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Exhibit 10.3
FIRST AMENDMENT
THIS FIRST AMENDMENT (the "Amendment") is made and entered into as of the
31st day of May, 2000, by and between EOP-RIVERSIDE PROJECT, L.L.C, A DELAWARE
LIMITED LIABILITY COMPANY ("Landlord") and ALLAIRE CORPORATION, A CORPORATION
ORGANIZED UNDER THE LAWS OF THE STATE OF DELAWARE ("Tenant").
WITNESSETH
A. WHEREAS, Landlord and Tenant are parties to that certain lease dated the
23rd day of November, 1999 (the "Lease") for space currently containing
approximately 270,446 square feet, consisting of 223,300 square feet in One
Riverside Center (sometimes referred to as the "One Riverside Center
Premises") and 47,146 square feet in Two Riverside Center (sometimes
referred to as the "Two Riverside Center Premises"), all as further
described in the Lease; and
B. WHEREAS, Tenant has requested that additional space containing
approximately 78,014 rentable square feet consisting of the 1st and 4th
floors of Three Riverside Center (as defined in the Lease) as shown on
EXHIBITS A-5 AND A-6 hereto (the "Three Riverside Center Premises") be
added to the original Premises and that the Lease be appropriately amended
and Landlord is willing to do the same on the terms and conditions
hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Landlord and Tenant agree as
follows:
I. PREMISES. Section 1.A.(ii) is amended to provide that the Premises are
located entirely in One Riverside Center, Two Riverside Center and Three
Riverside Center. In addition, Section I.C. of the Lease is hereby deleted
in its entirety and replaced by the following Section I.C.:
I.C. "Premises" shall mean (i) the area shown on EXHIBITS A, A-1, A-2, A-3
AND A-4 to the Lease and identified as Suites #1-100, #1-200, #1-300,
#2-100, and #2-200 and (ii) the area shown on EXHIBITS A-5 AND A-6 hereto
and identified as Suites #3-100 and #3-400. The Premises are located on
floors one (1), two (2) and three (3) of One Riverside Center, floors one
(1) and two (2) of Two Riverside Center and floors one (1) and four (4) of
Three Riverside Center. The "Rentable Square Footage of the Premises" is
deemed to be approximately 348,460 square feet, consisting of 223,300
square feet in One Riverside Center (sometimes referred to as the "One
Riverside Center Premises") and 47,146 square feet in Two Riverside Center
(sometimes referred to as the "Two Riverside Center Premises") and 78,014
square feet in Three Riverside Center (sometimes referred to as the Three
Riverside Center Premises"). Landlord and Tenant acknowledge that Landlord
has determined the location of the building management office on the first
floor of Two Riverside Center as shown on EXHIBIT A-3 to the Lease. All
corridors and restroom facilities located on floors one, two and three of
One Riverside Center, floor two of Two Riverside Center, floor four of
Three Riverside Center and any other floors leased by Tenant in their
entirety (other than the first floor of Three Riverside Center) shall be
considered part of the Premises. The total Rentable Square Footage of the
Premises and of the Building has been determined from the approved permit
set of construction drawings, without field measurement, based upon the
1996 BOMA standard of measurement. Notwithstanding the foregoing, Landlord,
at its sole cost and expense within six (6) months following the
Substantial Completion (hereinafter defined) of the Base Building Work
(hereinafter defined), shall cause the Rentable Square Footage of the
Premises, the Rentable Square Footage of the Building and the Rentable
Square Footage of the First Expansion Space (defined in Section IV of
Exhibit E) to be field measured by an architect retained by Landlord. If,
as a result of such field measurement, it is determined that the Rentable
Square Footage of the Premises, First Expansion Space or the Rentable
Square Footage of the Building has been misstated by more than 1%, Landlord
and Tenant shall promptly enter into an amendment to this Lease to restate
the Rentable Square Footage of the Building, First Expansion Space, and/or
the Rentable Square Footage of the Premises, as the case may be, to reflect
the actual
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square footage pursuant to the field measurement. If such field measurement
does not disclose a variance of 1% or more, any variance that is disclosed
shall be considered by Landlord and Tenant to be immaterial and shall not
result in an amendment of the Rentable Square Footage of the Building,
First Expansion Space, and/or the Rentable Square Footage of the Premises,
as the case may be. Landlord and Tenant acknowledge that the amendment of
the Rentable Square Footage of the Premises will affect the Base Rent,
Allowance (hereinafter defined), the Architectural and Engineering
Allowance (hereinafter defined), Three Riverside Center Premises Allowance
(hereinafter defined), the Three Riverside Center Premises Architectural
and Engineering Allowance (hereinafter defined) as such amounts are
determined on a "per square foot" basis. Landlord and Tenant further
acknowledge that the amendment of either the Rentable Square Footage of the
Premises or the Rentable Square Footage of the Building will affect
Tenant's Pro Rata Share (as hereinafter defined)."
II. BASE RENT. Section I.D. is hereby amended to add the following Base Rent
schedule with respect to the Three Riverside Center Premises.
"BASE RENT SCHEDULE FOR THE THREE RIVERSIDE CENTER PREMISES
ANNUAL RATE ANNUAL MONTHLY
PERIOD PER SQUARE FOOT BASE RENT BASE RENT
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III. TENANT'S PRO RATA SHARE: Section I.E s hereby amended by deleting
"54.6676%" and inserting "70.4372%" in lieu thereof.
IV. BASE TAX YEAR AND BASE EXPENSE YEAR - The Tax Base Year and Expense Base
Year for the Three Riverside Center Premises shall be the same as that for
the remainder of the Premises. As such, the "Tax Base Year" shall be Fiscal
Year 2001 and the "Expense Base Year" for the shall be the period beginning
on the Commencement Date and ending on the day prior to the first
anniversary of the Commencement Date.
V. TERM. Section I.G. of the Lease is hereby deleted in its entirety and
replaced by the following Section I.G:
"I.G. "Term" shall mean the following with respect to the One Riverside
Center Premises, Two Riverside Center Premises and Three Riverside Center
Premises:
TERM FOR THE ONE RIVERSIDE CENTER PREMISES
A period of 120 months, as the same may be extended in accordance with the
terms hereof. The "Term" for the One Riverside Center Premises shall
commence on the later to occur of (1) July 1, 2000 (the "Target
Commencement Date"); or (2) the date upon which Landlord Work in the One
Riverside Premises is "Substantially Complete", as such date is determined
pursuant to Section III.A. hereof (such date being referred to as the date
of "Substantial Completion"); or (3) the date on which Landlord delivers
full possession of the One Riverside Center Premises to Tenant (the later
to occur of such dates being defined as the "Commencement Date"). The
"Termination Date" shall,
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unless sooner terminated as provided herein, mean the last day of the Term
as the same may be extended as provided herein.
TERM FOR THE TWO RIVERSIDE CENTER PREMISES
A period of months, days and years, as the same may be extended in
accordance with the terms hereof, commencing on the Two Riverside Center
Premises Commencement Date (hereinafter defined) and ending on the
Termination Date as determined above with respect to the One Riverside
Center Premises, it being agreed that the entire Premises (i.e. the One
Riverside Center Premises, Two Riverside Center Premises and Three
Riverside Center Premises) shall always expire on the same date. The "Two
Riverside Center Premises Commencement Date" shall occur on the later to
occur of (1) August 1, 2000 (the "Two Riverside Center Target Commencement
Date"); or (2) the date upon which Landlord Work in the Two Riverside
Premises is "Substantially Complete", as such date is determined pursuant
to Section III.A. hereof (such date being referred to as the date of
"Substantial Completion"); (3) the date on which Landlord delivers full
possession of the Two Riverside Center Premises to Tenant; or (4) the
Commencement Date with respect to the One Riverside Center Premises.
Landlord and Tenant acknowledge that the defined terms of "Substantially
Complete" and "Substantial Completion" shall have the same meaning, but
shall be applied separately, with respect to the One Riverside Center
Premises and the Two Riverside Center Premises.
Except as provided elsewhere in this Lease to the contrary, the adjustment
of the Commencement Date and, accordingly, the postponement of Tenant's
obligation to pay Rent shall be Tenant's sole remedy and shall constitute
full settlement of all claims that Tenant might otherwise have against
Landlord by reason of the Landlord Work in the One Riverside Center
Premises not being Substantially Complete on the Target Commencement Date
or the Two Riverside Center Premises not be Substantially Complete on the
Two Riverside Premises Target Commencement Date. Landlord, in accordance
with Section III.A. below, shall provide Tenant with notice of the date on
which Landlord reasonably estimates that the Landlord Work will be
Substantially Complete (as defined in Section III.A herein) in the One
Riverside Center Premises and the Two Riverside Center Premises. Promptly
after the determination of the Commencement Date and the Two Riverside
Center Premises Commencement Date, Landlord and Tenant shall enter into a
commencement letter agreement in the form attached as EXHIBIT C.
TERM FOR THE THREE RIVERSIDE CENTER PREMISES
A period of months, days and years, as the same may be extended in
accordance with the terms hereof, commencing on the later to occur of (i)
September 1, 2000, (ii) the Commencement Date with respect to the One
Riverside Center Premises, or (iii) the date on which Landlord has
Substantially Completed the Base Building Work in the Three Riverside
Center Premises (the later of such dates being referred to as the "Three
Riverside Center Commencement Date") and ending on the Termination Date as
determined above with respect to the One Riverside Center Premises. It is
understood that Tenant shall have the right to select the general
contractor for the performance of Initial Alterations (hereinafter defined)
in the Three Riverside Center Premises and that the substantial completion
of the Initial Alterations shall not be a condition precedent to the
occurrence of the Three Riverside Center Commencement Date."
VI. THREE RIVERSIDE CENTER PREMISES - ADJUSTMENT OF COMMENCEMENT DATE;
POSSESSION. Landlord and Tenant acknowledge and agree that Landlord is only
obligated to perform Base Building Work in the Three Riverside Center
Premises (and not Landlord Work as described in the Lease) and, as a result
thereof, the terms and conditions of sections III.A through III.E of the
Lease, including Tenant Delays and Late Completion Penalties, shall not
apply to the Three Riverside Center Premises, and the following provisions
are hereby added to Article III and shall govern with respect to the Three
Riverside Center Premises:
"F. The Base Building Work with respect to the Three Riverside Center
Premises shall be deemed to be "Substantially Complete" on the date that
all of the following conditions have been satisfied: (i) All of the Base
Building Work with respect to the Three Riverside Center Premises has been
performed (as evidenced by Landlord's
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architect's certificate of substantial completion), other than any minor
details of construction, mechanical adjustment or any other matter, the
noncompletion of which does not materially interfere with Tenant's use and
occupancy of the Three Riverside Center Premises as more particularly set
forth below and in Section III.C. below ("Punchlist Items"), (ii) subject
to the completion of Punchlist Items, the Base Building Work in the Common
Areas of Three Riverside Center has been completed, including the
installation of all elevators and stairways and the installation of all
heating, ventilating, air-conditioning, fire/life safety, sanitary, water
and power facilities; provided that Tenant shall be responsible for
distributing any necessary systems to the Three Riverside Center Premises
as part of the Initial Alterations; (iii) the ground floor lobby in the
Building has been substantially completed, subject to Punchlist Items, and
lobby furniture shall have been installed, (iv) there is adequate parking
available to provide Tenant parking spaces at the Property based on a ratio
of 3 spaces for each 1000 rentable square feet of Premises, (v) a cafeteria
or other food service provider is open for business in the Building, (vi)
workout facilities are open for use in the Building, and (vii) parking lot
and outdoor lighting is installed and operational.
From time to time upon request by Tenant or Tenant's designated
representative, Landlord shall advise Tenant of the progress of the Base
Building Work in the Three Riverside Center Premises and the approximate
date on which Base Building Work in the Three Riverside Center Premises
will be Substantially Complete.
G. Within a reasonable time after the later to occur of the execution of
this First Amendment and, with respect to the Terminable Space (hereinafter
defined), the satisfaction of the Contingency (hereinafter defined),
Landlord and Tenant shall conduct a walk through of the Three Riverside
Center Premises for the purpose of preparing a list of Punchlist Items with
respect to the Base Building Work in the Three Riverside Center Premises.
Subject to the completion of any Punchlist Item, latent defects, and
necessary corrections and adjustments to seasonal items such as heating and
air conditioning that are not readily discoverable by Tenant on or about
the date of Substantial Completion, by taking possession of the Three
Riverside Center Premises for the purpose of performing the Initial
Alterations, Tenant is deemed to have accepted the Three Riverside Center
Premises and agreed that the Three Riverside Center Premises is in good
order and satisfactory condition, with no representation or warranty by
Landlord as to the condition of the Three Riverside Center Premises or the
Building or suitability thereof for Tenant's use. However, nothing
contained in this section shall be deemed to relieve Landlord from its
obligation to complete, and Landlord shall complete, with reasonable speed
and diligence, all Punchlist Items with respect to the Base Building Work.
H. If Tenant takes possession of the Three Riverside Center Premises before
the Three Riverside Center Premises Commencement Date, such possession
shall be subject to the terms and conditions of this Lease and Tenant shall
pay Rent (defined in Section IV.A.) to Landlord for each day of possession
before the Three Riverside Center Commencement Date; provided, however,
Tenant shall not be required to pay Rent for any days of possession before
the Three Riverside Center Commencement Date unless Tenant shall be
actively using the Three Riverside Center Premises for the conduct of
Tenant's business. Notwithstanding anything herein to the contrary,
Landlord agrees that Tenant shall have access to each portion of the Three
Riverside Center Premises for the purpose of performing Initial Alterations
following the later to occur of the execution of this First Amendment and,
with respect to the Terminable Space, the satisfaction of the Contingency.
I. In the event that Tenant terminates this Lease pursuant to subsections
III.E.1 or III.E.3 above, such termination shall also apply with respect to
the Three Riverside Center Premises."
VII. SECURITY DEPOSIT.
A. The initial amount of the Security Deposit is hereby increased from
$8,477,000.00 to $10,992,311.00. Within 15 days after the date on which
Landlord notifies Tenant that the Contingency has been satisfied or the
date on which this Amendment is terminated with respect to the Terminable
Space, as the case may be, Tenant shall provide Landlord with cash or a
letter of credit for the additional $2,445,311.00 (i.e. $10,922,311.00 -
$8,477,000.00). Any portion of the initial $8,477,000.00 security deposit
that has not, as of the date hereof, been delivered to Landlord shall
remain
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payable to Landlord in accordance with the terms and conditions of Section
VI.A. of the Lease. Notwithstanding the foregoing, Landlord and Tenant
acknowledge that the increased amount of the Security Deposit set forth
above, as well as the Security Deposit and reduction amounts set forth
below in the substitute Sections VI.C. and VI.D. are calculated based on
the assumption that the Contingency will be satisfied and this Amendment
shall remain in full force and effect with respect to the entire Three
Riverside Center Premises. If the Contingency is not satisfied and this
Amendment is terminated with respect to the Terminable Space, the
applicable Security Deposit, reduction amounts and such other amounts as
set forth in Section XI (Contingency) below will be adjusted as set forth
in Section XI below.
B. Sections VI.C and VI.D of the Lease are hereby deleted in their entirety
and replaced with the following sections VI.C. and VI.D.:
"C. Notwithstanding anything herein to the contrary, provided Tenant is not
in default under this Lease as of the third (3rd) anniversary of the
Commencement Date (i.e. the expiration of the 3rd lease year), the amount
of the Security Deposit shall reduce from $10,992,311.00 to $8,582,758.00
effective as of the 3rd anniversary of the Commencement Date. If the
Security Deposit is provided by Tenant in the form of cash, Landlord shall
return the reduced portion of the Security Deposit to Tenant within thirty
(30) days following the 3rd anniversary of the Commencement Date. If the
Security Deposit is provided in the form of a letter of credit, such
reduction shall be accomplished by having Tenant provide Landlord with a
substitute letter of credit in the reduced amount. If the Security Deposit
is provided through a combination of cash and letter of credit, Tenant, by
written notice to Landlord, shall advise Landlord as to the method that
will be used to effectuate the reduction of the letter of credit.
D. In addition to the reduction of the Security Deposit described in
Section VI.C. above, the amount of the Security Deposit shall be subject to
further reduction effective as of the 4th, 5th, 6th and 7th anniversaries
of the Commencement Date (each referred to as an "Anniversary Date") as
follows:
1) If Tenant reported a profit for the 4 consecutive quarters immediately
preceding the applicable Anniversary Date, the amount of the Security
Deposit shall reduce by $1,560,502.00 effective as of such Anniversary
Date. Such reduction shall be accomplished in the manner referred to in
Section VI.C. above, provided that Landlord shall not be required to refund
any portion of the Security Deposit or to accept a substitute letter of
credit unless and until Tenant has provided Landlord with audited financial
statements evidencing that Tenant is entitled to a reduction of the
Security Deposit in accordance with the terms hereof.
2) If Tenant did not report a profit for the 4 consecutive quarters
immediately preceding the applicable Anniversary Date but did report a
profit for 3 quarters within such period, the amount of the Security
Deposit shall reduce by $780,251.00 effective as such Anniversary Date.
Such reduction shall be accomplished in the manner referred to in Section
VI.C. above, provided that Landlord shall not be required to refund any
portion of the Security Deposit or to accept a substitute letter of credit
unless and until Tenant has provided Landlord with audited financial
statements evidencing that Tenant is entitled to a reduction of the
Security Deposit in accordance with the terms hereof.
3) If Tenant is not entitled to a reduction of the Security Deposit under
D.1. or D.2. above, Tenant shall not be entitled to a reduction of the
Security Deposit with respect to the applicable Anniversary Date. Tenant
shall, however, be entitled to a reduction of the Security Deposit with
respect to any future Anniversary Dates where the conditions for a
reduction have been satisfied. Notwithstanding anything herein to the
contrary, in no event shall the Security Deposit be reduced below the sum
of: (i) $2,340,750.00, plus (ii) the amount of any increase in the Security
Deposit pursuant to Section VI.E. below."
IX. INITIAL ALTERATIONS.
A. From and after the later to occur of the execution of this First Amendment
and, with respect to the Terminable Space, the satisfaction of the
Contingency, Tenant shall have access to the Three Riverside Center
Premises for the purpose of performing
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alterations and improvements in preparation for Tenant's occupancy thereof
(the "Initial Alterations"). Notwithstanding the fact that Tenant has been
provided with possession of the Three Riverside Center Premises, Tenant and
its contractors shall not have the right to perform Initial Alterations in
the Three Riverside Center Premises unless and until Tenant has complied
with all of the terms and conditions of Article IX.C. of this Lease,
including, without limitation, reasonable approval by Landlord of the final
plans for the Initial Alterations and the contractors to be retained by
Tenant to perform such Initial Alterations. Tenant shall be responsible for
all elements of the design of Tenant's plans (including, without
limitation, compliance with law, functionality of design, the structural
integrity of the design, the configuration of the Three Riverside Center
Premises and the placement of Tenant's furniture, appliances and
equipment), and Landlord's approval of Tenant's plans shall in no event
relieve Tenant of the responsibility for such design. Landlord agrees that
Landlord shall not have any approval rights over the aesthetic aspects of
the Initial Alterations unless the same are visible from the exterior of
the Building or the interior of the Building atrium. Landlord's approval of
the contractors to perform the Initial Alterations shall not be
unreasonably withheld.
B. Provided Tenant is not in default after the delivery of notice and the
expiration of any applicable cure periods, Landlord agrees to contribute
the sum of Two Million Three Hundred Forty Thousand Four Hundred Twenty and
00/100 Dollars ($2,340,420.00) (i.e. $30 per rentable square foot of the
Three Riverside Center Premises) (the "Three Riverside Center Premises
Allowance") toward the cost of performing the Initial Alterations in
preparation of Tenant's occupancy of the Three Riverside Center Premises.
The Three Riverside Center Premises Allowance may only be used for the cost
of labor, materials, permits and contractors fees in connection with the
Initial Alterations. The Three Riverside Center Premises Allowance, less
the amount of retainage provided for in Tenant's construction contract
(which shall not be less than 5% nor more than 10%)(which retainage shall
be payable as part of the final draw), shall be paid to Tenant or, at
Landlord's option, to the order of the general contractor that performs the
Initial Alterations, in periodic disbursements within thirty (30) days
after receipt of the following documentation: (i) an application for
payment and sworn statement of contractor substantially in the form of AIA
Document G-702 covering all work for which disbursement is to be made to a
date specified therein; (ii) a certification from an AIA architect
substantially in the form of the Architect's Certificate for Payment which
is located on AIA Document G702, Application and Certificate of Payment;
(iii) Contractor's, subcontractor's and material supplier's waivers of
liens which shall cover all Initial Alterations for the previous
disbursement and all other statements and forms required for compliance
with the mechanics' lien laws of the State of Massachusetts, together with
all such invoices, contracts, or other supporting data as Landlord may
reasonably require; and (iv) a request to disburse from Tenant containing
an approval by Tenant of the work done and a good faith estimate of the
cost to complete the Initial Alterations. In addition, prior to the first
such disbursement, Tenant shall deliver to Landlord (x) a cost breakdown
for each trade or subcontractor performing the Initial Alterations; (y)
final plans and specifications for the Initial Alterations, together with a
certificate from an AIA architect that such plans and specifications comply
in all material respects with all laws affecting the Building, Property and
Three Riverside Center Premises; and (z) copies of all construction
contracts for the Initial Alterations, together with copies of all change
orders, if any. Upon completion of the Initial Alterations, and prior to
final disbursement of the Allowance, Tenant shall furnish Landlord with:
(1) general contractor and architect's completion affidavits, (2) full and
final waivers of lien, (3) receipted bills covering all labor and materials
expended and used, (4) as-built plans of the Initial Alterations, and (5)
the certification of Tenant and its architect that the Initial Alterations
have been installed in a good and workmanlike manner in accordance with the
approved plans, and in accordance with applicable laws, codes and
ordinances. In no event shall Landlord be required to disburse the Three
Riverside Center Premises Allowance more than one time per month. If the
cost of the Initial Alterations exceeds the Three Riverside Center Premises
Allowance, Tenant shall be entitled to the Three Riverside Center Premises
Allowance in accordance with the terms hereof, but each individual
disbursement of the Allowance shall be disbursed in the proportion that the
Three Riverside Center Premises Allowance bears to the total cost for the
Initial Alterations, less the retainage referenced above. Notwithstanding
anything herein to the contrary, Landlord shall not be obligated to
disburse any portion of the Three Riverside Center Premises Allowance
during the continuance of an uncured default under the Lease, and
Landlord's obligation to disburse shall only resume when and if such
default is cured.
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In addition to Landlord's obligation to provide Tenant with an Three
Riverside Center Premises Allowance, Landlord, provided Tenant is not in
default after the delivery of notice and the expiration of any applicable
cure periods, shall provide Tenant with an allowance (the "Three Riverside
Center Premises Architectural and Engineering Allowance") in the amount of
One Hundred Fifty Six Thousand Twenty Eight and 00/100 Dollars
($156,028.00) (i.e., $2 per rentable square foot of the Three Riverside
Center Premises) to be applied toward the cost of architectural and
engineering services for the Three Riverside Center Premises contracted by
Tenant. Landlord shall disburse the Three Riverside Center Premises
Architectural and Engineering Allowance, or applicable portion thereof, to
Tenant within forty-five (45) days after Landlord's receipt of invoices and
lien waivers from Tenant with respect to Tenant's actual engineering and
architectural fees as described above. Any unused portion of the Three
Riverside Center Premises Architectural and Engineering Allowance may be
applied toward the cost of the Initial Alterations. Any unused portion that
is not applied toward the cost of the Initial Alterations shall accrue to
the sole benefit of Landlord, it being agreed that Tenant shall not be
entitled to any credit, offset, abatement or payment with respect thereto.
C. In no event shall the Three Riverside Center Premises Allowance be used for
the purchase of moveable office equipment, furniture or other items of
personal property of Tenant. In the event Tenant does not use the entire
Three Riverside Center Premises Allowance in connection with the
performance of the Initial Alterations, any unused amount shall accrue to
the sole benefit of Landlord, it being understood that Tenant shall not be
entitled to any credit, abatement or other concession in connection
therewith. Tenant shall be responsible for all applicable state sales or
use taxes, if any, payable in connection with the Initial Alterations
and/or Three Riverside Center Premises Allowance.
D. Landlord agrees to respond to any requests by Tenant for approval of its
initial drafts of plans within ten (10) Business Days. Landlord agrees to
respond to any requests by Tenant for approval of its contractors or any
revisions to previously submitted plans within seven (7) Business Days.
Notwithstanding the foregoing, the response times set forth above for the
approval of any plans or revisions thereto shall be extended by five (5)
additional Business Days in the event that the matters for which approval
is being requested will, in Landlord's reasonable judgment, require review
by an outside consultant. If Landlord shall disapprove any requests by
Tenant, Landlord shall commit to writing its specific basis for such
disapproval. Time is of the essence with respect to the response periods
set forth herein.
E. Landlord shall be responsible for performing the Base Building Work in the
Three Riverside Center Premises as described in the Base Building Scope
attached to the Lease as EXHIBIT M. All Base Building Work shall be
performed at Landlord's sole cost and expense. In no event shall the cost
of the Base Building Work be applied against or deducted from the Three
Riverside Center Premises Allowance or Three Riverside Center Premises
Architectural and Engineering Allowance. Notwithstanding the foregoing,
Landlord shall have the right to change the plans and specifications for
the Base Building Work from time to time, provided that Landlord shall not
materially reduce the overall quality of the Base Building Work; provided,
further, that Tenant shall have the right to approve any such changes that
materially affect Tenant's occupancy, operation or design of the Three
Riverside Center Premises, which approval shall not be unreasonably
withheld or delayed.
F. Tenant acknowledges that Landlord and its contractors, including ADP
Marshall ("ADP") will be performing Base Building Work in the Building and
Three Riverside Center Premises and improvement work in the premises of
other tenants of the Building prior to and during the performance of the
Initial Alterations by Tenant. Each portion of the Initial Alterations,
including, without limitation, the delivery of any materials, the placement
of dumpsters and sanitary facilities and the use of any loading docks must
be coordinated with Landlord and ADP in advance in accordance with the
rules and regulations enacted by Landlord and attached hereto as EXHIBITS
B-1 and B-2. It is understood that Landlord is constructing the Base
Building Work on a merit shop basis that is not restricted by the terms of
a collective bargaining agreement. Notwithstanding the foregoing, Landlord
hereby represents to Tenant and Tenant acknowledges that Landlord and ADP
have reached an understanding with the New England Regional Council of
Carpenters and the Laborers' International Union of North
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America, Local 560 with respect to the employment of union labor at the
Building and that Tenant and Tenant's Contractor shall work diligently and
in good faith with Landlord and ADP to comply with the understanding that
was reached with such unions. Tenant and Tenant's Contractor shall be
obligated to take all actions necessary to assure that the Initial
Alterations are performed to completion without disruption to Landlord's
performance of the Base Building Work from labor disputes arising from any
cause, including, without limitation, disputes concerning union
jurisdiction and the affiliation of workers employed by Tenant's Contractor
or the subcontractors of Tenant's Contractor. Should a jurisdictional
dispute arise, Tenant and Tenant's Contractor shall take the necessary
legal steps required to allow Landlord's and ADP's construction of the Base
Building Work to continue without interruption from any strikes, work
stoppages or other actions in connection with the jurisdictional dispute.
G. Once completed, the Initial Improvements shall be deemed "Leasehold
Improvements" and the provisions of Section VIII.B. shall be applicable
with respect to the Initial Alterations.
H. Notwithstanding anything in Section X.A. to the contrary, Tenant, as part
of the Initial Alterations, shall install any necessary sub-meters (as well
as any electrical panels, transformers, bus duct plug and related
equipment) in the Three Riverside Center Premises at Tenant's sole cost and
expense (subject to the Three Riverside Center Premises Allowance).
X. ASSIGNMENT AND SUBLETTING. All references in Article XII to One Riverside
Center or Two Riverside Center shall be deemed to refer to One Riverside
Center, Two Riverside Center or Three Riverside Center, or to One Riverside
Center Premises or Two Riverside Center Premises shall be deemed to refer
to One Riverside Center Premises, Two Riverside Center Premises or Three
Riverside Center Premises. In addition, Landlord's rights under Section
XII.B to recapture space that Tenant desires to Transfer shall not apply to
any subleases or occupancy agreements for all or any portion of the Three
Riverside Center Premises entered into by Tenant during the first 15 months
of the Term and having a term not exceeding four (4) years ("Initial Three
Riverside Subleases").
XI. CONTINGENCY. Landlord and Tenant acknowledge that, with the exception of
the 25,117 rentable square feet shown on EXHIBIT A-7 hereto (the
"Unencumbered Space"), the Three Riverside Center Premises is currently
leased to Harvard Vanguard Medical Associates, Inc. ("Harvard") pursuant to
the terms and conditions of a lease dated December 15, 1999 (the "Harvard
Lease"). The 52,897 rentable square foot portion of the Three Riverside
Center Space that is leased to Harvard is referred to herein as the
"Terminable Space". Landlord is currently engaged in good faith
negotiations with Harvard with respect to a termination of the Terminable
Space (the "Harvard Termination"). Tenant acknowledges and agrees that (i)
there is no guaranty that Landlord and Harvard will enter into the Harvard
Termination, (ii) Landlord shall be under no obligation to enter into the
Harvard Termination, and (iii) this First Amendment, with respect to the
Terminable Space only, is contingent upon Landlord and Harvard entering
into the Harvard Termination (the "Contingency"). In the event that
Landlord and Harvard do not enter into the Harvard Termination by May 12,
2000, either party shall have the right to terminate this First Amendment
with respect to the Terminable Space only by written notice to the other on
or before the date on which the Contingency is satisfied. If either party
elects to terminate this Amendment with respect to the Terminable Space,
this Amendment shall continue in full force and effect subject to the
following:
1) The Three Riverside Center Premises shall refer only to the 25,117
rentable square feet shown on Exhibit A-7 and the Rentable Square
Footage of the Premises shall be 295,563 square feet;
2) The Annual Base Rent and Monthly Base Rent for the Three Riverside
Premises shall be appropriately adjusted based on the new Three
Riverside Premises square footage (i.e. 25,117);
3) Tenant's Pro Rata Share shall be 59.7447%;
4) The Security Deposit shall be increased from $8,477,000.00 to
$9,264,000.00. As such, the additional amount to be provided by Tenant
shall be $787,280.00. In
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addition, Sections VI.C. and VI.D. of the Lease shall be deleted in
their entirety and replaced with the following sections VI.C. and
VI.D:
"C. Notwithstanding anything herein to the contrary, provided Tenant
is not in default under this Lease as of the third (3rd) anniversary
of the Commencement Date (i.e. the expiration of the 3rd lease year),
the amount of the Security Deposit shall reduce from $9,264,280.00 to
$7,279,876.00 effective as of the 3rd anniversary of the Commencement
Date. If the Security Deposit is provided by Tenant in the form of
cash, Landlord shall return the reduced portion of the Security
Deposit to Tenant within thirty (30) days following the 3rd
anniversary of the Commencement Date. If the Security Deposit is
provided in the form of a letter of credit, such reduction shall be
accomplished by having Tenant provide Landlord with a substitute
letter of credit in the reduced amount. If the Security Deposit is
provided through a combination of cash and letter of credit, Tenant,
by written notice to Landlord, shall advise Landlord as to the method
that will be used to effectuate the reduction of the letter of credit.
D. In addition to the reduction of the Security Deposit described in
Section VI.C. above, the amount of the Security Deposit shall be
subject to further reduction effective as of the 4th, 5th, 6th and 7th
anniversaries of the Commencement Date (each referred to as an
"Anniversary Date") as follows:
1) If Tenant reported a profit for the 4 consecutive quarters
immediately preceding the applicable Anniversary Date, the amount of
the Security Deposit shall reduce by $1,323,614.00 effective as of
such Anniversary Date. Such reduction shall be accomplished in the
manner referred to in Section VI.C. above, provided that Landlord
shall not be required to refund any portion of the Security Deposit or
to accept a substitute letter of credit unless and until Tenant has
provided Landlord with audited financial statements evidencing that
Tenant is entitled to a reduction of the Security Deposit in
accordance with the terms hereof.
2) If Tenant did not report a profit for the 4 consecutive quarters
immediately preceding the applicable Anniversary Date but did report a
profit for 3 quarters within such period, the amount of the Security
Deposit shall reduce by $661,807.00 effective as such Anniversary
Date. Such reduction shall be accomplished in the manner referred to
in Section VI.C. above, provided that Landlord shall not be required
to refund any portion of the Security Deposit or to accept a
substitute letter of credit unless and until Tenant has provided
Landlord with audited financial statements evidencing that Tenant is
entitled to a reduction of the Security Deposit in accordance with the
terms hereof.
3) If Tenant is not entitled to a reduction of the Security Deposit
under D.1. or D.2. above, Tenant shall not be entitled to a reduction
of the Security Deposit with respect to the applicable Anniversary
Date. Tenant shall, however, be entitled to a reduction of the
Security Deposit with respect to any future Anniversary Dates where
the conditions for a reduction have been satisfied. Notwithstanding
anything herein to the contrary, in no event shall the Security
Deposit be reduced below the sum of: (i) $1,985,420.00, plus (ii) the
amount of any increase in the Security Deposit pursuant to Section
VI.E. below."
5) The amount of the Three Riverside Premises Allowance shall be
$753,510.00 and the amount of the Three Riverside Premises
Architectural and Engineering Allowance shall be $50,234.00; and
6) Tenant's parking spaces shall be allocated as follows: 626 spaces in
the parking structure, 185 spaces in the surface parking areas and 76
spaces in the executive parking garage
XII. PARKING. Section VI.A of Exhibit E to the Lease is hereby deleted and
replaced with the following Section VI.A:
"A. During the initial Term, Landlord shall make parking spaces available
to Tenant at the Property based on a ratio of 3 parking spaces per 1,000
rentable square feet of Premises leased by Tenant from time to time (the
"Parking Ratio"). Tenant acknowledges that handicapped parking spaces and
visitor parking spaces are included within the Parking Ratio of 3 spaces
per 1,000 rentable square feet. In other
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words, Tenant's Pro Rata Share of the total amount of visitor and
handicapped parking spaces for the entire Property shall be deducted from
the number of parking spaces that Tenant is entitled to use based on the
Parking Ratio. Landlord, in its sole discretion, shall have the right to
allocate Tenant's parking rights between the surface parking areas, the
parking structure and the executive parking garage beneath One Riverside
Center (collectively referred to at the "Parking Areas"), provided that
not less than 89 of Tenant's parking spaces (exclusive of handicapped
parking spaces) shall be located in the executive parking garage beneath
the Building. As of the date hereof, it is contemplated that Tenant's
parking spaces will be allocated as follows: 738 spaces in the parking
structure, 218 spaces in the surface parking areas and 89 spaces in the
executive parking garage. Tenant shall not have the right to lease or
otherwise use more than its share of parking spaces. Landlord shall have
the right to establish such rules and regulations as Landlord reasonably
elects to monitor the use of parking spaces by Tenant and other tenants,
visitors and invitees and to assure, to the extent reasonably possible,
that such parties are parking in the specific areas (e.g. surface areas,
parking structure or garage) designated by Landlord and Tenant is not
exceeding the Parking Ratio. Without limitation, Landlord shall have the
right to implement a system of parking passes, parking stickers, card key
access or any other system reasonably designated by Landlord. Tenant
shall be responsible for assuring that its visitors, employees,
subtenants and invitees comply with the rules and regulations designated
by Landlord. Landlord shall have the right to require Tenant to institute
and operate a subsidized MBTA pass program at the Premises to encourage
Tenant's employees to use public transportation."
XIII. MONUMENT SIGN. Section VIII of Exhibit E to the Lease is hereby amended
by adding the following sentence: "Notwithstanding anything herein to the
contrary, Initial Three Riverside Subleases (as defined in Section XII of
the Lease) shall not be taken into account for purposes of determining
whether the Monument Signage Conditions have been satisfied."
XIV. DIRECTORY AND ENTRY SIGNAGE. Section IX.A of Exhibit E to the Lease is
hereby amended by adding the following sentence: "Notwithstanding
anything herein to the contrary, Landlord shall not have any right to
remove, nor require the removal of, the Atrium Sign because the existence
of Initial Three Riverside Subleases (as defined in Section XII of the
Lease) shall cause Tenant to be in violation of the sublease restrictions
and/or occupancy requirements of this Section."
XV. PARKING STRUCTURE SIGNAGE. Section X of Exhibit E to the Lease is hereby
amended by adding the following subsection: "D. Notwithstanding anything
herein to the contrary, Landlord shall not have any right to remove, nor
require the removal of, the Parking Structure Sign because the existence
of Initial Three Riverside Subleases (as defined in Section XII of the
Lease) shall cause Tenant to be in violation of the sublease restrictions
and/or occupancy requirements of this Section. In addition, Initial Three
Riverside Subleases shall not be taken into account for purposes of
determining whether the Parking Signage Conditions have been satisfied."
XVI. ONE RIVERSIDE SIGNAGE. Section XI of Exhibit E to the Lease is hereby
amended by adding the following subsection: "D. Notwithstanding anything
herein to the contrary, Landlord shall not have any right to remove, nor
require the removal of, the One Riverside Center Sign because the
existence of Initial Three Riverside Subleases (as defined in Section XII
of the Lease) shall cause Tenant to be in violation of the sublease
restrictions and/or occupancy requirements of this Section. In addition,
Initial Three Riverside Subleases shall not be taken into account for
purposes of determining whether the Riverside Center Signage Conditions
have been satisfied."
XVII. THREE RIVERSIDE SIGNAGE. Section XII of Exhibit E to the Lease is hereby
amended as follows:
a. The following subsection is hereby added: "C. Notwithstanding
anything herein to the contrary, Landlord shall not have any right
to remove, nor require the removal of, the Three Riverside Center
Sign because the existence of Initial Three Riverside Subleases
(as defined in Section XII of the Lease) shall cause Tenant to be
in violation of the sublease restrictions and/or occupancy
requirements of this Section. In addition, Initial Three Riverside
Subleases shall not be taken into account for purposes of
determining whether the Riverside Center Signage Conditions have
been satisfied."
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b. Section XII.A and XII.B are hereby amended as follows: (i) the
words "fifty percent (50%) of the total rentable square footage of
Three Riverside Center" are hereby deleted and replaced with
"75,000 rentable square feet in Three Riverside Center"; and (ii)
the words "50% of the total rentable square footage of Three
Riverside Center" in subsection XII.A(4) and XII.B(6) are hereby
deleted and replaced with "75,000 rentable square feet in Three
Riverside Center". Landlord acknowledges that, provided this
Amendment is not terminated with respect to the Terminable Space,
Tenant has satisfied the Three Riverside Center Signage Condition
with respect to the amount of space leased by Tenant in Three
Riverside Center. Such condition will be deemed to have been
satisfied regardless of whether a remeasurement pursuant to
Section I.C. of the Lease causes the square footage of the Three
Riverside Center Premises to drop below 75,000 rentable square
feet.
XVIII. SUPPLEMENTAL HVAC UNITS AND ANTENNA/DISHES. Section XIII of Exhibit E to
the Lease is hereby amended by increasing the number of Roof Top Units
from ten (10) to thirteen (13).
XIX. BUILDING RISERS. Section XVII of Exhibit E to the Lease is hereby deleted
and replaced with the following Section XVII:
"XVII. BUILDING RISERS. Tenant shall have the right to use the vertical
sleeves in One Riverside Center, Two Riverside Center and Three Riverside
Center for Tenant's data and telecommunication cabling and in connection
with the rights granted to Tenant with respect to the Roof Space. Tenant,
acknowledges, however, that the existing vertical sleeves run to the top
floor of the Building, but not through to the roof of the Building. As
such, if Tenant desires to have the sleeves run to the roof, Tenant will
be responsible for any costs required to extend the sleeves through to
the roof or to install separate sleeves connecting the top floor of the
Building to the roof. All such usage shall be in common with Landlord and
shall not adversely affect Landlord's right to use the vertical sleeves
for the operation of the Building (including the leasing, licensing and
granting of roof rights to third parties); provided that Landlord shall
not lease, license or grant any roof rights to third parties to the
extent that the same would have an adverse affect on Tenant's ability to
use the vertical sleeves in connection with the normal operation of
Tenant's business in the Premises. Landlord, at Landlord's expense, has
installed for Tenant's use, conduits within the Building to facilitate
Tenant's ability to interconnect Tenant's systems within One Riverside
Center, Two Riverside Center and Three Riverside Center.
XX. MISCELLANEOUS.
A. This Amendment sets forth the entire agreement between the parties
with respect to the matters set forth herein. There have been no
additional oral or written representations or agreements. Under no
circumstances shall Tenant be entitled to any Rent abatement,
improvement allowance, leasehold improvements, or other work to
the Three Riverside Center Premises, or any similar economic
incentives that may have been provided Tenant in connection with
entering into the Lease, unless specifically set forth in this
Amendment.
B. Tenant shall not record this Amendment. Landlord, however, agrees
to execute and to deliver to Tenant for recordation or
registration, at Tenant's cost and expense, a memorandum or notice
of this Amendment in the form attached hereto as Exhibit F-1. If
the Lease is terminated before the Term expires, upon Landlord's
request the parties shall execute, deliver and record an
instrument acknowledging the above and the date of the termination
of this Lease, and Tenant appoints Landlord its attorney-in-fact
in its name and behalf to execute the instrument if Tenant shall
fail to execute and deliver the instrument after Landlord's
request therefor within 10 days.
C. Except as herein modified or amended, the provisions, conditions
and terms of the Lease shall remain unchanged and in full force
and effect.
D. In the case of any inconsistency between the provisions of the
Lease and this Amendment, the provisions of this Amendment shall
govern and control.
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E. Submission of this Amendment by Landlord is not an offer to enter
into this Amendment but rather is a solicitation for such an offer
by Tenant. Landlord shall not be bound by this Amendment until
Landlord has executed and delivered the same to Tenant; provided,
that, if Landlord shall not have executed and delivered the same
to Tenant within seven (7) business days after the same has been
executed by Tenant and submitted to Landlord, Tenant shall have
the right by written notice to Landlord at any time prior to the
date on which a fully executed copy of this Amendment is delivered
to Tenant, to declare this Amendment null and void.
F. The capitalized terms used in this Amendment shall have the same
definitions as set forth in the Lease to the extent that such
capitalized terms are defined therein and not redefined in this
Amendment.
G. Tenant hereby represents to Landlord that Tenant has dealt with no
broker in connection with this Amendment. Tenant agrees to
indemnify and hold Landlord, its members, principals,
beneficiaries, partners, officers, directors, employees,
mortgagee(s) and agents, and the respective principals and members
of any such agents (collectively, the "Landlord Related Parties")
harmless from all claims of any brokers, including without
limitation Roy Hirshland, Spaulding & Slye or any successor
thereto, claiming to have represented Tenant in connection with
this Amendment. Landlord hereby represents to Tenant that Landlord
has dealt with no broker in connection with this Amendment.
Landlord agrees to indemnify and hold Tenant, its members,
principals, beneficiaries, partners, officers, directors,
employees, and agents, and the respective principals and members
of any such agents (collectively, the "Tenant Related Parties")
harmless from all claims of any brokers claiming to have
represented Landlord in connection with this Amendment.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this
Amendment as of the day and year first above written.
WITNESS/ATTEST: LANDLORD:
EOP-RIVERSIDE PROJECT, L.L.C, A DELAWARE
LIMITED LIABILITY COMPANY
By: Beacon Property Management
Corporation, a Delaware corporation,
its managing member
/s/ Hannah Song By: /s/ Gregory R. Clancy
- ---------------------------------- -------------------------------------
Name (print): Hannah Song Name: Gregory R. Clancy
-------------------- -----------------------------------
/s/ Harcie Sacehson Title: VICE PRESIDENT - Leasing
- ---------------------------------- ----------------------------------
Name (print): Harcie Sacehson
--------------------
WITNESS/ATTEST: TENANT:
ALLAIRE CORPORATION, A
CORPORATION ORGANIZED UNDER THE
LAWS OF THE STATE OF DELAWARE
/s/ Eric J. Smith By: /s/ David A. Gerth
- ----------------------------------- -------------------------------------
Name (print): Eric J. Smith Name: David A. Gerth
--------------------- -----------------------------------
Title: Chief Financial Officer and Vice
- ----------------------------------- President of Operations and Finance
Name (print):
---------------------
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EXHIBIT A-5
OUTLINE AND LOCATION OF THE FIRST FLOOR PREMISES IN THREE RIVERSIDE CENTER
This Exhibit is attached to and made a part of the Lease dated as of , ,
2000, by and between EOP-RIVERSIDE PROJECT, L.L.C, A DELAWARE LIMITED LIABILITY
COMPANY ("Landlord") and ALLAIRE CORPORATION, A CORPORATION ORGANIZED UNDER THE
LAWS OF THE STATE OF DELAWARE ("Tenant") for space in the Building located at
275 Grove Street, Newton, MA.
[1ST FLOOR LAYOUT]
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EXHIBIT A-6
OUTLINE AND LOCATION OF THE FOURTH FLOOR PREMISES IN THREE RIVERSIDE CENTER
This Exhibit is attached to and made a part of the Lease dated as of , ,
2000, by and between EOP-RIVERSIDE PROJECT, L.L.C, A DELAWARE LIMITED LIABILITY
COMPANY ("Landlord") and ALLAIRE CORPORATION, A CORPORATION ORGANIZED UNDER THE
LAWS OF THE STATE OF DELAWARE ("Tenant") for space in the Building located at
275 Grove Street, Newton, MA.
[4TH FLOOR LAYOUT]
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EXHIBIT A-7
OUTLINE AND LOCATION OF THE FIRST FLOOR PREMISES IN THREE RIVERSIDE CENTER
(I.E. THE UNENCUMBERED SPACE)
This Exhibit is attached to and made a part of the Lease dated as of , ,
2000, by and between EOP-RIVERSIDE PROJECT, L.L.C, A DELAWARE LIMITED LIABILITY
COMPANY ("Landlord") and ALLAIRE CORPORATION, A CORPORATION ORGANIZED UNDER THE
LAWS OF THE STATE OF DELAWARE ("Tenant") for space in the Building located at
275 Grove Street, Newton, MA.
[FLOOR LAYOUT]
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EXHIBIT B-1
RULES & REGULATIONS
FOR CONSTRUCTION WORK
The following Rules and Regulations should be incorporated into all agreements
between a tenant and contractors or vendors performing construction services on
the premises.
1. DEFINITIONS
1.1 Building: Riverside Center
275 Grove Street
Newton, Massachusetts
1.2 Property Manager: Robert Baker
1.3 Chief Engineer: Michael O'Shaughnessy
1.4 TIW Project Manager: As assigned
1.5 Regular Business Hours: Monday - Friday, 8:00 a.m. - 6:00 p.m.
Saturday, 8:00 a.m. - 1:00 p.m.
excluding holidays
1.6 Tenant: The capitalize term "Tenant" shall
refer to Allaire Corporation and its
permitted subtenants and assignees.
The non-capitalized term "tenant" shall
refer to any occupant of the Building.
1.7 Special Work: Any part of the Work which involves the
operations: following
a. All utility disruptions, shut-offs,
and turnovers
b. Activities involving high levels of
noise, including, but not limited
to, demolition, coring, drilling,
and ramsetting.
c. Activities resulting in excessive
dust or odors, including, but not
limited to, demolition and spray
painting.
1.8 Contractor or Vendor: Any service provider contracting
directly with Tenant to install
furniture or equipment, or perform
physical improvements to the premises.
1.9 Tradesperson: Any employee (including, without
limitation, any mechanic or laborer)
employed by a Contractor or Vendor
performing work.
2. INSURANCE
2.1 The Contractor shall purchase from and maintain in a company or
companies lawfully authorized to do business in the jurisdiction in
which the Project is located insurance for protection from claims
under worker's or workmen's compensation acts and other employee
benefits acts which are applicable, claims for damages because of
bodily injury, including death, and from claims for damages, other
than to the Work itself, to property which may arise out of or
result from the Contractor's operations under the Contract, whether
such operations be by the Contractor or by a Subcontractor or anyone
directly or indirectly employed by any of them. This insurance shall
be written for not less than limits of liability set forth herein or
required by law, whichever
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coverage is greater, and shall include contractual liability insurance
applicable to the Contractor's obligations hereunder. Certificates of such
insurance shall be filed with the Landlord prior to the commencement of the
Work.
2.2 The insurance required by Subparagraph 2.1 shall be written for not less
than the following, or greater if required by law:
1. Workers Compensation:
(a) State.................................................. Statutory
(b) Applicable Federal:.................................... Statutory
(c) Employer's Liability...................................$1,000,000
2. Comprehensive General Liability (including but not limited to
comprehensive form, premises operations, explosion and collapse hazard
and underground hazard, products and completed operations hazard,
contractual liability, broad form property damage (including completed
operations), independent contractors' protective, personal injury,
automobile liability comprehensive form for owned, hired and non-owned
vehicles):
(a) Combined single limits for bodily and property damages:
$5,000,000 .................................. Each Occurrence
$5,000,000 .................................. Annual Aggregate
(b) Products and Completed Operations to be maintained for 3 years after
final payment.
(b) Property Damage Liability Insurance shall provide X, C and U
coverage if Contractor's operations involve any exposure to
explosion, collapse or underground damage.
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2.3 The certificates of insurance shall contain the following provisions:
1. Name the Landlord, Landlord's agents, beneficiaries and
mortgagee, and Architect as additional insured (excluding
workers' compensation), including EOP-RIVERSIDE PROJECT,
L.L.C., BEACON PROPERTY MANAGEMENT CORPORATION, AND EQUITY
OFFICE PROPERTIES TRUST;
2. In the event of any change in the limits of liability,
decrease in coverage or other material change in coverage,
or the cancellation of insurance in its entirety, the
insurer must give Landlord, Landlord's agents, beneficiaries
mortgagee, and Architect written notice at least thirty (30)
days prior to the effective date of such change or
cancellations, and insurance coverage shall remain in force
during said thirty (30) day period; and
3. Waiver of any right of subrogation of the insurers against
Landlord, Landlord's agents, beneficiaries an mortgagee, and
the Architect.
2.4 At Landlord's request, Contractor shall cause any bank and/or
financial institution and/or any trustee designated by Landlord to be
added as additional insureds under the insurance policies required by
Subparagraph 2.1.
2.5 If Contractor fails to carry or provide evidence of insurance provided
for herein, Landlord may, but shall not be obligated to, procure the
same and charge the cost thereof to Contractor.
2.6 Contractor shall carry sufficient comprehensive insurance on its
equipment at the site an on route to or from the site as may be
necessary to fully protect itself, and Contractor acknowledge that
Landlord shall have no responsibility or liability therefor.
2.7 Contractor shall certify to the Landlord that it has obtained or will
obtain similar certificates of insurance form each of its
Subcontractor before their work commences. Each subcontractor must be
covered by insurance of the same character and in the same amounts as
the Contractor unless the Contractor and the Landlord agree that a
reduced coverage is adequate. Each Subcontractor's insurance shall
cover the Landlord's agents and beneficiaries and the Architect.
3. SCHEDULING
3.1 COORDINATION
a. All Work to be carried out expeditiously and with minimum
disturbance and disruption to the operation of the Building and
without causing discomfort, inconvenience, or annoyance to any
of the other tenants or occupants of the Building or the public
at large.
b. All schedules for the performance of construction, including
delivery of materials, shall be coordinated through the TIW
Project Manager and the Property Manager. The TIW Project Manager
reserves the right, without incurring any liability to Tenant,
Contractor, or Vendor, to stop activities and/or require
rescheduling of Tenant Work based upon adverse impact on tenants
or occupants of the Building, Landlord's or another party's
performance of work in the Building, including any base building
work or tenant work, or on the maintenance or operation of the
Building.
c. If any Work requires the shutdown of risers and mains for
electrical, mechanical, life-safety, or plumbing systems, such
work to be approved by and coordinated with the Chief Engineer,
and at the discretion of the Chief Engineer, to be supervised by
the Chief Engineer or designated representative. The Contractor
or Vendor is responsible for protecting all existing systems and
equipment as required.
d. Contractor to notify all local regulatory authorities of all
shutdowns of electrical, mechanical, life safety, or plumbing
systems, as required.
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3.2 TIME RESTRICTIONS
a. Subject to Paragraph 2.1 of these Rules and Regulations, prior
to the date on which any portion of the Building is occupied by
tenants or other occupants, general construction work will be
permitted at all times, including during Regular Business Hours.
From and after the date on which any portion of the Building is
occupied by tenants or other occupants, Property Manager shall
have the right to restrict the hours in which construction work
may be performed in order to minimize any disruption to the
business activities of such tenants or occupants. Without
limitation, Property Manager shall have the right to require
construction work to be performed only at times outside Regular
Business Hours.
b. Contractor or Vendor to provide Property Manager with at least
twenty-four (24) hours notice to schedule Special Work. From and
after the date on which any portion of the Building is occupied
by tenants or other occupants, such Special Work will be
permitted only during periods outside of Regular Business Hours
as agreed to by the Property Manager.
c. The delivery of construction materials to the Building,
distribution within the Building, and the removal of waste
materials will, from and after the date on which any portion of
the Building is occupied by tenants or other occupants, be
confined to periods outside Regular Business Hours, unless
otherwise specifically permitted in writing by the TIW Project
Manager.
d. If coordination, labor disputes, or other circumstances require,
the Property Manager may change the hours during which regular
construction work can be performed and/or restrict or refuse
entry to the Building by any Contractor or Vendor.
4. CONTRACTOR OR VENDOR PERSONNEL
4.1 CONDUCT
a. While in or about the Building, all Contractors and Vendors must
perform in a dignified, quiet, courteous, and professional
manner at all times. Tradespersons must wear clothing suitable
for their work and shall remain fully attired at all times. Each
Contractor and Vendor will be responsible for his/her
Tradesperson's behavior and conduct.
b. The TIW Project Manager reserves the right to prohibit any
Contractor, Vendor, or Tradesperson from working on the premises
for disturbing any tenant, occupant, contractor, vendor, or
tradesperson, interfering with the work of others, or in any way
displaying conduct or performance not compatible with the
Owner's standards.
4.2 ACCESS
a. Contractors and Vendors must contact the TIW Project Manager to
coordinate Building access. Elevators will not be available for
any purpose in connection with the performance of work by
Contractor in the Building, including, without limitation, for
the purpose of transporting any persons to or from the premises
in which work will be performed. Access to the Building before
and after Regular Business Hours, all day on weekends and
holidays, or any other hours designated from time to time by the
TIW Project Manager, will only be provided following receipt of
twenty-four (24) hours advanced notice by the TIW Project
Manager and Chief Engineer.
b. Contractors and Vendors must obtain permission from the TIW
Project Manager prior to undertaking work in any space outside
the Contractor's Work limits. This requirement specifically
includes ceiling spaces below the premises where any work
required must be undertaken at the convenience of the affected
tenant and outside of Regular Business Hours. Contractor or
Vendor undertaking such work shall ensure that all work,
including work required to reinstate removed items and cleaning,
be completed prior to opening of the next business day.
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c. No Contractor or Vendor will be permitted to enter any private
or public space in the Building, other than the common areas of
the Building necessary for direct access to the area of Work for
which he/she has been employed, without the prior approval of
the TIW Project Manager.
d. Contractor or Vendor will ensure that all furniture, equipment,
and accessories in areas potentially affected by the Work are
adequately protected by means of drop cloths or other
appropriate measures. In addition, Contractor and Vendor shall
be responsible for maintaining security to the extent required
by the Property Manager.
e. Temporary access doors for tenant construction areas connecting
with a public corridor will consist of building standard door,
frame, hardware, and lockset. A copy of the key will be
furnished to the Property Manager.
f. Unless otherwise agreed to by Property Manager, bulk loading of
material to be made via lift or crane through a removed window.
Contractor or Vendor to protect all existing construction as
required.
4.3 SAFETY
a. Contractor or Vendor to police ongoing construction operations
and activities at all times, keeping the premises orderly,
maintaining cleanliness in and about the premises, and ensuring
safety and protection of all areas, including truck docks,
elevators, lobbies, and all other public areas which are used
for access to the premises.
b. Contractor or Vendor to appoint a supervisor who will be
responsible for all safety measures, as well as for compliance
with all applicable governmental laws, ordinances, rules and
regulations such as, for example, "OSHA" and "Right-to-Know"
legislation.
c. Contractor or Vendor to take all reasonable precautions to
prevent damage to property, both visible and concealed, and will
restore the Building to substantially the same condition
existing prior to the Contractor's or vendor's entry, to the
satisfaction of the TIW Project Manager. While performing
services hereunder, the Contractor or Vendor will immediately
notify the TIW Project Manager of any defective condition in the
Building of which he/she becomes aware. Any damage caused by
Tradespersons will be the responsibility of the Contractor or
Vendor. Costs for Owner's repair of such damage will be charged
directly to the Tenant.
d. Contractor or Vendor to maintain proper emergency egress for the
area of Work and adjacent areas of the Building during all
phases of the Work.
e. Contractor or Vendor to notify the TIW Project Manager if any of
its employees, equipment, or motor vehicles or that of any
subcontractors are involved in an accident or injury while on
the Property within twenty four (24) hours. Contractor of Vendor
to provide a detailed accident report within three (3) business
days.
4.4 PARKING
a. Parking is not allowed in or near truck docks, in accessible
parking spaces or loading zones, fire access lanes, or private
ways in or surrounding the property. Vehicles so parked will be
towed at the expense of the Contractor or Vendor for whom the
owner of such vehicle is employed.
b. The availability of parking in any parking areas of the Building
is limited. Use of such parking for Contractor or Vendor and
his/her personnel is restricted and must be arranged with and
approved by the TIW Project Manager.
c. In no event may any office and/or storage trailers be parked at
the Building or at the property on which the Building is
located.
5. BUILDING MATERIALS
5.1 DELIVERY
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All deliveries of construction materials to be made at the
predetermined times coordinated with and approved by the TIW Project
Manager, and to be carried out safely and expeditiously only at the
location determined by the TIW Project Manager. Contractor shall work
together in good faith with any other contractors performing work at
the Building to assure that materials can be delivered to the
Building and respective premises with minimal disruption. In addition
to being entitled to designate and coordinate the times for material
deliveries, the TIW Project Manager and/or Property Manager may act
as the sole arbitrator for the purpose of resolving any disputes in
connection with any such activities.
5.2 TRANSPORTATION IN BUILDING
a. Distribution of materials from delivery point to the work area
in the Building to be accomplished with the least disruption to
the operation of the Building possible. Subject to the terms of
Section 4.2.f., the Property Manager may designate elevators for
material delivery.
b. Contractor or Vendor will provide adequate protection for all
carpets, wall surfaces, doors and trim in all public areas
through which materials are transported. Contractor or Vendor
must continuously clean all such areas. Protective measures
shall include runners over carpet, padding in elevators, and any
other measures determined by the TIW Project Manager and
Property Manager.
c. Any damage caused to the building through the movement of
construction materials or otherwise will be the responsibility
of the Contractor or Vendor. Costs for Owner's repair of such
damage will be charged directly to the Tenant.
5.3 STORAGE AND PLACEMENT
a. All construction materials to be stored only in the premises
where they are to be installed. No storage or staging of
materials will be permitted in public areas, loading docks,
corridors leading to the premises or any other portion of the
Building or Property other than the premises in which such
materials will be installed.
b. No flammable, toxic, or otherwise hazardous materials may be
brought in or about the Building unless: (I) authorized by the
Chief Engineer, (ii) all applicable laws, ordinances, rules, and
regulations are complied with, and (iii) all necessary permits
have been obtained. All necessary precautions will be taken by
the Contractor or Vendor when handling such materials so to
avoid damage or injury.
5.4 SALVAGE AND WASTE REMOVAL
a. All rubbish, waste, and debris will be neatly and cleanly
removed from the Building daily by the Contractor or Vendor
unless otherwise approved by TIW Project Manager. The Building's
trash compactor will not be used for construction or debris. For
any demolition and debris, Contractor, at its sole cost and
expense, must make arrangements with the Property Manager for
scheduling and location of an additional dumpster to be supplied
by Contractor. Where, in the opinion of the TIW Project Manager,
such arrangements are not practical, Contractor will make
alternative arrangements for rubbish removal. Contractor shall
not be entitled to install more than one trash chute to dispose
of rubbish, waste and debris in connection with the Work.
b. Toxic or flammable waste is to be properly removed daily and
disposed of in full accordance with all applicable laws,
ordinances, rules, and regulations.
c. Contractor or Vendor will, prior to removing any item (including,
without limitation, building standard doors, frames and hardware, light
fixtures, ceiling diffusers, ceiling exhaust fans, sprinkler heads,
fire horns, ceiling speakers, and smoke detectors) from the Building,
notify the TIW Project Manager that he/she intends to remove such item.
At the election of TIW Project Manager, Contractor or Vendor to deliver
any such items, at no cost, to an area designated by the TIW Project
Manager to an area within the Building or complex in which the Building
is located.
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d. Contractor shall be responsible for obtaining its own Port-a-John or
other sanitary facilities for use by Tradespersons, the location of
which shall be subject to approval of the Property Manager. Contractor
shall be responsible for having the sanitary facilities cleared at
regular intervals and for removing such sanitary facilities from the
Building and property upon the completion of the work. In no event
shall Contractor or Tradespersons be entitled to use the Building
restrooms or the sanitary facilities or any other contractor.
6. MISCELLANEOUS.
a. All transformers, chillers, air conditioners,
mechanical/ventilation systems, HVAC equipment, and similar
devices shall be designed, located and baffled using
appropriate. Acoustical screening to minimize the noise
produced. The noise produced by this equipment shall comply with
the City of Newton Noise Ordinance and shall not exceed 51 dBa
during the day and 46 dBa during the night as measured at the
property line or any location on immediately abutting
residential properties. Emergency generators will be designed to
meet City of Newton noise regulations. Any such equipment must
be retested from time to time to confirm that it will continue
to comply with such standards.
b. No Contractors or Tradesmen shall park on neighborhood streets.
c. Noise levels shall comply with the City's Noise Control
Ordinance, Section 20-13.
d. Trucks shall only access the site to and from Route 128, except
when the MBTA bridge is too low to allow passage of large
equipment, in which case, the routes and times shall be reviewed
and approved by the Police Department.
d. Noise from heaters used during construction in winter conditions
shall comply with the City's Noise Control Ordinance.
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EXHIBIT B-2
INDOOR AIR QUALITY (IAQ) GUIDELINES
FOR CONSTRUCTION WORK
The following Indoor Air Quality Guidelines are herewith incorporated into all
agreements with Contractors and Vendors performing construction services on the
premises.
1. MATERIALS
The Contractor shall use only application-approved materials with the
lowest content by volume of toxic or irritating chemicals. New carpet must
have a green label certified by the Carpet and Rug Institute (CRI) and be
installed according to CRI installation guidelines. Contractor shall avoid
materials containing chemicals listed as potentially carcinogenic,
mutagenic, teratogenic, neurotoxic, or "sensitizing." The following
materials are banned from new installations:
a. Materials containing greater than trace (0.1%) amounts of asbestos.
b. Materials containing any halogenated hydrocarbon solvents (e.g.
methylene chloride, tetrachloroethylene, trichloroethylene,
trichloroethane).
c. HVAC components internally lined with permeable man-made mineral fiber
products unless coated with "Tuffcoat" or other tough, resilient
coating or mat surface that provides a smooth, non-shedding surface in
contact with the air stream.
2. SUBMITTALS & INFORMATION
2.1 Prior to starting work, the Contractor shall furnish information
copies of MSDS forms to the TIW Project Manager for all materials to
be installed and utilized during installation.
2.2 The Contractor will assist the TIW Project Manager in providing
pre-construction information and/or information sessions to the Tenant
during project planning stages and/or at least twenty-four (24) hours
prior to project initiation. The information and/or information
sessions shall address the following:
a. Project scope and duration.
b. Anticipated construction impacts on indoor air quality (IAQ) and
workplace conditions.
c. Methods to minimize impact (e.g. engineering controls, material
selection).
d. Methods to record, investigate, and resolve occupant complaints
related to construction impacts on IAQ or workplace conditions.
3. METHODS
3.1 General
a. The Contractor shall maintain work area clean and free of open
containers of paint, cleaners, chemicals, loose trash and
garbage. All flammable and hazardous substances shall be stored
to prevent spillage and in accordance with National Fire
Protection Association (NFPA) codes and OSHA regulations. When
possible, flammable and hazardous materials shall be removed from
the Building on a daily basis. Otherwise, appropriate storage
arrangements shall be made with the Chief Engineer.
b. No methods to isolate the Work area, contain odors and
contaminants, or ventilate odors and contaminants shall impede
emergency egress from the area of work or any area of the
Building.
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c. No equipment powered by a combustion engine will be permitted in
the premises.
d. When possible, the Contractor shall use application methods that
generate the least amount of airborne contaminants (e.g. brush
vs. spray application of paint).
e. Unless approved by product specifications, the Contractor shall
not install wet or water-damaged building materials. The
Contractor shall protect stored materials from water and moisture
prior to installation. The Contractor shall protect new building
assemblies from water damage following installation and inspect
for signs of ineffective water and moisture control (e.g.
condensation on pipes and ducts and roof and drain leaks)
following installation.
3.2 Isolation of Work Area
a. Where feasible, construction site passageways abutting tenant
occupied locations shall incorporate single chamber "air locks"
(two sets of doors or plastic strip doors at opposite ends of an
enclosed chamber or small room) into each construction site
entrance. Plastic strip doors shall be of minimum 0.120" thick
material with full overlap. Once installed, the air lock shall
remain in place for the duration of the project or until such a
time as its presence blocks final completion of the renovations.
The Contractor's passage routes should avoid or minimal intersect
tenant occupied areas of the building.
The Contractor shall submit plan indicating construction site
passageways for approval to the TIW Project Manager and shall
construct and use only these passageways for access to the area
of work
b. All persons and materials passing to the construction site should
be fully in the air lock and the door to the tenant occupied area
closed before opening the construction site door (or flaps). At
least one (set of) air lock door(s) (or flaps) must remain closed
throughout the renovation process. All persons leaving the site
shall clean their feet on a floor mat in the air lock prior to
entering the tenant occupied part of the building. The Contractor
shall clean the floor mat regularly.
3.2 Containment & Ventilation of Odors & Contaminants
a. Upon mobilization, the Contractor and the HVAC subcontractor
shall meet with the Chief Engineer to review the building HVAC
system.
b. The Contractor shall submit for approval to the Building Engineer
proposed plan to contain and ventilate odors and contaminants.
c. The Contractor is responsible for ensuring that odors and
contaminants are contained. Activities that have potential to
emit airborne contaminants must be coordinated with the TIW
Project Manager. The Contractor shall:
i. Isolate all return air pathways from the construction area.
ii. Cut and cap all supply air ducts serving the construction
area except for temporary ducts supplying air to the
construction area for temporary heat and air conditioning.
iii. Monitor and maintain construction site at negative pressure
at least (-0.02" w.c.) relative to tenant occupied spaces by
installing and operating temporary exhaust to outdoors
through existing building exhaust systems or through
temporary louvers installed in place of windows or exterior
doors. Preparation should be made to replace designated
windows or doors with appropriate weatherproof exhaust
equipment manifolds. Upon completion of construction, the
Contractor shall restore all repositioned windows and doors
to original condition and location.
iv. Where renovation site lacks access to perimeter windows,
doorways, or existing building exhaust systems, "negative
air machines" with HEPA
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and/or activated-carbon filters may be utilized to
re-circulate air to the building, preferably to unoccupied
building locations.
v. Install and maintain air-tight seals at all openings between
tenant occupied areas of the building and the construction
site (e.g. doorways, corridors, air plenums, chases, open
conduits and duct work) throughout the course of
construction activities. Upon completion of construction,
the Contractor shall remove all installed barriers and
seals.
vi. The Contractor shall ensure that the rest of the building
outside the project area remains unaffected by the project.
In particular, all HVAC systems altered for the purposes of
controlling site contaminants must continue to provide at
least the minimum outside air ventilation rate required by
all applicable codes at the time the facility was
constructed, to all occupied spaces.
4. COMPLETION OF WORK
4.1 Upon completion of Work, the Contractor shall clean all air plenums
and mechanical system components determined to have deteriorated as a
result of the the Contractor's work. All air filters shall be changed.
4.2 The area of work should be ventilated and exhausted for a period of a
minimum of 48-72 hours prior to occupancy by Tenant to allow newly
installed building materials, finishes, and office equipment to
off-gas volatile organic compounds, if any.
4.3 Contractor shall verify that all mechanical systems are balanced and
working properly and shall provide balancing reports to the Chief
Engineer.
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EXHIBIT F-1
AMENDMENT TO NOTICE OF LEASE
This Amendment to Notice of Lease between EOP-RIVERSIDE PROJECT, L.L.C, A
DELAWARE LIMITED LIABILITY COMPANY, as Landlord, and ALLAIRE CORPORATION, A
CORPORATION ORGANIZED UNDER THE LAWS OF THE STATE OF DELAWARE, as Tenant, is
hereby given pursuant to the provisions of Chapter 183, Section 4 of the
Massachusetts General Laws.
WHEREAS, Landlord and Tenant are parties to that certain Lease dated
November 23, 1999 with respect to the 270,446 square feet of space located in
the buildings known as One Riverside Center and Two Riverside Center, 275 Grove
Street, Newton, Middlesex County, Massachusetts, a notice of which is recorded
with the Middlesex (South) Registry of Deeds in BOOK ____, PAGE ____ (the
"Notice of Lease").
WHEREAS, Landlord and Tenant have entered into a First Amendment of even
date herewith whereby Tenant has leased from Landlord and Landlord has leased to
Tenant upon the terms and conditions set forth therein and in the Lease, an
additional 78,014 square feet of space located in the building known as Three
Riverside Center, 275 Grove Street, Newton, Middlesex County, Massachusetts.
NOW, THEREFORE, Landlord and Tenant hereby agree to amend the Notice of
Lease as follows:
1. The "Description of the Premises" appearing in the Notice of Lease is
hereby deleted in its entirety and replaced with the following:
"Description of Premises:
Approximately 348,460 square feet of space on the 1st, 2nd and 3rd floors
of the building commonly known as One Riverside Center, the 1st and 2nd
floors of the building commonly known as Two Riverside Center and the 1st
and 4th floors of the building commonly known as Three Riverside Center
("Premises") shown on the sketch plan attached hereto as Exhibit "A" and
located at 275 Grove Street, Newton, MA (the "Property") more particularly
described on Exhibit "B" attached hereto and made a part hereof."
2. Except as modified herein, the Notice of Lease remains unchanged and is in
full force and effect.
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WITNESS the execution hereof as a sealed instrument as of the 31st day of
May, 2000.
WITNESS/ATTEST: LANDLORD:
EOP-RIVERSIDE PROJECT, L.L.C, A
DELAWARE LIMITED LIABILITY COMPANY
By: Beacon Property Management
Corporation, a Delaware corporation,
its managing member
/s/ Hannah Song By: /s/ Gregory R. Clancy
- -------------------------------- --------------------------------
Name (print): Hannah Song Name: Gregory R. Clancy
------------------ ------------------------------
/s/ Marcie T. Jacobson Title: VICE PRESIDENT - Leasing
- -------------------------------- ------------------------------
Name (print): Marcie T. Jacobson
-------------------
WITNESS/ATTEST: TENANT:
ALLAIRE CORPORATION, A
CORPORATION ORGANIZED UNDER THE
LAWS OF THE STATE OF DELAWARE
By: /s/ David A. Gerth
- --------------------------------- ------------------------------------
Name (print): Name: David A. Gerth
---------------------
- ---------------------------------- Title: Chief Financial Officer and Vice
President of Operations and Finance
Name (print):
---------------------
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STATE OF MASSACHUSETTS
, ss May 31, 2000
[County]
Then personally appeared the above-named Gregory Clancy, the VP of Beacon
Property Management Corporation, a Delaware corporation, the managing member of
EOP-Riverside Project, L.L.C., a Delaware limited liability company, known to me
to be the person described in and who executed the foregoing instrument and
acknowledged the same to be his free act and deed and that of said Beacon
Property Management Corporation as the managing member of EOP-Riverside Project,
L.L.C., before me,
/s/ Kimberly C. Ruby
----------------------------------------
Notary Public
My Commission Expires: September 8, 2006
COMMONWEALTH OF MASSACHUSETTS
Middlesex , ss 5/11/00
[County]
Then personally appeared the above-named David A. Gerth, the Chief
Financial Officer and Vice President for Operations and Finance of Allaire
Corporation, a Delaware corporation, known to me to be the person described in
and who executed the foregoing instrument and acknowledged the same to be his
free act and deed and that of said Allaire Corporation, before me,
/s/ Victoria Sullivan Reiff
----------------------------------------
Notary Public
My Commission Expires: 2005
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