<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________________
FORM 10-Q
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
For the quarter ended September 30, 1998 Commission File Number 0-13617
LIFELINE SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
MASSACHUSETTS 04-2537528
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
640 MEMORIAL DRIVE
CAMBRIDGE, MASSACHUSETTS 02139
(Address of principal executive offices) (Zip Code)
(617) 679-1000
(Registrant's telephone number, including area code)
__________________
Securities registered pursuant to Section 12(b) of the Act: NONE
Securities registered pursuant to Section 12(g) of the Act:
Common stock $0.02 par value
----------------------------
(Title of Class)
Indicate by check mark whether the registrant (i) 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 (ii) has been subject to such filing
requirements for the past 90 days. Yes X No
--- ---
Number of shares outstanding of the registrant's class of common stock as of
October 31, 1998: 5,826,181
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LIFELINE SYSTEMS, INC.
INDEX
PAGE
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
Consolidated Balance Sheets - September 30, 1998
and December 31, 1997 3
Consolidated Statements of Income and Comprehensive
Income - Three and nine months ended
September 30, 1998 and 1997 4
Consolidated Statements of Cash Flows - Nine months
ended September 30, 1998 and 1997 5
Notes to Consolidated Financial Statements 6-8
ITEM 2.
Management's Discussion and Analysis of Results of
Operations and Financial Condition 9-17
PART II. OTHER INFORMATION
ITEM 6.
Exhibits and Reports on Form 8-K 17
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LIFELINE SYSTEMS, INC.
CONSOLIDATED BALANCE SHEETS
(Dollars in thousands)
<TABLE>
<CAPTION>
September 30, December 31,
1998 1997
------------- ------------
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $ 3,626 $ 2,019
Short-term investments 7,984 5,850
Accounts receivable, net 6,403 7,406
Inventories 1,350 1,375
Net investment in sales-type leases 1,611 1,444
Other current assets 1,295 1,045
Deferred income taxes 2,498 2,209
------------- ------------
Total current assets 24,767 21,348
Property and equipment, net 17,899 15,435
Goodwill, net 127 192
Net investment in sales-type leases 5,797 4,641
Other assets 424 653
------------- ------------
Total assets $ 49,014 $ 42,269
============= ============
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 567 $ 1,352
Accrued expenses 3,356 1,954
Accrued payroll and payroll taxes 1,787 1,753
Accrued income taxes 795 229
Deferred revenues 697 714
Product warranty and other current liabilities 797 702
Accrued restructuring charge 1,725 2,324
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Total current liabilities 9,724 9,028
Deferred income taxes 3,411 2,136
Deferred compensation 1,331 975
Other non-current liabilities 233 413
Commitments
Stockholders' equity:
Common stock, $.02 par value, 20,000,000 shares
authorized, 6,418,729 shares issued at
September 30, 1998 and 6,375,750 shares
issued at December 31, 1997 128 128
Additional paid-in capital 16,828 16,340
Retained earnings 21,551 17,449
------------- ------------
38,507 33,917
Less: treasury stock at cost, 592,548 shares at
September 30, 1998 and December 31, 1997 (4,028) (4,028)
Note receivable - officer (100) (100)
Cumulative translation adjustment (64) (72)
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Total stockholders' equity 34,315 29,717
------------- ------------
Total liabilities and stockholders' equity $ 49,014 $ 42,269
============= ============
</TABLE>
The accompanying notes are an integral part of these consolidated
financial statements.
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LIFELINE SYSTEMS, INC.
CONSOLIDATED STATEMENTS OF INCOME
AND COMPREHENSIVE INCOME
(In thousands except for per share data)
<TABLE>
<CAPTION>
Three months ended Nine months ended
September 30, September 30,
---------------------------------- -----------------------------------
1998 1997 1998 1997
--------------- -------------- --------------- ---------------
<S> <C> <C> <C> <C>
Revenues
Services $ 9,990 $ 8,252 $ 28,490 $ 23,372
Net product sales 5,949 5,648 17,746 17,758
Finance and rental income 347 285 1,019 854
--------------- -------------- --------------- ---------------
Total revenues 16,286 14,185 47,255 41,984
--------------- -------------- --------------- ---------------
Costs and expenses
Cost of services 5,549 4,474 16,160 12,630
Cost of sales 1,599 1,461 4,818 4,822
Selling, general, and administrative 6,400 5,802 18,653 17,938
Research and development 291 433 1,066 1,321
--------------- -------------- --------------- ---------------
Total costs and expenses 13,839 12,170 40,697 36,711
--------------- -------------- --------------- ---------------
Income from operations 2,447 2,015 6,558 5,273
--------------- -------------- --------------- ---------------
Other income, net 68 114 298 459
--------------- -------------- --------------- ---------------
Income before income taxes 2,515 2,129 6,856 5,732
Provision for income taxes 1,009 840 2,754 2,262
--------------- -------------- --------------- ---------------
Net income 1,506 1,289 4,102 3,470
Other comprehensive income, net of tax
Foreign currency translation adjustments 17 - 5 1
--------------- -------------- --------------- ---------------
Comprehensive income $ 1,523 $ 1,289 $ 4,107 $ 3,471
=============== ============== =============== ===============
Net income per weighted average share:
Basic $ 0.26 $ 0.22 $ 0.71 $ 0.61
=============== ============== =============== ===============
Diluted $ 0.24 $ 0.21 $ 0.66 $ 0.56
=============== ============== =============== ===============
Weighted average shares:
Basic 5,826 5,747 5,811 5,721
=============== ============== =============== ===============
Diluted 6,242 6,250 6,258 6,252
=============== ============== =============== ===============
</TABLE>
The accompanying notes are an integral part of these consolidated
financial statements.
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LIFELINE SYSTEMS, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Dollars in thousands)
<TABLE>
<CAPTION>
Nine months ended
September 30,
----------------------------------
1998 1997
-------------- ---------------
<S> <C> <C>
Cash flows from operating activities:
Net income $ 4,102 $ 3,470
Adjustments to reconcile net income to net cash provided
by operating activities:
Depreciation and amortization 3,103 2,853
Deferred compensation 356 300
Deferred income taxes 986 697
Changes in operating assets and liabilities:
Accounts receivable 953 (511)
Inventories 25 (397)
Net investment in sales-type leases (1,323) (1,170)
Prepaid expenses, other current assets and other assets (21) (708)
Accounts payable, accrued expenses and other liabilities 597 1,252
Accrued income taxes 574 561
Accrued restructuring charge (599) -
-------------- ---------------
Net cash provided by operating activities 8,753 6,347
-------------- ---------------
Cash flows from investing activities:
Purchases of investments (8,826) (8,429)
Sales and maturities of investments 6,692 8,682
Additions to property and equipment (5,527) (8,345)
-------------- ---------------
Net cash used in investing activities (7,661) (8,092)
--------------- ---------------
Cash flows from financing activities:
Principal payments under capital lease obligations (9) (9)
Proceeds from issuance of common stock 488 505
Purchase of treasury stock - (1,107)
Issuance of treasury stock - 2
Repayment of note receivable, officer - 250
-------------- ---------------
Net cash provided by (used in) financing activities 479 (359)
-------------- ---------------
Effect of foreign exchange on cash 36 26
-------------- ---------------
Net increase (decrease) in cash and cash equivalents 1,607 (2,078)
Cash and cash equivalents at beginning of period 2,019 3,030
-------------- ---------------
Cash and cash equivalents at end of period $ 3,626 $ 952
=============== ===============
</TABLE>
The accompanying notes are an integral part of these consolidated
financial statements.
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LIFELINE SYSTEMS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. The information furnished has been prepared from the accounts without
audit. In the opinion of the Company, the accompanying consolidated
financial statements contain all adjustments necessary, consisting only of
those of a normal recurring nature, to present fairly its consolidated
financial position as of September 30, 1998 and the consolidated results of
its operations and cash flows for the nine months ended September 30, 1998
and 1997.
While the Company believes that the disclosures presented are adequate to
make the information not misleading, these statements should be read in
conjunction with the consolidated financial statements and the related
notes included in the Company's Annual Report on Form 10-K, as filed with
the Securities and Exchange Commission on March 19, 1998 for the year ended
December 31, 1997.
Certain amounts in the prior year have been reclassified from selling,
general, and administrative expenses to cost of services to conform to the
current presentation.
The results of operations for the three and nine month periods ended
September 30, 1998 are not necessarily indicative of the results expected
for the full year.
2. Details of certain balance sheet captions are as follows (in thousands):
<TABLE>
<CAPTION>
September 30, December 31,
1998 1997
----------------- -----------------
<S> <C> <C>
Inventories:
Purchased parts and assemblies $ 539 $ 827
Work-in-process 378 391
Finished goods 433 157
-------- --------
$ 1,350 $ 1,375
======== ========
Property and equipment:
Equipment $ 10,713 $ 10,410
Furniture and fixtures 681 659
Equipment leased to others 8,915 7,195
Equipment under capital leases 1,035 1,035
Leasehold improvements 754 751
Capital in progress 11,036 8,319
-------- --------
33,134 28,369
Less: accumulated depreciation and amortization (15,235) (12,934)
-------- --------
$ 17,899 $ 15,435
======== ========
</TABLE>
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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
3. The calculation of per share earnings is as follows:
<TABLE>
<CAPTION>
(In thousands except per share figures)
Three months ended Nine months ended
September 30, September 30,
------------------------ ------------------------
1998 1997 1998 1997
---------- --------- ---------- ----------
<S> <C> <C> <C> <C>
Basic:
- ------
Net income $ 1,506 $ 1,289 $ 4,102 $ 3,470
Weighted average common shares outstanding 5,826 5,747 5,811 5,721
Net income per share, basic $ 0.26 $ 0.22 $ 0.71 $ 0.61
========== ========== ========= ==========
Diluted:
- --------
Net income $ 1,506 $ 1,289 $ 4,102 $ 3,470
Weighted average common shares outstanding 5,826 5,747 5,811 5,721
Common stock equivalents 416 503 447 531
---------- --------- ---------- ----------
Total weighted average shares 6,242 6,250 6,258 6,252
Net income per share, diluted $ 0.24 $ 0.21 $ 0.66 $ 0.56
========== ========== ========= ==========
</TABLE>
4. In June, 1997, the Financial Accounting Standards Board issued Statement
No. 131 ("SFAS" 131), "Disclosures about Segments of an Enterprise and
Related Information." SFAS 131, which supersedes Statement No. 14,
"Financial Reporting for Segments of a Business Enterprise," changes the way
public companies report information about segments. SFAS 131, which is based
on management's approach to segment reporting, includes requirements to
report segment information quarterly and entity-wide disclosures about
products and services, major customers, and the material countries in which
the entity holds assets and reports revenues. SFAS 131 is effective for
fiscal years beginning after December 15, 1997. Restatement for earlier
years is required for comparative purposes unless impracticable. In
addition, SFAS 131 need not be applied to interim periods in the initial
year; however, in subsequent years, interim period information must be
presented on a comparative basis. The Company does not believe that the
adoption of SFAS 131 will have a material impact on financial statement
disclosures.
5. The Company entered into an Agreement and Plan of Merger (the "Merger
Agreement"), dated as of October 18, 1998 with Protection One, Inc. and a
subsidiary of Protection One, Inc. (the "Merger Sub"), pursuant to which,
subject to the terms and conditions of the Merger Agreement, the Company
will be merged with and into the Merger Sub. In connection with the merger,
each share of the Company's common stock will be converted into the right to
receive $14.50 plus a certain number of shares of the common stock of a
newly formed holding company for Protection One, based on the average
closing price of Protection One's common stock prior to
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<PAGE>
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
5. (continued)
the consummation of the transaction and adjusted for a variable exchange
rate. The number of shares of Protection One holding company common stock to
be received by the Company's stockholders will be based on the average
closing price of Protection One common stock for the ten days ending three
days prior to the company's shareholder meeting to be held in connection
with the transaction (the "Average Closing Price"). The number of shares of
holding company common stock to be received by the Company's shareholders
per share of the Company's common stock will be as follows:
(A) 1.7857 if the Average Closing Price is less than $7.00;
(B) the quotient obtained by dividing (x) $12.50 by (y) the Average Closing
Price, if the Average Closing Price is equal to or greater than $7.00
but less than $8.19;
(C) 1.5263 if the Average Closing Price is equal to or greater than $8.19
but less than $9.50;
(D) the quotient obtained by dividing (x) $14.50 by (y) the Average Closing
Price, if the Average Closing Price is equal to or greater than $9.50
but less than $11.00; and
(E) 1.3182 if the Average Closing Price is equal to or greater than $11.00.
Based on the closing stock price of Protection One common stock on October
16, 1998, each share of the Company's common stock would have been converted
to the right to receive shares of holding company common stock worth
approximately $15.24. The acquisition will be accounted for as a purchase
and is intended to qualify as a tax-free reorganization to the extent of the
holding company common stock received in the transaction. The merger is
conditioned upon, among other things, approval by shareholders of the
Company and Protection One, and expiration or termination of the waiting
period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976. The
Merger Agreement has been approved by the boards of directors of Protection
One and the Company, and the merger is expected to be completed in early
1999.
-8-
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF RESULTS OF OPERATIONS AND
FINANCIAL CONDITION
This and other reports, proxy statements, and other communications to
stockholders, as well as oral statements by the Company's officers or its
agents, may contain forward-looking statements within the meaning of Section 21E
of the Securities Exchange Act of 1934, as amended, with respect to, among other
things, the Company's future revenues, operating income, or earnings per share.
Without limiting the foregoing, the words "believes," "anticipates," "plans,"
"expects," and similar expressions are intended to identify forward-looking
statements. There are a number of factors of which the Company is aware that
may cause the Company's actual results to vary materially from those forecast or
projected in any such forward-looking statement. These factors include, without
limitation, those set forth below under the caption "Certain Factors That May
Affect Future Results." The Company's failure to successfully address any of
these factors could have a material adverse effect on the Company's future
results of operations.
RESULTS OF OPERATIONS
Total revenues for the quarter ended September 30, 1998 were $16.3 million, a
15% increase over total revenues of $14.2 million for the quarter ended
September 30, 1997. For the nine months ended September 30, 1998, total
revenues were $47.3 million, up 13% over revenues of $42.0 million during the
same period in 1997.
Service revenues, which grew 21% to $10.0 million for the three months ended
September 30, 1998 and 22% to $28.5 million for the nine months ended September
30, 1998, represented 60% of the Company's year to date total revenues. This
increase reflects the Company's strategy of growing the service business. The
Company is now monitoring approximately 223,000 subscribers as of September 30,
1998, 21% more than the nearly 184,000 subscribers monitored at September 30,
1997. The Company's ability to sustain the current level of service revenue
growth depends on its ability to expand the market for its personal response
services, convert community hospital programs to service provided by the Company
and increase its focus on referral development and innovative partner
relationships in new channels of distribution. The Company believes that the
high quality of its services and its commitment to providing caring and rapid
response to the at-risk elderly and physically challenged will be a factor in
enabling the Company to meet this challenge.
Net product revenues for the second quarter of 1998 increased 5% to $5.9 million
as compared to $5.6 million for the second quarter of 1997. For the nine months
ended September 30, 1998, net product revenues remained consistent with the nine
months ended September 30, 1997 at $17.8 million. For the first nine months of
1998, the Company has been able to maintain its product sales while continuing
with its strategy of providing the hardware as part of the monthly service fee
to support the transition to a service oriented business. However, the Company
expects declining product sales in future periods as it continues packaging
products and services into a single service offering.
Finance and rental income, representing revenue earned from the Company's
portfolio of sales-type leases, increased 22% for the second quarter of 1998 to
$347,000, from $285,000 for the same period last year. For the nine months
ended September 30, 1998, finance and rental income rose 19% to $1.0 million as
compared to $854,000 for the nine months ended September 30, 1997. The increase
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<PAGE>
is a result of the continued growth of the Company's internally managed and
funded leasing program. The Company believes that the retention of new leases
in its own portfolio will result in an increase in finance income for the
remainder of 1998.
Cost of services, as a percentage of service revenues, was 56% for the three
months ended September 30, 1998 as compared to 54% for the three months ended
September 30, 1997. For the nine months ended September 30, 1998, cost of
services was 57% of year to date service revenues, as compared to 54% for the
same period last year. Cost of services remains high due to continued
investments in personnel and additional costs of employee retention and
recruiting initiatives. These additional costs are associated with the planned
relocation of the Company's monitoring facility as part of the move of the
Company's headquarters to Framingham, Massachusetts. The Company is also
incurring higher costs associated with continued systems enhancements to support
its current service infrastructure pending the introduction of its approximately
$12 million new call center platform. Through September 30, 1998, the Company
has invested nearly $10.0 million towards this new platform. Cost of services
is expected to be impacted, commencing in 1999, by the depreciation of these
investments.
Cost of sales was 27% of net product sales for the three and nine months ended
September 30, 1998, as compared with 26% and 27% for the same respective periods
a year ago. The Company continues to strive to maintain its cost of sales at a
consistent percentage, although the Company believes that cost of sales will
increase as a percentage of net product sales as net product sales continue to
decline.
Selling, general, and administrative expenses decreased as a percentage of total
revenues to 39% for the three and nine months ended September 30, 1998 as
compared to 41% and 43% of total revenues for the same respective periods in
1997. The improvement in selling, general, and administrative expenses is
mainly due to the Company effectively reducing such costs as a percentage of
total revenues in 1998, coupled with the significant decrease in amortization
expense because of the write-off of goodwill, reflected in the reorganization
charge taken in the fourth quarter of 1997. The dollar increase in actual
expenses to $18.7 million for the nine months ended September 30, 1998 from
$17.9 million for the same period in 1997 was largely attributable to salaries
and related fringe benefits due to the overall increase of the Company's
employee base. The Company now employs approximately 600 employees, 20% more
than the nearly 500 employees at September 30, 1997.
Research and development expenses were 2% of total revenues for the quarter and
nine months ended September 30, 1998 as compared to 3% of total revenues for the
quarter and nine months ended September 30, 1997. Research and development
efforts are focused on ongoing product improvements and developments. The
Company expects to maintain these expenses at approximately a consistent
percentage of total revenues for the remainder of 1998.
The Company's effective tax rate was 40.2% for the nine months ended September
30, 1998 compared to 39.5% for the nine months ended September 30, 1997. The
increase in the Company's rate was mainly due to the decrease of tax exempt
interest income from the Company's marketable securities portfolio.
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<PAGE>
LIQUIDITY AND CAPITAL RESOURCES
During the nine months ended September 30, 1998, the Company's portfolio of
cash, cash equivalents, and investments increased $3.7 million to $11.6 million
at September 30, 1998 from $7.9 million at December 31, 1997. The increase was
mainly attributable to profitable operations of $8.5 million and enhanced
collection efforts during 1998 on its accounts receivable portfolio resulting in
cash flow of approximately $1.0 million. These cash flows were in part offset
by continued purchases of property and equipment of $5.5 million for the first
nine months of 1998. These purchases were associated with the continued
development of the Company's new response center platform at its primary
monitoring facility, Company-owned equipment provided directly to customers
under comprehensive service agreements and to subscribers not serviced by local
Lifeline programs, and expenditures associated with the Company's anticipated
move to a new corporate facility. With the growth of the Company's leasing
portfolio, it also had a net cash outlay of approximately $1.3 million for the
nine months ended September 30, 1998 to fund this program.
In 1998, the Company will continue to use its cash and marketable securities as
it continues to invest approximately $12 million in its new response center
platform. The Company has invested nearly $10.0 million through September 30,
1998 and anticipates it will spend the remaining balance through the first
quarter of 1999 as it develops a flexible, scaleable, and fault tolerant
response center platform at its primary monitoring facility to support its
growing subscriber base.
In April, 1998, the Company obtained a $10.0 million line of credit. This
credit agreement contains a number of covenants, including requirements that the
Company maintain certain levels of financial performance and capital structure,
limitations on the Company's capital and other expenditures, and restrictions on
the Company's capacity to obtain additional debt financing. This line of credit
matures on June 30, 2004, and no amounts were outstanding as of September 30,
1998.
In November, 1997, the Company entered into a ten-year lease for an 84,000
square foot facility in Framingham, MA for its corporate headquarters. The
Company expects to occupy this new facility beginning in early 1999. Annual
rental payments under the lease approximate $775,000. The lease contains two
five-year options to renew at the end of the initial lease term. The Company is
currently evaluating possible alternatives for its existing lease. The Company
has spent approximately $450,000 through September 30, 1998 for capital
expenditures associated with the move and expects to spend an additional $2.0
million for capital expenditures associated with the move through the first
quarter of 1999.
In October, 1998, the Company entered into a five-year lease to rent an
additional 16,000 square feet of a facility located in Framingham, MA for its
repair, shipping and receiving departments. The Company intends to occupy this
new facility in early 1999. Annual rental payments will be approximately
$79,000. The lease contains two five-year options to renew at the end of the
initial lease term.
In July, 1998, the Company's Board of Directors adopted a Shareholder Rights
Plan in which common stock purchase rights will be distributed as a dividend at
the rate of one Right for each share of the Company's Common Stock outstanding
as of the close of business on August 3, 1998. This plan was adopted as a means
of deterring possible coercive or unfair takeover tactics and to prevent a
potential acquirer from gaining control of the Company without offering a fair
price to all of the Company's shareholders. In connection with the Merger
Agreement described below an amendment
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<PAGE>
to this Rights Plan was adopted on October 18, 1998, providing, in part, that
Protection One and its Affiliates are not Acquiring Persons, that no
Distribution Date, Stock Acquisition Date, or Triggering Event shall be deemed
to have occurred, and that no holder of Rights is entitled to exercise such
Rights (as all such terms are defined in the Rights Plan), by virtue of the
execution of the Merger Agreement. Unless the Rights are redeemed or exchanged
earlier, they will expire on July 24, 2008.
The Company expects that funding requirements for operations and in support of
future growth will be met primarily from operating cash flow, and existing cash
and short term investments. The Company expects these sources will be
sufficient to finance the cash needs of the Company through 1999 including the
continued investment in its new response center platform, the 1999 move to its
new corporate headquarters, the requirements of its internally funded lease
financing program, potential acquisitions, stock repurchases, and other
investments in support of its current business.
In June, 1997, the Financial Accounting Standards Board issued Statement No. 131
("SFAS" 131), "Disclosures about Segments of an Enterprise and Related
Information." SFAS 131, which supersedes Statement No. 14, "Financial Reporting
for Segments of a Business Enterprise," changes the way public companies report
information about segments. SFAS 131, which is based on management's approach
to segment reporting, includes requirements to report segment information
quarterly and entity-wide disclosures about products and services, major
customers, and the material countries in which the entity holds assets and
reports revenues. SFAS 131 is effective for fiscal years beginning after
December 15, 1997. Restatement for earlier years is required for comparative
purposes unless impracticable. In addition, SFAS 131 need not be applied to
interim periods in the initial year; however, in subsequent years, interim
period information must be presented on a comparative basis. The Company does
not believe that the adoption of SFAS 131 will have a material impact on
financial statement disclosures.
SUBSEQUENT EVENT
The Company entered into an Agreement and Plan of Merger (the "Merger
Agreement"), dated as of October 18, 1998 with Protection One, Inc. and a
subsidiary of Protection One, Inc. (the "Merger Sub"), pursuant to which,
subject to the terms and conditions of the Merger Agreement, the Company will be
merged with and into the Merger Sub. In connection with the merger, each share
of the Company's common stock will be converted into the right to receive $14.50
plus a certain number of shares of the common stock of a newly formed holding
company for Protection One, based on the average closing price of Protection
One's common stock prior to the consummation of the transaction and adjusted for
a variable exchange rate. The number of shares of Protection One holding
company common stock to be received by the company's stockholders will be based
on the average closing price of Protection One common stock for the ten days
ending three days prior to the company's shareholder meeting to be held in
connection with the transaction (the "Average Closing Price"). The number of
shares of holding company common stock to be received by the Company
shareholders per share of the Company's common stock will be as follows:
(A) 1.7857 if the Average Closing Price is less than $7.00;
(B) the quotient obtained by dividing (x) $12.50 by (y) the Average Closing
Price, if the Average Closing Price is equal to or greater than $7.00
but less than $8.19;
(C) 1.5263 if the Average Closing Price is equal to or greater than $8.19
but less than $9.50;
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<PAGE>
(D) the quotient obtained by dividing (x) $14.50 by (y) the Average Closing
Price, if the Average Closing Price is equal to or greater than $9.50
but less than $11.00; and
(E) 1.3182 if the Average Closing Price is equal to or greater than $11.00.
Based on the closing stock price of Protection One common stock on October 16,
1998, each share of the Company's common stock would have been converted to the
right to receive shares of holding company common stock worth approximately
$15.24. The acquisition will be accounted for as a purchase and is intended to
qualify as a tax-free reorganization to the extent of the holding company common
stock received in the transaction. The merger is conditioned upon, among other
things, approval by shareholders of the Company and Protection One, and
expiration or termination of the waiting period under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976. The Merger Agreement has been approved by
the boards of directors of Protection One and the Company, and the merger is
expected to be completed in early 1999.
CERTAIN FACTORS THAT MAY AFFECT FUTURE RESULTS
The following important factors, among others, could cause actual results to
differ materially from those indicated by forward-looking statements made in
this Quarterly Report on Form 10-Q and presented elsewhere by management from
time to time.
The Company entered into the Merger Agreement with Protection One, Inc. and a
subsidiary of Protection One, Inc. (the "Merger Sub"), pursuant to which,
subject to the terms and conditions of the Merger Agreement, the company will be
merged with and into the Merger Sub and the outstanding capital stock of the
Company will be converted into the right to receive $14.50 plus a certain number
of shares of the common stock of a newly formed holding company for Protection
One. The Merger is conditioned upon, among other things, approval by
shareholders of the Company and Protection One, and expiration or termination of
the waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of
1976, and, accordingly, there can be no assurance that the Merger will be
consummated. If the Merger is not consummated, there can be no assurance that
the Company's results of operations and financial condition will not have been
adversely affected by the Merger negotiations or the announcement of the Merger,
or by other factors.
Pursuant to the Merger Agreement, the outstanding capital stock of the Company
will be converted into the right to receive $14.50 plus a certain number of
shares of the common stock of a newly formed holding company for Protection One.
As a result, if the Merger is consummated, stockholders of the Company will
become stockholders of the holding company, and as such will have the risks
associated with an investment in that company.
The Company's results are partially dependent on its ability to develop services
and products that keep pace with continuing technological changes, evolving
industry standards, changing subscriber preferences and new service and product
introductions by the Company's competitors. Lifeline's future success will
depend on its ability to enhance its existing services and products (including
accessories), to introduce new service and product offerings to meet and adapt
to changing customer requirements and emerging technologies on a timely basis
and to offer such products and services at competitive prices. There can be no
assurance that Lifeline will be successful in identifying, developing,
manufacturing or marketing new services and products or enhancing its existing
services and products on a timely basis or that Lifeline will be able to offer
such services and products at
-13-
<PAGE>
competitive prices. Also, there can be no assurance that services, products or
technologies developed by others will not render Lifeline's services or products
noncompetitive or obsolete.
The Company is in the process of developing its new call center platform and may
experience risks and uncertainties associated with the development of new
information technology. These include the risks that such development effort
may not be completed on schedule, or at all, or within budget, or that future
developments in information technology will render the Company's system non-
competitive; the risks that the Company does not realize the intended benefits
from the new system, once completed; and the uncertainty associated with the
substantial commitment of funds to the development effort, including the risks
that the Company will have available significantly less cash to finance its
operations, other capital expenditures and future growth, including
acquisitions.
The Company anticipates moving to new corporate headquarters beginning in early
1999. The new facility is approximately 20 miles from the Company's current
headquarters. There can be no assurance that the move will not have a material
adverse effect on the Company's business, financial condition or results of
operations, including as a result of employee attrition, and the Company is
actively addressing potential issues.
The Company's growth is dependent on its ability to increase the number of
subscribers served by its monitoring centers. The Company's ability to continue
to increase service revenue is a key factor in its long-term growth, and there
can be no assurance that the Company will be able to do so. The Company's
failure to increase service revenue could have a material adverse effect on the
Company's business, financial condition, or results of operations.
The Company's equipment sales have continued to decline as a result of the
Company's strategy of combining service and hardware offerings to support the
transition to a service oriented business. There can be no assurance that
service revenue will increase at a rate sufficient to offset the expected
decrease in equipment sales.
The Company may expand its operations through the acquisition of additional
businesses. There can be no assurance that the Company will be able to
identify, acquire or profitably manage additional businesses or successfully
integrate any acquired businesses into the Company without substantial expenses,
delays or other operational or financial problems. In addition, acquisitions
may involve a number of special risks, including diversion of management's
attention, failure to retain key acquired personnel, unanticipated events,
contingent liabilities and amortization of acquired intangible assets. There can
be no assurance that the acquired businesses, if any, will achieve anticipated
revenues or earnings.
The Company sells a significant portion of its products to healthcare providers
which establish their own Lifeline programs. These healthcare providers
typically rent, rather than sell, the Lifeline products to subscribers and
accordingly following such time as a product is no longer used by a subscriber,
it is returned to the healthcare provider and becomes available for rent to
another subscriber. As a result of this use and reuse of the Company's
products, sales of such products are dependent on growth in the number of
subscribers and on the ability of the Company to encourage its healthcare
provider customers to replace their existing inventory by continuing to enhance
its products with new features.
-14-
<PAGE>
The Company's monitoring operations are concentrated principally in its
corporate headquarters facility. Although the Company believes that it has
constructed safeguards to protect against system failures, the disruption of
service at its monitoring facility, whether due to telephone or electrical
failures, earthquakes, fire, the 1999 move to new corporate headquarters, or
other similar events or for any other reason, could have a material adverse
effect on the Company's business, financial condition, or results of operations.
The Company believes that its future success will also depend in large part upon
its ability to attract and retain key personnel, and there can be no assurance
that the Company will be successful in attracting and retaining such personnel.
In particular, the Company believes that its move to new headquarters in early
1999 may result in employee resignations and is actively addressing this
possibility.
IMPACT OF THE YEAR 2000 ISSUE
The Year 2000 Issue is the result of computer programs being written using two
digits rather than four to define the applicable year. This could result in
computer programs that have date-sensitive software recognizing a date using
"00" as the year 1900 rather than the year 2000. Such errors could cause a
system failure or miscalculations causing disruptions of operations, including,
among other things, an inability to respond to subscriber calls, send invoices,
or engage in similar normal business activities.
The Company has implemented a formal six-phase Year 2000 program to determine
the extent of its own Year 2000 exposures. The Awareness Phase is ongoing and
involves continuous communication, both internally and externally with customers
and vendors. The Assessment Phase identifies the Company's products, services
and equipment which contain micro-controllers, as well as all information
technology hardware and software to identify two-digit year exposures. The
Planning Phase is the Company's decision-making phase, and it prioritizes the
schedule of resolutions to be implemented. In the Resolution Phase, the Company
will modify, replace or retire systems where necessary. The Testing Phase tests
the Company's readiness to roll out its results. Finally the Rollout Phase
implements the entire process into production.
The Company has utilized internal resources to test all products that it
currently manufactures for Year 2000 issues. This product testing phase has
revealed only minor product behaviors in date keeping that do not, in the
Company's judgment, cause operational failure relating to the year 2000. The
Company has provided its customers with written information on how to correct
such Year 2000 conditions.
The Company's information technology systems, which include its networks,
desktops, data servers and applications, are being analyzed and tested for Year
2000 compliance. The Company has designed its new call center platform to be in
compliance with the Year 2000. The Company is currently completing the
Assessment Phase of its remaining information technology systems. Of all of the
Company's material systems, software replacements and upgrades in the ordinary
course of business (without acceleration for Year 2000 issues) have enhanced the
Company's Year 2000 readiness without incremental costs. Of its existing desktop
computers, the Company believes that approximately 90% are Year 2000 compliant
with the remaining 10% requiring some modification to ensure Year 2000
compliance. The Company anticipates that these Year 2000 modifications will be
completed during 1999.
-15-
<PAGE>
The Company is moving to new corporate headquarters in early 1999. As part of
this process, the Company is confirming that all embedded systems contained in
its new building, such as its elevators, heating, air conditioning and security
systems, are Year 2000 compliant.
The Company has categorized its manufacturing equipment and systems as either
mission-critical or non-mission-critical. To date, the Company believes that
its mission-critical equipment and systems are Year 2000 ready. All of the
identified non-mission-critical manufacturing equipment and systems are either
not affected by the Year 2000 issue or are deemed to be Year 2000 ready.
The Company is completing its assessment of whether third parties with whom it
has significant relationships are Year 2000 compliant. The Company sent formal
communications to third parties to determine the extent to which the Company is
vulnerable in the event those third parties fail to resolve their own Year 2000
issues. Responses to these letters are still being received, but of those
received to date, such third parties have informed the Company that they believe
they are or will be Year 2000 ready. However, there can be no assurance that
the systems of these companies on which the Company's systems rely will not
experience problems associated with the Year 2000 and, if so, that such problems
would not have a material adverse effect on the Company's business, financial
condition, or results of operations.
The Company is in the process of identifying its most reasonably likely worst
case Year 2000 scenario and developing contingency plans to minimize its
exposure to such scenario. These plans could result in some expenditures, the
exact amount of which is not known at this time. The contingency plans are
expected to focus on preparing the Company for the inability of key third-party
suppliers to resolve their own Year 2000 issues and the need to develop
alternative suppliers.
Through September 30, 1998, the Company has had only limited expenditures
related to Year 2000 issues, consisting principally of personnel costs incurred
in the scope of normal operations. The costs of the Year 2000 project and the
date on which the Company plans to complete the Year 2000 modifications,
estimated to be during 1999, are based on management's best estimates, which
were derived utilizing numerous assumptions of future events including the
continued availability of certain resources, third party modification plans and
other factors. However, there can be no guarantee that these estimates will be
achieved and actual results could differ materially from those plans. Specific
factors that might cause such material differences include, but are not limited
to, the availability and cost of personnel trained in this area, the ability to
locate and correct all relevant computer codes, and similar uncertainties.
The Company believes that its principal Year 2000 risk is significant
interruptions in basic services, such as telephone service and electricity,
caused by third party suppliers that do not resolve their own Year 2000 issues.
These disruptions could have a material adverse effect on the Company's
monitoring operations, and accordingly, its business, financial condition or
results of operations.
Based upon the Company's current progress in becoming Year 2000 ready, the
Company believes it will complete necessary Year 2000 modifications and
contingency plans during 1999. However, there can be no assurance that the
Company will not need to incur material costs in order to complete
-16-
<PAGE>
necessary modifications and to develop and implement contingency plans to
minimize its exposure to the Year 2000 problem. Any such costs, if incurred, or
the Year 2000 problems of third parties with whom the Company has significant
relationships, could have a material adverse effect on the Company's business,
financial condition or results of operations.
PART II. OTHER INFORMATION
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Reports on Form 8-K - A Form 8-K was filed on August 5, 1998 and
October 30, 1998.
(b) Exhibits - The Exhibits which are filed with this Report or which are
incorporated herein by reference are set forth in the Exhibit Index
which appears on page 19 hereof.
-17-
<PAGE>
LIFELINE SYSTEMS, INC.
SIGNATURES
Pursuant to the requirements of the Securities and Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
November 10, 1998 LIFELINE SYSTEMS, INC.
- ----------------- ----------------------
Date Registrant
/s/ Ronald Feinstein
--------------------
Ronald Feinstein
Chief Executive Officer
/s/ Dennis M. Hurley
--------------------
Dennis M. Hurley
Vice President of Finance and
Administration, Principal Financial
and Accounting Officer
-18-
<PAGE>
EXHIBIT INDEX
The following designated exhibits are, as indicated below, either filed herewith
or have heretofore been filed with the Securities and Exchange Commission under
the Securities Act of 1933 or the Securities and Exchange Act of 1934 and are
referred to and incorporated herein by reference to such filings.
EXHIBIT NO. EXHIBIT SEC DOCUMENT REFERENCE
- ----------- ------- ----------------------
EXHIBIT 4. INSTRUMENTS DEFINING THE RIGHTS OF
SECURITY HOLDERS
4.3 Amendment Number 1 to Shareholder
Rights Plan dated October 18, 1998
EXHIBIT 10. MATERIAL CONTRACTS
10.53 Lease agreement between Registrant
and Triangle Realty Trust dated
August, 1998
10.54 Amended and Restated Agreement and
Plan of Contribution and Merger
dated October 28, 1998 8-K dated October 30, 1998
-19-
<PAGE>
Exhibit 4.3
AMENDMENT NO. 1
TO
RIGHTS AGREEMENT
This AMENDMENT NO. 1 TO RIGHTS AGREEMENT (the "Amendment") is entered
into as of the 18th day of October, 1998 between Lifeline Systems, Inc., a
Massachusetts corporation (the "Company"), and State Street Bank and Trust
Company, a Massachusetts trust company (the "Rights Agent"). Capitalized terms
not otherwise defined herein shall have the meanings given them in the Rights
Agreement by and between the parties hereto.
RECITALS
WHEREAS, the Board of Directors has determined that it is in the best
interests of the Company to amend the Rights Agreement as set forth herein
immediately prior to and in connection with the execution of that certain
Agreement and Plan of Contribution and Merger dated as of October 18, 1998, as
the same may be amended from time to time (the "Merger Agreement"), between
Protection One, Inc., a Delaware corporation ( the "Parent"), Protection One
Acquisition Holding Corporation, a Delaware Corporation and wholly-owned
subsidiary of the Parent ("Holdco"), P-1 Merger Sub, Inc., a Delaware
corporation, P-1 Merger Sub, Inc., a Massachusetts corporation and a wholly-
owned subsidiary of the Holdco ("Merger Sub") and the Company (pursuant to which
Merger Agreement, among other things, the Merger Sub shall merge with and into
the Company and the Company shall become a wholly-owned subsidiary of Holdco).
WHEREAS, the Company has requested that the Rights Agreement be amended
in accordance with Section 27 of the Rights Agreement, as set forth herein, and
the Rights Agent is willing to amend the Rights Agreement as set forth herein.
AGREEMENT
NOW, THEREFORE, the parties, intending to be legally bound, hereby agree
as follows:
1. Section 1(n) of the Rights Agreement is hereby amended to read in its
entirety as follows:
"(n) "Exempted Person" shall mean (i) any Person which, together with
its Affiliates, had reported Beneficial Ownership as of the date of this
Agreement of more than ten percent (10%) of the shares of Common Stock
-1-
<PAGE>
outstanding as of such date on Schedule 13G under the Exchange Act, unless
and until such time as such Person, together with its Affiliates, directly
or indirectly, becomes the Beneficial Owner of more than 19.9% of the
Common Stock then outstanding, in which case such Person shall cease to be
an Exempted Person, and (ii) the Parent or Holdco (as those terms are
defined in Section 7(a) hereof), or any Affiliate or Associate of the
Parent or Holdco, which acquires shares of Common Stock pursuant to the
Option Agreement or votes shares of Common Stock pursuant to the Voting
Agreements (as those terms are defined in Section 35 hereof)."
2. Section 7(a) of the Rights Agreement is hereby amended to read in its
entirety as follows:
"(a) Subject to Section 7(e) hereof, the registered holder of any
Rights Certificate may exercise the Rights evidenced thereby (except as
otherwise provided herein including, without limitation, the restrictions
on exercisability set forth in Section 9(c), Section 11(a)(iii) and Section
23 hereof) in whole or in part at any time after the Distribution Date upon
surrender of the Rights Certificate, with the form of election to purchase
and the certificate on the reverse side thereof duly executed, to the
Rights Agent at the office of the Rights Agent designated for such purpose,
together with payment of the aggregate Purchase Price with respect to the
total number of shares of Common Stock (or other shares, securities, cash
or other assets, as the case may be) as to which such surrendered Rights
are then exercisable, at or prior to the earlier of (i) the Final
Expiration Date, (ii) the time at which the Rights expire as provided in
Section 13(d) hereof, (iii) the time at which the Rights are redeemed as
provided in Section 23 hereof (the "Redemption Date"), (iv) the time at
which such Rights are exchanged as provided in Section 24 hereof, or (v) in
accordance with the terms of the Agreement and Plan of Contribution and
Merger dated as of October 18, 1998, as the same may be amended from time
to time, between Protection One, Inc., a Delaware corporation (the
"Parent"), Protection One Acquisition Holding Corporation, a Delaware
corporation and wholly-owned subsidiary of the Parent ("Holdco"), P-1
Merger Sub, Inc., a Delaware corporation, P-1 Merger Sub, Inc., a
Massachusetts corporation and a wholly-owned subsidiary of Holdco (the
"Merger Sub") and the Company (the "Merger Agreement"), pursuant to which
Merger Agreement, among other things, the Merger Sub shall merge with and
into the Company and the Company shall become a wholly-owned subsidiary of
Holdco (the "Merger"), upon the filing of a certificate of merger with the
Secretary of State of the Commonwealth of Massachusetts (the "Effective
Time"), immediately prior to such Effective Time (the earliest of (i),
(ii), (iii), (iv) and (v) being herein referred to as the "Expiration
Date").
3. Section 35 of the Rights Agreement is hereby added as follows:
"Section 35. Protection One, Inc. Transaction. Notwithstanding any
--------------------------------
provision of this Rights Agreement to the contrary, no Distribution Date,
Stock Acquisition Date or Triggering Event shall be deemed to have
occurred, none of Holdco, Parent, Merger Sub or any Affiliate or Associate
-2-
<PAGE>
of Holdco, Parent or Merger Sub shall be deemed to have become an Acquiring
Person and no holder of Rights shall be entitled to exercise such Rights
under or be entitled to any rights pursuant to Section 7(a), 11(a)(ii) or
13(a) of this Rights Agreement by reason of (x) the approval, execution,
delivery or effectiveness of the Merger Agreement, the Stock Option
Agreement of even date therewith between the Parent and the Company (the
"Option Agreement"), or Voting Agreements of even date therewith between
the Parent and executive officers and directors of the Company (the "Voting
Agreements") or (y) the consummation of the transactions contemplated under
the Merger Agreement, the Option Agreement or the Voting Agreements in
accordance with the terms thereof (including, without limitation the
Merger, the issuance of Common Stock upon exercise of the Option Agreement
or the voting of shares of Common Stock pursuant to the terms of the Voting
Agreements)."
3. Except as amended hereby, the Rights Agreement shall remain unchanged and
shall remain in full force and effect.
4. This Amendment may be executed in any number of counterparts, each of which
shall be an original, but all of which together shall constitute one
instrument.
-3-
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Amendment to be executed
by their respective duly authorized representatives as of the date first above
written.
LIFELINE SYSTEMS, INC.
By:
-----------------------------
Name:
Title:
STATE STREET BANK & TRUST COMPANY
By:
-----------------------------
Name:
Title:
-4-
<PAGE>
Exhibit 10.53
AUGUST ____, 1998
THE TRIANGLE
BUILDING 5
290 HOWARD STREET
FRAMINGHAM, MASSACHUSETTS
Lease To
LIFELINE SYSTEMS, INC.
<PAGE>
THE TRIANGLE
BUILDING 5
FRAMINGHAM, MASSACHUSETTS
OFFICE LEASE
TABLE OF CONTENTS BY ARTICLES AND SECTIONS
------------------------------------------
<TABLE>
<CAPTION>
ARTICLE SECTION PAGE
<S> <C>
1. REFERENCE DATA AND DEFINITIONS.
-------------------------------
1.01 Reference Data...................................... 1
1.02 General Provisions.................................. 3
1.03 Terms Defined....................................... 3
2. PREMISES.
---------
2.01 Premises............................................ 12
2.02 Appurtenances....................................... 12
3. TERM.
-----
3.01 Term Commencement................................... 12
3.02 Termination......................................... 12
4. RENT.
-----
4.01 Basic Rent.......................................... 12
4.02 Computation of Basic Rent........................... 13
4.03 Resolution of Disputes with Respect
to Fair Rental Value, Arbitration.................. 13
5. USE OF PREMISES.
----------------
5.01 Use Restricted...................................... 14
6. TAXES; OPERATING EXPENSES; ESTIMATED COST
-----------------------------------------
OF ELECTRICAL SERVICES.
-----------------------
6.01 Expenses and Taxes.................................. 14
6.02 Monthly Payments of Additional Rent................. 14
6.03 Accounting Periods.................................. 15
6.04 Abatement of Taxes; Tax Incentives.................. 15
6.05 Electric Service; Payment of
Additional Rent..................................... 15
6.06 Change in Rates or Usage............................ 16
6.07 Late Payment of Rent................................ 16
</TABLE>
-i-
<PAGE>
<TABLE>
<CAPTION>
ARTICLE SECTION PAGE
<S> <C>
7. IMPROVEMENTS, REPAIRS, ADDITIONS, REPLACEMENTS.
-----------------------------------------------
7.01 Preparation of the Premises................................. 17
7.02 Time for Completion......................................... 17
7.03 Notice to Commence.......................................... 18
7.04 Delays...................................................... 18
7.05 Tenant's Access to the Premises............................. 18
7.06 Alterations and Improvements................................ 19
7.07 Maintenance................................................. 20
7.08 Redelivery.................................................. 20
8. BUILDING SERVICES.
------------------
8.01 Building Services........................................... 20
8.02 Other Janitors.............................................. 20
8.03 Additional Services......................................... 21
8.04 Limitation on Landlord's
Liability.............................................. 21
8.05 Electric Service............................................ 21
9. TENANT'S PARTICULAR COVENANTS.
------------------------------
9.01 Pay Rent.................................................... 22
9.02 Occupancy of the Premises................................... 22
9.03 Safety...................................................... 22
9.04 Equipment................................................... 22
9.05 Electrical Equipment........................................ 23
9.06 Pay Taxes................................................... 23
10. REQUIREMENTS OF PUBLIC AUTHORITY.
---------------------------------
10.01 Legal Requirements.......................................... 23
10.02 Contests.................................................... 23
11. COVENANT AGAINST LIENS.
-----------------------
11.01 Mechanics Liens............................................. 23
11.02 Right to Discharge.......................................... 24
12. ACCESS TO PREMISES.
-------------------
12.01 Access...................................................... 24
13. ASSIGNMENT AND SUBLETTING: COMPANY ARRANGEMENTS.
------------------------------------------------
13.01 Subletting and Assignments.................................. 24
</TABLE>
-ii-
<PAGE>
<TABLE>
<CAPTION>
ARTICLE SECTION PAGE
<S> <C>
14 INDEMNITY.
----------
14.01 Tenant's Indemnity.................................. 25
14.02 Landlord's Liability................................ 26
15. INSURANCE.
----------
15.01 Liability Insurance................................. 26
15.02 Property Insurance.................................. 26
16. WAIVER OF SUBROGATION.
---------------------
16.01 Waiver of Subrogation............................... 26
16.02 Waiver of Rights.................................... 27
17. DAMAGE OR DESTRUCTION.
---------------------
17.01 Substantial Damage.................................. 27
17.02 Restoration......................................... 27
18. EMINENT DOMAIN.
---------------
18.01 Total Taking........................................ 28
18.02 Partial Taking...................................... 28
18.03 Awards and Proceeds................................. 28
19. QUIET ENJOYMENT.
----------------
19.01 Landlord's Covenant................................. 28
19.02 Subordination....................................... 29
19.03 Notice to Mortgage.................................. 29
19.04 Other Provisions Regarding
Mortgages....................................... 29
20. DEFAULTS; EVENTS OF DEFAULT
---------------------------
20.01 Defaults............................................ 30
20.02 Tenant's Best Efforts............................... 30
20.03 Elimination of Default.............................. 31
21. INSOLVENCY.
----------
21.01 Insolvency.......................................... 31
</TABLE>
-iii-
<PAGE>
<TABLE>
<CAPTION>
ARTICLE SECTION PAGE
<S> <C>
22. LANDLORD'S REMEDIES; DAMAGES ON DEFAULT.
---------------------------------------
22.01 Landlord's Remedies.................................. 31
22.02 Surrender............................................ 32
22.03 Right to Relet....................................... 32
22.04 Survival of Covenants................................ 32
22.05 Right to Equitable Relief............................ 33
22.06 Right to Self Help; Interest on
Overdue Rent..................................... 33
22.07 Further Remedies..................................... 33
23. WAIVERS.
--------
23.01 No Waivers........................................... 34
24. SECURITY DEPOSIT.
-----------------
24.01 Security Deposit..................................... 34
25. GENERAL PROVISIONS.
-------------------
25.01 Force Majeure........................................ 34
25.02 Notices and Communications........................... 34
25.03 Certificates, Estoppel Letter........................ 35
25.04 Renewal.............................................. 35
25.05 Governing Law........................................ 35
25.06 Partial Invalidity................................... 36
25.07 Notice of Lease...................................... 36
25.08 Interpretation; Consents............................. 36
25.09 Bind and Inure; Limitation of
Landlord's Liability............................... 36
25.10 Parties.............................................. 37
26. MISCELLANEOUS.
--------------
26.01 Holdover Clause...................................... 37
26.02 Brokerage............................................ 37
26.03 Extension Option..................................... 37
26.04 Signage.............................................. 38
27. ENTIRE AGREEMENT.
-----------------
27.01 Entire Agreement..................................... 38
</TABLE>
-iv-
<PAGE>
LEASE EXHIBITS
<TABLE>
<CAPTION>
PAGE
<S> <C>
EXHIBIT A: Legal Description of Land................................ 39
EXHIBIT A1: Plan Showing Tenant's Space.............................. 40
EXHIBIT B1: Memorandum Of Work And Installations To Be Initially
Performed For Base Building.............................. 41
EXHIBIT B2: Building Standard Interior Tenant Improvements........... 43
EXHIBIT C: Services By Landlord..................................... 46
EXHIBIT D: Rules And Regulations.................................... 47
EXHIBIT E: Parking.................................................. 49
</TABLE>
-v-
<PAGE>
FRAMINGHAM TRIANGLE
290 HOWARD STREET
OFFICE LEASE
STANDARD FORM
THIS LEASE ("Lease") made in Marlborough, Massachusetts, by and between
David P. Depietri, Trustee of the Triangle Realty Trust, a duly organized and
existing Massachusetts Realty Trust established under a Declaration of Trust
dated October 2, 1997, and recorded at the Middlesex South Registry of Deeds, in
Book 28070, Page 439 ("Landlord"), having a principal place of business at 293
Boston Post Road, Suite 320, Marlborough, Massachusetts 01752, and Lifeline
Systems, Inc., a duly organized and existing Massachusetts Corporation
("Tenant") having a principal place of business at 640 Memorial Drive,
Cambridge, Massachusetts. (Tenant Address).
W I T N E S S E T H :
ARTICLE 1
REFERENCE DATA AND DEFINITIONS
------------------------------
1.01 REFERENCE DATA
--------------
LANDLORD'S REPRESENTATIVE: David Depietri,
Trustee, Triangle Realty Trust
LANDLORD'S ADDRESS: Rosewood Development Corporation
(FOR PAYMENT OF RENT) 293 Boston Post Road, Suite 320
Marlborough, Massachusetts 01752
LANDLORD'S ADDRESS
(FOR NOTICE AND BILLING): Same as Above
TENANT: Lifeline Systems, Inc.
TENANT'S REPRESENTATIVE: John Gugliotta
TENANT'S ADDRESS: 640 Memorial Drive
(FOR NOTICE) Cambridge, Massachusetts 02139
TENANT'S PHONE NUMBER: 1-617-679-1000
TENANT'S FAX NUMBER:
-1-
<PAGE>
PREMISES: The portion of the Building known as Building 5,
290 Howard Street, Framingham, Massachusetts,
located on land, a legal description of which is
attached hereto as Exhibit A, which portion is
known as Suite 100 located on the first floor as
shown on Exhibit A-1 attached hereto.
RENTABLE AREA
OF PREMISES: 15,698 Square Feet of Rentable Floor Space.
RENTABLE AREA
OF THE BUILDING: 64,436 Rentable Square Feet
RENT COMMENCEMENT
DATE: The Term Commencement Date
OCCUPANCY DATE: Ten (10) days after Substantial Completion Date or
upon earlier occupancy of the Building by Tenant
for operations of its business.
TERM: Sixty (60) calendar months (plus the partial
month, if any, immediately following the Term
Commencement Date).
BASIC NET, NET, NET,
RENT: SEE SCHEDULE BELOW:
<TABLE>
<CAPTION>
NET,NET, NET NET, NET, NET NET, NET, NET
------------------------ ------------------------ ------------------------
MONTHS RATE PER SQ. FT. ANNUAL RENT MONTHLY RENT
------ ------------------------ ------------------------ ------------------------
<S> <C> <C> <C>
1-60 $5.00 $78,490.00 $6,540.00
</TABLE>
INITIAL MONTHLY PAYMENT
(Basic Net, Net, Net Rent): $6,540.00
TAX BASE: $0.00
OPERATING EXPENSE
BASE: $0.00
TENANT'S SHARE: 24.4%
SECURITY DEPOSIT: N/A
GUARANTOR: N/A
-2-
<PAGE>
PERMITTED USES: General office, light assembly and distribution
1.02 GENERAL PROVISIONS.
------------------
For all purposes of the Lease unless otherwise expressed and provided
herein or therein or unless the context otherwise requires:
(a) The words herein, hereof, hereunder and other words of similar import
------ ------ ---------
refer to the Lease as a whole and not to any particular article,
section or other subdivision of this Lease.
(b) A pronoun in one gender includes and applies to the other genders as
well.
(c) Each definition stated in Section 1.01 or 1.03 of this Lease applies
equally to the singular and the plural forms of the term or expression
defined.
(d) Any reference to a document defined in Section 1.03 of this Lease is
to such document as originally executed, or, if modified, amended or
supplemented in accordance with the provisions of this Lease, to such
document as so modified, amended or supplemented and in effect at the
relevant time of reference thereto.
(e) All accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting
principles.
(f) All references in Section 1.01 hereof are subject to the specified
definitions thereof (if any) in Section 1.03 hereof.
1.03 TERMS DEFINED.
-------------
Each term or expression set forth above in Section 1.01 hereof or
below in this Section 1.03 has the meaning stated immediately after
it.
ADDITIONAL SERVICES. Services provided to Tenant or in respect to the
-------------------
Premises which are not described in Exhibit C hereto.
ADJUSTED OPERATING EXPENSE BASE. The amount determined by multiplying
-------------------------------
the Operating Expense Base by the Adjustment Factor.
ADJUSTED TAX BASE. The amount determined by multiplying the Tax Base
-----------------
by the Adjustment Factor.
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ADJUSTMENT FACTOR. With respect to the First Calendar Year and the
-----------------
Last Calendar Year, the percentage computed by dividing (i) the number
of days of each such period falling within the Lease term by (ii) 365.
AFFILIATE. With respect to any specified person either (i), any other
---------
person directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified person or (ii)
any other person who is a successor by merger or acquisition of
substantially all of the assets or stocks of such specified person.
For the purposes of this definition, the term control when used with
respect to any specified person means the power to direct the
management and policies of such person, directly or indirectly,
whether through the ownership of voting securities, by contract or
otherwise, and the terms controlling and controlled by have meanings
correlative to the foregoing.
AUTHORIZATIONS. All franchises, licenses, permits and other
--------------
governmental consents issued by Governmental Authorities pursuant to
Legal Requirements which are or may be required for the use and
occupancy of the Premises and the conduct or continuation of a
Permitted use therein.
BASIC SERVICES. The services described in Exhibit C hereto.
--------------
BUILDING. The building known as Building #5 located at 290 Howard
--------
Street, Framingham, Massachusetts.
BUSINESS DAY. A day which is not a Saturday, Sunday or other day on
------------
which banks in Boston, Massachusetts, are authorized or required by
law or executive order to remain closed.
CALENDAR YEAR. The First Calendar Year, the Last Calendar Year and
-------------
full calendar year (January 1 through December 31) occurring during
the Lease Term.
C.P.I. "Consumer Price Index - All Urban Consumers - (CPI-U) - U.S.
-----
City Average - All Items (1982-1984=100)" as published by the U.S.
Department of Labor.
COMMON AREAS. All areas devoted to the common use of occupants of the
------------
Building or the provision of Services to the Building, including but
not limited to the atrium, all corridors, elevator foyers, air shafts,
elevator shafts, and elevators, stairwells and stairs, mechanical
rooms, janitor closets, vending areas and other similar facilities for
the provision of Services or the use of all occupants of multi-tenant
floors or all occupants of the Building.
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<PAGE>
CONTROL. As defined in the definition of Affiliate.
-------
CORPORATION. A corporation, company, association, business trust or
-----------
similar organization wherever formed.
DEFAULT. Any event or condition specified in Article 20 hereof so
-------
long as any applicable requirement for the giving of notice or lapse
of time or both have not been fulfilled.
ESTIMATED TERM COMMENCEMENT DATE. November 1, 1998
--------------------------------
EVENT OF DEFAULT. Any event or condition specified in (a) Article 20
----------------
hereof (if all applicable periods for the giving of notice or lapse of
time or both have been fulfilled) or (b) in Article 21 hereof.
FAIR RENTAL VALUE. The amount per square foot per annum which a
-----------------
Person not an Affiliate of either Landlord or Tenant would pay as
Basic Rent as of the time of determination for the Premises for a term
of seven (7) years. All Additional Rent such as Taxes, Operating
Expenses and Estimated Cost of Electrical Service shall be in addition
to the price per square foot so determined.
FIRST CALENDAR YEAR. The partial Calendar Year period commencing on
-------------------
the Term Commencement Date and ending on the next succeeding
December 31.
FORCE MAJEURE. Acts of God, strikes, lock outs, labor troubles,
-------------
inability to procure materials, failure of power, restrictive Legal
Requirements, riots and insurrection, acts of public enemy, wars,
earthquakes, hurricanes and other natural disasters, fires,
explosions, any act, failure to act or Default of the other party to
this Lease; provided, however, lack of money shall not be deemed such
a cause.
GENERAL CONTRACTOR. None.
------------------
GOVERNMENTAL AUTHORITY. United States of America, the Commonwealth of
----------------------
Massachusetts, the City of Framingham, County of Middlesex, and any
political subdivision thereof and any agency, department, commission,
board, bureau or instrumentality of any of them.
INSOLVENCY. The occurrence with respect to any Person of one or more
-----------
of the following events: the death, dissolution, termination of
existence (other than by merger or consolidation), insolvency,
appointment of a receiver for all or
-5-
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substantially all of the property of such person, the making of a
fraudulent conveyance or the execution of an assignment or trust
mortgage for the benefit of creditors by such Person, or the filing of
a petition of bankruptcy or the commencement of any proceedings by or
against such Person under a bankruptcy, insolvency or other law
relating to the relief or the adjustment of indebtedness,
rehabilitation or reorganization of debtors; provided that if such
petition or commencement is involuntarily made against such a Person
and is dismissed within sixty (60) days of the date of such filing or
commencement, such events shall not constitute an insolvency
hereunder.
INSURANCE REQUIREMENTS. All terms of any policy of insurance
----------------------
maintained by Landlord or Tenant and applicable to (or affecting any
condition, operation, use or occupancy of) the Building or the
Premises or any part or parts of either and all requirements of the
issuer of any such policy and all orders, rules, regulations and other
requirements of the National Board of Fire Underwriters (or any other
body exercising similar functions).
LAND. The land on 290 Howard Street, Framingham, Massachusetts,
----
County of Middlesex, Commonwealth of Massachusetts.
LANDLORD'S CONTRIBUTION. The amount contributed by Landlord as a
-----------------------
credit toward the cost of finishing the Premises shown on Exhibit B-1.
LANDLORD'S WORK. The work to be done by Landlord with respect to the
---------------
Premises described on Exhibit B1.
LAST CALENDAR YEAR. The partial Calendar Year commencing on January 1
------------------
of the Calendar Year in which the Lease Termination Date occurs and
ending on the Lease Termination Date.
LEASE TERM. The period commencing on the Term Commencement Date and
----------
ending on the Lease Termination Date.
LEASE TERMINATION DATE. The earlier to occur of (1) the Stated
----------------------
Expiration Date, (2) the termination of this Lease by Landlord as the
result of an Event of Default, (3) the termination of this Lease
pursuant to Article 17 (Damage or Destruction) or 18 (Eminent Domain)
hereof.
LEASE YEAR. A period commencing on the Term Commencement Date (or an
----------
anniversary thereof) and ending on the Day before the next succeeding
anniversary thereof. For example, the first Lease Year is a period
commencing on the Term Commencement Date and ending on the day before
the first anniversary thereof. The last Lease Year shall end on the
Lease Termination Date.
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LEGAL REQUIREMENTS. All statutes, codes, ordinances (and all rules
------------------
and regulations thereunder), all executive orders and other
administrative orders, judgments, decrees, injunctions and other
judicial orders of or by any Governmental Authority which may at any
time be applicable to parts or appurtenances of the Premises or
Building or to any condition or use thereof and the provisions of all
Authorizations.
OCCUPANCY ARRANGEMENT. With respect to the Premises or any portion
---------------------
thereof of the Lease, and whether (a) written or unwritten or (b) for
all or any portion of the Lease Term, an assignment, a sublease, any
tenancy at will, a tenancy at sufferance, or any other arrangement
(including but not limited to a license or concession) pursuant to
which a Person occupies the Premises for any purpose.
OPERATING EXPENSE BASE. With respect to each Calendar Year the amount
----------------------
determined by multiplying the Rentable Area of the Premises by the
amount hereinbefore set forth as the Operating Expense Base per square
foot of Rentable Area per year, but with respect to the First Calendar
Year and the Last Calendar Year, the Adjusted Operating Expense Base.
OPERATING EXPENSES. All expenses, costs, and disbursements of every
------------------
kind and nature which Landlord shall pay or become obligated to pay in
connection with the ownership, operation and maintenance of the
Building (including all facilities in operation on the Term
Commencement Date and such additional facilities which are necessary
or beneficial for the operation of the Building) and the Land and the
provision of Basic Services, including, but not limited to (a) wages,
salaries, fees and costs to Landlord of all Persons engaged in
connection therewith up to the level of Property Manager, including
taxes, insurance, and benefits relating thereto; (b) the cost of (i)
all supplies and materials, electricity and lighting, for Common
Areas, (ii) water, heat, air conditioning, and ventilating for the
Building, (iii) all maintenance, janitorial, and service agreements,
(iv) all insurance, including the cost of casualty and liability
insurance applicable to the Building and Landlord's personal property
used in connection therewith, (v) repairs and general maintenance,
(vi) capital items which are primarily for the purpose of reducing
Operating Expenses or which may be required by a Governmental
Authority, amortized over the reasonable life of the capital items
with the reasonable life and amortization schedule being determined by
Landlord in accordance with generally accepted accounting principles
(provided that in the event the reasonably estimated annual savings
arising from the installation of any such capital improvement shall
exceed such annual amortization, Operating Expenses shall include, in
lieu of such amortization, such estimated annual savings until the
cost of such improvement
-7-
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shall have been completely amortized), (vii) pursuing an application
for an abatement of taxes pursuant to Section 6.05 hereof to the
extent not deducted from the abatement, if any, received, (viii)
independent auditors, (ix) Landlord's central accounting functions,
and (x) providing office space for the manager of the Building; (c)
management fees not to exceed 5% per annum; and (d) a share (equal to
percentage computed by a fraction the numerator of which is the
Rentable Area of the Building and the denominator of which is the
aggregate Rentable Area of all constructed buildings (including the
Building at 290 Howard Street, Framingham,), of the cost to Landlord
of operating, repairing and maintaining exterior common areas and
facilities which may not be located entirely on the Land but which are
available for landscaping, security and maintenance for common
roadways and open areas. Operating Expenses shall not include (i)
capital items except as provided above, (ii) specific costs billed to
and paid by specific tenants, or (iii) debt service or depreciation.
Operating Expenses shall be determined using the accrual basis of
accounting. If at any time during the term, less than ninety-five
percent (95%) of the Rentable Area of the project is occupied, those
"Operating Expenses" which are variable based upon level of occupancy
(such as Tenant space janitorial services) shall be adjusted by the
Landlord so that Operating Expenses shall reasonably approximate the
Operating Expenses which would be incurred if the project had been at
least ninety-five percent (95%) occupied.
PARTIAL TAKING. Any Taking which is not a Total Taking.
---------------
PERMITTED EXCEPTIONS. Any liens or encumbrances on the Premises in
--------------------
the nature of (a) liens for taxes assessed but not yet due and
payable, (b) easements, reservations, restrictions and rights of way
encumbering or affecting the Land on the date of this Lease, (c) the
rights of Landlord, Tenant and any other Person to whom Landlord has
granted such rights to exercise in common with respect to the Land and
the Common Areas the rights granted to Tenant hereunder, (d) mortgages
of record, and (e) Title Conditions. Landlord represents and warrants
that to the best of his knowledge, Permitted Exceptions do not and
will not materially interfere with use and enjoyment by Tenant of its
rights hereunder
PERSON. An individual, a Corporation, a company, a voluntary
------
association, a partnership, a trust, an unincorporated organization or
a government or any agency, instrumentality or political subdivision
thereof.
PREMISES. The space in the Building shown on Exhibit A-1 hereto.
--------
PROCEEDS. With respect to any Taking or occurrence described in
--------
Article 17 hereof, with respect to which any Person is obligated to
pay any amount to or for the account of Landlord, the aggregate of (i)
all sums payable or receivable
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under or in respect of any insurance policy, and (ii) all sums or
awards payable in respect to a Taking.
PROHIBITED OCCUPANCY ARRANGEMENT. An Occupancy Arrangement which
--------------------------------
provides for any rent or other payment based in whole or in part on
the net income or profits derived by any person from the Premises.
RENT. Basic Rent and all Additional Rent.
----
RENTABLE AREA OF THE PREMISES. The number of square feet stated in
-----------------------------
Section 1.01, whether the same should be more or less as a result of
minor variations resulting from actual construction and completion of
the Building or Premises so long as such work is done in accordance
with the terms and provisions hereof. The calculation was made
according to the following formula:
(i) On single tenant floors, the usable area measured from the
inside surfaces of the outer glass of the Building, plus
Tenant's Share of Common Areas.
(ii) On multi-tenant floors, the usable area measured from inside
surface of the outer glass of the Building to the midpoint of
all demising walls of the space being measured plus the area of
each corridor adjacent to and required as the result of the
layout of the space being measured, measured from the midpoint
of the adjacent demising walls, plus Tenant's Share of Common
Areas.
RULES AND REGULATIONS. Reasonable rules and regulations promulgated
---------------------
by Landlord and uniformly applicable to persons occupying the Building
regulating the details of the operation and use of the Building. The
initial Rules and Regulations are attached hereto as Exhibit D.
SERVICES. Basic Services and Additional Services.
--------
SPECIAL WORK. Work done in or with respect to the Premises which is
------------
not part of Landlord's Work.
STATED EXPIRATION DATE. The last day of the last Lease Year of the
----------------------
Term stated in Section 1.01.
SUBSTANTIAL COMPLETION DATE. The date on which (i) the Premises
---------------------------
together with the appurtenant areas of the Building necessary for
access and service thereto, have been completed in accordance with
Article 7 hereof (including both the Landlord's Work and the Tenant
Fit Up Work described in Section 7.01) except for items of work and
adjustment of equipment and fixtures which are not
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necessary to make the Premises reasonbly tentable for the Permitted
Uses and because of season or weather or nature of the item cannot
practicably be done at the time, and (ii) a certificate of occupancy
for the Premises has been issued.
TAKING. The taking or condemnation of title to all or any part of the
------
Land or the possession or use of the Building or the Premises by a
person for any public use or purpose or any proceeding or negotiations
which might result in such a taking or any sale or lease in lieu of or
in anticipation of such a taking.
TAX BASE. With respect to each Calendar Year the amount determined by
--------
multiplying the Rentable Area of the Premises by the amount
hereinbefore set forth as the Tax Base per square foot of Rentable
Area per year, but with respect to the First Calendar Year and the
Last Calendar Year, the Adjusted Tax Base.
TAXES. All taxes, special or general assessments, water rents, rates
-----
and charges, sewer rents and other impositions and charges imposed by
Governmental Authorities of every kind and nature whatsoever,
extraordinary as well as ordinary and each and every installment
thereof which shall or may during the term of this Lease be charged,
levied, laid, assessed, imposed, become due and payable or become
liens upon or for or with respect to the Land or any part thereof or
the Building or the Premises, appurtenances or equipment owned by
Landlord thereon or therein or any part thereof or on this Lease under
or by virtue of all present or future Legal Requirements and are tax
based on a percentage, fraction or capitalized value of the Rent
(whether in lieu of or in addition to the taxes hereinbefore
described). Taxes shall not include inheritance, estate, excise,
succession, transfer, gift, franchise, income, gross receipt, or
profit taxes except to the extent such are in lieu of or in
substitution for Taxes as now imposed on the Building, the Land, the
Premises or this Lease.
TENANT. As defined in the preamble hereof.
------
TENANT'S COST. The cost of work done in connection with the
-------------
completion of the Premises in excess of (i) the cost of Landlord's
Work and (ii) Landlord's Contribution.
TENANT'S SHARE. Tenant's share of building is equal to T divided by
---------------
B x 100%, where "T" is equal to the number of rentable square feet
rented by the Tenant and "B" is equal to 100% of the total rentable
square feet of the building. The rentable floor area of the Building
is 64,436 Rentable Square Feet.
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<PAGE>
TERM COMMENCEMENT DATE. The earlier of (a) the later of (x) the date
----------------------
specified by Landlord in the notice delivered pursuant to Section 7.03
or (y) The Substantial Completion Date, or (b) any other date for such
commencement determined in accordance with said Article 7, or (c) the
date on which Tenant first occupies the Premises for the Permitted
Uses.
TITLE CONDITIONS. All covenants, agreements, restrictions, easements
----------------
and declarations of record on the date hereof so far as the same may
be from time to time in force and applicable.
TOTAL TAKING. (i) a Taking of: (a) the fee interest in all or
-----------
substantially all of the Building or (b) such title to, easement in,
over, under or such rights to occupy and use any part or parts of the
Building to the exclusion of Landlord as shall have the effect, in the
good faith judgment of the Landlord, of rendering the portion of the
Building remaining after such Taking (even if restoration were made)
unsuitable for the continued use and occupancy of the Building for the
Permitted Uses or (ii) a Taking of all or substantially all of the
Premises or such title to or easement in, on or over the Premises to
the exclusion of Tenant which in the good faith judgment of the
Landlord prohibits access to the Premises or the exercise by Tenant of
any rights under this Lease.
WORK LETTER. The agreement between Landlord and Tenant with respect
-----------
to the finishing of the Premises.
WORKING DRAWINGS. The Working Drawings for the finishing of the
----------------
Premises developed by Landlord and Tenant in accordance with Exhibit
B1. The Working Drawings shall be prepared by Landlord in compliance
with all applicable Legal Requirements and stamped by registered
Massachusetts professionals, and shall consist of all architectural
and engineering plans which are required to finish the Premises or to
obtain any Authorization required therefor, and be subject to Tenant's
reasonable approval.
ARTICLE 2
PREMISES
--------
2.01 PREMISES.
--------
Landlord hereby leases and lets to Tenant, and Tenant hereby takes
and hires from Landlord, upon and subject to the terms, conditions, covenants
and provisions hereof, the Premises subject to the Permitted Exceptions.
Landlord reserves the right to relocate within or without the Premises pipes,
ducts, vents, flues, conduits, wires and appurtenant fixtures which service
other parts of the Building; provided that such work is done in such a manner
--------
that it does not unreasonably interfere with Tenant's use of the
Premises.
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<PAGE>
2.02 APPURTENANCES.
-------------
Tenant may use the Common Areas and the Land as appurtenant to the
Premises for the purposes for which they were designed. Tenant's rights
concerning parking are set forth on Exhibit E, attached hereto and incorporated
herein by reference.
ARTICLE 3
TERM
----
3.01 TERM COMMENCEMENT.
-----------------
The Lease Term shall commence on the Term Commencement Date.
3.02 TERMINATION.
-----------
The Lease Term shall end on the Lease Termination Date.
ARTICLE 4
RENT
----
4.01 BASIC RENT.
----------
Tenant shall pay Landlord for the Premises, without offset or deduction
and without previous demand therefor, the Basic Rent as annual rent for each
Lease Year. Basic Rent shall be paid in equal monthly installments in advance on
the first day of each calendar month during the Lease Term. The first
installment of Basic Rent shall be paid on the Rent Commencement Date.
Subsequent installments of Basic Rent shall be paid on the first day of every
calendar month thereafter. Basic Rent for partial months at the beginning or end
of the Lease Term shall be pro-rated and paid on the Term Commencement Date and
---------
the first day of the calendar month in which the Lease Termination Date is to
occur.
4.02 COMPUTATION OF BASIC RENT.
-------------------------
The Basic Rent for each the Lease Years shall be stated in Article
1.01 hereof.
Basic Rent so determined shall be exclusive of (and in addition to)
amounts due hereunder for Taxes, Operating Expenses and Estimated Cost of
Electrical Service.
4.03 ARBITRATION PROCEDURE; SELECTION OF ARBITRATORS
-----------------------------------------------
If Tenant elects to exercise its extension options under section 26.04
hereof, then arbitration to determining the Fair Rental Value of the Premises
shall be conducted as provided in this article. The party desiring such
arbitration shall give written notice to that effect to the other, specifying
the dispute to be arbitrated and the name and address of the
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person designated to act as the arbitrator in its behalf. Within ten (10) days
after said notice is given, the other party shall give written notice to the
first party, specifying the name and address of the person designated to act as
arbitrator on its behalf. If the second party fails to notify the first party of
the appointment of its arbitrator as aforesaid by the time above specified, then
the appointment of the second arbitrator shall be made in the same manner as
hereinafter provided for the appointment of a third arbitrator. The arbitrators
so chosen shall meet within ten (10) days after the second arbitrator is
appointed and within twenty (20) days thereafter shall decide the dispute.
If within said period they cannot agree on their decision, they shall
appoint a third arbitrator and if they cannot agree on said appointment, the
third arbitrator shall be appointed on their application or on the application
of either party, by the American Arbitration Association in the City of Boston.
The three arbitrators shall meet and decide the dispute. A decision in which
two of the three arbitrators concur shall be binding and conclusive upon the
parties. In designating arbitrators and in deciding the dispute, the
arbitrators shall act in accordance with the rules then in force of the American
Arbitration Association, subject however, to such limitations as may be placed
on them by the provisions of this Lease.
The obligation of Landlord and Tenant to submit a dispute to
arbitration, is limited to the determination of Fair Rental Value of the
Premises in accordance with section 26.04 hereof. No individual shall be
qualified to act as an arbitrator hereunder unless such individual shall be a
licensed real estate broker or appraiser with at least seven (7) years of
experience in commercial real estate leasing.
ARTICLE 5
USE OF PREMISES
---------------
5.01 USE RESTRICTED.
--------------
The Premises may be used for the Permitted Uses and for no other purpose.
No improvements may be made in or to the Premises except as otherwise provided
in this Lease without Landlord's approval, not to be unreasonably withheld. At
the expiration or other termination of this Lease, Tenant shall remove from said
Premises all goods and effects and trade fixtures, all erections and additions
made to the same (except as set forth in Section 7.06), whether made in
replacement, substitution of, or addition to, existing facilities, including,
without limitation, piping, electrical installations, switch boxes,
transformers, lighting fixtures, all wiring both for light and power up to the
point that the same may be attached to any machines, and partitions and
construction of all kinds, broom clean and in good repair, order, and condition
in all respects, reasonable use and wear damage by fire or other casualty only
expected. Tenant will not obstruct or permit to be obstructed the sidewalks,
drives, or parking area of the Premises. Tenant shall not use said parking areas
for commercial parking purposes, but shall confine the use of said parking areas
to Tenant's employees, customers, and business invitees; whether or not working
in or visiting the
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<PAGE>
Premises. Tenant will, at Tenant expense, make all repairs and improvements to
the exterior of the Premises and parking areas necessitated by the negligence of
Tenant, Tenant's employees, customers, business invitees, and assignees.
Landlord may place "For Rent" signs on the Premises at any time during the last
Lease Year before expiration of the term of the Lease.
ARTICLE 6
TAXES; OPERATING EXPENSES;
--------------------------
ESTIMATED COST OF ELECTRICAL SERVICES
-------------------------------------
6.01 EXPENSES AND TAXES.
------------------
Tenant will also pay without notice, except as required under this
Lease, without any abatement, deduction or set off , as additional rent, the
Tenant's Share of all Operating Expenses, and Real Estate Taxes. In case of any
nonpayment thereof, Landlord shall have, in addition to all other rights and
remedies all the rights and remedies provided for in this Lease, or by law in
the case of nonpayment of the net rent. The cost of roof maintenance and
compliance with laws first adopted after the Term Commencement Date will be
included in Operating Expenses. Capital costs will be amortized over the useful
life of the capital item and included in the operating expenses.
6.02 MONTHLY PAYMENTS OF ADDITIONAL RENT.
-----------------------------------
Tenant shall pay to Landlord in advance for each calendar month of the
Lease Term falling between receipt by Tenant of the statement described in
Section 6.02 and receipt by Tenant of the next such statement, as Additional
Rent an amount equal to 1/12th of Tenant's estimated obligation under Section
6.01 shown thereon. The amount due under this Section 6.03 shall be paid with
Tenant's monthly payments of Basic Rent and shall be credited by Landlord to
Tenant's obligations under Section 6.01. If the total amount paid hereunder
exceeds the amount due under such Section, such excess shall be credited by
Landlord against the monthly installments of Additional Rent next falling due or
shall be refunded to Tenant upon the expiration or termination of this Lease
(unless such expiration or termination is the result of an Event of Default).
6.03 ACCOUNTING PERIODS.
------------------
Landlord shall have the right from time to time to change the periods
of accounting hereunder to any other annual period than a Calendar Year, and
upon any such change, all items referred to in this Article 6 shall be
appropriately apportioned. In all statements rendered under Section 6.02,
amounts for periods partially within and partially without the accounting
periods shall be appropriately apportioned, and any items which are not
determinable at the time of a statement shall be included therein on the basis
of Landlord's estimate and with respect thereof Landlord shall render promptly
after determination a supplemental statement and appropriate adjustment shall
be made according thereto.
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<PAGE>
6.04 ABATEMENT OF TAXES; TAX INCENTIVES.
----------------------------------
Landlord may at any time and from time to time make application to
the appropriate Governmental Authority for an abatement of Taxes. Landlord shall
make such an application at any time tenants occupying more than 60% of the
Rentable Area of the Building under written Occupancy Arrangements directly with
the Landlord request that Landlord do so. Tenant may, with Landlord's approval
not to be unreasonably withheld, from time to time to attempt to secure state
and /or local tax incentives. Landlord shall cooperate with Tenant in its
attempt to secure such incentive If (I) any such application is successful and
(ii) Tenant has made any payment in respect of Taxes pursuant to this Article 6
for the period with respect to which the abatement or tax incentives was
granted, Landlord shall (a) deduct from the amount of the abatement all expenses
incurred by it in connection with the application (b) pay to Tenant Tenant's
Share (adjusted for any period for which Tenant has made a partial payment) of
abatement, with interest, if any, paid by the Governmental Authority on such
abatement and pay or credit to Tenant any incentives attributable solely to
Tenant (c) retain the balance, if any.
6.05 ELECTRIC SERVICE; PAYMENT AS ADDITIONAL RENT.
--------------------------------------------
The Estimated Cost of Electrical Service if applicable, is Landlord's
estimate of the cost (on the date hereof) of lighting the Premises and operating
Tenant's office equipment. This estimate is based on information supplied to
Landlord by Tenant and shall be subject to adjustment as hereinafter set forth.
Tenant shall reimburse Landlord for the cost of providing such electrical energy
by paying to Landlord the estimated Cost of Electrical Service. Tenant shall
pay Landlord (without previous demand therefor) such amount in monthly
installments on the same day on which Basic Rent is due. If Tenant (a) connects
equipment (i) other than normal office equipment or (ii) which operates in
excess of 120 volts nominal to the Building Distribution System or (b) operates
any such equipment beyond normal operating hours, the Estimated Cost of
Electrical Service shall be increased by an amount which will reflect the cost
to Landlord of the additional electrical service to be furnished by Landlord.
All electricity to Tenant will be measured by separate meters to be installed by
Landlord as part of the Landlord's Work. All additional risers or other
equipment required for equipment other than normal office equipment or equipment
which operates on 120 volts nominal shall be provided by Landlord, and the cost
thereof shall be paid by Tenant.
6.06 CHANGE IN RATES OR USAGE.
------------------------
The Estimated Cost of Electrical Service is based on current rates
for such service and Landlord's good faith estimate of the usage of electricity
by Tenant. If at any time after the date of this Lease, (i) the rates at which
Landlord purchases electrical energy from the
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public utility supplying electrical service to the Building, or any charges
incurred or Taxes payable by Landlord in connection therewith shall be increased
or decreased or (ii) the usage by Tenant exceeds Landlord's estimate thereof,
the Estimated Cost of Electrical Service shall be increased or decreased, as the
case may be, by an amount equal to the estimated increase or decrease, as the
case may be, in Landlord's cost of furnishing the electricity referred to above
as a result of such increase or decrease in rates, charges, taxes or usage.
6.07 LATE PAYMENT OF RENT.
--------------------
If any installment of basic rent or additional rent is not received
in full within seven (7) days of its due date then, in addition to any other
rights or remedies of the Landlord, upon demand of Landlord, Tenant shall pay
for each month that rental payments are not timely made, a sum equal to four
percent (4%) of each unpaid portion of such monthly installment as a liquidated
damages charge arising out of and occurring as the result of each such late
payment.
In the event that Tenant makes three or more late payments of rent
during the Term, Landlord may deem such action to constitute an Event of Default
sufficient to terminate (i) the Lease (ii) any provision for exercise by Tenant
of any option rights under the Lease or (iii) both.
ARTICLE 7
IMPROVEMENTS, REPAIRS, ADDITIONS, REPLACEMENTS
----------------------------------------------
7.01 PREPARATION OF THE PREMISES.
---------------------------
Landlord shall perform Landlord's Work as set forth in Exhibit B1, at
its sole cost and expense.
In addition, Landlord shall perform additional tenant fit up work in
the Premises (the "Tenant Fit Up Work") to be specified by Tenant, the quality
of such work to be in compliance with the standards set forth in Exhibit B2.
(Landlord and Tenant agree that all of the work described in Exhibit B2 need not
be undertaken; rather, Exhibit B2 is included merely to describe the standard of
quality for any Tenant Fit Up Work which Tenant chooses to do.)
Landlord and Tenant shall use reasonable efforts to agree upon a
specific description of the Tenant Fit Up Work, and the reasonable cost thereof
(which Landlord agrees shall be at a competitive price in the marketplace) (the
"Approved Tenant Fit Up Work Cost"), no later than September 1, 1998. Upon
Tenant's written approval of such description and such cost, Landlord shall
perform the Tenant Fit Up Work. Tenant shall pay the Approved Tenant Fit Up Work
Cost either (a) as additional rent as a lump sum, no later than 5 days after the
Term Commencement Date, or (b) by use of the allowance for Special Work
described in the next
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<PAGE>
paragraph. Unless Tenant elects otherwise by written notice to Landlord, it
shall be deemed to have elected option (a) described in the immediately
preceding sentence.
If Landlord agrees to do, at Tenant's request, any Special Work, Tenant
shall pay the amount of Tenant's Cost to Landlord. If requested by Tenant,
Landlord will provide an allowance of $5.00 per Rentable Square Foot to be used
for Tenant Improvement Construction in addition to the Base Building
Construction. This improvement allowance will be amortized over the lease term
at a twelve and a half percent (12 1/2%) rate in addition to the base rental
rate.
7.02 TIME FOR COMPLETION.
-------------------
Landlord shall use due diligence to have the Premises ready for occupancy
(including both the Landlord's Work and the Tenant Fit Up Work) on or before the
Estimated Term Commencement Date. Reference is made to Exhibit B1 for details of
the completion process. If the Landlord has not completed the Landlord's Work
and the Tenant Fit Up Work by 6 months after the Estimated Term Commencement
Date, Tenant may at its option terminate this Lease.
-17-
<PAGE>
7.03 NOTICE TO COMMENCE.
------------------
Approximately fifteen (15) days prior to the Substantial Completion Date,
at Tenant's written request, Landlord shall furnish Tenant a notice stating the
Term Commencement Date.
7.04 DELAYS.
------
If Landlord shall be delayed in substantially completing the work in
the Premises as the result of:
(a) delay in delivery to Landlord of any plans, design work and
detailed drawing, or
(b) Tenant's requests for Special Work or change to the Working
Drawings (notwithstanding Landlord's approval of such changes),
or
(c) delays in performance by Tenant or any Person employed by
Tenant which shall cause delays in the completion of any work
to be done by Landlord or which shall otherwise delay the
substantial completion of the Premises, or
(d) any fault, negligence, omission, or failure to act on the part
of Tenant or its agents, contractors, workmen, mechanics,
suppliers or invitees,
then, in any such event, Premises shall be deemed to be
substantially completed on (and the Term Commencement Date
shall be) the date the work would have been completed, but for
such fault, negligence, omission or failure.
7.05 TENANT'S ACCESS TO PREMISES.
----------------------------
Tenant and Tenant's agents, at Tenant's sole risk, may, with Landlord's
prior consent, which consent shall not be unreasonably withheld, enter the
Premises prior to the Term Commencement Date in order to do such work as may be
required to make the Premises ready for Tenant's use and occupancy thereof. If
Landlord permits such entry prior to the Term Commencement Date, such permission
shall be conditioned upon Tenant and Tenant's agents, contractors, workmen,
mechanics, suppliers and invitees, working in harmony with Landlord and the
General Contractor and with other tenants and occupants of the Building. If at
any time such entry shall cause or threaten to cause disharmony or otherwise
interfere with the orderly completion of operation of the Building, Landlord
shall have the right to withdraw such permission upon twenty-four (24) hours
written notice to Tenant. Any such entry into
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<PAGE>
and occupation of the Premises shall be deemed to be under all of the terms,
covenants, conditions and provisions of this Lease except the covenant to pay
Rent. Landlord shall not be liable in any way for any injury, loss or damage
which may occur to any of Tenant's work and installations made in the Premises
or to properties placed therein prior to the Term Commencement Date, the same
being at Tenant's sole risk.
7.06 ALTERATIONS AND IMPROVEMENTS.
----------------------------
Tenant shall not make alterations or additions to the Premises except
in accordance with plans and specifications therefore first reasonably approved
by Landlord. Tenant shall not hang shades, curtains, signs, awnings or other
materials, attach any materials to or make any change in the appearance of any
glass visible from outside of the Premises, add any window treatments of any
kind or make improvements or install furniture visible from outside of the
Premises, without Landlord's prior written consent, which consent shall not be
unreasonably withheld. Without limitation, Landlord shall not be deemed
unreasonable for withholding approval of any alterations or additions which
would (a) delay completion of the Premises or the Building, or (b) require
unusual expense to readapt the Premises to normal office use upon termination of
this Lease or increase (i) the cost of (a) construction or (b) insurance or (ii)
Taxes. All alterations and additions shall be part of the Premises and need not
be removed by Tenant unless and until Landlord shall specify the same for
removal in a notice delivered to Tenant on or before the time Lessor approves
the installation thereof. Landlord agrees that the Tenant Fit Up Work described
in Section 7.01 need not be removed at the end of the Term. All of Tenant's
alterations and additions and installation of furnishings shall be coordinated
with any work being performed by Landlord and in such manner as to maintain
harmonious labor relations and not to damage the Building or the Premises or
interfere with Building operation and, except for installation of furnishings,
shall be performed by contractors or workmen first approved by Landlord. Except
for work done by or through Landlord, Tenant before its work is started shall:
secure all licenses and permits necessary therefor; deliver to Landlord a
statement of the names of all its contractors and subcontractors and the
estimated cost of all labor and material to be furnished by them; and cause each
contractor to carry workmen's compensation insurance in statutory amounts
covering all the contractor's and subcontractor's employees and comprehensive
public liability insurance with limits as Landlord may reasonably require, but
in no event less than $1,000,000.00 and property damage insurance with limits of
not less than $1,000,000.00 and have deductibles of no more than $5,000.00 (all
such insurance to be written in companies reasonably approved by Landlord and
insuring Landlord and Tenant as well as the contractors), and to deliver to
Landlord certificates of all such insurance. Tenant agrees to pay promptly when
due the entire cost of any work done in the Premises by Tenant, its agents,
employees or independent contractors, and not to cause or permit any liens
therewith to attach to the Premises and immediately to discharge any such liens
which may so attach. All construction work done by Tenant, its agents,
employees or independent contractors shall be done in a good and workmanlike
manner and in compliance with all Legal Requirements and Insurance Requirements.
Landlord shall promptly give notice to Tenant of any observed defects.
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<PAGE>
7.07 MAINTENANCE.
-----------
Tenant shall, at all times during the Lease Term, and at its own cost
and expense, (i) keep and maintain (or cause to be kept and maintained) the
Premises in good repair and condition (ordinary wear and tear and damage by fire
or casualty only excepted) and (ii) use all reasonable precaution to prevent
waste, damage or injury thereto.
7.08 REDELIVERY.
----------
Landlord shall maintain and keep in good condition all structural
components in the building and all utility systems serving the Leased Premises
which are under the Landlord's control Landlord will not be required to make
any such repairs which are caused by any acts of omission or negligence of
Tenant, its agents, invitees, licenses, visitors, contractors, or any third
party. The Landlord will make all capital replacements to the mechanical
equipment serving the demised premises.
On the Lease Termination Date, Tenant shall quit and surrender the
Premises free and clear of all tenants, occupants, liens, and encumbrances
whatsoever except (i) Permitted Exceptions and (ii) encumbrances, restrictions
or reservations caused by or consented to by Landlord. Tenant shall, subject to
the provisions of Articles 17 and 18 hereof, surrender the Premises to Landlord
broom clean and in good condition and repair (ordinary wear and tear, damage by
fire or casualty only excepted) with all damages occasioned by Tenant's removal
of Tenant's fixtures or equipment repaired at Tenant's cost to Landlord's
satisfaction.
ARTICLE 8
BUILDING SERVICES
-----------------
8.01 BUILDING SERVICES.
-----------------
Landlord shall furnish, or cause to be furnished, during the Lease
Term the Basic Services, as described in Exhibit C to this Lease Agreement.
8.02 OTHER JANITORS.
---------------
No persons shall be employed by Tenant to do janitorial work in the
Premises and no persons other than the janitors of the Building shall clean the
Premises unless Landlord shall give its written consent thereto. Any person
employed by Tenant with Landlord's consent to do janitorial work shall, while in
the Building, either inside or outside the Premises, be subject to and under the
control and direction of the superintendent of the Building (but not as agent or
servant of said superintendent or of Landlord).
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<PAGE>
8.03 ADDITIONAL SERVICES.
-------------------
Tenant will pay the Landlord a reasonable charge for any extra cleaning of
the building required because of the carelessness or indifference of Tenant and
for any Additional Services rendered at the request of Tenant. If the cost of
cleaning the building shall be increased due to the installation in the
Premises, at Tenant's request, of any unique or special materials, finish or
equipment, Tenant shall pay the Landlord an amount equal to such increase in
cost. All charges for Additional Services shall be due and payable within ten
(10) days of the date on which they are billed.
8.04 LIMITATIONS ON LANDLORD'S LIABILITY.
-----------------------------------
Landlord shall not be liable in damages, not in default hereunder, for
any failure or delay in furnishing any Basic Service or Additional Service when
such failure or delay is occasioned by Force Majeure or by the act or Default of
Tenant. No such failure or delay shall be held or pleaded as eviction or
disturbance in any manner whatsoever of Tenant's possession or give Tenant any
right to terminate this Lease or give rise to any claim for set-off of any
abatement of Rent or of any of Tenant's obligations under this Lease.
8.05 ELECTRIC SERVICE.
----------------
Subject to Section 6.06 Landlord shall furnish electrical energy required
for lighting the Premises and operating equipment used in the Premises,
provided, however, Landlord may, at any time, elect to discontinue the
furnishing of electrical energy. In the event of any such election by Landlord:
(1) Landlord shall give reasonable advance notice of any such discontinuance to
Tenant; (2) Landlord shall permit Tenant to receive electrical service directly
from the public utility supplying service to the Building and to use (in common
with others) the existing feeders, risers, wiring and other electrical
facilities serving the Premises for such purpose to the extent they are suitable
and safely capable; (3) Landlord shall pay such charges and costs, if any, as
such public utility may impose in connection with the installation of Tenant's
meters and pay for such other installations as such public utility may require,
as a condition to providing comparable electrical service to Tenant; (4)
Tenant's obligations under Sections 6.05 and 6.06 shall end; and (5) Tenant
shall thereafter pay, directly to the utility furnishing the same, all charges
for electrical services to the Premises promptly when due.
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<PAGE>
ARTICLE 9
TENANT'S PARTICULAR COVENANTS
-----------------------------
9.01 PAY RENT.
---------
Tenant shall pay when due all Rent and all charges for utility
services rendered to the Premises not included in Rent and, as further
Additional Rent, all charges of Landlord for Additional Services.
9.02 OCCUPANCY OF THE PREMISES.
--------------------------
Tenant shall occupy the Premises continuously from the Term
Commencement Date for the Permitted Uses only. Tenant shall not (i) injure or
deface the Premises or the Building, (ii) install any sign in or on any window,
demising wall or Common Area, (iii) permit in the Premises any flammable fluids
or chemicals not reasonably related to the Permitted Uses nor (iv) permit
nuisance or any use thereof which is improper, offensive, contrary to any Legal
Requirement or Insurance Requirement or liable to render necessary any
alteration or addition to the Building.
9.03 SAFETY.
-------
Tenant shall keep the Premises equipped with all safety appliances
required by Legal Requirements or Insurance Requirements because of any use made
by Tenant. Tenant shall procure all Authorizations so required because of such
use and, if requested by Landlord, shall do any work so required because of such
use, it being understood that the foregoing provision shall not be construed to
broaden in any way the Permitted Uses.
9.04 EQUIPMENT.
----------
Tenant shall not place a load upon the floor of the Premises exceeding
the live load for which the floor has been designed; and shall not move any safe
or other heavy equipment in, about or out of the Premises except in such a
manner and at such a time as Landlord shall in each instance authorize. Tenant
shall isolate and maintain all of Tenant's business machines and mechanical
equipment which cause or may cause air-borne or structure-born vibration or
noise, whether or not it may be transmitted to any other Premises so as to
eliminate such vibration or noise.
9.05 ELECTRICAL EQUIPMENT.
---------------------
Tenant shall not, without prior written notice to Landlord in each
instance (i) connect to the Building electric distribution system anything other
than normal office equipment or (ii) operate such equipment on a regular basis
beyond normal Building operating
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<PAGE>
hours. Tenant's use of electrical energy in the Premises shall not at any time
exceed the capacity of any of the electrical conductors or equipment in or
otherwise serving the Premises. Tenant shall not, without prior written notice
to Landlord in each instance, connect to the Building electric distribution
system any fixtures, appliances or equipment which operate on a voltage in
excess of 120 volts nominal or make any alteration or addition to the electric
system of the Premises.
9.06 PAY TAXES.
----------
Tenant shall pay promptly when due all Taxes upon personal property
(including, without limitation, fixtures and equipment) in the Premises to
whomsoever assessed.
ARTICLE 10
REQUIREMENTS OF PUBLIC AUTHORITY
--------------------------------
10.01 LEGAL REQUIREMENTS.
-------------------
Tenant shall, at its own cost and expense, promptly observe and comply
with all Legal Requirements. Tenant shall pay all costs, expenses, liabilities,
losses, damages, fines, penalties, claims applicable to its use of the Premises
and demands, that may in any manner arise out of or be imposed because of the
failure of Tenant to comply with the covenants of this Article 10.
10.02 CONTESTS.
---------
Tenant shall have the right to contest by appropriate legal proceedings
diligently conducted in good faith, in the name of the Tenant, or Landlord (if
legally required), or both (if legally required), without cost, expense,
liability or damage to Landlord, the validity or application of any Legal
Requirement and, if compliance with any of the terms of any such Legal
Requirement may legally be delayed pending the prosecution of any such
proceeding, Tenant may delay such compliance therewith until the final
determination of such proceeding.
ARTICLE 11
COVENANT AGAINST LIENS
----------------------
11.01 MECHANICS LIENS.
----------------
Landlord's right, title and interest in the Premises or the Land or
the Building shall not be subject to or liable for liens of mechanics or
materialmen for work done on behalf of Tenant in connection with improvements to
the Premises. Notwithstanding such restriction, if because of any act or
omission of Tenant, any mechanic's lien or other lien, charge or order for
payment of money shall be filed against any portion of the Premises or the Land
or the Building, Tenant shall, at its own cost and expense, cause the same to be
discharged of record or bonded within thirty (30) days after the filing thereof.
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<PAGE>
11.02 RIGHT TO DISCHARGE.
-------------------
Without otherwise limiting any other remedy of Landlord for default
hereunder, if Tenant shall fail to cause such liens to be discharged of record
or bonded within the aforesaid thirty (30) day period or to satisfy such liens
within (30) days after any judgment in favor of such lien holders from which no
further appeal might be taken then Landlord shall have the right to cause the
same to be discharged. All amounts paid by Landlord to cause such liens to be
discharged shall constitute Additional Rent.
ARTICLE 12
ACCESS TO PREMISES
------------------
12.01 ACCESS.
-------
Landlord or Landlord's agents and designers shall have the right, but
not the obligation, to enter upon the Premises at all reasonable times during
ordinary business hours, after reasonable advance notice, to examine same and to
exhibit the Premises to prospective purchasers and tenants, but in the latter
case only during the last twelve (12) months of the Lease Term.
ARTICLE 13
ASSIGNMENT AND SUBLETTING: OCCUPANCY ARRANGEMENTS
-------------------------------------------------
13.01 SUBLETTING AND ASSIGNMENT.
--------------------------
Tenant shall not (either voluntarily or by operation of law) enter into a
Prohibited Occupancy Arrangement, and any Prohibited Occupancy Arrangement shall
be absolutely void and ineffective for any purpose. Tenant shall not enter into
any other Occupancy Arrangement, either voluntarily or by operation of law,
(other than with a Person who is Affiliate of Tenant for a period ending when,
as and if such Person ceases to be Affiliate of Tenant) without the prior
written consent of Landlord, which consent shall not be unreasonably withheld.
If Tenant intends to enter into an Occupancy Arrangement which
requires Landlord's consent, Tenant shall so notify Landlord in writing, stating
the name of (and a financial statement with respect to business) the Person whom
Tenant intends to enter into such arrangement, the exact material terms of the
Arrangement and a precise description of the portion of the Premises intended to
be subject thereto. Within thirty (30) days of receipt of such writing,
Landlord shall either (i) consent to such Occupancy Arrangement or (ii) not
consent to such occupancy Agreement by giving tenant written notice of his
decision, such notice will include landlord's reasons for not consenting to a
specific occupancy Agreement.
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<PAGE>
If the Landlord consents to such Occupancy Arrangement, Tenant shall (i)
enter into such Arrangement on the exact material business terms described to
Landlord within thirty (30) days of Landlord's consent or comply again with
their terms of this Section and (ii) remain liable for the payment and
performance of the terms and covenants of this Lease. If Tenant enters into such
an Arrangement with any party other than an affiliate, Tenant shall pay to
Landlord when received one half ( 1/2) of the excess, if any, of amounts
received in respect of such Occupancy Arrangement over the Rent, after deducting
reasonable expenses incurred in connection with such Occupancy Arrangement.
After deducting Tenant's reasonable expenses incurred in connection with such
Occupancy Agreement.
If Landlord terminates this Lease, all Rent due shall be adjusted as of
the day the Premises (or portion thereof) are redelivered to Landlord. Any
portion of the Premises so redelivered shall be in the condition specified in
Section 7.08 hereof.
ARTICLE 14
INDEMNITY
---------
14.01 TENANT'S INDEMNITY.
-------------------
To the fullest extent permitted by law, Tenant shall indemnify and
save harmless Landlord from and against any and all liability, damage, penalties
or judgments and from and against any claims, actions, proceedings and expenses
and costs in connection therewith, including reasonable counsel fees arising
from injury to person or property sustained by anyone in and about the Building
or the Premises or the Land and by reason of an act or omission of Tenant, or
Tenant's officers, agents, servants, employees, contractors, subleases or
invitees. Tenant shall, at its own cost and expense, defend any and all suits
or actions (just or unjust) in which Landlord may be impleaded with others upon
any such above mentioned matter, claim or claims, except as may result from the
acts as set forth in Section 14.02. All merchandise, furniture, fixtures and
property of every kind, nature and description of Tenant or Tenant's employees,
agents, contractors, invitees, visitors, or guests which may be in or upon the
Premises, the Land or the Building during the Lease Term shall be at the sole
risk and hazard of Tenant, and that if the whole or any part thereof shall be
damaged, destroyed, stolen or removed by reason of any cause or reason
whatsoever, other than the gross negligence or willful default of Landlord, no
part of said damage or loss shall be charged to or borne by Landlord.
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<PAGE>
14.02 LANDLORD'S LIABILITY.
---------------------
Except for its intentional acts of gross negligence or the intentional
acts or gross negligence of its officers, agents, servants, employees or
contractors, Landlord shall not be responsible or liable for any damage or
injury to any property, fixtures, buildings or improvements, or to any person or
persons, at any time in the Premises, including any damage or injury to Tenant
or to any of Tenant's officers, agents, servants, employees, contractors,
invitees, customers or subleases.
ARTICLE 15
INSURANCE
---------
15.01 LIABILITY INSURANCE.
--------------------
Tenant shall provide or cause to be provided at its expense, and keep
in force during the Lease Term, general comprehensive liability insurance in a
good and solvent insurance company or companies licensed to do business in the
Commonwealth of Massachusetts, selected by Tenant, and reasonably satisfactory
to Landlord, and in an amount reasonably required by Landlord but in any event
not less than One Million Dollars ($1,000,000.00) with respect to injury or
death to any one person and One Million Dollars ($1,000,000.) with respect to
injury or death to more than one person in any one accident or other occurrence
and One Million Dollars ($1,000,000.00) with respect to damages to property.
Such policy or policies shall include Landlord as an additional insured and have
deductibles of no more than $5,000.00. Tenant agrees to deliver certificates of
such insurance to Landlord as of the date hereof and thereafter not less than
ten (10) days prior to the expiration of any such policy. Such insurance shall
not be cancelable without thirty (30) days' written notice to Landlord.
15.02 PROPERTY INSURANCE. Landlord will maintain adequate fire and casualty
------------------
insurance on the Building and the Premises, the cost of which shall be
included within Operating Expenses.
ARTICLE 16
WAIVER OF SUBROGATION
---------------------
16.01 WAIVER OF SUBROGATION.
----------------------
All insurance policies carried by either party covering the Premises,
including but not limited to contents, fire and casualty insurance, shall
expressly waive any right on the part of the insurer to make any claim against
the other party. The parties hereto agree that their policies will include such
waiver clause or endorsement.
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<PAGE>
16.02 WAIVER OF RIGHTS.
----------------
Landlord and Tenant each hereby waive all claims, causes of action and
rights of recovery against the other and their respective partners, agents,
officers and employees, for any damage to or destruction of persons, property or
business which shall occur on or about the Premises and shall result from any of
the perils insured under any and all policies of insurance maintained by
Landlord and Tenant, regardless of cause, including the negligence and
intentional wrong doing of either party and their respective agents, officers
and employees but only to the extent of recovery, if any under such policy or
policies of insurance; provided however, that this waiver shall be invalidated
in the event any such insurer would be relieved from the obligation to make
payment pursuant to a policy of insurance by reason of this waiver.
ARTICLE 17
DAMAGE OR DESTRUCTION
---------------------
17.01 SUBSTANTIAL DAMAGE.
------------------
If the Building or any part thereof shall be damaged by fire or other
casualty to the extent that substantial alteration or reconstruction of the
Building shall, in Landlord's sole opinion, be required (whether or not the
Premises shall have been damaged) or if payment is used to retire the mortgage
debt, Landlord may, at its option, terminate this Lease by notifying Tenant in
writing of such termination within sixty (60) days after the date of such
damage. If this Lease is so terminated, Rent shall be abated as of the date of
such damage.
17.02 RESTORATION.
-----------
If Landlord does not terminate this Lease pursuant to Section 17.01,
Landlord shall, within ninety (90) days after such fire or other casualty,
proceed with reasonable diligence to repair and restore the Building (subject to
Force Majeure) to substantially the same condition in which it was immediately
prior to the occurrence of the casualty to the extent of Landlord's Work and the
value of Landlord's Contribution. Landlord shall not be required to rebuild,
repair, or replace any part of Tenant's furniture, furnishings or fixtures or
equipment. Landlord shall not be liable for any inconvenience or annoyance to
Tenant or injury to the business of Tenant resulting in any way from such damage
or the repair thereof, except that, Landlord shall allow Tenant a fair
diminution of Rent during the time and to the extent the Premises are unfit for
occupancy. If Landlord has not substantially completed restoration of the
building within 180 days from the date of casualty the Tenant may terminate this
Lease.
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<PAGE>
ARTICLE 18
EMINENT DOMAIN
--------------
18.01 TOTAL TAKING.
------------
If the Premises or the Building should be the subject of a Total Taking,
then this Lease shall terminate as of the date when physical possession of the
Building or the Premises is taken by the condemning authority.
18.02 PARTIAL TAKING.
--------------
If there occurs a Partial Taking, Landlord (whether or not the
Premises are affected thereby) may terminate this Lease, provided that other
leases in the building are terminated and Landlord has made good faith
determination that it is unreasonable to continue to operate, by giving written
notice thereof to Tenant within sixty (60) days after the right of election
accrues, in which event this Lease shall terminate as of the date the Building
or Premises is taken by the condemning authority. If upon such Partial Taking
this Lease is not terminated, Rent shall be abated by an amount representing
that part of the Rent properly be allocable to the portion of the Premises so
taken or equitably reimbursing Tenant for loss of access, parking or other
rights hereunder and Landlord shall, at Landlord's sole expense, restore and
reconstruct the Building and the Premises to substantially their former
condition to the extent that the same, in Landlord's judgment, may be feasible,
but such work shall not exceed the scope of Landlord's Work and the value of
Landlord's Contribution. The Landlord shall have no liability for interruption
of tenant's business.
18.03 AWARDS AND PROCEEDS.
-------------------
All Proceeds payable in respect of Taking shall be the property of
Landlord. Tenant hereby assigns to Landlord all rights of Tenant in or to such
Proceeds, provided that Tenant shall be entitled to separately petition the
condemning authority for a separate award for its moving expenses and trade
fixtures but only if such a separate award will not diminish the amount of
Proceeds payable to Landlord.
ARTICLE 19
QUIET ENJOYMENT
---------------
19.01 LANDLORD'S COVENANT.
-------------------
Provided that an Event of Default has not occurred and is not then
continuing, Tenant shall, subject to the Permitted Exceptions, quietly have and
enjoy the Premises during the Lease Term, without hindrance or molestation from
any Person lawfully claiming by, through or under Landlord.
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<PAGE>
19.02 SUBORDINATION
-------------
This Lease is and shall be subject and subordinate to any mortgage now
or hereafter on the Building and to each advance made or hereafter to be made
under any mortgage, and to all renewals, modifications, consolidations,
replacements and extensions thereof and all substitutions therefore. This
Section 19.02 shall be self-operative and no further instrument of subordination
shall be required. In confirmation of such subordination, Tenant shall execute
and deliver promptly any certificate that Landlord or any mortgagee may request.
In the event that any mortgagee shall succeed to the interest of Landlord then,
this Lease shall nevertheless continue in full force and effect and Tenant shall
and does hereby agree to attorn to such mortgagee and to recognize such
mortgagee as its Landlord. Prior to the execution of this Lease and prior to
Tenant's subordination to any future mortgage, Tenant shall have received an
executed Nondisturbance and Recognition Agreement in form satisfactory to Tenant
from any existing mortgage.
19.03 NOTICE TO MORTGAGEE.
-------------------
No act or failure to act on the part of Landlord which would entitle
Tenant under the terms of this Lease, or by law, to be relieved of Tenant's
obligations hereunder or to terminate this Lease, shall result in a release or
termination of such obligations or a termination of this Lease unless (i) Tenant
shall have first given written notice of Landlord's act or failure to act to
Landlord's mortgagees of record, if any, specifying the act or failure to act on
the part of Landlord which could or would give basis to Tenant's rights; and
(ii) such mortgagees, after receipt of such notice, have had the opportunity to
cure such default within a reasonable time thereafter; but nothing contained in
this Section 19.03 shall be deemed to impose any obligation on any such
mortgagees to correct or cure any such condition. "Reasonable time" as used
above shall mean a period of not less than thirty (30) Business Days and shall
include (but not be limited to) a reasonable time to obtain possession of the
Building if the mortgagee elects to do so and a reasonable time to correct or
cure the condition if such condition is determined to exist.
19.04 OTHER PROVISIONS REGARDING MORTGAGEES.
-------------------------------------
If this Lease or the Rent due hereunder is assigned to a mortgagee as
collateral security for a loan, no such mortgagee shall be deemed to have
assumed any of Landlord's obligations hereunder solely as a result of said
assignment. A mortgagee to whom this Lease has been so assigned shall be deemed
to have assumed such obligations only if (i) by the terms of the instrument of
assignment such mortgagee specifically elects to assume such obligations or (ii)
such mortgagee has (a) foreclosed its mortgage, (b) accepted a deed in lieu
thereof, or (c) taken possession of the Premises by entry or otherwise. Even if
such mortgagee assumes the obligations of Landlord hereunder, (i) any such
obligation under Section 24.01 to return the Security Deposit to the Tenant
shall be limited to the amount actually received by the mortgagee with respect
thereto, and (ii) such mortgagee will be liable for breaches of any
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<PAGE>
Landlord's obligations hereunder only to the extent such breaches occur during
the period of ownership by the mortgagee after foreclosure (or any conveyance by
a deed in lieu thereof), all as set forth in Section 25.10. hereof.
ARTICLE 20
DEFAULTS; EVENTS OF DEFAULT
---------------------------
20.01 DEFAULTS.
--------
The following shall, if any requirement for notice or lapse of time or
both has not been met, constitute Defaults, and, if such requirements for notice
or lapse of time have been met, constitute Events of Default hereunder:
(1) Occurrence of any event set forth in Article 21 hereof;
(2) The failure of Tenant to pay Rent when the same shall be due
and payable and the continuance of such failure for a period of
ten (10) days after receipt by Tenant of notice in writing from
Landlord specifying such failure;
(3) The failure of Tenant to observe any covenant made by it in
Sections 13.01, 15.01 and 25.03 hereof and;
(4) The failure of Tenant to keep, observe or perform any of the
other covenants, conditions and agreements herein contained on
Tenant's part to be kept, observed or performed and the
continuance of such failure without the curing of same for a
period of thirty (30) days after receipt by Tenant of notice in
writing from Landlord specifying in reasonable detail the
nature of such failure.
20.02 TENANT'S BEST EFFORTS.
----------------------
In the event that the Default of which Landlord gives notice is of
such a nature that it cannot be cured within such thirty (30) day period, then
such Default shall not be deemed to be an Event of Default so long as Tenant,
after receiving such notice, proceeds to cure the Default as soon as reasonably
possible and continues to take all steps necessary to complete the same within a
period of time which, under all prevailing circumstances, shall be reasonable.
No Default shall be deemed to be an Event of Default if and so long as Tenant
shall be so proceeding to cure the same in good faith or be delayed in or
prevented from curing the same by reason of Force Majeure.
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20.03 ELIMINATION OF DEFAULT.
-----------------------
Notwithstanding anything to the contrary contained in this Article 20,
in the event that a Default has been cured as hereinabove provided, such
Default(s) shall be deemed never to have occurred and Tenant's rights hereunder
shall continue unaffected by such Defaults.
ARTICLE 21
INSOLVENCY
----------
21.01 INSOLVENCY.
-----------
If (1) there occurs with respect to Tenant an Insolvency or (2) any
execution or attachment is issued against Tenant or any of its property and as a
result thereof the Premises are taken or occupied by some Person other than the
Tenant, except as may herein be permitted, then an Event of Default hereunder
shall be deemed to have occurred so that the provisions of Article 22 hereof
shall become effective and Landlord shall have the rights and remedies provided
for therein.
ARTICLE 22
LANDLORD'S REMEDIES; DAMAGES ON DEFAULT
---------------------------------------
22.01 LANDLORD'S REMEDIES.
-------------------
If an Event of Default shall occur and be continuing, Landlord may, at
its option, give to Tenant a notice terminating this Lease upon a date specified
in such notice, which date shall be not less than three (3) Business Days after
the date of receipt by Tenant of such notice from Landlord, and upon the date
specified in said notice, the term and estate hereby vested in Tenant shall
cease and any and all other right, title and interest of Tenant hereunder shall
likewise cease without further notice or lapse of time, as fully and with like
effect as if the entire Lease Term had elapsed, but Tenant shall continue to be
liable to Landlord as hereinafter provided.
If such Event of Default results from Tenant's failure to pay Tenant's
Cost as required by Section 7.01 hereof, Landlord may, at its option, in
addition to or in lieu of the other remedies available to Landlord, refuse
Tenant access to the Premises. In such event the Term Commencement Date shall be
the earlier of (i) the date determined in accordance with Section 7.04 or (ii)
the Substantial Completion Date.
If such Event of Default results from Tenant's failure to pay a charge
for an Additional Service pursuant to Section 8.03 hereof, Landlord may, without
further notice to Tenant, discontinue any or all of such Additional Services.
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If an Event of Default shall occur and be continuing, Landlord shall
be relieved of its undertakings under Articles 7, 8, 13, 17, 18, 19, and 26
hereof.
22.02 SURRENDER.
---------
Upon any termination of this Lease as the result of an Event of Default,
Tenant shall quit and peacefully surrender the Premises to Landlord, upon or at
any time after any such termination, Landlord may without further notice enter
the Premises and possess itself thereof by summary proceedings or otherwise, and
may dispossess Tenant and remove Tenant and all other Persons and property from
the Premises and may have, hold and enjoy the Premises and the right to receive
all rental income of and from the same.
22.03 RIGHT TO RELET.
--------------
At any time from time to time after any such termination, Landlord may
relet the Premises or any part thereof, in the name of Landlord or otherwise,
for such terms or terms (which may be greater or less than the period which
would otherwise have constituted the balance of the Lease Term) and on such
conditions (which may include concessions or free rent) as Landlord, in its
reasonable discretion, may determine and may collect and receive the rents
therefor. Landlord shall in no way be responsible or liable for any failure to
relet the Premises or any part thereof, or for any failure to collect any rent
due upon any such reletting provided that Landlord will use reasonable efforts
to mitigate.
22.04 SURVIVAL OF COVENANTS.
---------------------
No such termination of this Lease shall relieve Tenant of its
liability and obligations under this Lease and such liability and obligations
shall survive any such termination (but mitigated by any re-letting). Tenant
shall indemnify and hold Landlord harmless from all loss, cost, expense, damage
or liability arising out or in connection with such termination.
In the event of any such termination, Tenant shall pay to the Landlord
the Rent up to the date of such termination. Tenant shall also pay to Landlord,
on demand, as and for liquidated and agreed damages for Tenant's Default, the
difference between
(1) the aggregate Rent which would have been payable under this Lease
by Tenant from the date of such termination until the Stated
Expiration Date, less
----
(2) the fair and reasonable rental value of the Premises for the same
period, excluding all of Landlord's reasonable estimate of
expenses to be incurred in connection with reletting the Premises,
including, without limitation, all repossess costs, brokerage
commission, legal expenses, reasonable attorney's fees, alteration
costs, and expenses of preparation for such reletting.
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If the Premises or any part thereof are relet by the Landlord in good
faith to an unrelated third party before presentation of proof of such
liquidated damages to any court, commission or tribunal, the amount of rent
reserved upon such reletting shall be, prima facie, the fair and reasonable
-----------
rental value for the part or the whole of the Premises so relet during the term
of the reletting.
Nothing herein contained shall limit or prejudice the right of the
Landlord to prove and obtain as liquidated damages by reason of such
termination, an amount equal to the maximum allowed by any statute or rule of
law in effect at the time when, and governing the proceedings in which, such
damages are to be proved, whether or not such amount be greater, equal to, or
less than the amount of the difference referred to above.
22.05 RIGHT TO EQUITABLE RELIEF.
-------------------------
If there shall occur a Default or threatened Default, Landlord shall be
entitled to enjoin such Default or threatened Default and shall have the right
to invoke any right and remedy allowed at law or in equity or by statute or
otherwise as though re-entry, summary proceedings, and other remedies were not
provided for in this Lease.
22.06 RIGHT TO SELF HELP; INTEREST ON OVERDUE RENT.
---------------------------------------------
If an Event of Default shall occur and be continuing, Landlord shall have
the right, but shall not be obligated, to enter upon the Premises and to perform
such obligation notwithstanding the fact that no specific provision for such
substituted performance by Landlord is made in this Lease with respect to such
Default. In performing such obligation, Landlord may make any payment of money
or perform any other act. The aggregate of (i) all sums so paid by Landlord,
(ii) interest (at the rate of 1 1/2% per month or the highest rate permitted by
law, whichever is less) on such sum plus all Rent not paid when due and (iii)
----
all necessary incidental costs and expenses in connection with the performance
of any such act by Landlord, shall be deemed to be Rent under this Lease and
shall be payable to Landlord immediately upon demand. Landlord may exercise the
foregoing rights without waiving any other of its rights or releasing Tenant
from any of its obligations under this Lease.
22.07 FURTHER REMEDIES.
----------------
Upon any termination of this Lease pursuant to Section 22.01, or at
any time thereafter, Landlord may, in addition to and without prejudice to any
other rights and remedies Landlord shall have at law or in equity, re-enter the
Premises, and recover possession thereof and may dispossess any or all occupants
of the Premises in the manner prescribed by the statute relating to summary
proceedings, or similar statute(s); but Tenant in such case shall remain liable
to Landlord as hereinbefore provided.
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ARTICLE 23
WAIVERS
-------
23.01 NO WAIVERS.
----------
Failure of Landlord to complain of any act or omission on the part of
Tenant no matter how long the same may continue, shall not be deemed to be a
waiver by said Landlord of any of its rights hereunder. No waiver by any
provision of this Lease shall be deemed a waiver of a breach of the same or any
other provision. No acceptance by Landlord of any partial payment shall
constitute an accord or satisfaction but shall only be deemed a partial payment
on account.
ARTICLE 24
SECURITY DEPOSIT
----------------
24.01 SECURITY DEPOSIT. INTENTIONALLY OMITTED
----------------
ARTICLE 25
GENERAL PROVISIONS
------------------
25.01 FORCE MAJEURE.
-------------
In the event that Landlord or Tenant shall be delayed, hindered in or
prevented from the performance of any act required hereunder by reason of Force
Majeure, then performance of such act shall be excused for the period of the
delay and the period for the performance of any such act shall be extended for a
period equivalent to the period of such delay.
25.02 NOTICES AND COMMUNICATIONS.
--------------------------
All notices, demands, requests and other communications provided for or
permitted under this Lease shall be in writing, either delivered by hand or sent
by first class mail, postage prepaid, to the following address:
(a) if to Landlord at the address stated in Section 1.01 hereof, or at
such other address as the Landlord shall have designated in writing
to the Tenant, with a copy to such Persons as Landlord shall have
designated in writing to Tenant, or
(b) if to Tenant at the address stated in Section 1.01 hereof, or at
such other address as the Tenant shall have designated in writing
to the Landlord, with a copy HALE AND DORR LLP , 60 STATE STREET,
BOSTON, MA 02109 ATTN: WILLIAM R. O'REILLY, JR. and to such Persons
as Tenant shall have designated in writing to Landlord.
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Any notice provided for herein shall become effective only upon and at
the time of receipt by the Person to whom it is given, unless such notice is
mailed by first-class registered or certified mail, in which case it shall be
deemed to be received on (i) the third Business Day following the mailing
thereof or (ii) the day of its receipt, if a Business Day, or the next
succeeding Business Day, whichever of (i) or (ii) shall be the earlier.
25.03 CERTIFICATES, ESTOPPEL LETTER.
-----------------------------
Either party shall, without charge, at any time and from time to time
hereafter, within ten (10) days after written request of the other, certify by
written instrument duly executed and acknowledged to any mortgagee or purchaser,
or proposed mortgagee or proposed purchaser, or any Person specified in such
request; (a) as to whether this Lease has been supplemented or amended, and if
so, the substance and manner of such supplement or amendment, (b) as to the
validity and force constituted, (c) as to the parties knowledge of the existence
of any Default or Event of Default, (d) as to the existence of any offsets,
counterclaims or defenses thereto on the part of such other party, (e) as to the
Term Commencement Date and Stated Expiration Date, and (f) as to any other
matters as may reasonably be so requested. Any such certificate may be relied
upon by the party requesting it and any other Person to whom the same may be
exhibited or delivered, and the contents of such certificate shall be binding on
the party executing same.
Tenant shall in addition, within 5 Business Days of the Term
Commencement Date, execute and deliver to Landlord a tenant estoppel letter.
25.04 RENEWAL.
-------
If this Lease is renewed or extended the provisions of Sections 7.01,
7.02, 7.03, 7.04, and 7.05 of Article 7 hereof shall not apply.
25.05 GOVERNING LAW.
--------------
This Lease and the performance thereof shall be governed, interpreted,
construed and regulated by the laws of the Commonwealth of Massachusetts.
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<PAGE>
25.06 PARTIAL INVALIDITY.
-------------------
If any term, covenant, condition or provision of this Lease or the
application thereof to any person or circumstance shall, at any time or to any
extent, be invalid or unenforceable, the remainder of this Lease, or the
application of such term or provision to persons or circumstances other than
those as to which is held invalid or unenforceable, shall not be affected
thereby, and each term, covenant, condition and provision of this Lease shall be
valid and be enforced to the fullest extent permitted by law.
25.07 NOTICE OF LEASE.
----------------
The parties will at any time, at the request of either one, promptly
execute duplicate originals of an instrument, in recordable form, which will
constitute a Notice of Lease, setting forth a description of the Premises, the
Lease Term and any other portions thereof, excepting the rental provisions, as
either party may request. Cost of review and recording to be borne by Tenant.
25.08 INTERPRETATION; CONSENTS.
-------------------------
The section headings used herein are for reference and convenience
only, and shall not enter into the interpretation hereof. This Lease may be
executed in several counterparts, each of which shall be an original, but all of
which shall constitute one and the same instrument.
25.09 BIND AND INURE; LIMITATION OF LANDLORD'S LIABILITY.
---------------------------------------------------
The obligations of this Lease shall run with the land, and this Lease
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns. No owner of the Land and Building shall be
liable under this Lease except for breaches of Landlord's obligations occurring
while owner of the Land and Building. The obligations of Landlord shall be
binding upon the assets of Landlord which comprise of only the Land and Building
but not upon other assets of Landlord. No individual partner, trustee,
stockholder, officer, director, employee or beneficiary of Landlord shall be
personally liable under this Lease and Tenant shall look solely to Landlord's
interest in the Land and Building in pursuit of its remedies upon an event of
default hereunder, and the general assets of Landlord and its partners,
trustees, stockholders, officers, employees or beneficiaries of Landlord shall
not be subject to levy, execution or other enforcement procedure for the
satisfaction of the remedies of Tenant.
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<PAGE>
25.10 PARTIES.
--------
Except as herein otherwise expressly provided, the covenants,
conditions and agreements contained in this Lease shall be binding upon the
heirs, successors and assigns of the parties hereto.
ARTICLE 26
MISCELLANEOUS
-------------
26.01 HOLDOVER CLAUSE.
----------------
In the event Tenant fails to vacate the premises by the Lease
Termination Date, Tenant hereby agrees to pay Landlord 150% the monthly rental
rate. The "Holdover Rental Rate" shall be paid monthly in advance to Landlord.
In addition to the "Holdover Rental Rate", Landlord shall be entitled to seek to
recover full damages sustained as a result of said holdover.
26.02 BROKERAGE.
----------
Landlord and Tenant warrant and represents to each other that they have
no dealings with any broker or agent in connection with this Lease other than
Fallon Hines and O'Connor, Inc. and Parson Commercial Group and each covenants
to defend the other, and, hold harmless and indemnify the other from and against
any and all cost, expense or liability for any compensation, commissions and
charges claimed by any broker or agent other than Fallon. Hines and O'Connor or
Parsons Commercial Group. Landlord shall be responsible to pay all brokerage
commission.
26.04 EXTENSION OPTION
----------------
If Tenant has not assigned this Lease nor sublet any portion of the
Premises except by such transfer as does not require Landlord's consent and
Tenant is not, at the date of intended exercise of the option granted hereby in
default of its obligations under this Lease beyond applicable periods of notice
and grace, Tenant shall have the option to extend the Term on all provisions
hereof, except for Basic Rent, for two successive five year extension terms,
("Extension Terms"). Tenant shall exercise each such option by giving notice of
Tenant's intent to exercise the option (the "Option Notice") to Landlord at
least three-hundred sixty-five (365) days before the first day of each Extension
Term. The Basic Rent for the Extension Term shall be the greater of (a) 95% the
Fair Rental Value of the Premises as of the commencement of such Extension Term,
determined as provided in Section 4.03, or (b) the Basic Rent in effect
immediately prior to commencement of such Extension Term.
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<PAGE>
26.05 SIGNAGE.
--------
Landlord will provide Tenant with signage on the Building directory,
floor directory, and suite door and exterior signage on the building subject to
Landlord's approval, existing agreements with other tenants, compliance with
applicable laws including the bylaws of Town of Framingham.
ARTICLE 27
ENTIRE AGREEMENT
----------------
27.01 ENTIRE AGREEMENT.
-----------------
No oral statement or prior written matter shall have any force or effect.
This Agreement shall not be modified or canceled except by writing subscribed to
by all parties.
No Representations, inducement, promises or agreements, oral or
otherwise, between Landlord and Tenant or any of their respective brokers,
employees or agents, not embodied herein, shall be of any force or effect.
Executed as a sealed instrument as of the ______ day of August, 1998.
LANDLORD: TRIANGLE REALTY TRUST
By:
-------------------------------
David P. Depietri, as Trustee and
not individually
TENANT: LIFELINE SYSTEMS, INC.
By: Date
---------------- -----------
Its:
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<PAGE>
THE TRIANGLE
BUILDING 5
FRAMINGHAM, MASSACHUSETTS
EXHIBIT A
---------
(LEGAL DESCRIPTION)
Beginning at the southeast corner of the parcel herein described, at a
point on the northwest side of Bishop Street, forty-two and 06/100 (42.06) feet
southwest from a stone bound in Bishop Street; thence
SOUTHWESTERLY by Bishop Street, S 36 (degrees) 38' 00" W, one hundred
forty-one and 45/100 (141.45) feet; thence on a curve to the
right of radius 38.17 feet, a distance of thirty-one and
99/100 (31.99) feet, to Howard Street, thence
SOUTHWESTERLY by Howard Street, S 84 (degrees) 39' 00" W, seven hundred
five and 57/100 (705.57) feet, to Grant Street, thence
NORTHWESTERLY by Grant Street N 01 (degrees) 06' 00" W, two hundred
fourteen and 75/100 (214.75) feet; thence
NORTHEASTERLY by Grant Street, N 30 (degrees) 28' 00" E, eleven and 50/100
(11.50); thence N 36 (degrees) 26' 25" E, four hundred
twenty-one and 28/100 (421.28) feet; thence
NORTHEASTERLY by the intersection of Grant Street and Clinton Street, N 88
(degrees) 44' 19" E, seven and 51/100 (7.51) feet to Clinton
Street; thence
SOUTHEASTERLY by Clinton Street, S 56 (degrees) 20' 46" E, six hundred
sixty-six and 17/100 (666.17) feet to Bishop Street and the
point of beginning
Containing 277,250 (plus or minus) square feet.
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<PAGE>
-
THE TRIANGLE
BUILDING 5
FRAMINGHAM, MASSACHUSETTS
EXHIBIT A-1
-----------
(PLAN SHOWING TENANT'S SPACE)
Any discrepancy between Exhibit A1 and Exhibit B1 shall be resolved in
favor of Exhibit B1.
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<PAGE>
THE TRIANGLE
BUILDING 5
FRAMINGHAM, MASSACHUSETTS
EXHIBIT B1
BASE BUILDING WORK
1. Install new roof.
2. HVAC System to each floor.
Including: -40 ton constant air volume unit mounted to the ceiling.
-A 40" spline duct shall run from the unit and split in the center running
to each end of the floor.
-Air registers in the suite will be located in the side of the spline.
Condenser will be located on roof and boiler in basement.
3. A 2,000 amp main electric panel in the basement will be distributed evenly
over five (5) floors. Each floor will receive one panel with 360 amps.
Tenant will use this panel for final electrical connections.
4. Fire/Emergency System:
Each floor shall receive a base system to code. Any future modification
requirements to be at tenant cost.
5. All floors are to receive new windows system constructed of aluminum
mullion with gray thermopane insulated glass. Each floor will have four
(4) operable windows distributed evenly over the floor.
6. All floors are to receive a sprinkler system to code.
7. All floors are to receive men's and women's rest rooms within Tenant space
to code.
8. Building to receive new 8.5 x 11.5 freight elevator serving all floors.
9. Building has new existing passenger elevator serving all floors.
10. Building is to receive new three (3) loading dock doors for freight and
delivery service on ground floor.
11. All walls, ceilings and floors are to be sandblasted down to original
detail (cement & brick finish).
-41-
<PAGE>
12. All floors are to receive a smooth finished concrete floor.
13. One new entrance door for each suite.
14. Building exterior is to be reconditioned for masonry and brick
deterioration.
15. A new key pad will also be added to the building.
16. Add a secured double door to service UPS shipping areas.
17. Provide a redesigned freight elevator to office direct access to Tenant's
space.
18. Provide fifty-six (56) 8 foot double tube florescent strip light.
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<PAGE>
EXHIBIT B2
BUILDING STANDARD INTERIOR TENANT IMPROVEMENTS
----------------------------------------------
1. PARTITIONS A. DEMISING PARTITIONS
---------- -------------------
separating Tenant spaces shall be
constructed 3 5/8" metal studs with two (2)
layers of 5/8" drywall with 3" fiberglass
insulation to the under side of the floor
above.
B. INTERIOR PARTITIONS within Tenant spaces
-------------------
shall be constructed of 3 5/8" metal studs
with one (1) layer of 5/8" drywall on each
side, extending from the floor to 6" above
the suspended ceiling. All walls are fully
insulated.
2. CEILING A. Mechanically suspended 2' x 4' exposed
------- metal grid with low gloss color coordinated
finish to match specified ceiling panels.
B. 2' x 4' second look two. Ceiling height to
be 8' - 4" minimum.
3. DOORS A. INTERIOR DOOR PACKAGE
----- ---------------------
One 3' - 0" x 8' - 0" high solid core wood
veneer door in a pressed (16 gauge) metal
frame.
One and one-half pair of ball bearing
hinges.
One standard door stop as required.
B. ENTRANCE DOORS TO LEASED AREAS
------------------------------
One 3' - 0" x 8' - 0" x 1 3/4" solid glass
doors with accompanying glass side lights.
Chrome lever hardware.
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<PAGE>
4. FLOORING A. Tenant Spaces - High
-------- grade carpeting or VCT. Color
specifications picked by Tenant.
B. Common areas to receive carpet or other
flooring as traffic patterns dictate.
5. PAINTING & WALL
---------------
COVERINGS A. Tenant wall surfaces will receive two (2)
--------- coats of high quality paint. Colors to be
chosen by Tenant.
B. Tenant's interior doors will receive two (2)
coats of semi-gloss finish.
C. Pressed metal door frames to be finished in
building standard color as selected by
Tenant.
6. LIGHTING A. Recessed 2' x 4' Parabolic Light fixtures
-------- with electronic ballast as needed.
B. Wall switches shall be single pole silent
type.
C. Fixtures, as required, either Parabolic or
incandescent, shall be installed in all
common areas and maintained by Landlord.
7. ELECTRICAL SERVICE One (1) duplex wall
------------------ outlet for on every interior wall as
specified by Tenant.
8. TELEPHONE Installation of wall outlets and wiring
--------- shall be provided by a telephone company at
the Tenant's expense, subject to approval by
Landlord, which shall not be unreasonably
withheld or delayed.
9. HEATING, VENTILATION
--------------------
AND AIR CONDITIONING The Tenant will design and install a zoned
-------------------- heating, ventilating and air conditioning
system that mechanically coincides with the
Base Building System which is supplied by
Landlord.
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<PAGE>
THE TRIANGLE
BUILDING 5
FRAMINGHAM, MASSACHUSETTS
EXHIBIT C
---------
SERVICES TO BE PROVIDED BY LANDLORD
(AS OPERATING EXPENSES)
A. Replacement of fluorescent tubes and starters in overhead light fixtures in
common areas as needed.
B. Hot and cold water for lavatory and drinking purposes.
C. Janitor services in common hallways and stairwells.
D. HVAC Maintenance
E. Roof Maintenance
F. Compliance with all applicable laws relating to the building, except for
compliance necessitated solely by Tenant Construction
Snow Removal Landlord will clear snow and ice from Tenant's designated
------------ parking areas and common sidewalks
Landscaping Landlord will provide landscaping and keeping as typically
----------- provided to real estate development with similar use.
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<PAGE>
THE TRIANGLE
BUILDING 5
FRAMINGHAM, TRIANGLE
EXHIBIT D
---------
RULES AND REGULATIONS
1. Heating, lighting and plumbing: The Landlord should be notified at once of
any trouble with heating, lighting or plumbing fixtures. Tenants must not
leave the doors of the Premises unlocked at night.
2. The sidewalks, entrances, halls and stairways shall not be obstructed by
any Tenant or used for any purposes other than ingress and egress to and
from their respective Premises, and no articles or rubbish shall be left
herein.
3. No toilet fixture shall be used for any purpose other than that for which
it is intended, and no sweepings, rubbish, rags, ashes or other substances
shall be thrown herein.
4. The weight and position of all safes and heavy equipment or machines shall
be subject to the approval of the Landlord.
5. Lettering on doors, tablets and building directory shall be subject to the
approval of the Landlord; no lettering shall be allowed on outside windows.
6. No wires for telephone service, electric lights, messenger service or for
any other purpose shall be put in the Premises without the consent of the
Landlord.
7. No glass in doors or elsewhere through which light is admitted in to any
part of the building shall be obstructed.
8. No animals or birds shall be kept in or about the Building.
9. All freight, furniture, etc. must be received and delivered through
entrances to the Building designated for such purpose unless otherwise
authorized by the Landlord.
10. Nothing shall be thrown from or taken in through the windows, nor shall
anything be left outside the Building on the window sills of the Premises.
11. No person shall loiter in the halls, corridors, or lavatories.
-46-
<PAGE>
12. The Landlord, its agents and employees shall have access at reasonable
times to perform their duties in the maintenance and operation of the
Premises.
13. No Tenant shall use any method of heating other than that provided for in
the Tenant's Lease without the consent of the Landlord.
14. Any damage caused to the Building or the Premises or to any person or
property herein as a result of any breach of any of the rules and
regulations by the Tenant shall be borne by the Tenant.
15. The Landlord reserves the right to make any such other and further rules
and regulations as, in its judgment, may from time to time be necessary for
maintaining the safety and cleanliness of the Premises and Building for the
preservation of good order therein.
16. All office areas shall require floor mats under any chairs that have
casters, so that the carpet shall remain in good order and repair.
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<PAGE>
THE TRIANGLE
BUILDING #5
FRAMINGHAM, MASSACHUSETTS
EXHIBIT E
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PARKING
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Upon Tenant's occupancy of the Premises, it shall have the right to use, as
appurtenant to the Premises, a maximum of 50 parking spaces in Tenant's main
parking area as shown in Exhibit E-1. Tenant may also use alternate parking
areas shown in Exhibit E-1 until such time when Landlord notifies Tenant that
alternate parking areas are no longer available to Tenant. All parking areas
shall be on a first-come first-serve basis. Landlord will repair pavement and
restripe the Building's parking areas to be used by Tenant's employees.
Landlord shall in no event be required to enforce such reserved rights on
Tenant's behalf. Use of such spaces is limited to Tenant's employees assigned
to the Premises and may not be sold, assigned, licensed or otherwise given to
any person for any compensation or fee or otherwise, except in connection with a
sublease or assignment permitted under the lease. The use of such parking
spaces by Tenant may be regulated by rules and regulations issued by the
landlord from time to time. Landlord reserves the right, after reasonable
written notice to Tenant, at any time and from time to time to change the
location of any parking space or spaces designated for tenant's use pursuant to
this section. Notwithstanding the immediately preceding sentence, however, in
the event that Landlord, in the future, dedicates any parking spaces in the
areas shown in Exhibit E-1 for the exclusive use of any other tenant (the "Other
Tenant Spaces") such that less than 50 parking spaces are available for Tenant's
use in Tenant's Main Parking Area, then Tenant shall have the right to have
dedicated for Tenant's exclusive use, 50 parking spaces, mutually agreed upon by
Tenant and Landlord from the parking areas shown in Exhibit E-1, but excluding
the Other Tenant Spaces.
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