EXHIBIT 10.35A
FIRST AMENDMENT TO LEASE
This FIRST AMENDMENT TO LEASE (this "Amendment"), dated as of December
15, 1997 is hereby entered into between Xxxx X. Xxxxxxxx, not individually, but
as Trustee of CC&F Second Avenue Trust, a Massachusetts nominee trust, having
its principal office at c/o Cabot, Cabot & Forbes, 00 Xxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000 ("Landlord"), and Raptor Systems, Inc., a Delaware
corporation, having its principal office at 00 Xxxxxxx Xxxxx, Xxxxxxx,
Xxxxxxxxxxxxx ("Tenant").
Reference is made to the following facts:
A. Landlord and Tenant entered into a lease (the "Lease"), dated May 6,
1997, for approximately 49,834 rentable square feet of office space (the
"Premises") in the building located at 000 Xxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxxxxxx.
B. The Lease requires Landlord to deliver the Premises to Tenant in
three phases: the Phase I Premises, the Phase II Premises, and the Phase III
Premises.
C. Under Section 1.1 of the Lease, the Phase I Premises were estimated
to contain approximately 30,000 rentable square feet. After further
remeasurement, the Phase I Premises are estimated to contain approximately
31,500 rentable square feet.
D. The Lease requires Landlord to deliver the Phase I Premises to
Tenant in two segments. The scheduled delivery date for the first segment of the
Phase I Premises is December 15, 1997. The scheduled delivery date for the
second segment of the Phase I Premises is January 15, 1998.
E. Tenant has requested, and Landlord has agreed, that (i) an
additional 3,000 rentable square feet of space be incorporated into the Phase I
Premises, as remeasured, and (ii) the delivery of the first and second segments
of the reconfigured Phase I Premises be delayed until January 15, 1998, and
March 1, 1998, respectively. In connection with Tenant's holdover occupancy of
its current premises, Tenant has further requested, and Landlord has agreed,
that Landlord shall pay a portion of such holdover rent in return for an
increase in the Rent payable under the Lease.
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Landlord and Tenant hereby agree
as follows:
1. Tenant's Holdover Rent. On or before January 15, 1998, Tenant shall
provide Landlord with written notice ("Tenant's Holdover Rent Notice") of the
amount of the holdover rent (the "Holdover Rent") due from Tenant to its
existing landlord for the period from January 15, 1998 through February 28,
1998. On or before March 10, 1998, Landlord shall reimburse Tenant for the
amount of the Holdover Rent in an amount not to exceed $79,266.00. In the event
Tenant's notice indicates that the amount of the Holdover Rent is less than
$79,266.00, Landlord shall apply such difference to reduce the amount of the
Tenant's T.I. Payment (as such term is defined in Section 4.2 of the Lease) due
and payable by Tenant on the Phase I Premises Commencement Date in connection
with the construction of the Leasehold Improvements for the Phase I Premises.
Tenant hereby acknowledges that any delay by Tenant in the delivery of Tenant's
Holdover Rent Notice will result in a corresponding delay in Landlord's
reimbursement of the Holdover Rent.
2. Section 1.1 of the Lease is hereby amended as follows:
a.The "Premises" shall be "Initially, the space located on the
second floor of the
Building, comprised of the "Phase I Premises" consisting of
approximately 34,500 square feet as shown on Exhibit A-1. Upon
the occurrence of the Commencement Date for future Phases (as
provided in Section 2.2) and, if applicable, the First Floor
Expansion Space (as provided in Section 2.5), such future
Phases shall be included as part of the Premises. The Phase II
Premises shall consist of approximately 6,000 to 7,000
rentable square feet on the second floor, in a location to be
agreed upon by Landlord and Tenant. The Phase III Premises
shall consist of the balance of rentable square footage on the
second floor of the Building, consisting of approximately
8,334 to 9,334 rentable square feet. Where the context
permits, the term "Phase" as used herein shall include the
Phase I Premises, the Phase II Premises, the Phase III
Premises and, if applicable, the First Floor Expansion Space."
b. The definition of "Rentable Square Feet in the Premises" is
hereby amended by deleting the reference to "approximately
30,000 rentable square feet" in the first paragraph thereof,
and replacing it with "approximately 34,500 rentable square
feet." c. The definition of "Tenant's Percentage" is hereby
amended by deleting the second sentence of the first paragraph
thereof and replacing it with the following: "The rentable
square feet in the Building is expected to be 95,919, and as a
result, Tenant's Percentage for the Phase I Premises (34,500
rentable square feet) is expected to be 35.97%." d. The
"Scheduled Phase I Premises Commencement Date" shall be
January 15, 1998. e. The "Scheduled Phase II Premises
Commencement Date" shall be "[t]he earlier to occur of (i)
December 15, 1998, or (ii) the date that is one hundred twenty
(120) days after the date Landlord receives written notice
from Tenant that Tenant has elected to accelerate the date of
its occupancy of the Phase II Premises." f. The "Scheduled
Phase III Premises Commencement Date" shall be "[t]he earlier
to occur of (i) June 15, 1999, or (ii) the date that is one
hundred twenty (120) days after the date Landlord receives
written notice form Tenant that Tenant has elected to
accelerate the date of its occupancy of the Phase III
Premises." g. "Base Rent" shall be calculated as follows:
"From and after the Commencement Date for the Phase I
Premises, through and including the last day of the
sixtieth (60th) full calendar month of the Term, at
the annual rate of $26.45 multiplied by the Rentable
Square Feet in the Premises. (The Base Rent is
subject to adjustment prior to delivery of the second
segment of the Phase I Premises, as provided in
Section 2.2(a) hereof). From and after the first day
of the sixty-first (61st) full calendar month of the
Term, through the remainder of the Term, at the
annual rate of $28.20 multiplied by the Rentable
Square Feet in the Premises."
3. Section 2.2(a) of the Lease is hereby amended by deleting the third
full paragraph thereof and replacing it with the following:
"Notwithstanding the foregoing, the delivery of the Phase I
Premises will occur in two segments (a "segment"), the first
of which will contain approximately 31,500 rentable square
feet and the second of which will contain the balance of the
Phase I Premises (i.e., approximately 3,000 rentable square
feet), as shown on the attached Exhibit A-1. Only the first
segment will be taken into account in determining the
Commencement Date for the Phase I Premises. However, prior to
the Second Segment Rent Date (defined below), the Base Rent
and Additional Rent due hereunder will be reduced
proportionately so that Tenant is required to pay Base Rent
and Additional Rent only on the first segment of the Phase I
Premises. The Second Segment Rent Date shall be the earlier of
(i) the date on which such segment is Ready for Occupancy, but
in no event earlier than March 1, 1998, or (ii) the date on
which Tenant begins to conduct business within such segment."
4. Section 2.2(c) of the Lease is hereby deleted and replaced with the
following:
"(c) Landlord shall use reasonable efforts to deliver the
first segment of the Phase I Premises by the Scheduled Phase I
Premises Commencement Date, the second segment by March 1,
1998, the Phase II Premises by the Scheduled Phase II Premises
Commencement Date, and the Phase III Premises by the Scheduled
Phase III Premises Commencement Date. If any Phase (or
segment) is not Ready for Occupancy on the applicable
Scheduled Commencement Date for such Phase (or segment),
Landlord shall not be subject to any liability for such
failure, except as expressly set forth below, and such failure
shall not affect the validity of this Lease, but Tenant shall
not be liable for any rent until the Commencement Date for the
applicable Phase (or segment). Notwithstanding the foregoing,
if the first segment of the Phase I Premises is not Ready for
Occupancy by January 15, 1998, or if the second segment of the
Phase I Premises is not Ready for Occupancy by March 1, 1998,
Tenant shall receive one day of free Base Rent for each day
delivery of such segment is delayed beyond such date, provided
that (i) such free rent arrangements shall not apply to the
extent that such delay was caused by any action or inaction of
Tenant or any Force Majeure, except that any extension of such
January 15 or March 1 date due to Force Majeure delays will
not exceed sixty (60) days, (ii) a failure of Landlord's
contractor to complete construction on schedule shall not
constitute "Force Majeure" unless such failure was
attributable to an event which would itself constitute "Force
Majeure, and (iii) such free rent will only apply to the
segment which was the subject of the delay."
5. Section 2.5 of the Lease is hereby amended by deleting the first
paragraph thereof and replacing it with the following:
"Tenant shall have the right to lease from Landlord additional
space on the first floor of the Building consisting of
approximately 10,000 rentable square feet of space (in a
single block of space) to be designated by Landlord (the
"First Floor Expansion Space"), provided that (i) on or before
April 14, 1998, Tenant shall give Landlord written notice of
its election to lease the First Floor Expansion Space
("Tenant's Expansion Space Notice"), and (ii) at the time of
the delivery of Tenant's Expansion Space Notice and on the
Commencement Date for the First Floor Expansion Space, Tenant
satisfies the Exercise Conditions, Tenant hereby agreeing that
if Tenant fails to satisfy the Exercise Conditions as of the
date of such notice, or as of the Commencement Date for the
First Floor Expansion Space, Tenant's rights under this
Section 2.5 shall expire and be of no further force and
effect. Within forty-five (45) days after the delivery of
Tenant's Expansion Space Notice, Tenant shall deliver to
Landlord Preliminary Plans (as such term is defined in Section
4.1 herein) for the First Floor Expansion Space. Upon such
delivery, Landlord and Tenant will prepare Final Plans for the
First Floor Expansion Space in accordance with the plan
preparation procedures described in Section 4.1, and
thereafter, Landlord shall improve the First Floor Expansion
Space using the construction procedures described in Section
4.1, and the Tenant Allowance and occupancy procedures
described in Sections 4.2 and 4.3. The Commencement Date for
the First Floor Expansion Space shall be the earlier to occur
of (i) the date on which the First Floor Expansion Space is
Ready for Occupancy, as such term is defined in Section 2.2,
or (ii) the date on which Tenant begins to conduct business
operations in any portion of the First Floor Expansion Space."
6. Exhibit A to the Lease is hereby deleted and replaced with the
attached Exhibit A-1. All references in the Lease to Exhibit A shall be deemed
to be references to Exhibit A-1.
7. Tenant hereby confirms that all of Tenant's rights to terminate the
Lease granted to Tenant under Section 2.2(b) of the Lease have lapsed or are
otherwise of no further force and effect.
8. The foregoing provisions are effective as of the date hereof. In all
other respects, Landlord and Tenant hereby reaffirm all of the covenants,
agreements, terms, conditions, and other provisions of the Lease which is
incorporated in full herein by reference, and all covenants, agreements, terms,
conditions, and provisions thereof shall remain in full force and effect except
as modified hereby.
9. This Amendment may be executed simultaneously in counterparts, each
of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this First
Amendment as a sealed instrument as of the date and year first above written.
LANDLORD: CC&F Second Avenue Trust
By: /S/ Xxxx X. Xxxxxxxx
Xxxx X. Xxxxxxxx, not individually,
but as Trustee
TENANT: Raptor Systems, Inc.
By: /S/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: VP, Treasurer
EXHIBIT A-1
000 Xxxxxx Xxxxxx
Xxxxxx Xxxxx
