EXHIBIT 10.8
SECOND AMENDMENT OF LEASE AGREEMENT
THIS SECOND AMENDMENT TO LEASE AGREEMENT (this "Second Amendment") is
entered into and effective as of the 22nd day of January, 2004, by and among
LESLIE CAREY, TRUSTEE, of the WESTBOROUGH LAND REALTY TRUST, u/d/t dated May 29,
1997, and recorded with the Worcester County Registry of Deeds in Book 18882,
Page 317 (the "Trust" and "Landlord"), and APPLIX, INC., a Massachusetts
Corporation with a principal place of business at 289-291 Turnpike Road,
Westborough, MA 01581 ("Applix" and "Tenant").
Reference is hereby made to a certain lease agreement dated January 23,
2001, as amended by that certain First Amendment of Lease Agreement (the "First
Amendment") dated December 31, 2003 (collectively, the "Lease") by and between
the Trust, as Landlord and Applix, as Tenant under which Applix is currently
leasing a total of approximately 41,813 rentable square feet of the building
located at 289-291 Turnpike Road (the "Building");
WHEREAS, the above current rentable square footage of the Premises has
been arrived at as a result of Tenant's returning to Landlord pursuant to the
First Amendment approximately 8,107+/- rentable square feet of space from the
approximately 49,920+/- rentable square feet of space originally leased by
Tenant in the Building; and
WHEREAS, Landlord and Tenant wish to further amend the Lease effective
February 1, 2004, and to put into effect new lease terms, including a further
reduced premises and a reduced rent;
NOW, THEREFORE, for good and valuable consideration this day paid each
other, the receipt and sufficiency of which are hereby acknowledged, and in
consideration of the mutual covenants contained herein, the parties mutually
agree as follows:
(1) Subject to Paragraph 3 hereinbelow, the Trust and Applix agree
to amend the Lease as follows, such amendments and revisions to become effective
February 1, 2004 (the "Effective Date"):
(A) Section 1.1(d) and Article 2 of the Lease shall be
amended as follows:
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The Premises shall be deemed to refer to that portion
of the Building consisting of the entirety of the
second floor (approximately 19,968 rentable square
feet) and approximately 4,408 rentable square feet on
the first floor, totaling approximately 24,376
rentable square feet, as shown in Exhibit A attached
hereto (the "Premises"). Tenant shall vacate the
portion or portions of the Building previously
occupied by Tenant under the Lease which are not
included in the above defined Premises (the "Old
Premises"), and shall have no further obligation
under the Lease with respect to said Old Premises.
Nothing contained herein shall be deemed to affect
any existing obligations of Tenant under a certain
lease dated January 8, 2004 between the Trust and
Bain Capital, LLC (the "Bain Lease") concerning
approximately 8,107 rentable square feet in the
Building;
(B) Section 1.1(e) of the Lease shall be deleted in its
entirety and replaced with the following:
"Lease Term: Seven (7) Years, beginning on February
1, 2004";
(C) Section 1.1(f) and Section 3.2 shall be deleted in
their entirety. Tenant hereby waives forever its right to so extend the Lease as
previously provided in the Extension Term;
(D) Section 1.1(i) shall be deleted in its entirety and
replaced with the following:
"Expiration Date:11:59 p.m. on January 31, 2011";
(E) Section 1.1(j) and Article 4 of the Lease shall be
amended as follows:
The Base Rent for the Premises for the Lease Term
shall be as set forth below:
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MONTHS SQ. FEET RATE TOTAL
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1-60 24,376 $22.00 $536,272.00
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61-84 24,376 $24.00 $585,024.00
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(F) Section 1.1(k) and Article 5 of the Lease shall be
amended as follows:
Tenant shall be responsible for paying only its pro
rata share of Additional Rent, including to the
extent applicable Taxes, Operating Expenses and
Utilities. Based upon the 24,376+/- rentable square
foot area of the Premises, Tenant's pro rata share
shall be 48.83%.
(G) Section 1.1(m) and Article 25 of the Lease shall be
amended as follows:
The amount of the Irrevocable Standby Letter of
Credit shall be reduced from $1,050,000.00 to
$400,000.00, and shall remain at such amount
throughout the Lease Term. Section 25.2 shall be
deleted in its entirety.
(H) The following Section 2.2.1 shall be inserted into
the Lease:
2.2.1 Landlord's Contribution. Provided no Event of
Default has occurred, Landlord agrees to reimburse to
Tenant up to a maximum of Sixty Six Thousand One
Hundred Twenty and XX/100 Dollars ($66,120.00) (the
"Reimbursement") towards Tenant's construction of
approved leasehold improvements with respect to the
portion of the Premises on the first floor of the
Building. Amounts requested under the Reimbursement
shall be disbursed by Landlord to Tenant within
fifteen (15) days of Landlord's receipt from Tenant
of copies of receipts or other evidence of payment
reasonably required by Landlord to evidence such
construction costs.
(I) Section 4.2 shall be deleted in its entirety.
(J) Section 5.4 shall be amended as follows:
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The phrase "Tenant shall be solely responsible for
any and all increases" shall be replaced with phrase
"Tenant shall be responsible for only its pro rata
share of increases" in the third line. The words "and
Building" shall be deleted from the phrase "operating
expenses for the Premises and Building" in the sixth
line.
(K) The second sentence of Section 6.2.I shall be deleted
in its entirety and replaced with the following: "Tenant shall pay only
its pro rata share of secondary HVAC requirements and special interior
HVAC requirements."
(L) Article 9 shall be amended as follows:
The phrase "Tenant shall have the right to use for
its employees and invitees, the parking areas on the
Premises" shall be replaced with the phrase "Tenant
shall have the non-exclusive right to use for its
employees and invitees, the parking areas on the
Premises" in the third to last sentence of the first
paragraph. The phrase "as it may be extended from
time to time" shall be deleted from the first
sentence of the second paragraph.
(M) Section 10(b) shall be amended by replacing the word
"Tenant's" with the word "Landlord's" at the beginning of the last
sentence.
(N) Section 15.2 shall be amended by deleting the words
"the Building and the Property" from the first and second lines.
(O) Article 19 shall be amended by changing the notice
address for Lenard B. Zide to the following: "Lenard B. Zide, Esquire,
Butters Brazilian L.L.P., One Exeter Plaza Boston, Massachusetts 02116,
TEL: (617) 367-2600, FAX: (617) 367-1363, zide@bbslawyers.com," and by
replacing the words "Edward Terino" with the words "Milton A. Alpern."
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(P) Article 21 shall be replaced by the following:
"Tenant hereby warrants to Landlord that neither it
nor its agents or representatives have engaged or
contracted with any broker with respect to the
transaction contemplated herein, and that no brokers
have been involved with this Second Amendment Lease
Agreement except Richards Barry Joyce & Partners, 53
State Street, Boston, MA 02109, a duly authorized and
licensed Massachusetts real estate broker, whose
compensation shall be paid by Tenant pursuant to a
separate agreement; and Tenant further agrees to
indemnify and hold harmless Landlord from any and all
claims or demands for brokerage fees arising out of a
breach of the aforesaid warranty."
(Q) The following new section 27.12 shall be inserted
into the Lease:
27.12 Landlord's Termination Right. In the event
Landlord receives a written proposal from a bona fide
third-party tenant wishing to enter into a lease for
the Premises at a rental rate not less than $24.00
per rentable square foot, Landlord may terminate the
Lease under this Section 27.12 by giving Tenant at
least six (6) months' prior written notice of its
intent to terminate the Lease (the "Termination
Notice"), which notice may not be given prior to
January 1, 2005, and which notice shall state the
effective date of such proposed termination (the
"Termination Date"). Pursuant to the terms of this
Section 27.12, it is the intent of the parties hereto
that the earliest possible Termination Date shall not
be before 11:59 P.M. on June 30, 2005. Tenant shall
comply with all of the terms and conditions of the
Lease during any period between its receipt of the
Termination Notice and the Termination Date. In the
event Landlord provides Tenant with a Termination
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Notice, Tenant's obligations and responsibilities
under the Lease shall terminate and be of no further
force and effect as of the Termination Date,
regardless of whether or not Landlord ultimately
leases the Premises to any other Tenant.
(2) Restructuring Fee. Simultaneously with the execution of this
Second Amendment, Tenant shall pay to Landlord THREE MILLION AND XX/00 DOLLARS
($3,000,000.00) to Landlord in cash or by immediately available certified, bank
cashier's or bank treasurer's check (the "Restructuring Fee"). Upon the
execution of this Amendment by both Tenant and Landlord, the Restructuring Fee
shall immediately become the property of Landlord as duly earned forever and
shall be non-refundable to Tenant under any and all circumstances.
(3) Security System. Landlord hereby agrees to be solely
responsible for all costs associated with any relocation, modification,
adaptation or other alteration of the existing security system for the building,
which system has been installed by and at the sole cost of Tenant. Landlord
agrees to manage and maintain such system in a good and workmanlike manner and
ensure such system's proper and effective functioning at Landlord's sole cost
and expense at all times after the Effective Date. In consideration of the costs
previously incurred by Tenant with respect to the installation and maintenance
of the system, Landlord hereby agrees to pay to Tenant TWO HUNDRED FIFTY AND
XX/00 DOLLARS ($250.00) monthly in advance on the first day of each calendar
month, commencing on the Effective Date and continuing until the final payment
is made on January 1, 2011. Landlord's obligations under this Section shall
survive any prior termination of the Lease.
(4) Electricity. Landlord hereby agrees that as required under
Section 6.1 of the Lease, Landlord shall at its sole cost and expense cause the
Premises to be separately metered for electricity apart from all other space in
the Building, and that such metering shall be completed on or before the
Effective Date.
(5) Legal Fees. Simultaneously with the execution of this Second
Amendment, Tenant shall pay to Landlord FOUR THOUSAND FOUR HUNDRED AND XX/00
DOLLARS ($4,400.00) in cash or by immediately available certified, bank
cashier's or bank treasurer's check, which sum represents Tenant's
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contribution towards the cost of certain of Landlord's legal fees associated
with Landlord's negotiation of the Bain Lease. Landlord hereby agrees that
Tenant's payment of the above referenced sum represents the only amount owed by
Tenant with respect to any of Landlord's legal fees, and that Tenant shall not
be required to pay any additional costs associated with the negotiation or
adoption of (a) the First Amendment, (b) the Bain Lease, or (c) this Second
Amendment, except as otherwise set forth herein.
(6) Paragraph 4 of the First Amendment, which paragraph is
entitled "New Lease," is hereby deleted in its entirety. Notwithstanding any
provision to the contrary contained in the Lease, the First Amendment, a certain
Letter of Intent between the parties dated December 12, 2003, or this Second
Amendment, Landlord hereby acknowledges that the provisions of this Second
Amendment shall become unconditionally effective as of February 1, 2004.
(7) Landlord hereby acknowledges that Tenant's obligations
hereunder are and shall be expressly conditioned upon the full execution of this
Second Amendment not later than January 22, 2004.
(8) This Second Amendment shall be construed in accordance with
the Laws of the Commonwealth of Massachusetts, and may only be amended in a
writing signed by all the parties hereto. The invalidity of one or more of the
provisions contained herein as amended hereby shall not affect the remaining
provisions of the Lease, and if one or more of such provisions should be
declared invalid by final order, decree or judgment of a court of competent
jurisdiction, the Lease shall be construed as if such invalid provision or
provisions had not been included in the Lease.
(9) In the event that any provision of this Second Amendment is
inconsistent with the Lease, this Second Amendment shall control.
(10) Capitalized terms used but not defined herein shall have the
respective meanings assigned such terms in the Lease.
(11) Except as modified herein, all of the covenants, agreements,
terms and conditions of the Lease are hereby
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ratified and confirmed and shall continue to remain unchanged and in full force
and effect.
Executed as a sealed instrument as of the date first set forth above.
LANDLORD: TENANT:
WESTBOROUGH LAND REALTY APPLIX, INC.
TRUST
/s/ Leslie Carey By: /s/ Milton A. Alpern
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By: Leslie Carey, its duly MILTON A. ALPERN, its
authorized Trustee and not duly authorized Chief
individually Financial Officer
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Exhibit "A"
PLAN OF NEW PREMISES
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