EXHIBIT 10.8A
000 Xxxxxxxx Xxxx
SECOND LEASE ADDENDUM
THIS AGREEMENT is made this 21st day of April, 1993 and shall amend that certain
Lease Agreement dated April 21, 1989 (the "Original Lease") between CB
Westborough C Limited Partnership, a Texas Limited Partnership d/b/a Xxxxxxxx
Xxxx Company (hereinafter "Landlord"), and Banyan Systems Incorporated a
Massachusetts corporation (hereinafter "Tenant"), as amended by a Lease Addendum
(the "First Addendum") dated December 31, 1991 (the Original Lease and the First
Addendum are hereinafter together referred to as the "Lease").
WHEREAS, Tenant currently leases from Landlord approximately 62,274 net rentable
square feet of office/R&D space located at 000 Xxxxxxxx Xxxx consisting of
45,049 rentable square feet rented pursuant to the Original Lease (the "Original
Premises") and 17,225 rentable square feet rented pursuant to the First Addendum
(the "Training Room Premises"), in a building that contains a total of
approximately 79,203 net rentable square feet,
WHEREAS, Tenant desires and Landlord agrees to amend the Lease as hereinafter
set forth.
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, Landlord and Tenant agree as follows:
1. The term of the Lease is hereby extended for forty-three (43) months
from June 1, 1994 through and including December 31, 1997.
2. Effective as of January 1, 1993 (a) Base Rent for the Original Premises
shall be Two Hundred Eighty-One Thousand Five Hundred Fifty-Six Dollars
($281,556.00) per annum payable in twelve (12) equal monthly
installments of Twenty-Three Thousand Four Hundred Sixty-Three Dollars
($23,463.00) each, and (b) Base Rent for the Training Room Premises
shall be Ninety Thousand Four Hundred Thirty-One Dollars ($90,431.00)
per annum payable in twelve (12) equal monthly installments of Seven
Thousand Five Hundred Thirty-Six Dollars ($7,536.00) each.
3. Provided that the Lease is in full force and effect and provided further
that Tenant is then occupying the Original Premises and the Training
Room Premises and has not sublet any of such premises or assigned this
Lease, and provided further that Tenant is not in default beyond any
applicable cure and grace periods under the Lease, Tenant shall have
the options to lease the premises shown and designated on Exhibit A
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attached hereto and made a part hereof, consisting of approximately
16,929 rentable square feet (the "Additional Space") under the following
terms and conditions:
(a) It is understood that the Additional Space is currently leased to a
tenant (the "Existing Tenant") pursuant to a lease which expires on
November 31, 1994. If the Existing Tenant vacates the Additional
Space prior to November 31, 1994, Tenant shall have a one-time first
right of offer (the "Right of First Offer") on the Additional Space
until November 31, 1994 on the terms and conditions hereinafter set
forth. Landlord shall notify Tenant of any offer by a bona fide
prospective tenant to lease the Additional Space, which notice shall
constitute an offer to Tenant to lease the Additional Space pursuant
to the terms hereof. Tenant may exercise its Right of First Offer by
notifying Landlord within seven (7) business days after receipt of
such notice of Tenant's election to lease the Additional Space. If
Tenant elects to lease the Additional Space within the period
provided, the lease of the Additional Space shall commence thirty
(30) days after Tenant's exercise of such election and shall expire
on December 31, 1997. Subject to the terms of the Lease regarding
construction on the Premises, Tenant may enter the Additional Space
during the thirty (30) day period following Tenant's election to
lease the Additional Space for the purpose of making tenant
improvements to the Additional Space, such use to be at no rental
cost to Tenant; provided however that if Tenant occupies the
Additional Space for its intended purpose, the commencement date or
the term for such Additional Space shall be deemed instead to be the
occupancy date. If Tenant fails to elect timely to lease the
Additional Space, Landlord shall be entitled at any time thereafter
and from time to time to lease the Additional Space to any party
without need of notifying Tenant or reoffering the Additional Space
to Tenant. If Landlord delivers a first right to offer to Tenant and
Tenant does not timely exercise its Right of First Offer to lease
the Additional Space, then Tenant's Fixed Option set forth in
Section (b) below shall terminate and be of no further force and
effect.
(b) Provided Tenant has not had an opportunity to exercise the right of
first offer described in subparagraph (a) above, Tenant shall have
an option (the "Fixed Option") to lease the Additional Space as of
December 1, 1994. Tenant may exercise its Fixed Option as
hereinafter set forth by delivering written notice to Landlord no
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later than November 1, 1994. If Tenant timely exercises its Fixed
Option, Landlord shall deliver the Additional Space to Tenant
commencing on December 1, 1994 (provided the Existing Tenant has
vacated) and the lease of the Additional Space shall expire on
December 31, 1997. If Tenant does not deliver written notice to
Landlord on or before November 1, 1994 of its election to lease the
Additional Space, this Fixed Option shall terminate and be of no
further force. If the Existing Tenant has not vacated by December 1,
1994, at Tenant's election exercised by February 1, 1995, Tenant
shall have the right to revoke its exercise of the Fixed Option, in
which event the Fixed Option shall terminate and be of no further
force and effect and Tenant shall not have any further liability
with respect to the Additional Space. If the Tenant's exercise of
the Fixed Option is not so revoked, Tenant agrees to lease the
Additional Space when it become available upon the terms and
conditions specified above, provided only that such space become
available by June 1, 1995. The Fixed Option shall be of no force and
effect and Tenant shall have no obligation to rent the Additional
Space if the Additional Space is not available for any reason by
June 1, 1995.
(c) Any lease of Additional Space to Tenant pursuant to subparagraphs
(a) or (b) above shall be upon all of the terms and conditions of
the Lease as modified hereby except that (i) Tenant's Proportionate
Share as defined in the Lease, shall become 100% as of the
commencement date of Tenant's lease of the Additional Space, and
(ii) Base Rent for the Additional Space shall be Eighty-Eight
Thousand Eight Hundred Seventy-Seven Dollars ($88,877.00) per annum
payable in twelve (12) equal monthly installments of Seven Thousand
Four Hundred Six Dollars ($7,406.00) each, such Base Rent shall be
payable on the first day of each and every month and shall be
prorated if the lease of the Additional Space commences on other
than the first day of the month. The Additional Space shall be
delivered to Tenant in broom-clean condition, but otherwise shall be
delivered "AS IS".
4. Provided that, at the time of such exercise, this Lease is still in full
force and effect without default by Tenant beyond applicable grace
periods and Tenant occupies at least seventy-five percent (75%) of the
Premises for its own business purposes, Tenant shall have the right and
option (the "Extension Options") to extend the Term of this Lease for
two (2) extended terms of three (3) years each (each an "Extended
Term"). Each Extended Term shall commence on the day immediately
succeeding the
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expiration date of the then existing Term and shall end on the day
immediately preceding the third anniversary of the first day of such
Extended Term. Tenant shall exercise its Extension Option for the
Extended Term by giving written notice to Landlord of its desire to do
so not later than six (6) months prior to the expiration date of the
then existing Term. The giving of such notice by Tenant shall
automatically extend the Term of this Lease for the applicable Extended
Term (except as hereinafter set forth), and no instrument of renewal
need be executed. In the event that Tenant fails to give such notice to
Landlord this Lease shall automatically terminate at the end of the then
current Term and Tenant shall have no further option to extend the Term
of this Lease. The Extended Terms shall be on all the terms and
conditions of this Lease, except (i) during any Extended Term, the
extension provisions of this Section relative to the Extended Term then
in effect shall not be effective, (ii) during the first Extended Term,
Base Rent shall equal one hundred twenty-five percent (125%) of the Base
Rent in effect during the last year of the preceding Term of this Lease
and (iii) during the second Extended Term, Base Rent shall equal ninety-
five percent (95%) of fair market rent for the space but in any event
not less than the Base Rent payable during the last year of the first
Extended Term. Landlord and Tenant shall attempt to agree on the fair
market rent for the Premises for a period of thirty (30) days following
Tenant's notice to Landlord of its desire to exercise its Extension
Option. If Landlord and Tenant fail to agree on the fair market rent
within such thirty (30) day period, this Lease shall automatically
terminate at the end of their current term unless both Landlord and
Tenant, within ten (10) days following expiration of such thirty day
period, elect to follow the Appraisal Process for the determination of
fair market rent. If the Appraisal Process is so elected by both
parties, within twenty (20) days after the expiration of the thirty (30)
day period set forth above, Landlord and Tenant will each appoint a real
estate appraiser with at least five (5) years full-time commercial
appraisal experience in the area in which the Premises are located to
appraise the fair market rental value of the Premises. If either party
does not appoint an appraiser within such twenty (20) day period and
notify the other party in writing of this selection, the single
appraiser appointed will be the sole appraiser and will set the fair
market rental value of the Premises. If two (2) appraisers are appointed
pursuant to this paragraph, they will meet promptly and attempt to set
the then fair market rental value of the Premises. If they are unable to
agree within thirty (30) days after the second appraiser has been
appointed, they will attempt to elect a third appraiser meeting the
qualifications stated in this paragraph within ten (10) days after the
end of the aforesaid thirty-day period. If they are unable to agree on
the third appraiser, either the Landlord or the
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Tenant, by giving ten (10) days prior notice to the other, may apply to
the then presiding judge of the local circuit or district court having
primary jurisdiction for civil matters in the area in which the Premises
are located for the selection of a third appraiser who meets the
qualifications stated in this paragraph. Landlord and Tenant will each
bear one-half (1/2) of the cost of appointing the third appraiser and of
the third appraiser's fee as well as the cost of their respective
appointed appraisers. The third appraiser, however selected, must be a
person who has not previously acted in any capacity for either Landlord
or Tenant. Within thirty (30) days after the selection of the third
appraiser, a majority of the appraisers will set the then fair market
rental value of the Premises. If a majority of the appraisers are unable
to set the then fair market rental value of the Premises within thirty
(30) days after selection of the third appraiser, the three (3)
appraisals will be averaged and the average will be the then fair market
rental value of the Premises.
Upon determination of the Base Rent for the second Extended Term
pursuant to the foregoing, the parties agree to execute an amendment
to the Lease acknowledging the same.
5. Paragraph 5 of the First Addendum and paragraphs 24 and 36 of the
Original Lease are hereby deleted in their entirety and are of no
further force or effect.
6. All other terms and conditions of the Lease shall remain in full force
and effect, except as modified hereby or unless modified in writing by
authorized representatives of the parties.
Executed as of the date first set forth above by the authorized representative
of the parties.
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BANYAN SYSTEMS INCORPORATED CB Westborough C Limited Partnership, a
Partnership Texas Limited Partnership
By: CMANE-BOSTON DEVELOPMENT
COMPANY #2, Inc.
By: /s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxx X. Xxxxxxx
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Print Name: Xxxxxxx X. Xxxxxxx Print Name: Xxxx X. Xxxxxxx
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Title: VP and CFO Title: Vice President
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Witness: Witness: /s/ Xxxxx Xxxxxxxx
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