQUISITION OF VALTO SYSTEMS On December 23, 1999, Allaire completed its
acquisition of Valto Systems, a Massachusetts company that develops and markets
Enterprise JavaBeans (EJB) server technology. In connection with the
transaction, Allaire issued 450,000 shares of its common stock for all the
issued and outstanding shares of Valto Systems. This merger was accounted as a
pooling of interests. Acquired net liabilities of approximately $37,000 have
been recorded at historical amounts. Prior periods were not restated due to
immateriality, and accordingly, results of operations have been included since
the date of acquisition.
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<PAGE> 20
5. INVESTMENT IN ALIVE.COM, INC.
In July 1998, Allaire entered into an agreement under which it contributed
certain non-core technology and agreed to provide certain services to Alive.com,
Inc. ("Alive.com" formerly known as Yesler Software, Inc.) in exchange for
907,591 shares of Alive.com's voting common stock, representing approximately
34% of the outstanding capital stock of Alive.com at that time. Subsequently,
Allaire transferred 76,903 shares of Alive.com common stock to three of its
employees. The value of the shares transferred was not material at the date
transferred. Of the shares acquired, an aggregate of 605,060 shares are subject
to repurchase at a price of $0.10 per share under certain circumstances. The
number of shares subject to this repurchase right will be reduced quarterly over
a three-year period. Allaire has no obligation to fund the future operations of
Alive.com. In December 1999, Alive.com merged with Loudeye Tecnologies, Inc. At
the time of the merger, Allaire owned approximately 16% of the outstanding
capital stock of Alive.com. Allaire will account for its investment in Loudeye
Tecnologies, Inc. under the cost method.
6. PROPERTY AND EQUIPMENT
Property and equipment consist of the following:
December 31, 1998 1999
----------- -----------
Furniture and fixtures $ 1,194,000 $ 1,690,000
Furniture and fixtures under capital lease 78,000 78,000
Equipment 3,382,000 5,491,000
Equipment under capital lease 843,000 843,000
Software 599,000 799,000
Leasehold improvements 401,000 840,000
Construction in progress -- 214,000
----------- -----------
6,497,000 9,955,000
Less: Accumulated depreciation and amortization (2,197,000) (5,007,000)
----------- -----------
$ 4,300,000 $ 4,948,000
=========== ===========
Depreciation and amortization expense for the years ended December 31, 1997,
1998 and 1999 was $582,000, $1,607,000 and $2,874,000, respectively.
CAPITAL LEASE During 1997, Allaire sold and immediately leased back certain
equipment under the Capital Lease Line. The loss on this sale leaseback
transaction was recorded in 1997 and was not material to Allaire's results of
operations. Amortization of property and equipment under capital leases totaled
$181,000, $297,000, and $307,000 for the years ended December 31, 1997, 1998 and
1999, respectively. Accumulated amortization on property and equipment under
capital lease totaled $478,000 at December 31, 1998 and $785,000 at December 31,
1999. Interest expense relating to capital lease obligations totaled $38,000,
$51,000 and $26,000 for the years ended December 31, 1997, 1998 and 1999,
respectively.
7. LINES OF CREDIT
WORKING CAPITAL LINE At December 31, 1999, Allaire was party to a line of credit
agreement which provided for borrowings of up to $12,500,000 for working capital
purposes and for the issuance of letters of credit. Amounts available under the
line were determined based upon eligible accounts receivable. All borrowings and
letters of credit were collateralized by substantially all of Allaire's assets
and all borrowings bore interest at the bank's prime rate (8.50% as of December
31, 1999). As of December 31, 1999, letters of credit totaling $4,725,500 had
been issued against the line and $7,774,500 was available for additional
borrowings. The line of credit requires the maintenance of certain minimum
financial ratios and conditions. The line of credit expires in November 2000.
-37-
<PAGE> 21
EQUIPMENT CREDIT LINE In December of 1996, Bright Tiger entered into, and in
July 1997 amended and restated, an equipment loan line agreement with a bank,
under which Bright Tiger may borrow up to $875,000 for purchases of equipment,
subject to certain limitations. In June 1998, Bright Tiger entered into a second
agreement with the bank for an additional equipment loan line of $500,000
subject to the same limitations. All borrowings under these lines of credit are
collateralized by substantially all of Bright Tiger's assets and bear interest
at the bank's prime rate plus 3/4% (8.50% at December 31, 1998). The terms of
the lines of credit include certain covenants requiring the maintenance of
specified financial ratios and restrictions on Bright Tiger's ability to sell or
transfer fixed assets and to declare or pay dividends to its stockholders. As of
December 31, 1998, Bright Tiger was not in compliance with the covenants
relating to the maintenance of certain financial ratios. Accordingly, the
outstanding balance under the lines of credit was immediately callable by the
bank and has been classified as a current liability in its entirety. At December
31, 1998, $1,145,900 was outstanding under the aforementioned lines of credit.
The credit line was paid in full in April 1999.
EQUIPMENT LOAN LINE In May 1998, Allaire entered into an equipment loan line
agreement (the "Equipment Loan Line") under which Allaire was able to borrow up
to $2,000,000 to finance fixed asset purchases through December 1998. The
initial term of each loan is 36 months from the borrowing date. Monthly payments
are equal to 3.155% of the original amount borrowed, for an effective interest
rate of approximately 15%. At the end of term, Allaire may choose to make one
additional payment of 15% of the original amount funded or, if no default has
occurred, the term may be extended for an additional 6 months at the original
monthly payment rate. The Equipment Loan Line contains no financial covenants
and there are no cross-default provisions in connection with the equipment and
working capital line described above. All borrowings are collateralized by the
purchased assets. Allaire borrowed $1,406,000 in June 1998 and $214,000 in
November 1998 under the Equipment Loan Line, which was collateralized by
previously purchased equipment. The Equipment Loan Line expired in December
1998. At December 31, 1999, annual cash payments on the borrowings under the
Equipment Loan Line are as follows:
2000 $ 613,000
2001 583,000
----------
Total cash payments 1,196,000
Less-amount representing interest 161,000
----------
Present value of notes payable $1,035,000
==========
PROMISSORY NOTES In November 1998, Bright Tiger issued promissory notes to
existing investors of Bright Tiger in exchange for $1,500,000 in cash proceeds.
These notes bear interest at 8% per year, and the principal and accrued interest
of the notes are payable upon demand by their holders. These notes contain
conversion rights whereby the holders of the notes may apply the unpaid
principal and interest under the notes to the purchase of equity securities of
Bright Tiger. The promissory notes were paid in full in April 1999.
8. PREFERRED STOCK
The holders of the Series A, Series B, Series C and Series D preferred stock
(the "Preferred Stock") are hereinafter referred to collectively as the
"Preferred Stockholders" and the holders of the Series B, Series C and Series D
preferred stock (the "Redeemable Preferred Stock") are hereinafter referred to
collectively as the "Redeemable Preferred Stockholders." The Preferred
Stockholders had the following rights and privileges:
VOTING RIGHTS The Preferred Stockholders generally vote together with all other
classes and series of stock as a single class on all matters and are entitled to
a number of votes equal to the number of shares of common stock into which each
share of such stock is convertible. With respect to the number of directors,
only the Redeemable Preferred Stockholders, voting as a single class, may vote
on any increase of the maximum number of directors constituting the Board of
Directors to a number in excess of five. With respect to the election of
directors, the Redeemable Preferred Stockholders, voting as a single class, may
elect one director and the common stockholders and Preferred Stockholders,
voting as a single class, may elect two directors. The remaining two directors
shall be elected by a combined vote of both the common stockholders and the
Series A preferred stockholders, voting as a single class, and the Redeemable
Preferred Stockholders, voting as a single class.
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<PAGE> 22
CONVERSION Each share of Series A, Series B and Series C preferred stock is
convertible, at the option of the holder, into four shares of common stock,
except for 31,906 shares of Series A preferred stock, each of which converts
into two shares of common stock, subject to certain anti-dilution adjustments.
Each share of Series D Preferred Stock is convertible, at the option of the
holder, into two shares of common stock, subject to certain anti-dilution
adjustments. All shares of Preferred Stock automatically converted into
7,697,882 shares of common stock upon the closing of Allaire's initial public
offering in January 1999.
DIVIDEND RIGHTS The Preferred Stockholders are not entitled to receive any
dividends unless declared by Allaire's Board of Directors. In the event that
dividends are paid on the common stock, the Preferred Stockholders are entitled
to receive dividends at the same rate and at the same time as the common
stockholders, with each share of preferred stock being treated as equal to the
number of shares of common stock into which each share of such stock is
convertible.
LIQUIDATION PREFERENCES In the event of any liquidation, dissolution or winding
up of Allaire, the Preferred Stockholders are entitled to receive, in preference
to the holders of the common stock, an amount equal to the greater of the
original purchase price per share, respectively, subject to certain
anti-dilution adjustments, or such amount as would have been payable had such
shares been converted to common stock just prior to liquidation. The original
purchase price per share of the Series B, Series C and Series D preferred stock
was $4.52, $5.91 and $4.00, respectively. The original purchase price per share
of the Series A preferred stock was $4.07, except for 656 and 31,250 shares
which had an original purchase price per share of $8.00 and $16.00,
respectively. Any assets remaining following the initial distribution to the
Preferred Stockholders shall be available for distribution ratably among the
common stockholders only.
REDEMPTION At the request of at least 50% of the holders of the Redeemable
Preferred Stock at any time beginning in June 2002, Allaire shall redeem
one-third of the then outstanding shares of each series of Redeemable Preferred
Stock. Subsequently, on the first and third anniversaries of the initial
redemption date, Allaire shall redeem 50% and 100%, respectively, of the
remaining outstanding shares of each series. Upon redemption, each holder of the
Series B, Series C and Series D preferred stock will be entitled to receive a
cash payment equal to $4.52 per share, $5.91 per share and $4.00 per share,
respectively, plus any declared but unpaid dividends.
CONVERTIBLE NOTES PAYABLE During 1996, Allaire issued 10% convertible notes
payable totaling $175,000 to two of Allaire's stockholders. All principal and
accrued interest of $2,000 on these notes was subsequently converted into 43,557
shares of Series A preferred stock prior to December 31, 1996.
PREFERRED STOCK WARRANTS Pursuant to the terms of a capital lease line of credit
(Note 6), Allaire issued warrants to purchase 17,699 shares of Series A
preferred stock at a price of $4.52 per share, subject to certain anti-dilution
adjustments. These warrants are fully vested, exercisable at the option of the
holder, in whole or in part, and expire upon the earlier of ten years from the
date of grant or five years from the effective date of an initial public
offering of Allaire's common stock. The value ascribed to these warrants was not
significant. These warrants converted to warrants to purchase 70,796 shares of
common stock upon the closing of Allaire's initial public offering in January
1999. These warrants were fully exercised during the year ended December 31,
1999.
UNDESIGNATED PREFERRED STOCK At December 31, 1998 and 1999, Allaire has
authorized the issuance of up to 1,616,494 shares of undesignated preferred
stock. Issuances of the undesignated preferred stock may be made at the
discretion of the Board of Directors (without stockholder approval) in one or
more series and with such designations, rights and preferences as determined by
the Board. As a result, the undesignated preferred stock may have dividend,
liquidation, conversion, redemption, voting or other rights which may be more
expansive than the rights of the holders of the Preferred Stock and the common
stock.
-39-
<PAGE> 23
9. COMMON STOCK
AUTHORIZED SHARES On March 13, 2000, Allaire's stockholders approved an increase
in the authorized shares of common stock, $.01 par value, to 100,000,000.
STOCK SPLIT In March 2000, Allaire completed a two-for-one split of its
outstanding shares of common stock. The stock split was effected in the form of
a stock dividend and entitled each stockholder of record at the close of
business on February 15, 2000 to receive one share for every outstanding share
of common stock held on the record date. Accordingly, the accompanying financial
statements and notes have been restated for all periods.
TREASURY SHARES Of the common stock issued, an aggregate of 6,834 and
33,220 shares with a cost of $2,000 and $14,000 were held by Allaire
as treasury shares and were included as a reduction to additional paid-in
capital at December 31, 1998 and 1999.
STOCK RESTRICTION AGREEMENTS Allaire has executed stock restriction agreements
with its founder and certain of its employees. Under the terms of the founder's
stock restriction agreement, Allaire had the right to repurchase, at a price of
$1.13 per share, any unvested common shares in the event of the founder's
voluntary resignation. All other restriction agreements gave Allaire the right
to repurchase, for an amount equal to the original consideration paid, any
unvested common shares in the event of voluntary resignation or termination of
employment with Allaire for cause. Allaire's repurchase rights lapsed at various
dates through November 30, 1999 or, in the case of the founder, upon the closing
of an initial public offering of Allaire's common stock, which occurred in
January 1999. At December 31, 1999, no shares of Allaire's outstanding common
stock were subject to repurchase under the stock restriction agreements.
All employees who have been granted options by Allaire are generally eligible to
elect immediate exercise of all such options. However, shares obtained by
employees who elect to exercise prior to the original option vesting schedule
are subject to Allaire's right of repurchase, at the option exercise price, in
the event of termination. Allaire's repurchase rights lapse at the same rate as
the shares would have become exercisable under the original vesting schedule. At
December 31, 1999, Allaire had the right to repurchase 320,992 shares of common
stock.
STOCK SUBSCRIPTIONS RECEIVABLE Allaire held recourse notes receivable from a
stockholder at December 31, 1999 in consideration for the purchase of Allaire
common stock. This loan is secured by the underlying common stock and,
consequently, is reflected as an offset to stockholders' equity.
COMMON STOCK WARRANTS Pursuant to the issuance of convertible notes payable in
1996, Allaire issued warrants to purchase 17,198 shares of its common stock at a
price of $1.02 per share, subject to certain anti-dilution adjustments. These
warrants are fully vested, exercisable at the option of the holders, in whole or
in part, and expire in December 2001. The value ascribed to these warrants was
not significant. At December 31, 1999, 2,456 warrants were outstanding.
Pursuant to the issuance of convertible notes payable in 1997 (Note 4), Allaire
issued warrants to purchase 12,600 shares of its common stock at a price of
$2.00 per share, subject to certain anti-dilution adjustments. These warrants
are fully vested, exercisable at the option of the holder, in whole or in part,
and expire in March 2002. The value ascribed to these warrants was not
significant. At December 31, 1999, 12,600 warrants were outstanding.
RESERVED SHARES At December 31, 1999, Allaire had 6,395,510 shares of common
stock reserved for issuance upon the exercise of common stock warrants and
options.
-40-
<PAGE> 24
10. STOCK OPTIONS
All options issued by Allaire during the year ended December 31, 1996 were
non-qualified, non-plan stock options issued to employees, advisors and
consultants of Allaire. All options granted by Allaire during this period of
time were issued at fair market value at the date of grant, vest either
immediately or over a four-year period and expire ten years from the date of
grant.
1997 STOCK INCENTIVE PLAN The 1997 Incentive Stock Plan (the "1997 Stock Plan")
provides for the granting of incentive and non-qualified stock options and stock
bonus awards to officers, directors, employees and consultants of Allaire. The
maximum number of common shares that may be issued pursuant to the 1997 Stock
Plan, as amended, is 3,452,000.
The exercise price of each stock option issued under the 1997 Stock Plan shall
be specified by the Board of Directors at the time of grant. However, incentive
stock options may not be granted at less than the fair market value of Allaire's
common stock as determined by the Board of Directors at the date of grant or for
a term in excess of ten years. All options granted under the 1997 Stock Plan
through December 31, 1999 vest either immediately or over a four-year period for
employees or over the service period for non-employees and expire ten years from
the date of grant.
1998 STOCK INCENTIVE PLAN The 1998 Incentive Stock Plan (the "1998 Stock Plan"),
as amended and approved by stockholders on March 13, 2000, provides for the
issuance of up to 8,800,000 shares of Allaire's common stock to eligible
employees, officers, directors, consultants and advisors of Allaire. Under the
1998 Stock Plan, the Board of Directors may award incentive and non-qualified
stock options, stock appreciation rights, performance shares and restricted and
unrestricted stock. Incentive stock options may not be granted at less than the
fair market value of Allaire's common stock at the date of grant and for a term
not to exceed ten years. The exercise price under each non-qualified and
incentive stock option shall be specified by the Compensation Committee. Grants
of stock appreciation rights, performance shares, restricted stock and
unrestricted stock may be made at the discretion of the Compensation Committee
with terms to be defined therein.
During the years ended December 31, 1996 and 1997 compensation expense
recognized for stock option grants made by Allaire under APB Opinion No. 25 was
not significant. For the year ended December 31, 1998 and 1999, respectively,
compensation expense recognized for stock option grants totaled $412,000 and
$263,000. Had compensation cost for Allaire's option grants been determined
based on the fair value at the date of grant consistent with the method
prescribed by SFAS No. 123, Allaire's net loss and net loss per share would have
been increased to the pro forma amounts indicated below:
<TABLE>
<CAPTION>
Year ended December 31, 1997 1998 1999
------------- ------------- -------------
<S> <C> <C> <C>
Net loss:
As reported $(11,536,000) $(17,139,000) $ (5,539,000)
Pro forma $(11,597,000) $(17,278,000) $(13,229,000)
Basic and diluted net loss per share:
As reported $ (2.67) $ (2.39) $ (0.24)
Pro forma $ (2.69) $ (2.41) $ (0.58)
</TABLE>
Under SFAS No. 123, the fair value of each employee option grant is estimated on
the date of grant using the Black-Scholes option pricing model to apply the
minimum value method with the following weighted-average assumptions used for
grants made during the years ended December 31, 1997, 1998 and 1999: no dividend
yield for all years; risk free interest rates of 6.1%, 5.1% and 5.8%,
respectively; a volatility of 0%, 0% and 95%, respectively, and an expected
option term of 5 years in 1997 and 1998, and 4 years in 1999.
-41-
<PAGE> 25
Stock option activity during the years ended December 31, 1996, 1997, 1998 and
1999 was as follows:
<TABLE>
<CAPTION>
OUTSTANDING OPTIONS
-----------------------------
WEIGHTED
AVERAGE
NUMBER EXERCISE
OF SHARES PRICE
----------- ---------
<S> <C> <C>
Outstanding - December 31, 1995 -- $ --
Granted (weighted average fair value of $0.06) 2,271,904 0.22
Exercised (5,000) 0.25
Canceled (15,000) 0.25
----------
Outstanding - December 31, 1996 2,251,904 0.22
Granted (weighted average fair value of $0.09) 2,976,818 0.29
Exercised (10,760) 0.71
Canceled (443,198) 0.26
----------
Outstanding - December 31, 1997 4,774,764 0.26
Granted (weighted average fair value of $1.48) 1,146,322 3.47
Exercised (2,294,768) 0.24
Canceled (249,126) 1.01
----------
Outstanding - December 31, 1998 3,377,192 1.30
Granted (weighted average fair value of $24.22) 3,932,452 34.61
Exercised (945,048) 1.09
Canceled (388,090) 16.15
----------
Outstanding - December 31, 1999 5,976,506 $22.16
==========
</TABLE>
As of December 31, 1999, 29,442 and 131,100 shares were available for grant
under the 1997 Stock Plan and the 1998 Stock Plan, respectively.
The following table summarizes information about stock options outstanding at
December 31, 1999:
<TABLE>
<CAPTION>
VESTED AND EXERCISABLE
----------------------------
WEIGHTED-AVERAGE WEIGHTED-
REMAINING NUMBER AVERAGE
EXERCISE NUMBER CONTRACTUAL OF EXERCISE
PRICE OUTSTANDING LIFE (IN YEARS) SHARES PRICE
------------ ----------- ---------------- --------- ---------
<S> <C> <C> <C> <C>
$ 0.13- 4.50 1,923,610 7.26 974,884 $ 0.40
5.53- 9.44 476,196 8.80 56,878 6.19
20.82-25.00 1,282,800 9.59 -- 24.10
25.03-36.47 1,456,400 9.47 -- 29.60
55.75-75.57 837,500 9.94 -- 65.30
--------- ---------
$ 0.13-75.57 5,976,506 8.80 1,031,762 $22.16
========= =========
</TABLE>
-42-
<PAGE> 26
DEFERRED COMPENSATION During 1998, Allaire granted stock options to purchase
955,900 shares of its common stock with exercise prices ranging from $.01 to
$6.80. Through December 31, 1999, Allaire recorded compensation expense and
deferred compensation relating to these options totaling $675,000 and $1.1
million, respectively, representing the difference between the estimated fair
market value of the common stock on the date of grant and the exercise price.
Compensation relating to options which vested immediately upon grant was
expensed in full at the date of grant, while compensation related to options
which vest over time was recorded as a component of stockholders' deficit and is
being amortized over the vesting periods of the related options.
1998 EMPLOYEE STOCK PURCHASE PLAN The 1998 Employee Stock Purchase Plan (the
"Purchase Plan") provides for the issuance of up to 600,000 shares of Allaire's
common stock to eligible employees. Under the Purchase Plan, Allaire is
authorized to make one or more offerings during which employees may purchase
shares of common stock through payroll deductions made over the term of the
offering. The per-share purchase price at the end of each offering is equal to
85% of the fair market value of the common stock at the beginning or end of the
offering period (as defined by the Purchase Plan), whichever is lower. Allaire's
first offering period under the Purchase Plan commenced on July 1, 1999 and
ended on December 31, 1999. During this offering period, employees purchased
9,858 shares of common stock, which were issued in January 2000.
11. INCOME TAXES
Deferred tax assets are comprised of the following:
<TABLE>
<CAPTION>
December 31, 1998 1999
Deferred tax assets: ------------- -------------
<S> <C> <C>
Net operating loss carryforwards $ 11,771,000 $ 10,778,000
Reserves not currently deductible 249,000 381,000
Tax credit carryforwards 689,000 1,389,000
Capitalized research and development expense -- 1,050,000
Compensation related -- 488,000
Deferred revenue -- 286,000
Other 402,000 517,000
------------ ------------
Total deferred tax assets 13,111,000 14,889,000
Deferred tax asset valuation allowance (13,111,000) (14,889,000)
------------ ------------
$ -- $ --
============ ============
</TABLE>
Realization of total deferred tax assets is contingent upon the generation of
future taxable income. Due to the uncertainty of realization of these tax
benefits, Allaire has provided a valuation allowance for the full amount of its
deferred tax assets.
-43-
<PAGE> 27
Income taxes computed using the federal statutory income tax rate differs from
Allaire's effective tax rate primarily due to the following:
<TABLE>
<CAPTION>
Year ended December 31, 1997 1998 1999
------------ ------------ ------------
<S> <C> <C> <C>
Income tax benefit at U.S. federal statutory tax rate $(4,038,000) $(5,999,000) $(1,939,000)
State taxes, net of federal tax impact (711,000) (1,054,000) (342,000)
Nondeductible acquisition related expenses -- -- 921,000
Tax credit carryforwards (91,000) (195,000) (345,000)
Other (249,000) 81,000 (73,000)
Change in valuation allowance. 5,089,000 7,167,000 1,778,000
----------- ----------- -----------
Provision for income taxes $ -- $ -- $ --
=========== =========== ===========
</TABLE>
At December 31, 1999, Allaire had federal and state net operating losses of
approximately $61 million and $59.8 million, respectively, and federal and state
tax credit carryforwards of approximately $599,000 and $670,000, respectively,
available to reduce future taxable income and future tax liabilities. If not
utilized, these carryforwards will expire at various dates ranging from 2001 to
2019. Of the total net operating losses, $31.6 million relates to the exercise
of stock options. The tax benefit of this amount will result in an increase in
additional paid-in capital upon realization. Under the provisions of the
Internal Revenue Code, certain substantial changes in Allaire's ownership may be
limited, or may limit in the future, the amount of net operating loss and
research and development tax credit carryforwards which could be utilized
annually to offset future taxable income and income tax liability. The amount of
any annual limitation is determined based upon Allaire's value prior to an
ownership change.
12. SEGMENT INFORMATION
Operating in one industry segment, Allaire develops, markets and supports
software for a wide range of Web development.
Revenue was distributed geographically as follows:
Year ended December 31, 1997 1998 1999
---------- ----------- -----------
North America $6,289,000 $18,659,000 $47,679,000
Europe 824,000 1,802,000 4,958,000
Other international 675,000 901,000 2,526,000
---------- ----------- -----------
$7,788,000 $21,362,000 $55,163,000
========== =========== ===========
Allaire's sales to Europe and other international geographies are primarily
export sales from the United States. Substantially all of Allaire's services
revenue for the years ended December 31, 1997, 1998 and 1999 was generated in
North America. All long-lived assets were located in North America at December
31, 1998 and 1999.
-44-
<PAGE> 28
13. EMPLOYEE SAVINGS PLAN
During 1997, Allaire adopted an employee retirement savings plan under Section
401(k) of the Internal Revenue Code which covers substantially all employees.
Under the terms of the 401(k) Plan, employees may contribute a percentage of
their salary, up to a maximum of 15%. Allaire did not make any contributions to
the 401(k) Plan on behalf of its employees for the years ended December 31,
1997, 1998 or 1999.
14. COMMITMENTS AND CONTINGENCIES
Allaire leases its facilities and certain office equipment under noncancelable
operating lease agreements. Rent expense under these leases for the years ended
December 31, 1997, 1998 and 1999, totaled $515,000, $1,420,000 and $1,834,000,
respectively. During 2000, Allaire will move into a new facility under an
operating lease. In addition, Allaire also leases certain fixed assets under
capital leases, which expire at various dates through October 2000.
Future minimum commitments under noncancelable operating and capital leases at
December 31, 1999 are as follows:
OPERATING CAPITAL
LEASES LEASES
------------ --------
2000 $ 7,412,000 $163,000
2001 15,959,000 --
2002 16,889,000 --
2003 15,610,000 --
2004 and thereafter 105,351,000 --
------------ --------
Total lease payments $161,221,000 163,000
============
Less - amount representing interest 4,000
--------
Present value of capital lease obligations $159,000
========
-45-
<PAGE> 29
LETTER OF CREDIT In connection with two facility leases Allaire is required to
maintain, on behalf of the landlord, an irrevocable letter of credit with a bank
over the term of each lease. As of December 31, 1999, letters of credit totaling
$4,725,500 had been issued against the line of credit (Note 7).
LEGAL PROCEEDINGS In 1996, a wrongful termination action was brought against
Allaire and its founder by a former employee under which the plaintiff sought
severance pay and the right to 800,000 shares of Allaire's common stock which
were canceled upon termination. Although Allaire continues to deny any liability
in this matter, Allaire determined during 1997 that it was in the best interest
of its shareholders to settle this dispute out of court due to the rising legal
costs, distraction of management and uncertainty present in this litigation. As
a result, Allaire agreed to pay the plaintiff a cash settlement totaling
$285,000 in exchange for the termination of all legal action against Allaire and
its founder. This amount was fully accrued at the time of the settlement.
In addition to the matter noted above, Allaire is from time to time subject to
legal proceedings and claims which arise in the normal course of its business.
In the opinion of management, the amount of ultimate liability with respect to
these actions will not have a material adverse effect on Allaire's financial
position or results of operations.
15. SUBSEQUENT EVENT
In March 1999, Allaire acquired certain technology from Bowne Internet Solutions
and Bowne Personalization Services for $5 million in cash. This acquisition will
be accounted for as a purchase. Pro forma financial statements have not been
disclosed due to immateriality.
-46-
<PAGE> 30
REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors and Stockholders of Allaire Corporation
In our opinion, the financial statements listed in the accompanying table of
contents present fairly, in all material respects, the financial position of
Allaire Corporation and sudsidiaries at December 31, 1998 and 1999, and the
results of their operations and their cash flows for each of the three years in
the period ended December 31, 1999, in conformity with accounting principles
generally accepted in the United States. These financial statements are the
responsibility of the Company's management; our responsibility is to express an
opinion on these financial statements based on our audits. We conducted our
audits of these statements in accordance with auditing standards generally
accepted in the United States which require that we plan and perform the audit
to obtain reasonable assurance about whether the financial statements are free
of material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements, assessing
the accounting principles used and significant estimates made by management, and
evaluating the overall financial statement presentation. We believe that our
audits provide a reasonable basis for the opinion expressed above.
/s/ PricewaterhouseCoopers LLP
Boston, Massachusetts
March 13, 2000
-47-
<PAGE> 31
<TABLE>
<S> <C> <C>
BOARD OF DIRECTORS CORPORATE OFFICERS CORPORATE COUNSEL
David J. Orfao David J. Orfao
President and Chief Executive Officer President and Chief Executive Officer Foley, Hoag & Eliot
Director since 1997 LLP Boston, Massachusetts
Joseph J. Allaire
Joseph J. Allaire Founder, Chairman of the Board and INDEPENDENT ACCOUNTANTS
Founder, Chairman of the Board and Executive Vice President
Executive Vice President PricewaterhouseCoopers LLP
Director since 1996 Jeremy Allaire Boston, Massachusetts
Chief Technology Officer
Jonathan A. Flint REGISTRAR AND
Founder and General Partner David A. Gerth TRANSFER AGENT
Polaris Venture Partners Chief Financial Officer
Director since 1996 EquiServe Shareholder Services
Larry E. Rowland Canton, Massachusetts
John J. Gannon Chief Information Officer
General Partner Stockholder Information
Polaris Venture Partners Amy E. Lewis
Director since 1996 Vice President, Worldwide Sales The Annual Meeting of Stockholders of
the Company will be held at 10:00 a.m.
Thomas A. Herring Patrick M. Morley on May 17, 2000 at the offices of Foley,
General Partner Vice President, North American Sales Hoag & Eliot LLP, One Post Office
Polaris Venture Partners Square, Boston, Massachusetts.
Director since 1997 Vikki Kolbe
Vice President, Worldwide Services and Support A copy of the Company's Annual Report on
Ronnie G. Ward Form 10-K filed with the Securities and
Private Investor George Favaloro Exchange Commission and additional
Director since 2000 Vice President, Business Development copies of this Report may be obtained
without charge upon written request to:
Stephen F. Clark
Vice President, Marketing Allaire Corporation
Investor Relations Department
Jack P. Lull One Alewife Center
Vice President, Engineering and Development Cambridge, MA 02140
T 617 761 2020
Kathy Wilde F 617 761 2007
Vice President, Enterprise Development
Victoria Sullivan
Vice President, Human Resources
Market Price of Common Stock
ColdFusion and Bright Tiger are The Company's Common Stock has been trading on the Nasdaq National Market under
U.S. registered trademarks, and the symbol "ALLR" since the Company's initial public offering on January 22,
Allaire, Allaire Spectra, 1999. The Company had 189 stockholders of record at March 15, 2000. This number
HomeSite and JRun are trademarks does not reflect persons or entities who hold their stock in nominee or "street
of Allaire Corporation. All name" through various brokerage firms. The Company has never declared or paid
other company names, brand names any cash dividends on its capital stock and does not anticipate paying cash
and product names are the dividends in the forseeable future. The following table sets forth for the
property of their respective fiscal periods indicated the high and low sales prices per share of Common Stock
holder(s). as reported on the Nasdaq National Market. Sales prices per share have been
restated to reflect the two-for-one stock split in March 2000.
1999 HIGH LOW
------ ------
First Quarter (from 1/22/99) $35.63 $17.00
Second Quarter $39.13 $19.94
Third Quarter $38.16 $21.06
Fourth Quarter $94.13 $26.25
</TABLE>
-48-
<PAGE> 32
[ALLAIRE LOGO]
Allaire Corporation
One Alewife Center Cambridge, MA 02140
617 761 2020 T 617 761 2007 F www.allaire.com
-49-
<PAGE> 1
EXHIBIT 21.1
SUBSIDIARIES OF ALLAIRE CORPORATION
Name of Subsidiary Jurisdiction of Organization
- ------------------ ----------------------------
Live Software, Inc. Delaware
Bright Tiger Technologies, Inc. Delaware
Valto Systems, Inc. Massachusetts
Allaire Security Corporation Massachusetts
Allaire S.A. Belgium
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration
Statements on Form S-3 (No. 333-95683) and Form S-8 (No. 333-76855, 333-78329,
333-81729, 333-83617) of Allaire Corporation of our report dated March 13, 2000
relating to the financial statements, which appears in the Annual Report to
Shareholders, which is incorporated in this Annual Report on Form 10-K. We also
consent to the incorporation by reference of our report dated March 13, 2000
relating to the financial statement schedules, which appears in this Form 10-K.
/s/ PricewaterhouseCoopers LLP
Boston, Massachusetts
March 29, 2000
<PAGE> 1
Exhibit 99.1
REPORT OF INDEPENDENT ACCOUNTANTS ON
FINANCIAL STATEMENT SCHEDULE
To the Board of Directors
of Allaire Corporation
Our audits of the consolidated financial statements referred to in our report
dated March 13, 2000 appearing in the 1999 Annual Report to Shareholders of
Allaire Corporation which report and consolidated financial statements are
incorporated by reference in this Annual Report on Form 10-K also included an
audit of the financial statement schedule listed in Item 14(a)(2) of this Form
10-K. In our opinion, this financial statement schedule presents fairly, in all
material respects, the information set forth therein when read in conjunction
with the related consolidated financial statements.
/s/ PricewaterhouseCoopers LLP
Boston, Massachusetts
March 13, 2000
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM ALLAIRE
CORPORATION'S FINANCIAL STATEMENTS FOR THE TWELVE MONTHS ENDED DECEMBER 31, 1999
AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<CIK> 0001016139
<NAME> ALLAIRE CORPORATION
<MULTIPLIER> 1,000
<CURRENCY> U.S. DOLLARS
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> DEC-31-1999
<EXCHANGE-RATE> 1
<CASH> 106,624
<SECURITIES> 12,405
<RECEIVABLES> 7,926
<ALLOWANCES> (701)
<INVENTORY> 328
<CURRENT-ASSETS> 127,983
<PP&E> 9,955
<DEPRECIATION> (5,007)
<TOTAL-ASSETS> 133,540
<CURRENT-LIABILITIES> 31,069
<BONDS> 0
0
0
<COMMON> 134
<OTHER-SE> 101,790
<TOTAL-LIABILITY-AND-EQUITY> 133,540
<SALES> 45,555
<TOTAL-REVENUES> 55,163
<CGS> 2,525
<TOTAL-COSTS> 10,005
<OTHER-EXPENSES> 53,508
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 268
<INCOME-PRETAX> (5,539)
<INCOME-TAX> 0
<INCOME-CONTINUING> (5,539)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (5,539)
<EPS-BASIC> (0.24)
<EPS-DILUTED> (0.24)
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM ALLAIRE
CORPORATION FINANCIAL STATEMENTS AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE
TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-END> MAR-31-1999
<CASH> 54,407
<SECURITIES> 0
<RECEIVABLES> 3,866
<ALLOWANCES> (532)
<INVENTORY> 104
<CURRENT-ASSETS> 58,429
<PP&E> 7,576
<DEPRECIATION> (2,724)
<TOTAL-ASSETS> 63,602
<CURRENT-LIABILITIES> 19,012
<BONDS> 0
0
0
<COMMON> 232
<OTHER-SE> 43,369
<TOTAL-LIABILITY-AND-EQUITY> 63,602
<SALES> 6,963
<TOTAL-REVENUES> 8,697
<CGS> 456
<TOTAL-COSTS> 1,962
<OTHER-EXPENSES> 9,637
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 0
<INCOME-PRETAX> (2,616)
<INCOME-TAX> 0
<INCOME-CONTINUING> (2,616)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (2,616)
<EPS-BASIC> (0.14)
<EPS-DILUTED> (0.14)
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM ALLAIRE
CORPORATION FINANCIAL STATEMENTS AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE
TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-END> SEP-30-1999
<CASH> 31,031
<SECURITIES> 25,745
<RECEIVABLES> 6,960
<ALLOWANCES> (570)
<INVENTORY> 172
<CURRENT-ASSETS> 123,345
<PP&E> 8,896
<DEPRECIATION> (3,851)
<TOTAL-ASSETS> 129,031
<CURRENT-LIABILITIES> 27,387
<BONDS> 0
0
0
<COMMON> 260
<OTHER-SE> 100,708
<TOTAL-LIABILITY-AND-EQUITY> 129,031
<SALES> 29,976
<TOTAL-REVENUES> 36,837
<CGS> 1,771
<TOTAL-COSTS> 7,111
<OTHER-EXPENSES> 36,897
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 259
<INCOME-PRETAX> (5,787)
<INCOME-TAX> 0
<INCOME-CONTINUING> (5,787)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (5,787)
<EPS-BASIC> (0.27)
<EPS-DILUTED> (0.27)
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM ALLAIRE
CORPORATION FINANCIAL STATEMENTS AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE
TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-END> JUN-30-1999
<CASH> 19,532
<SECURITIES> 33,971
<RECEIVABLES> 5,602
<ALLOWANCES> (547)
<INVENTORY> 224
<CURRENT-ASSETS> 59,305
<PP&E> 7,938
<DEPRECIATION> (3,221)
<TOTAL-ASSETS> 64,300
<CURRENT-LIABILITIES> 20,642
<BONDS> 0
0
0
<COMMON> 236
<OTHER-SE> 42,601
<TOTAL-LIABILITY-AND-EQUITY> 64,300
<SALES> 17,724
<TOTAL-REVENUES> 21,772
<CGS> 1,103
<TOTAL-COSTS> 4,403
<OTHER-EXPENSES> 23,701
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 206
<INCOME-PRETAX> (5,529)
<INCOME-TAX> 0
<INCOME-CONTINUING> (5,529)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (5,529)
<EPS-BASIC> (0.26)
<EPS-DILUTED> (0.26)
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM ALLAIRE
CORPORATION FINANCIAL STATEMENTS AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE
TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-END> JUN-30-1998
<CASH> 3,247
<SECURITIES> 496
<RECEIVABLES> 3,698
<ALLOWANCES> (502)
<INVENTORY> 141
<CURRENT-ASSETS> 8,033
<PP&E> 6,497
<DEPRECIATION> (2,197)
<TOTAL-ASSETS> 12,708
<CURRENT-LIABILITIES> 17,724
<BONDS> 0
0
0
<COMMON> 97
<OTHER-SE> (18,979)
<TOTAL-LIABILITY-AND-EQUITY> 12,708
<SALES> 7,827
<TOTAL-REVENUES> 8,905
<CGS> 823
<TOTAL-COSTS> 2,425
<OTHER-EXPENSES> 14,502
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 0
<INCOME-PRETAX> (7,886)
<INCOME-TAX> 0
<INCOME-CONTINUING> (7,886)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (7,886)
<EPS-BASIC> (1.19)
<EPS-DILUTED> (1.19)
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM ALLAIRE
CORPORATION FINANCIAL STATEMENTS AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE
TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-END> DEC-31-1998
<CASH> 3,247
<SECURITIES> 496
<RECEIVABLES> 3,698
<ALLOWANCES> (502)
<INVENTORY> 141
<CURRENT-ASSETS> 8,033
<PP&E> 6,497
<DEPRECIATION> (2,197)
<TOTAL-ASSETS> 12,708
<CURRENT-LIABILITIES> 17,724
<BONDS> 0
0
0
<COMMON> 97
<OTHER-SE> (18,785)
<TOTAL-LIABILITY-AND-EQUITY> 12,708
<SALES> 17,966
<TOTAL-REVENUES> 21,362
<CGS> 1,937
<TOTAL-COSTS> 5,994
<OTHER-EXPENSES> 32,520
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 0
<INCOME-PRETAX> (17,139)
<INCOME-TAX> 0
<INCOME-CONTINUING> (17,139)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (17,139)
<EPS-BASIC> (2.39)
<EPS-DILUTED> (2.39)
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM ALLAIRE
CORPORATION'S FINANCIAL STATEMENTS FOR THE NINE MONTHS ENDED SEPTEMBER 30, 1998
AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<CIK> 0001016139
<NAME> ALLAIRE CORPORATION
<MULTIPLIER> 1,000
<CURRENCY> U.S. DOLLARS
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-START> JAN-01-1998
<PERIOD-END> SEP-30-1998
<EXCHANGE-RATE> 1
<CASH> 3,425
<SECURITIES> 299
<RECEIVABLES> 3,007
<ALLOWANCES> (479)
<INVENTORY> 138
<CURRENT-ASSETS> 6,919
<PP&E> 5,687
<DEPRECIATION> (1,713)
<TOTAL-ASSETS> 11,297
<CURRENT-LIABILITIES> 11,625
<BONDS> 0
12,673
260
<COMMON> 96
<OTHER-SE> (15,448)
<TOTAL-LIABILITY-AND-EQUITY> 11,297
<SALES> 12,172
<TOTAL-REVENUES> 14,408
<CGS> 1,270
<TOTAL-COSTS> 4,112
<OTHER-EXPENSES> 23,194
<LOSS-PROVISION> 53
<INTEREST-EXPENSE> 170
<INCOME-PRETAX> (12,797)
<INCOME-TAX> 0
<INCOME-CONTINUING> (12,797)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (12,797)
<EPS-BASIC> (1.85)
<EPS-DILUTED> (1.85)
</TABLE>
