<PAGE> 1
FORM 10-Q
SECURITIES AND EXCHANGE COMMISSION
----------------------------------
Washington, D.C. 20549
Quarterly Report Under Section 13 or 15(d)
of the Securities Exchange Act of 1934
(Mark One)
[ X ] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended JUNE 29, 1997
----------------
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from___________ to__________
For the Quarter ended JUNE 29, 1997 Commission File Number 1-9434
-------------
PICTURETEL CORPORATION
(Exact name of Registrant as specified in its charter)
Delaware 04-2835972
-------- ----------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
100 Minuteman Road, Andover, MA. 01810
-------------------------------- -----
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number: 508-292-5000
------------------------------
Indicate by check mark whether the Registrant (1) has filed all reports required
to be filed by Section 13 or 15 (d) of the Securities Exchange Act of 1934
during the preceding 12 months (or for such shorter period that the Registrant
was required to file such reports), and (2) has been subject to such filing
requirements for the last 90 days.
Yes X No
--- ---
Indicate the number of shares outstanding of each of the issuer's classes of
common stock as of the latest practical date.
As of August 6, 1997, there were 34,471,233 issued and outstanding shares of
common stock of the registrant.
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PICTURETEL CORPORATION
FORM 10-Q
INDEX
PART I. CONSOLIDATED FINANCIAL INFORMATION
Item 1. Consolidated Financial Statements:
Consolidated Balance Sheets
June 29, 1997 and December 31, 1996 ......................... 3
Consolidated Statements of Operations
Three and six months ended June 29, 1997
and June 29, 1996 ....................................... 4
Consolidated Statements of Cash Flows
Six months ended June 29, 1997 and June 29, 1996 ............ 5
Notes to Consolidated Financial Statements ................... 6-7
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations ................... 8-11
PART II. OTHER INFORMATION
Item 1. Legal Proceedings ............................................ 12
Item 4. Submission of Matters to a Vote of Security Holders .......... 12
Item 5. Other Information ............................................ 13
Item 6. Exhibits and Reports on Form 8-K ............................. 13
Signatures ........................................................... 14
2
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PICTURETEL CORPORATION
Consolidated Balance Sheets
(Dollars in thousands)
<TABLE>
<CAPTION>
June 29, December 31,
1997 1996
ASSETS
<S> <C> <C>
Current assets:
Cash and cash equivalents $ 43,077 $ 62,957
Marketable securities 30,802 38,918
Accounts receivable, less allowance for
doubtful accounts of $3,858
in 1997 and $3,284 in 1996 126,094 147,350
Inventories, net (Note 2) 62,655 43,320
Deferred taxes, net 6,008 5,950
Other current assets 11,933 5,506
--------- ---------
Total current assets 280,569 304,001
Marketable securities -- 9,118
Deferred taxes, net 5,088 5,088
Property and equipment, net 45,375 44,217
Capitalized software costs, net 8,482 6,832
Other assets 11,603 6,791
--------- ---------
Total assets $ 351,117 $ 376,047
========= =========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Short-term borrowings $ -- $ 519
Accounts payable 35,705 53,329
Accrued compensation and benefits 10,621 8,906
Accrued expenses 17,659 17,897
Current portion of capital lease
obligations 3,347 3,294
Deferred revenue 18,292 19,110
--------- ---------
Total current liabilities 85,624 103,055
Long-term borrowings 1,454 9,242
Capital lease obligations 2,660 4,692
Stockholders' equity:
Preference stock, $.01 par value; 15,000,000
shares authorized; none issued -- --
Common stock, $.01 par value; 80,000,000
shares authorized; 34,175,669 and
34,036,186 shares issued and outstanding
in 1997 and 1996, respectively 342 341
Additional paid-in capital 198,457 196,249
Retained earnings 62,250 62,195
Cumulative translation adjustment (183) (615)
Unrealized gain on marketable securities, net 513 888
--------- ---------
Total stockholders' equity 261,379 259,058
--------- ---------
Total liabilities and
stockholders' equity $ 351,117 $ 376,047
========= =========
</TABLE>
The accompanying notes are an integral part of the consolidated financial
statements.
3
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PICTURETEL CORPORATION
Consolidated Statements of Operations
(Dollars in thousands, except per share amounts)
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
------------------ ----------------
June 29, June 29, June 29, June 29,
1997 1996 1997 1996
<S> <C> <C> <C> <C>
Revenues $ 112,238 $ 116,082 $ 230,460 $ 221,083
Cost of sales 63,395 60,343 125,763 114,452
--------- --------- --------- ---------
Gross margin 48,843 55,739 104,697 106,631
Operating expenses:
Selling, general and
administrative 35,255 31,076 68,583 58,815
Research and development 18,822 14,041 38,279 27,965
--------- --------- --------- ---------
Total operating expenses 54,077 45,117 106,862 86,780
--------- --------- --------- ---------
Income (loss) from operations (5,234) 10,622 (2,165) 19,851
Interest income, net 732 1,103 1,670 2,179
Other income (expense), net (143) 1,136 580 1,814
--------- --------- --------- ---------
Income (loss) before taxes (4,645) 12,861 85 23,844
Income tax expense (benefit) (1,625) 4,373 30 7,887
--------- --------- --------- ---------
Net income (loss) $ (3,020) $ 8,488 $ 55 $ 15,957
========= ========= ========= =========
Net income (loss) per common
and common equivalent share: $ (0.09) $ 0.24 $ 0.00 $ 0.44
========= ========= ========= =========
Weighted average common and
common equivalent shares
outstanding: 34,162 36,053 35,105 36,087
========= ========= ========= =========
</TABLE>
The accompanying notes are an integral part of the consolidated financial
statements.
4
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PICTURETEL CORPORATION
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Dollars in thousands)
<TABLE>
<CAPTION>
Six Months Ended
June 29, June 29,
1997 1996
---- ----
<S> <C> <C>
Cash flows from operating activities:
Net income ....................................... $ 55 $ 15,957
Adjustments to reconcile net income to net cash
provided by (used in) operating activities:
Depreciation and amortization ................. 13,661 9,418
Deferred taxes, net ........................... (58) --
Other non-cash items .......................... -- (346)
Changes in operating assets and liabilities:
Accounts receivable ........................... 21,256 (15,576)
Inventories ................................... (19,335) 7,399
Other assets .................................. (12,342) (907)
Accounts payable .............................. (17,624) 1,120
Accrued compensation and benefits and accrued
expenses..................................... 2,643 2,086
Accrued income taxes .......................... (1,166) 4,862
Deferred revenue .............................. (818) (1,067)
-------- --------
Net cash provided by (used in) operating activities . (13,728) 22,946
Cash flows from investing activities:
Purchase of marketable securities ................ (15,637) (11,167)
Proceeds from marketable securities .............. 32,871 14,314
Additions to property and equipment .............. (11,214) (18,659)
Capitalized software costs ....................... (3,743) (2,767)
Purchase of other assets ......................... (396) (3,000)
-------- --------
Net cash provided by (used in) investing activities . 1,881 (21,279)
Cash flows from financing activities:
Change in short-term borrowings .................. (519) (30)
Payments on long-term borrowings ................. (7,788) (2,211)
Principal payments under capital lease obligations (1,979) (1,414)
Proceeds from exercise of stock options .......... 527 6,659
Proceeds from stock purchase plan ................ 1,099 883
-------- --------
Net cash provided by (used in) financing activities . (8,660) 3,887
Effect of exchange rate changes on cash ............. 627 460
-------- --------
Net increase (decrease) in cash and cash equivalents (19,880) 6,014
Cash and cash equivalents at beginning of period .... 62,957 39,476
-------- --------
Cash and cash equivalents at end of period ......... $ 43,077 $ 45,490
======== ========
Supplemental cash flow information:
Interest paid .................................... $ 589 $ 296
Income taxes paid ................................ $ 1,758 $ 954
</TABLE>
The accompanying notes are an integral part of the consolidated financial
statements.
5
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PICTURETEL CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. MANAGEMENT'S REPRESENTATION
---------------------------
As permitted by the rules of the Securities and Exchange Commission
applicable to Quarterly Reports on Form 10-Q, these notes are condensed and do
not contain all the disclosures required by generally accepted accounting
principles. Reference should be made to the consolidated financial statements
and related notes included in the Company's Annual Report on Form 10-K for the
year ended December 31, 1996, as filed with the Securities and Exchange
Commission on March 28, 1997.
In the opinion of the management of PictureTel Corporation, the
accompanying unaudited consolidated financial statements contain all adjustments
(consisting of only normal, recurring adjustments) necessary to present fairly
the Company's financial position at June 29, 1997 and the results of operations
and changes in cash flows for the three and six months ended June 29, 1997.
The results disclosed in the Consolidated Balance Sheets at June 29, 1997
and the Consolidated Statements of Operations and Consolidated Statements of
Cash Flows for the three and six months ended June 29, 1997 are not necessarily
indicative of the results to be expected for the full year.
2. INVENTORIES
-----------
Inventories consist of the following (in thousands):
June 29, December 31,
1997 1996
-------- ------------
Purchased Parts $ 7,204 $ 6,409
Work in Process 3,564 2,018
Finished Goods 51,887 34,893
-------- --------
$ 62,655 $ 43,320
======== ========
3. LITIGATION
----------
In December 1993, PictureTel was sued by Datapoint Corporation in the
United States District Court for the Northern District of Texas. Datapoint
alleges that certain of the Company's products infringe patent rights allegedly
owned by Datapoint. The complaint seeks approximately $51 million in damages for
alleged past infringement and an injunction against alleged future infringement.
The Company believes that it has meritorious defenses to the allegations of the
complaint, and is vigorously defending against the lawsuit.
In the fall of 1996, the Court appointed a Special Master to consider the
Company's motion for summary judgment of non-infringement. The Special Master
recommended that the motion for summary judgment be denied. On September 16,
1996, the Court adopted the Special Master's claim construction of the Datapoint
patents and denied PictureTel's summary judgment motion. A trial date has been
set for October 6, 1997. The parties are completing discovery.
In the event the Company is found to be infringing a valid patent or
patents, the Company could be required to pay damages for past infringement and
cease the sale of products incorporating the infringing feature (or be required
to take a license and pay royalties with respect to such patents). There can be
no assurance that the Company will prevail. The Company believes that an adverse
outcome of the lawsuit would have a material adverse effect on the business or
the financial position, results of operations and cash flows of the Company.
4. SUBSEQUENT EVENT
----------------
On April 15, 1997, the Company entered into an agreement and plan of
merger to acquire MultiLink, Inc. On July 22, 1997, pursuant to the Agreement
and Plan of Merger dated as of April 15, 1997, as amended, among the Company, ML
Acquisition Corp. and MultiLink, Inc. ("MultiLink"), the Company acquired
MultiLink. MultiLink was acquired in exchange for 3,578,026 shares of the
Company's Common Stock, of which 286,242 shares will be held in escrow. The
Company will account for the transaction as a pooling of interests. The impact
of Multilink on the revenue, net income (loss) and net income (loss) per share
of the combined entity for the three and six month periods ended June 29, 1997
and June 29, 1996, respectively, is not material, and therefore, proforma
information has not been disclosed. Consistent with its previous estimates, the
Company expects to incur charges of $2 to $4 million
6
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associated with this merger in the third quarter.
7
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MANAGEMENT'S DISCUSSION AND ANALYSIS OF
---------------------------------------
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
---------------------------------------------
The following table sets forth, for the periods indicated, the percentage
of revenues for certain items in the Company's Statement of Operations for each
period:
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
---------------------- ----------------------
June 29, June 29, June 29, June 29,
1997 1996 1997 1996
-------- ------- -------- --------
<S> <C> <C> <C> <C>
Revenues 100% 100% 100% 100%
Cost of sales 56.5 52.0 54.6 51.8
Gross margin 43.5 48.0 45.4 48.2
Selling, general and 31.4 26.8 29.8 26.6
administrative
Research and development 16.8 12.1 16.6 12.6
Total operating expenses 48.2 38.9 46.4 39.2
Income (loss) from operations (4.7) 9.1 (1.0) 9.0
Interest income, net 0.7 1.0 0.7 1.0
Other income (expense), net (0.1) 1.0 0.3 0.8
Income (loss) before taxes (4.1) 11.1 -- 10.8
Income tax expense (benefit) (1.4) 3.8 -- 3.6
Net income (loss) (2.7) 7.3 -- 7.2
</TABLE>
Forward-looking Statements
- --------------------------
The following discussion includes certain forward-looking statements about
the Company's business and new products, sales and expenses, effective tax rate
and operating and capital requirements. Any such statements are subject to risks
that could cause the actual results or needs to vary materially. These risks are
discussed in Management's Discussion and Analysis of Financial Condition and
Results of Operations in the Company's Report on Form 10-K for the year ended
December 31, 1996. Subsequent to the end of the second quarter, the Company
acquired MultiLink Inc., a leading supplier of multipoint audioconferencing
systems. As with acquisitions generally, there are risks in the assimilation of
the operations, technologies and products of the MultiLink business. For
additional detail, reference should be made to the Company's Registration
Statement on Form S-4 filed in conjunction with its acquisition of MultiLink.
Results Of Operations
- ---------------------
THREE MONTHS ENDED JUNE 29, 1997 COMPARED TO THREE MONTHS ENDED JUNE 29, 1996
REVENUES. The Company's revenues decreased $3,844,000, or 3%, in the three
month period ended June 29, 1997 compared to the comparable period in 1996. The
decrease in revenue was primarily a result of a reduction in the average selling
price of videoconferencing systems resulting from a shift towards lower priced
models, especially in the group systems, which offset an increase in overall
unit shipments of videoconferencing systems, as well as lower than forecasted
demand for the Company's products. In addition, a shift in distribution channel
mix also contributed to the decrease with approximately 79% of product revenue
now coming from the indirect channels compared with 74% for the comparable
period in 1996. Videoconferencing system sales accounted for approximately 81%
of the Company's revenues for the three month period ended June 29, 1997
compared to 83% for the comparable period in 1996. Sales of group and desktop
videoconferencing products accounted for 72% and 9%, respectively, of revenues
for the three month period ended June 29, 1997, compared with 67% and 16%,
respectively, for the comparable period in 1996. Desktop product revenue
declined during the three month period ended June 29, 1997 from the comparable
period in 1996 due to the slowdown in the desktop videoconferencing market, as
well as a shift in sales towards lower priced models. Sales of bridge products
accounted for approximately 7% of the Company's revenues for the three month
period ended June 29, 1997 compared to 8% for the comparable period in 1996. The
balance of the revenues for the three month period ended June 29, 1997 and the
comparable period in 1996 were primarily from maintenance services,
licensing/development agreements and the sales of stand-alone codecs and video
modems.
The Company's revenues from sales to foreign markets were approximately
$51,669,000 for the three month period ended June 29, 1997 compared to
approximately $51,724,000 for the comparable period in 1996 representing 46% and
45%, respectively, of total revenues. The Company expects that international
revenues will continue to account for a significant portion of total revenues.
8
<PAGE> 9
GROSS MARGIN. The Company's gross margin decreased $6,896,000 or 12%, in
the three month period ended June 29, 1997 compared to the comparable period in
1996. Gross margin as a percentage of revenues was 44% for the three month
period ended June 29, 1997 compared to 48% for the comparable period in 1996.
Gross margin as a percentage of revenues decreased as a result of a change in
the mix of group systems sales, a reduction in the average selling price of
videoconferencing systems, the increased percentage of volume through the
indirect channels, and incremental expenses related to the European Distribution
Center which was established in the fourth quarter of 1996. These trends are
expected to continue and may impact future gross margins.
SELLING, GENERAL AND ADMINISTRATIVE. Selling, general and administrative
expenses increased $4,179,000 or 13% from the comparable period in 1996 and
increased as a percentage of revenues to 31% from 27%. The increase in expenses
is as a result of the costs associated with the new facility into which the
Company moved in July, 1996 as well as the increase in headcount compared to
the comparable period in 1996.
RESEARCH AND DEVELOPMENT. Research and development expenses increased
$4,781,000, or 34% for the three month period ended June 29, 1997 from the
comparable period in 1996 and were 17% and 12%, respectively, of revenues for
the three month period ended June 29, 1997 and the comparable period in 1996.
Research and development expenditures, prior to the capitalization of software
costs, were $20,725,000 for the three month period ended June 29, 1997 and
$15,423,000 for the comparable period in 1996 or 18% and 13% of revenues,
respectively. The dollar increase in expenditures primarily reflects the
Company's continuing investment in new product and software development for
existing and future videoconferencing products. The Company capitalized software
costs of $1,903,000 for the three month period ended June 29, 1997 and
$1,418,000 for the comparable period in 1996 representing 9% of aggregate
research and development expenditures, respectively.
OPERATING INCOME (LOSS). Operating income declined from $10,622,000 for
the three month period ended June 29, 1996 to an operating loss of $5,234,000
for the comparable period in 1997 as a result of the foregoing factors. The
Company intends to reduce its overall expense run rate for the remainder of the
year as compared to the first two quarters of the year.
NET INTEREST INCOME (EXPENSE). Net interest income decreased to $732,000
for the three month period ended June 29, 1997 from $1,103,000 for the
comparable period in 1996. The decrease was primarily the result of lower
average marketable securities portfolio balances and the shift to short-term
maturities which have lower yields.
OTHER INCOME (EXPENSE), NET. Other expense, net of $143,000 for the three
month period ended June 29, 1997 consists primarily of net losses on foreign
currency transactions. Other income, net of $1,136,000 for the comparable period
in 1996 consists primarily of net gains on sales of securities.
INCOME TAXES. The Company's effective tax rate for the three month period
ended June 29, 1997 and the comparable period in 1996 was 35% and 34%,
respectively. The rate for the three month period ended June 29, 1997 was equal
to the federal statutory rate primarily due to the benefits of the research and
development credits and the Company's foreign sales corporation which offset the
state and foreign taxes.
SIX MONTHS ENDED JUNE 29, 1997 COMPARED TO SIX MONTHS ENDED JUNE 29, 1996
REVENUES. The Company's revenues increased $9,377,000, or 4%, in the six
month period ended June 29, 1997 compared to the comparable period in 1996. The
increase in revenue was primarily a result of increased videoconferencing system
unit shipments. This growth was offset by a reduction in the average selling
price of videoconferencing systems resulting from a shift towards lower priced
models, especially in the group systems, lower than forecasted demand for the
Company's products, and a shift in distribution channel mix with approximately
82% of product revenue now coming from the indirect channels compared with 75%
for the comparable period in 1996. Videoconferencing system sales accounted for
approximately 82% of the Company's revenues for the six month period ended June
29, 1997 compared to 83% for the comparable period in 1996. Sales of group and
desktop videoconferencing products accounted for 73% and 9%, respectively, of
revenues for the six month period ended June 29, 1997, compared with 66% and
17%, respectively, for the comparable period in 1996. Desktop product revenue
declined during the six month period ended June 29, 1997 from the comparable
period in 1996 due to the slowdown in the desktop videoconferencing market, as
well as a shift in sales towards lower priced models. In addition, sales of
bridge products accounted for approximately 8% of the Company's revenues for
both the six month period ended June 29, 1997 and the comparable period in
1996. The balance of the revenues for the six month period ended June 29, 1997
and the comparable period in 1996 were primarily from maintenance services,
licensing/development agreements and the sales of stand-alone codecs and video
modems.
The Company's revenues from sales to foreign markets were approximately
$109,578,000 for the six month period ended June 29, 1997 compared to
approximately $102,334,000 for the comparable period in 1996 representing
9
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48% and 46%, respectively, of total revenues. The Company expects that
international revenues will continue to account for a significant portion of
total revenues.
GROSS MARGIN. The Company's gross margin declined $1,934,000 or 2%, in the
six month period ended June 29, 1997 compared to the comparable period in 1996.
Gross margin as a percentage of revenues was 45% for the six month period ended
June 29, 1997 compared to 48% for the comparable period in 1996. Gross margin as
a percentage of revenues decreased as a result of a change in the mix of group
systems sales, a reduction in the average selling price of videoconferencing
systems, the increased percentage of volume through the indirect channels and
the incremental expenses related to the European Distribution Center which was
established in the fourth quarter of 1996. These trends are expected to continue
and may impact future gross margins.
SELLING, GENERAL AND ADMINISTRATIVE. Selling, general and administrative
expenses increased $9,768,000 or 17% from the comparable period in 1996 and
increased as a percentage of revenues to 30% from 27%. The increase in expenses
is as a result of the costs associated with the new facility into which the
Company moved in July, 1996 as well as the increase in headcount compared to
the comparable period in 1996.
RESEARCH AND DEVELOPMENT. Research and development expenses increased
$10,314,000, or 37% for the six month period ended June 29, 1997 from the
comparable period in 1996 and were 17% and 13%, respectively, of revenues for
the six month period ended June 29, 1997 and the comparable period in 1996.
Research and development expenditures, prior to the capitalization of software
costs, were $42,022,000 for the six month period ended June 29, 1997 and
$30,731,000 for the comparable period in 1996 or 18% and 14% of revenues,
respectively. The dollar increase in expenditures primarily reflects the
Company's continuing investment in new product and software development for
existing and future videoconferencing products. The Company capitalized software
costs of $3,743,000 for the six month period ended June 29, 1997 and $2,766,000
for the comparable period in 1996 representing 9% of aggregate research and
development expenditures, respectively.
OPERATING INCOME (LOSS). Operating income declined from $19,851,000 for
the six month period ended June 29, 1996 to an operating loss of $2,165,000 for
the comparable period in 1997 as a result of the foregoing factors. The Company
intends to reduce its overall expense run rate for the remainder of the year as
compared to the first two quarters of the year.
NET INTEREST INCOME (EXPENSE). Net interest income decreased to $1,670,000
for the six month period ended June 29, 1997 from $2,179,000 for the comparable
period in 1996. The decrease was primarily the result of lower average
marketable securities portfolio balances and the shift to short-term maturities
which have lower yields.
OTHER INCOME, NET. Other income, net of $580,000 for the six month period
ended June 29, 1997 consists primarily of net gains on foreign currency
transactions and net gains on sales of securities. Other income, net of
$1,814,000 for the comparable period in 1996 consists primarily of net gains on
sales of securities and net gains on foreign currency transactions.
INCOME TAXES. The Company's effective tax rate for the six month period
ended June 29, 1997 and the comparable period in 1996 was 35% and 33%,
respectively. The rate for the six month period ended June 29, 1997 was equal to
the federal statutory rate primarily due to the benefits of the research and
development credits and the Company's foreign sales corporation which offset the
state and foreign taxes.
Liquidity And Capital Resources
- -------------------------------
At June 29, 1997, the Company had $43,077,000 in cash and cash equivalents
and $30,802,000 in short-term marketable securities. During the six month period
ended June 29, 1997 the Company used $13,728,000 in cash from operating
activities. The primary use of cash during the six month period ended June 29,
1997 was to fund the net growth in inventory and additions to property and
equipment and a decrease in accounts payable, which was offset by a reduction in
accounts receivable. The increase in inventory resulted from shipments below
forecasted levels for the six month period ended June 29, 1997.
The Company has available for borrowing up to $40,000,000 under its
revolving credit agreement, $2,000,000 available under a local line of credit
and approximately $4,400,000 available under local foreign guaranteed lines of
credit to certain of its foreign subsidiaries. At June 29, 1997 there was
$1,454,000 in debt and $30,713,000 in standby letters of credit outstanding
under the revolving credit agreement. At June 29, 1997, the Company had
$6,007,000 outstanding under various leasing lines.
The Company believes that funds from operations, equipment lease
financing, available borrowings under its various credit agreements and existing
cash, cash equivalents and marketable securities will be sufficient to meet the
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<PAGE> 11
Company's near term operating and capital requirements.
The Company has placed a renewed focus on reducing inventory levels and
reducing days sales outstanding during the balance of 1997. As a result of the
reduced revenue stream, management is in the process of reducing the Company's
cost structure to bring it in line with lower-than-expected revenues. Consistent
with its previous estimates, the Company anticipates a charge of $10 to $15
million in the third quarter relating to a pending reorganization of PictureTel
and expenses associated with the July, 1997 acquisition of MultiLink, Inc. and
its pending integration into PictureTel.
Newly Issued Accounting Standards
- ---------------------------------
In February 1997, the Financial Accounting Standards Board issued
Statement No. 128 ("SFAS 128"), "Earnings per Share," which is effective for
fiscal years ending after December 15, 1997, including interim periods. SFAS 128
requires the presentation of basic and diluted earnings per share (EPS). Basic
EPS, which replaces primary EPS, excludes dilution and is computed by dividing
income available to common stockholders by the weighted-average number of common
shares outstanding for the period. Diluted EPS reflects the potential dilution
that could occur if securities or other contracts to issue common stock were
exercised or converted into common stock or resulted in the issuance of common
stock that then shared in the earnings of the entity. Diluted EPS is computed
similarly to fully diluted EPS under the existing rules. SFAS 128 requires
restatement of all prior-period earnings per share data presented after the
effective date. The Company will adopt SFAS 128 in the fourth quarter of 1997.
Had the Company computed EPS consistent with the provisions of SFAS 128, basic
EPS would have been $(0.09) and $0.26 for the three month period ended June 29,
1997 and June 29, 1996, respectively, and $ 0.00 and $0.48 for the six month
period ended June 29, 1997 and June 29, 1996, respectively. Diluted EPS would
have been $(0.09) and $0.24 for the three month period ended June 29, 1997 and
June 29, 1996, respectively, and $0.00 and $0.44 for the six month period ended
June 29, 1997 and June 29, 1996, respectively.
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PART II - OTHER INFORMATION
Item 1 - Legal Proceedings
- --------------------------
In December 1993, PictureTel was sued by Datapoint Corporation in the
United States District Court for the Northern District of Texas. Datapoint
alleges that certain of the Company's products infringe patent rights allegedly
owned by Datapoint. The complaint seeks approximately $51 million in damages for
alleged past infringement and an injunction against alleged future infringement.
The Company believes that it has meritorious defenses to the allegations of the
complaint, and is vigorously defending against the lawsuit.
In the fall of 1996, the Court appointed a Special Master to consider the
Company's motion for summary judgment of non-infringement. The Special Master
recommended that the motion for summary judgment be denied. On September 16,
1996, the Court adopted the Special Master's claim construction of the Datapoint
patents and denied PictureTel's summary judgment motion. A trial date has been
set for October 6, 1997. The parties are completing discovery.
In the event the Company is found to be infringing a valid patent or
patents, the Company could be required to pay damages for past infringement and
cease the sale of products incorporating the infringing feature (or be required
to take a license and pay royalties with respect to such patents). There can be
no assurance that the Company will prevail. The Company believes that an adverse
outcome of the lawsuit would have a material adverse effect on the business or
the financial position, results of operations and cash flows of the Company.
Item 4 - Submission of Matters to a Vote of Security Holders
- ------------------------------------------------------------
The Annual Meeting of Stockholders of the Company was held on June 12,
1997. The Stockholders of the Company elected members of the Board of Directors,
approved the proposal to amend the PictureTel 1994 Employee Stock Purchase Plan
to reduce the waiting period before employees become eligible to participate in
the plan from twelve months to six months, and ratified the selection of Coopers
& Lybrand L.L.P. as the Company's auditors for fiscal year 1997. The number of
affirmative, negative, abstained votes and broker non-votes cast with respect to
each of the matters voted on were as follows:
The tabulation of votes for the nominees for directors were as follows:
COMMON STOCK
------------
FOR WITHHELD
--- --------
Norman E. Gaut 31,168,234 731,532
Robert T. Knight 31,169,526 730,240
Vinod Khosla 31,163,280 736,486
David Levi 31,165,025 734,741
James R. Swartz 31,167,830 731,936
Enzo Torresi 31,136,078 763,688
Other matters considered:
<TABLE>
<CAPTION>
AFFIRMATIVE NEGATIVE ABSTAINED BROKER
VOTES VOTES VOTES NON-VOTES
----- ----- ----- ---------
<S> <C> <C> <C> <C>
Approval of the amendment of the
PictureTel 1994 Employee Stock
Purchase Plan. 29,316,201 2,206,338 163,891 213,336
Selection of Coopers & Lybrand
L.L.P. as auditors 31,701,441 102,469 95,856 --
</TABLE>
12
<PAGE> 13
Item 5 - Other Information
- --------------------------
On June 24, 1997, James R. Swartz resigned from the Board of Directors.
Item 6 - Exhibits and Reports on Form 8-K
- -----------------------------------------
(a) Exhibits
10.1 Lease Agreement between PictureTel Corporation and 200
Minuteman Limited Partnership dated March 19, 1997
10.2 Employment agreement between PictureTel
Corporation and Richard B. Goldman dated June
11, 1997
11 Calculation of Earnings per Share (filed
herewith)
(b) Reports on Form 8-K
1. On April 18, 1997, the Company filed a report on Form 8-K to
report that it had entered into an agreement to acquire
MultiLink, Inc.
2. On June 18, 1997, the Company filed a report on Form 8-K to
report that Richard B. Goldman had been appointed as Vice
President, Chief Financial Officer, Secretary and Treasurer
replacing Les B. Strauss.
13
<PAGE> 14
SIGNATURE
---------
Pursuant to the Securities Exchange Act of 1934, the registrant has duly
caused this report to be signed on its behalf by the undersigned thereunto duly
authorized.
PICTURETEL CORPORATION
/s/ Richard B. Goldman
--------------------------------------------
Richard B. Goldman
Vice President, Chief Financial Officer,
Secretary and Treasurer
(Principal Financial and Accounting Officer)
August 13, 1997.
14
<PAGE> 1
EXHIBIT 10.1
ANDOVER, MASSACHUSETTS
LEASE
LANDLORD: 200 MINUTEMAN LIMITED PARTNERSHIP,
a Massachusetts Limited Partnership
TENANT: PICTURETEL CORPORATION, a Delaware corporation
DATE: March 19, 1997
<PAGE> 2
<TABLE>
<CAPTION>
TABLE OF CONTENTS
-----------------
<S> <C>
1. BASIC LEASE PROVISIONS...........................................................................................- 1 -
2. CONSTRUCTION OF PREMISES.........................................................................................- 3 -
3. POSSESSION AND SURRENDER OF PREMISES.............................................................................- 3 -
4. TERM.............................................................................................................- 3 -
5. RENT.............................................................................................................- 4 -
6. TAXES............................................................................................................- 4 -
7. OPERATING COSTS..................................................................................................- 5 -
8. INSURANCE........................................................................................................- 6 -
9. MONTHLY PAYMENT OF TAXES AND OPERATING COSTS; AUDITS.............................................................- 7 -
10. UTILITIES AND LANDLORD'S SERVICES................................................................................- 8 -
11. USE OF PREMISES..................................................................................................- 9 -
12. MAINTENANCE AND REPAIRS..........................................................................................- 9 -
13. ALTERATIONS.....................................................................................................- 10 -
14. INDEMNITY; SATISFACTION OF REMEDIES.............................................................................- 11 -
15. PARKING.........................................................................................................- 13 -
16. DAMAGE OR DESTRUCTION...........................................................................................- 13 -
17. CONDEMNATION....................................................................................................- 15 -
18. ASSIGNMENT AND SUBLETTING.......................................................................................- 15 -
19. MORTGAGEE PROTECTION; UNPERMITTED FINANCING; LANDLORD'S LOAN
DEFAULTS........................................................................................................- 19 -
20. ESTOPPEL CERTIFICATES; FINANCIAL STATEMENTS.....................................................................- 20 -
21. DEFAULT.........................................................................................................- 21 -
22. REMEDIES FOR DEFAULT............................................................................................- 21 -
23. BANKRUPTCY PROVISIONS [SEE EXHIBIT "F"].........................................................................- 23 -
24. GENERAL PROVISIONS..............................................................................................- 23 -
25. HAZARDOUS SUBSTANCES............................................................................................- 29 -
SIGNATURE PAGE ......................................................................................................- 30 -
</TABLE>
(i)
<PAGE> 3
EXHIBIT LIST
------------
"A" Project Site Plan
"B" Premises
"C" Workletter
"CC" PictureTel Initial Information
"D" Base Rent
"DD" Base Rent During Extension Options
"E" Rules and Regulations
"F" Bankruptcy Provisions
"G" Landlord's Services
"H" Unamortized Cost Schedule
"I" [INTENTIONALLY OMITTED]
"J" Forms of Estoppel Certificate and Subordination, Non-disturbance and
Attornment Agreement
"K" Map
"L" LC Note
"M" Beneficiary's Rights
Addendum #1 - Rooftop Communications Equipment
Addendum #2 - Extension Options
Addendum #3 - Net Proceeds
Addendum #4 - Purchase Options
Addendum #5 - Right of First Offer to Purchase
Addendum #6 - [INTENTIONALLY OMITTED]
Addendum #7 - Budget Savings (with Schedule 7AAA attached)
(ii)
<PAGE> 4
INDEX TO CERTAIN DEFINED TERMS
------------------------------
<TABLE>
<CAPTION>
Term Section Page
- ---- ------- ----
<S> <C> <C>
Affiliates 24.18(a) 28
Alterations 13 10
Bankruptcy Code Exhibit "F"
Base Rent 1.1(e) 1
Commencement Date 1(aa) 1
Condemnation 17 15
Control Affiliates 24.18(aa) 28
Cure Payments 19.5 20
Existing Loans Addendum #4 2(a)
Extension Options Addendum #2 1
Guarantor 1.1(k) 2
Hazardous Substances 25 29
Land 1.1(c) 1
Landlord's Insurance Proceeds 16.1 13
Landlord's Mortgagees 19.1 19
Landlord's Work 2 3
Laws 24.18(b) 28
LC Return Addendum #3 3
Letter of Credit Advances 24.17(f) 28
Letter of Credit Loan 24.17(b) 28
Lease Year 4 3
Letter of Credit 24.17 26
Liabilities 24.18(c) 29
Liens 13.4 11
No-sale Election Addendum #5 2
Occupancy Date 1.1(a) 1
Operating Costs 7.1 5
Permitted Assignee 18.5(c) 18
Permitted Sublessee 18.5(c) 18
Phase 1.1(dd) 1
Premises 1.1(c) 1
Purchase Options Addendum #4
Reconstruction Costs 16.5 14
Related Entities 24.18(cc) 29
Released Assignor 18.4 16
Rent 5 4
Right of Self Help 14.4 12
Systems and Equipment 24.18(d) 29
Superior Leases and Mortgages 24.4 24
Taxes 6.1 4
Tenant's Broker 1.1(l) 2
Tenant's Percentage 1.1(f) 1
Tenant's Property 3 3
Tenant's Work Exhibit "C" 1.1
Transfer 18.1 15
Unamortized Costs Exhibit "H"
Unpermitted Financing 19.4 19
</TABLE>
(iii)
<PAGE> 5
LEASE
THIS INDENTURE OF LEASE, dated as of , 1997, is between 200
MINUTEMAN LIMITED PARTNERSHIP, a Massachusetts limited partnership ("Landlord"),
and PICTURETEL CORPORATION, a Delaware corporation ("Tenant").
Landlord leases the Premises to Tenant and Tenant leases the
Premises from Landlord on the following terms and conditions:
1. BASIC LEASE PROVISIONS.
1.1 Summary.
(a) Occupancy Date: When all of Landlord's Work is deemed to be
substantially completed (as described in Article 2) or when Tenant occupies the
Building, whichever is earlier. If Landlord's Work is subdivided into Phases,
the Occupancy Date for each Phase will be when Landlord's Work for that
particular Phase is deemed to be substantially completed (as described in
Article 2) or Tenant occupies that Phase, whichever is earlier.
(aa) "Commencement Date": The later of: August 15, 1998; or the
Occupancy Date (or on the last Occupancy Date if Landlord's Work is subdivided
into Phases); provided, however, that if Tenant occupies more than 10,000 square
feet of the Building before August 15, 1998, then the Commencement Date shall be
the date of such occupancy.
(b) Term: The term of this Lease will begin on the Occupancy Date
(or on the first Occupancy Date if Landlord's Work is subdivided into Phases)
and will end eighteen (18) Lease Years after the Commencement Date, unless
extended or terminated earlier per this Lease.
(c) Premises: The land (the "Land") located in Andover,
Massachusetts, generally as depicted in Exhibit "A," and all improvements now or
hereafter constructed on the Land. The parties acknowledge and agree that the
Land has not yet been subdivided from the larger parcel of which it is now a
part, and that upon such subdivision the location, configuration and size of the
Land probably will differ from the general depiction of the Land as now set
forth in Exhibit "A." Upon such subdivision, or upon the determination of the
final legal description of the Land, if earlier, Exhibit "A" will be replaced
with a more accurate depiction of the Land and the legal description of the Land
will be set forth in Exhibit "B."
(d) Building: The building of approximately 200,000 s.f. and
associated improvements to be constructed by Landlord on the Land, designated as
the "Building" in Exhibit "A," as it may be initially constructed and
subsequently changed, enlarged or improved in the future pursuant to Landlord's
Work or otherwise.
(dd) Phase: The parties acknowledge that Landlord's Work for the
Building may be subdivided into one or more different areas, each of which may
have a different Occupancy Date due to the differing nature of Landlord's Work
necessary to meet the requirements of Tenant's employees who ultimately will
occupy those different areas. If Landlord's Work is so subdivided, each of these
separate areas will be called a "Phase." The parties acknowledge that these
areas may change during Landlord's Work, and that performing Landlord's Work in
Phases and/or getting separate Certificates of Occupancy for each Phase may be
impractical or unlawful.
(e) Base Rent: (see Exhibit "D").
(f) Tenant's Percentage: If Landlord's Work is subdivided into
Phases, Tenant's Percentage for each Phase will be a fraction, expressed as a
percentage, determined by dividing the rentable area of that Phase by the
rentable area of the entire Building as if Landlord's Work was completed. If the
rentable area of the entire Building is not known when a particular Phase is
completed, then the rentable area of the Building shall be based on Landlord's
reasonable determination at the time, with a retroactive adjustment when the
rentable area of the Building is determined. Notwithstanding anything to
contrary, the rentable area shall be determined in each case by Landlord's
architect or representative in a consistent fashion, and upon the occurrence of
the
<PAGE> 6
Occupancy Date (or the Occupancy Date for all of the Phases, if Landlord's Work
is subdivided into Phases), Tenant's Percentage shall be 100%.
(g) Letter of Credit: (See Section 24.17).
(h) Use of Premises: For general office purposes, engineering,
research and development, light manufacturing, demonstration of video
teleconferencing systems, training rooms, customer demonstrations, repairs,
distribution and warehousing, and uses incidental thereto.
(i) Notice to Tenant :
PictureTel Corporation
100 Minuteman Road
Andover, Massachusetts 01810
Attn: Chief Financial Officer
With a Copy to:
PictureTel Corporation
100 Minuteman Road
Andover, Massachusetts 01810
Attn: Vice President, Human Resources
(j) Notice to Landlord:
c/o Brickstone Properties, Inc.
300 Brickstone Square
Andover, Massachusetts 01810
Attn: Martin Spagat
With a Copy to:
c/o U.S. Managers Realty, Inc.
The Plaza at Continental Park
Suite 5252
2101 Rosecrans Avenue
El Segundo, California 90245-4709
Attn: John G. Baker, Esq.
(k) Guarantor: N/A .
(l) Tenant's Broker: Avalon Partners, Inc..
(m) Certain Other Defined Terms: [See Section 24.18]
If there is a conflict between this summary and the rest of this Lease, the rest
of this Lease will control.
1.2 Site Plan. Exhibit "A" is the general site plan of the land, the
Building and the other principal improvements that are planned as part of the
Premises. The parties acknowledge and agree that the site plan may change as a
result of changes in the location, configuration and size of the Land as
described in Section 1.1(c) and changes in the Building or other improvements or
Landlord's Work, and so the parties agree that Landlord will have the right to
substitute for Exhibit "A" another general site plan, if necessary, to depict
the Premises more accurately upon the subdivision of the Land and/or the
substantial completion of the Building and other improvements.
1.3 Premises. Subject to and in accordance with the terms and limitations
in this Lease (including any regarding prior notice, entry and the
non-disturbance of Tenant's business), Landlord reserves the right to install,
maintain, repair and replace Systems and Equipment within or serving the
Building or the rest of the Premises or otherwise modify the Premises in
emergencies or in order to comply with its obligations or exercise its rights
under this Lease or to comply with Laws or insurance requirements or to protect
health, safety or property or to provide access, drainage, utilities and
services (including cabling), and associated improvements in accordance with
easements that
- 2 -
<PAGE> 7
are or may be granted for adjacent properties, and in so doing Landlord will
endeavor not to interrupt Tenant's uses of the Premises or the services Landlord
is required to provide under this Lease more than reasonably necessary. Landlord
will not otherwise have the right to materially modify the Premises unless it
obtains Tenant's approval, which will not be unreasonably withheld or delayed.
2. CONSTRUCTION OF PREMISES.
Landlord will perform "Landlord's Work" and Tenant will perform "Tenant's
Work" (if any) as described in the Workletter attached as Exhibit "C." The good
faith written certification by Landlord's architect of the substantial
completion of Landlord's Work and the issuance of a temporary or final
certificate of occupancy by the Town of Andover will be binding on the parties
as to the date of substantial completion of Landlord's Work (in its entirety or
for each Phase, as applicable). Except for Tenant delays and force majeure,
Landlord will diligently attempt to substantially complete Landlord's Work
during November, 1998. Landlord's Work (in its entirety or for each Phase, as
applicable) will be deemed substantially completed even if Landlord has not
completed "punch list" or other minor items, as long as Landlord agrees to
complete these items diligently. Tenant's final punch list for Landlord's Work
(in its entirety or for each Phase, as applicable) will be submitted to Landlord
within fifteen (15) days after Landlord notifies Tenant that Landlord's Work is
substantially completed. Subject to scheduling requirements for the completion
of Landlord's Work, Tenant's contractors may have access to the Premises prior
to the completion of Landlord's Work as described in Exhibit "C," and to the
extent that conflicts with the scheduling for Landlord's Work can reasonably be
avoided, Landlord and its contractors will attempt to cooperate reasonably with
Tenant's contractors so that Tenant's Work can be completed in a timely manner.
3. POSSESSION AND SURRENDER OF PREMISES.
When this Lease terminates, Tenant will remove from the Premises all of
its signs, movable trade fixtures and equipment, inventory and other personal
property, whether owned by Tenant or its Affiliates ("Tenant's Property").
Tenant's Property remaining more than five (5) business days after delivery of
written notice from Landlord after such termination will be deemed abandoned and
Landlord may keep, sell, destroy or dispose of it without any Liabilities to
Tenant or its Affiliates. Tenant will repair all damage and surrender the
Premises broom clean and in good order, condition and repair, reasonable wear
and tear, damage by fire and casualty and taking by eminent domain excepted.
4. TERM.
(a) This Lease is effective as of the date first set forth above, and the
term begins on the Occupancy Date (or on the first Occupancy Date for a Phase if
Landlord's Work is subdivided into Phases) and ends eighteen (18) Lease Years
after the Commencement Date, unless terminated earlier or extended in accordance
with this Lease. A "Lease Year" is a period of twelve (12) consecutive calendar
months during the Lease term, starting with the Commencement Date. However, the
first Lease Year is the first twelve (12) full calendar months plus the partial
month (if any) after the Commencement Date if the Commencement Date is not the
first day of the month, and the last Lease Year may be less than twelve (12)
months. In addition to the rent payable for the first Lease Year, Tenant will
pay rent for the partial calendar month (if any) after the Commencement Date.
Within ten (10) days after Landlord's request in each instance, Tenant will
execute an agreement confirming the Occupancy Date (or the Occupancy Date for
each Phase, if applicable) and/or the Commencement Date. Tenant's failure to
execute such an agreement will not affect the actual Occupancy Date(s) or the
actual Commencement Date.
(b) If necessary, the initial term of this Lease shall be deemed extended
(but not shortened) so that the initial term of this Lease will expire eighteen
(18) years (plus any partial month) after the closing and funding of the initial
permanent mortgage loan (as opposed to any loan that provides for construction
financing) that is secured by the Premises; provided, however, that the initial
term of this Lease shall not be extended by more than fifteen (15) months by
reason of this clause. Promptly upon Landlord's request after Tenant receives
written notification that such closing and funding has occurred, Tenant will
execute an agreement confirming the new expiration date of
- 3 -
<PAGE> 8
the initial Lease term. Tenant's failure to execute such an agreement will not
affect the actual extended expiration date of the initial Lease term.
5. RENT.
(a) Tenant will pay the base rent as shown in Exhibit "D" in equal monthly
installments in advance beginning on the Commencement Date, and thereafter on
the first day of each month during the term (except as otherwise shown in
Exhibit "D"), prorated for any portion of a month. The term "rent" includes base
rent, additional rent and all other amounts to be paid by Tenant under this
Lease, whether or not specifically described as rent. All rent will be paid
without demand, deduction, counterclaim or offset of any type (except as may be
specifically provided otherwise elsewhere in this Lease) in lawful U.S. legal
tender at The Plaza at Continental Park, Suite 5252, 2101 Rosecrans Avenue, El
Segundo, California 90245-4707 or to such other person or place as Landlord may
from time to time designate. Notwithstanding the foregoing, if and for so long
as there is a mortgage loan encumbering the Premises or a loan that is secured
by the Letter of Credit, at the written request of Landlord or Tenant, Landlord
and Tenant will establish a collection account for the receipt and disbursement
of base rent. In such event, Tenant, will pay the base rent as and when required
each month into this collection account, and the collection agent promptly will
disburse from such amount an amount sufficient to pay debt service and any other
amounts owed to the mortgage lender and the lender of the loan secured by the
Letter of Credit, with the balance being disbursed first to Tenant (but only if
and to the extent necessary to pay current debt service to Tenant under the LC
Note per Section 24.17(f) if any amounts are then owed under the LC Note) and
then to Landlord. The collection agent and the terms of this collection account
will be subject to the mutual written approval of Landlord and Tenant, which
approval will be based on customary terms for such agreements and will not be
unreasonably withheld or delayed.
(b) If Tenant provides and continues to provide the Letter of Credit in
accordance with Section 24.17 and otherwise does not default under this Lease,
within thirty (30) days after payment by Tenant and delivery to Landlord of an
invoice therefor and reasonable evidence of Tenant's payment (but not earlier
than the date that Tenant pays its first full month of base rent under this
Lease), Landlord either will reimburse to Tenant, or credit against rent owed by
Tenant, the actual amounts paid by Tenant to the issuer of the Letter of Credit
for such issuance, up to an annual amount equal to one percent (1%) of the face
amount of the Letter of Credit from time to time.
6. TAXES.
6.1 Definition of Taxes. "Taxes" means all taxes, assessments, levies,
charges and fees imposed against, for or in connection with all or any portion
of: the Premises; the use, ownership, leasing, occupancy, operation, management,
repair, maintenance, demolition or improvement of the Premises; the amount of,
or Landlord's right to receive or the receipt of, rent, profit or income from
the Premises (but specifically excluding Landlord's net income taxes);
improvements, utilities and services, whether because of special assessment
districts or otherwise; the value of Landlord's interest in the Premises; and
fixtures, equipment and other real or personal property used in connection with
the Premises. Taxes also include, without limitation, license fees, sales, use,
capital and value-added taxes, penalties (but only if Tenant does not pay its
share of Taxes as and when required), interest and costs incurred in contesting
taxes, and any charges or taxes in addition to, in substitution or in lieu of,
partially or totally, any taxes or charges previously included within this
definition, including taxes or charges completely unforeseen by the parties and
collected from whatever source. Taxes do not include: Landlord's federal or
state net income, franchise, excise, inheritance, gift or estate taxes, and any
deed stamps or documentary or transfer taxes payable upon the Transfer of the
Premises to any of Landlord's Control Affiliates.
6.2 Payment of Taxes. Subject to and in accordance with Article 9,
starting as of the Occupancy Date (or if Landlord's Work is subdivided into
Phases, as of the first Occupancy Date for a Phase) and continuing thereafter
during the term, Tenant will pay Tenant's Percentage of Taxes directly to
Landlord as additional rent within fifteen (15) days after receipt of Landlord's
bill. Taxes that are assessed during the term of this Lease and also cover any
periods prior to or after the term of this Lease will be appropriately prorated.
- 4 -
<PAGE> 9
6.3 Tenant's Taxes. Tenant will pay all taxes assessments, license fees
and charges levied, assessed or imposed on Tenant, Tenant's business operations
and Tenant's Property, and Tenant will indemnify and hold Landlord and its
Affiliates harmless from any Liabilities in connection therewith or in
connection with any non-payment thereof.
6.4 Contest. Subject to the terms of the pre-existing agreement entered
into by Landlord and Digital Equipment Corporation with respect to the tax
fiscal years ending June 30, 1995, June 30, 1996 and June 30, 1997, Tenant will
have the right to contest the amount or validity of any Taxes with the
appropriate governmental authorities, provided that: Tenant pays all Taxes when
due and complies with all applicable rules, regulations and other Laws in
connection with such contest; Tenant pays all costs and expenses in connection
with such contest and neither Landlord nor the Premises will, as a result of
such contest or any nonpayment of Taxes, become subject to any cost, loss,
claim, liability, lien or encumbrance of any type. Tenant will indemnify and
hold Landlord and its Affiliates harmless from any Liabilities in connection
with any such contest or any nonpayment of Taxes. Landlord also will have the
right to contest Taxes. A pro rata share of any refund of Taxes obtained, net of
all bona fide costs and expenses incurred in connection with the contest
resulting in such refund, shall be refunded to Tenant in proportion to the
amount of the Taxes paid by Tenant to which such refund relates.
7. OPERATING COSTS.
7.1 Definition of Operating Costs.
(a) "Operating Costs" are all costs and expenses incurred in
connection with the Premises and for its ownership, operation, management,
maintenance, repair, restoration and replacement, including, without limitation,
costs for: services, costs and utilities not otherwise directly paid or
reimbursed by Tenant; materials, supplies and equipment; premiums for Landlord's
insurance policies and deductibles thereunder; wages and payroll, including
bonuses, fringe benefits, workers compensation and payroll taxes (but excluding
the foregoing payable to Landlord's partner or chief executive charged with the
operation and management of the Premises, currently Martin Spagat); professional
and consulting fees; management fees at the rate of 3.5% of all scheduled base
rent, Taxes and Operating Costs payable by Tenant (without giving effect to any
abatements or reductions) and utilities and services payable by Tenant (other
than those payable by Tenant directly to third-party providers), or at
prevailing rates, whichever is greater, or if no managing agent is retained, an
amount in lieu thereof not in excess of the greater of the foregoing amounts;
complying with any Laws and insurance requirements; environmental matters,
including, without limitation, costs of investigations, disclosures, preventive
measures, remediation, disposal, audits, monitoring, maintenance and responsive
actions; roadway maintenance; costs payable in connection with any easements
that benefit or burden the Premises; capital expenditures (excluding those
incurred for repairs or rebuilding resulting from a casualty, but including an
amount thereof equal to any deductibles under Landlord's casualty insurance
policies); an annual audit of Landlord's books and records relating to the
Premises and the preparation of Landlord's annual financial statements (but not
its tax returns); and snowplowing and landscaping. Operating Costs do not
include: Taxes; depreciation of the Premises structures and improvements;
Landlord's loan or ground lease payments (including principal payments); costs
of negotiating and enforcing leases; brokerage commissions; costs of any items
otherwise includable in Operating Costs to the extent that they are reimbursed
under warranties or by insurance proceeds or condemnation awards; costs for
Landlord's California corporate office; costs of Landlord's Work; and costs
directly paid or specifically reimbursed by Tenant (other than by an allocation
of Operating Costs).
(b) Subject to the other terms and conditions of this Lease, until
the end of the ninth (9th) Lease Year, Operating Costs also will not include,
and Landlord will be responsible at its cost for, the replacement of the
Building's roof and major structural members (as opposed to the cost of the
repair and maintenance thereof, which will be included as part of Operating
Costs), unless such replacement is required due to the acts or omissions of
Tenant or its Affiliates, in which case Tenant will be solely responsible for
all costs in connection therewith.
- 5 -
<PAGE> 10
(c) The costs for such replacement will be included as part of
Operating Costs starting as of the beginning of the tenth (10th) Lease Year and
ending as of the beginning of the seventeenth (17th) Lease Year.
(d) If the first Extension Option is exercised, or Tenant otherwise
agrees to extend the Lease term or the Lease term is otherwise deemed to have
been extended pursuant to the specific terms of this Lease (other than pursuant
to Section 4(b)), or if Tenant or any of its Related Entities has entered into
any agreements or exercised any rights to lease additional space in a new
building or buildings, or an enlargement of the Building after completion of
Landlord's Work, totaling more than 25,000 feet to be constructed on the
Premises or to purchase or otherwise acquire all or any portion of the Premises
or any interest in Landlord, then the cost for such replacement will be included
as part of Operating Costs for the seventeenth (17th) and eighteenth (18th)
Lease Years and thereafter if this Lease is extended. If none of the events
described in the preceding sentence occur, then the terms of Section 7.1(b)
again will apply during the seventeenth (17th) and eighteenth (18th) Lease
Years.
7.2 Payment of Operating Costs. Subject to and in accordance with Article
9, starting as of the Occupancy Date (or if Landlord's Work is subdivided into
Phases, as of the first Occupancy Date for a Phase) and continuing thereafter
during the term, Tenant will pay Tenant's Percentage of Operating Costs to
Landlord as additional rent within thirty (30) days after receipt of Landlord's
bills.
8. INSURANCE.
8.1 Tenant's Insurance.
(a) Tenant will maintain during the term:
(i) Commercial general liability insurance (Broad Form CGL, or
if this insurance is not then commercially available, the closest equivalent),
with contractual liability (including indemnities made by Tenant in this Lease),
cross-liability endorsements (or the equivalent) and fire legal liability
endorsements, and automobile liability insurance. The amount of this insurance
will be at least $10 Million combined single limit for each occurrence, with a
deductible not to exceed $10,000.00. If this policy includes a "general
aggregate" limit, the limit will be at least two (2) times the combined single
limit per occurrence.
(ii) "All risk" casualty insurance (or if this insurance is
not then commercially available, the closest equivalent), covering all of
Tenant's Property and all Alterations made by or for the benefit of Tenant
(excluding Landlord's Work). This insurance will be for full replacement cost
(which may be subject to standard exclusions in such policies).
(iii) Employer's liability insurance of not less than
$1,000,000.00, and worker's compensation insurance in statutory limits.
(b) Tenant's commercial general liability policy must: name Landlord
and the following parties as additional insureds - Landlord and its general
partners, Landlord's Mortgagees, and the property managers; be written on an
"occurrence" basis; be from insurers licensed to do business in Massachusetts
and who also maintain a Best's rating of at least A+; and state with respect to
both liability and casualty policies that the insurers will not cancel, fail to
renew or modify the coverage without first giving Landlord at least thirty (30)
days prior written notice (provided, however, that notice of modification will
not be required with respect to modifications which neither reduce the policy
limits or materially restrict or reduce the coverage provided by a policy). No
more than once every five (5) years during the term, upon Landlord's written
request the limits of Tenant's insurance policies shall be increased to amounts
as reasonably determined by Landlord based upon customary practices of other
prudent landlords.
(c) Tenant will supply copies of each paid-up policy or a
certificate from the insurer certifying that the policy has been issued and
complies with all of the terms of this Article. This insurance must be in effect
and the policies or certificates delivered to Landlord on or before
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the first Occupancy Date for a Phase, or on or before the date that Tenant or
its contractors or representatives first enter the Premises, whichever is
earlier, and renewals provided not less than thirty (30) days before the
expiration of the coverage. Landlord always may inspect and copy any of the
policies.
8.2 Landlord's Insurance.
(a) Landlord will maintain during the Lease term the following
insurance policies (or if any of them are not commercially available, the
closest equivalents): an "all risk" casualty insurance policy for the full
replacement cost (or the highest amount not in excess thereof that is reasonably
commercially available) of the Building (which may be subject to standard
exclusions in such policies and to exclusion for foundations and footings),
rental loss insurance providing coverage for two (2) years (or the longest
period not in excess thereof that is reasonably commercially available) of base
rent and estimated Taxes and Operating Costs, commercial general liability
insurance (Broad Form CGL) of at least $10 Million combined single limit for
each occurrence, with a deductible not to exceed $10,000.00, and other insurance
policies with commercially reasonable carriers in such amounts, with such
deductibles and providing protection against such perils as Landlord determines
to be necessary in its reasonable discretion. All losses on all policies
maintained pursuant to this Article will be settled in Landlord's name (or as
otherwise designated by Landlord) and proceeds will belong and be paid to
Landlord except if and to the extent specifically set forth in Addendum #3 and
Addendum #4 or by reference in Addendum #5. Landlord makes no representations or
warranties as to the adequacy of any insurance to protect Landlord's or Tenant's
interests. Upon Tenant's written request, Landlord will provide Tenant with
certificates of Landlord's insurance.
(b) Tenant and its Affiliates will not undertake, fail to undertake
or permit any acts or omissions which will increase the cost of, violate, void
or make voidable all or any portion of any insurance policies maintained by
Landlord, unless Landlord gives its specific written consent and Tenant pays all
increased costs to Landlord on demand.
8.3 Waiver of Subrogation.
Landlord shall cause each casualty insurance policy required to be
carried under this Lease (or actually carried by Landlord) to be written in such
a manner as to provide that the insurer waives all right of recovery by way of
subrogation against Tenant in connection with any loss or damage covered by that
policy, even if such loss or damage may have been caused by the act, omission,
negligence or strict liability of Tenant, its subtenants or assignees or any of
their officers, directors, agents, employees, contractors, licensees, invitees
or suppliers. Tenant shall cause each casualty insurance policy required to be
carried by Tenant under this Lease (or actually carried by Tenant) to be written
in such a manner as to provide that the insurer waives all right of recovery by
way of subrogation against Landlord and any other additional insureds in
connection with any loss or damage covered by that policy, even if such loss or
damage may have been caused by the act, omission, negligence or strict liability
of Landlord or the additional insureds or their respective general or limited
partners, officers, directors, agents, employees, contractors, licensees,
invitees, suppliers, successors or assigns and neither party shall be liable to
the other for any loss or damage to the property of the other party caused by
fire or any of the casualties covered by the casualty insurance policies
required to be maintained under this Lease (or actually maintained) by the other
party even if such loss or damage is caused by the party or any of the other
persons or entities described above in this clause and even if the cost of the
loss or damage is below the deductible amount on the applicable policy or
policies maintained.
9. MONTHLY PAYMENT OF TAXES AND OPERATING COSTS; AUDITS.
9.1 Monthly Payments. At any time and from time to time, and subject to
later change, Landlord may elect to have Tenant pay its share of Taxes and
Operating Costs (or either of them) in monthly installments, in advance on the
first of each month, based on amounts reasonably estimated by Landlord (as
revised from time to time). If these estimated monthly payments are required,
after the end of each tax fiscal year, Lease Year or other relevant periods
selected by Landlord, Landlord will deliver to Tenant a statement of the actual
amounts due for the period. Any
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additional amounts due from Tenant will be payable as additional rent within
thirty (30) days (fifteen [15] days for Taxes) after receipt of Landlord's
statement, and any overpayment by Tenant will be refunded by Landlord or
deducted from the next monthly installments due for that particular payment
category. At any time or from time to time, Landlord may deliver a bill to
Tenant for Tenant's share of Taxes and Operating Costs (or either of them), and
Tenant will pay the amount due to Landlord as additional rent within thirty (30)
days (fifteen [15] days for Taxes) after receipt of Landlord's bill. Tenant will
receive a credit for any estimated monthly payments already paid by Tenant for
the period covered by that bill.
9.2 Tenant's Audit of Taxes and Operating Costs. Upon Tenant's written
request in each instance, Landlord will furnish Tenant reasonable backup
information for its itemized statements. During the Lease term (and after the
Lease term, but within ninety (90) days after Landlord's last invoice to
Tenant), and upon at least fourteen (14) days' prior written notice to Landlord,
not more than once in each calendar year Tenant may audit Landlord's records of
Taxes and Operating Costs for the prior calendar year in order to verify the
accuracy of the Taxes and Operating Costs charged to Tenant. Such audit will be
conducted only during regular business hours where Landlord maintains its
records (which Landlord agrees will be in Massachusetts or California) and
Tenant will deliver a copy of the results of the audit to Landlord within
fifteen (15) days after receipt by Tenant. All audits will be conducted at
Tenant's cost and expense and no subtenant will have the right to conduct an
audit, and no assignee will have the right to conduct an audit for any period
when the assignee was not in possession of the Premises.
9.3 Landlord's Audit. In addition to providing the information described
in Addendum #3, Landlord shall arrange for an annual audit to be made of its
books and records relating to this Lease (including with respect to Net Proceeds
under Addendum #3). Landlord shall deliver a copy of this annual audit to Tenant
within ten (10) days after it is received in final form by Landlord. Tenant
shall have the right, at its sole cost and expense, at any time during the term
of this Lease and for six (6) months thereafter, to consult with Landlord's
auditors regarding such audit. If the results of an annual audit made by
Landlord's auditors show an underpayment or overpayment with respect to Net
Proceeds, the shortfall or the excess, as applicable, will be paid or refunded
within thirty (30) days after the final results of such audit have been
delivered to Landlord and Tenant.
10. UTILITIES AND LANDLORD'S SERVICES.
(a) Landlord will initially be responsible for bringing utility
services (including electricity and hot and cold running water) to the Building
to the extent provided as part of Landlord's Work in Exhibit "C." Beginning as
of the Occupancy Date (or if Landlord's Work is subdivided in Phases, as of the
Occupancy Date for each Phase), Tenant will pay when due to the furnishing
parties all fees and costs associated with utilities and communication services
provided to or for the benefit of Tenant or the Premises (or for that Phase, if
applicable), including, without limitation, electricity, water, sewer, gas,
heat, telephone, trash and waste removal and disposal, and all other utilities
and services provided, whether or not separately metered. If and to the extent
that an Occupancy Date has occurred for a Phase but Landlord's Work is
continuing with respect to other Phases, if necessary there shall be reasonable
proration between Landlord and Tenant of utilities and services consumed for
Landlord's Work, so that Landlord bears the cost for such utilities and
services. If utilities and services payable by Tenant are not charged to Tenant
directly by a public utility, Tenant will pay the charges therefor (as
determined by meter or submeter, or if there is no meter or submeter as
reasonably determined by Landlord) directly to Landlord as additional rent,
either monthly when base rent is due, or within fifteen (15) days after receipt
of Landlord's bill, at Landlord's option. Landlord will not be responsible for
any Liabilities incurred by Tenant or Tenant's Affiliates nor may Tenant abate
rent, terminate this Lease or pursue any other right or remedy against Landlord
or Landlord's Affiliates, as a result of any termination or malfunction of any
utilities or systems except as specifically provided otherwise in this Lease,
although this will not be deemed to limit in any way Landlord's repair and
maintenance obligations under Section 12.1 or its repair and/or restoration
obligations under Articles 16 and 17 if and to the extent applicable.
(b) During the Lease term, Landlord shall provide the services
("Landlord's Services") set forth in Exhibit "G."
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<PAGE> 13
11. USE OF PREMISES.
Tenant will use the Premises for the purposes described in Section 1.1(h),
but for no other purpose. Tenant will:
(a) Not permit any objectionable or unreasonable noises,
vibrations, odors or fumes in or to emanate from the Premises, nor commit or
permit any waste, improper, immoral or offensive use of the Premises, any public
or private nuisance or anything that disturbs the quiet enjoyment of neighboring
owners or tenants. All deliveries and pickups must be conducted at reasonable
times and in a reasonable manner. All trash and waste products must be stored,
discharged, processed and removed in a reasonable manner and in compliance with
applicable Laws and so as not to be visible to neighboring owners or tenants or
create any health or fire hazard.
(b) [INTENTIONALLY OMITTED]
(c) Not: permit any coin or token operated vending, pinball,
gaming or other mechanical devices on the Premises, except for telephones and
vending machines solely for use by Tenant's employees and its business invitees;
permit governmental or quasi-governmental agencies to occupy the Premises; use
or operate the Premises for retail sales to the general public or as a
messenger, answering or employment service, doctors' offices, for banking or
mortgage broker or mortgage banking purposes (but a credit union of not more
than 1,800 square feet serving only Tenant's employees will not be deemed
excluded by this clause), a restaurant or food-service facility (other than for
Tenant's employees and its business invitees), a school or educational
institution (although training and demonstration rooms for Tenant's employees
and customers are permitted), or living or sleeping quarters; store, sell or
distribute obscene, lewd or pornographic materials or engage in related
businesses in or from the Premises; or conduct any auction, distress, fire,
bankruptcy or going-out-of-business sale (except that Tenant may conduct such a
sale once each calendar year in the Premises of its equipment and products,
provided that each such sale is in accordance with applicable Laws and lasts no
more than three (3) days).
(d) Comply with: Laws and insurance requirements affecting the
Premises or any use and occupancy thereof, including, without limitation, making
required alterations to the Premises; and Landlord's rules and regulations and
reasonable changes to those rules and regulations made by Landlord from time to
time (provided that such reasonable changes are not materially more adverse to
Tenant than the current rules and regulations). Tenant will, at its expense,
obtain and maintain all licenses, approvals and variances necessary to conduct
its business and occupy the Premises (other than the initial temporary or final
Certificates of Occupancy to be obtained in connection with Landlord's Work),
but none of those licenses, permits or variances will be binding on or in any
way affect or restrict Landlord or the Premises itself.
(e) If it wishes, install exterior signage on the Building, as
well as a limited number of monument signs, which shall be subject to compliance
with applicable Laws and Landlord's approval as to size, location, materials and
design, which approval shall not be unreasonably withheld. Subject to compliance
with applicable Laws, Tenant may install such interior signage as it may deem
necessary or advisable. Tenant will be responsible for the maintenance and
repair of its signage, and on or before the expiration of the term, it will
remove its signage and repair any damage to Landlord's reasonable satisfaction.
(f) During the Lease term, unless Tenant's right to possession is
terminated pursuant to this Lease, Tenant and its employees will have access to
the Premises twenty-four (24) hours per day, three hundred sixty-five (365) days
per year, subject to emergencies, force majeure and necessary repairs,
maintenance or construction.
12. MAINTENANCE AND REPAIRS.
12.1 Landlord's Obligations. Landlord will repair and maintain: the
roadways, sidewalks, parking lot and loading docks of the Premises, and provide
snow plowing and landscaping for the Premises; the roof, any elevators, the
structural elements of the Building (including structural
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<PAGE> 14
elements of the columns, stairwells, foundations, floors and exterior walls of
the Building, but not the interior surfaces of any walls, floors or ceilings);
the plumbing Systems and Equipment, but excluding any specialty plumbing Systems
and Equipment for Tenant's engineering, research and development or
manufacturing processes or any kitchen appliances or cafeteria equipment or
installations; the base building HVAC system (but excluding any special systems,
such as special computer-room cooling systems, etc.); the exterior windows and
exterior glass of the Premises (except as provided in Section 12.2 below); and
the base building life safety and sprinkler systems, and the base building
electrical system (but excluding for example Tenant's own security system and
any special or above-standard systems, such as special computer-room systems,
etc.) All of the foregoing will be performed in a manner generally similar to
the repair and maintenance activities customarily undertaken by prudent owners
of property similar to the Building. However, subject to the terms in Section
8.3 of this Lease regarding casualties and waivers of claims for damage, Tenant
will be responsible for all repairs and maintenance resulting from Tenant's
Alterations or the negligent or intentional acts or omissions of Tenant or its
Affiliates. Landlord will make its repairs within a reasonable time following
Tenant's notification that the repairs are required and once begun will proceed
diligently with such repairs. Landlord's obligations are subject to the
provisions of Articles 16 and 17 and the rest of this Lease. If requested by
Tenant, Landlord will provide a full-time or part-time building engineer on-site
on the Premises to help supervise and perform Landlord's repair, maintenance and
service obligations, and all costs for such personnel shall be deemed to part of
Operating Costs.
12.2 Tenant's Obligations. Except for Landlord's obligations in Section
12.1, Tenant will maintain and repair the Building and the Systems and Equipment
serving the Building in a first-class manner, provide its own janitorial service
and keep the Building in good order and condition, including, without
limitation, Tenant's Property, all doors, windows (but only to the extent of
breakage or damage caused by Tenant or its Affiliates), window treatments, wall
coverings, floor coverings, non-structural portions of the ceiling, floor and
walls, and Tenant's Alterations (unless otherwise requested by Landlord),
reasonable wear and tear and damage by fire and casualty excepted. Landlord will
reasonably cooperate with Tenant to enforce any warranties that Landlord may
receive in connection with any equipment that Tenant is required to maintain.
13. ALTERATIONS.
13.1 Landlord's Consent. "Alterations" means Tenant's alterations,
additions, improvements, remodeling, repainting, decorations or other changes
(not including the tenant improvements made as part of Landlord's Work). Tenant
may make nonstructural Alterations to the interior of the Building without
Landlord's consent provided that Tenant complies with this Article and the rest
of this Lease and the Alterations do not: affect the windows or the exterior of
the Building; increase any mezzanine areas of the Building; adversely affect the
strength, structural integrity or load-bearing capacity of any portion of the
Building; or adversely affect the Systems and Equipment in the Building. All
other Alterations require Landlord's prior written consent, which may be
withheld arbitrarily. Whether or not Landlord's consent is required, Alterations
are subject to the rest of this Article.
13.2 Notice. Tenant will notify Landlord at least fifteen (15) days before
beginning any Alterations (other than the initial Tenant's Work for each Phase).
Together with Tenant's notice, or if notice is not required then prior to
beginning the Alterations, Tenant will give Landlord copies of the necessary
permits and approvals and, if Landlord deems it necessary in its arbitrary
discretion, plans and specifications for the Alterations (but not for minor,
non-structural Alterations such as wall coverings, wall hangings, built-in
cabinetry, movable partitions, carpeting and painting). Landlord's review or
approval of Tenant's plans and specifications is solely for Landlord's benefit
and will not be considered a representation or warranty to Tenant as to safety,
adequacy, efficiency, compliance with Laws or any other matter, or a waiver of
any of Tenant's obligations. Except for items of Tenant's Property, and unless
otherwise specifically agreed by Landlord in writing in response to Tenant's
specific written request in each instance with respect to each Alteration, at
the end of this Lease all Alterations will be removed and the Premises restored
to its condition prior to the Alterations, unless otherwise requested in writing
by Landlord prior to the end of this Lease, in which case they will be
surrendered with the Premises at the end of this Lease and will be deemed to be
Landlord's property (except for moveable partitions, which will remain Tenant's
Property).
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<PAGE> 15
13.3 Compliance with Laws. Alterations will comply in all respects with
this Lease and applicable Laws and insurance requirements. Alterations will be
done in a first-class manner, using first quality materials, and so as not to
interfere with Landlord or other tenants in the Premises, cause labor disputes,
disharmony or delay, or impose any Liabilities on Landlord. Alterations will be
performed only by experienced, licensed and bonded contractors and
subcontractors approved in writing by Landlord (except that Tenant need not
obtain Landlord's approval for contractors who perform a non-structural
Alteration with an aggregate cost of less than $100,000.00). Tenant will cause
its contractors and subcontractors to carry workmen's compensation insurance in
statutory limits, and commercial general liability insurance (Broad Form CGL, or
if such insurance is not then commercially available, the closest equivalent) in
an amount not less than $1,000,000.00 or such higher amount as then may be
customarily demanded by prudent landlords, and such liability insurance shall
contain cross-liability endorsements or the equivalent (if Landlord is to be
named as an additional insured hereunder) and automobile liability insurance in
the same amount, and if such work is reasonably estimated to cost more than
$75,000.00 in any instance, Landlord and its general partners, Landlord's
Mortgagees and the property managers shall be named as additional insureds on
such policies.
13.4 Liens. Tenant will pay when due all claims for labor, materials and
services claimed to be furnished for Tenant or Tenant's Affiliates or for their
benefit and keep the Building and the Premises free from all liens, security
interests and encumbrances based on or arising from such claims ("Liens").
Tenant will indemnify Landlord for, and hold Landlord harmless from, all Liens,
the removal of all Liens and any related actions or proceedings, and all
Liabilities incurred by Landlord in connection therewith. NOTICE IS HEREBY GIVEN
TO ALL PERSONS FURNISHING LABOR OR MATERIALS TO TENANT THAT NO MECHANICS',
MATERIALMENS' OR OTHER LIENS SOUGHT ON THE PREMISES WILL IN ANY MANNER AFFECT
LANDLORD'S RIGHT, TITLE OR INTEREST.
14. INDEMNITY; SATISFACTION OF REMEDIES.
14.1 Indemnification. Notwithstanding Section 24.11 or any other provision
of this Lease, but subject to the next sentence, Tenant will not be required to
indemnify Landlord for or hold it harmless from Liabilities if and to the extent
that they arise directly from Landlord's negligence or willful misconduct or the
negligence or willful misconduct of Landlord's employees, agents, contractors
and subcontractors (if and to the extent that those contractors and
subcontractors are performing work under contracts or agreements with Landlord).
Notwithstanding anything to the contrary, for all purposes in connection with
this Lease and the Premises, Landlord and its employees, agents, contractors and
subcontractors and their respective Affiliates never will be deemed to have been
negligent or to have engaged in willful misconduct because of any failure to
properly supervise Tenant or Tenant's Affiliates or to prevent, discover,
disclose, correct or cure any acts or omissions of Tenant or Tenant's
Affiliates. Except as otherwise specifically provided in Section 8.3, Tenant
will indemnify Landlord for and hold Landlord harmless from Liabilities arising
from or in connection with: acts or omissions of Tenant and its Affiliates on,
about or in connection with the Premises, and/or agreements or alleged
agreements involving Tenant and any third parties, and/or the conduct of
Tenant's business; Tenant's breach of or default under this Lease; and claims by
Tenant's Affiliates or persons other than Tenant if Landlord declines to consent
to any act, event or document requiring Landlord's consent under this Lease
(but, subject to the terms of this Lease, this will not prevent Tenant from
bringing an action against Landlord if Landlord declines to consent if Landlord
is required to consent by the terms of this Lease or if Landlord's decision not
to consent is unreasonable where Landlord is required to be reasonable).
14.2 Damage to Persons or Property. Subject to the rest of this Section
and the rest of this Lease, Landlord will be liable for injuries to persons and
damages to property to the extent caused by its own negligence or willful
misconduct or the negligence or willful misconduct of Landlord's employees,
agents, contractors and subcontractors (if and to the extent that those
contractors and subcontractors are performing work under contracts or agreements
with Landlord), but Landlord will not be liable for any special, indirect,
consequential, punitive or similar damages (including, without limitation, any
loss of use or revenue by Tenant or any other person) under any circumstances,
or for any Liabilities arising from or in connection with: acts or omissions of
Tenant, any third parties, or their Affiliates, including, without limitation,
burglary, vandalism, theft, or criminal or illegal
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<PAGE> 16
activity; explosion, fire, steam, electricity, water, gas, rain, pollution,
contamination, hazardous substances, motor vehicles or any casualties; breakage,
cracking, leakage, malfunction, obstruction or other defects in Systems and
Equipment or the roof, walls, floors, surfaces or structure, or of any services
or utilities; any work, demolition, maintenance or repairs permitted under this
Lease; any exercise of Landlord's rights under any Laws or under this Lease,
including any entry by Landlord or its Affiliates on the Premises and/or the
Building as permitted by and in accordance with this Lease; any loss of or
damage to Tenant's Property; or the requirements of any Laws or any of the
matters described in Section 24.5. Tenant waives all claims against Landlord in
connection therewith, but the foregoing is not meant to imply that Tenant will
be liable therefor, or be required to indemnify Landlord against any loss,
damage or liability incurred by Landlord as a result thereof, unless such
liability or indemnity is otherwise provided for by the terms of this Lease, nor
to release Landlord from its repair and maintenance obligations under Section
12.1 or Landlord's obligations to repair and/or restore in Articles 16 and 17 if
and to the extent applicable. Tenant also waives any Laws or rights that would
permit Tenant to terminate this Lease, perform repairs or maintenance in lieu of
Landlord (or on Landlord's behalf), or offset or withhold any amounts due
because of damage to or destruction of the Premises, any repairs or maintenance,
or for any other reason (unless specifically permitted in this Lease [for
example, in Section 14.4 below]). This exculpation of Landlord and all of
Tenant's waivers in this Lease will apply to all of Tenant's Affiliates to the
greatest extent possible.
14.3 Satisfaction of Remedies. Notwithstanding anything in this Lease or
elsewhere to the contrary: Tenant will look solely to Landlord's interest in the
Premises and, subject to the terms of this Lease, Landlord's interest in
liability insurance proceeds, casualty insurance proceeds and eminent domain
awards if and to the extent that such proceeds or awards are not paid to or
retained by Landlord's Mortgagees or applied in accordance with this Lease, to
satisfy any claims, rights or remedies, and Landlord and its partners and their
respective Affiliates, at every level of ownership and interest, have no
personal or individual liability of any type, whether for breach of this Lease
or otherwise, their assets will not be subject to lien or levy of any type, nor
will they be named individually in any suits, actions or proceedings of any
type.
14.4 Tenant's Self Help.
(a) Tenant shall have the right, but not the obligation, to
perform an obligation that Landlord is otherwise required to perform under this
Lease (the "Right of Self Help") under the circumstances set forth below:
(i) If Landlord fails to perform such obligation as and when
required under this Lease, such failure materially interferes with Tenant's
business activities in the Premises, and such failure continues without cure for
thirty (30) days after a subsequent written notice from Tenant to Landlord (but
if more than thirty (30) days are reasonably required to cure, Landlord will be
deemed to have cured if it promptly begins to cure within the thirty (30)-day
period and then diligently completes the cure as soon as reasonably possible),
and Tenant provides an additional notice to Landlord and Landlord's Mortgagees
that it intends to perform such obligation and Landlord and Landlord Mortgagees
fail to perform such obligation within a reasonable time after receiving
Tenant's notice of its intention to so perform.
(ii) If the failure to perform such obligation would result in
an emergency condition if not remedied promptly (i.e., an imminent and
substantial risk of significant additional property damage, or personal injury
or death) and Landlord fails to perform such obligation within a reasonable
period of time after receiving Tenant's notice of such emergency condition and
Tenant's intention to exercise the Right of Self Help (and in such case Tenant
shall exercise its Right of Self Help only if and to the extent reasonably
necessary to remedy the emergency condition, and as soon as there no longer is
an emergency condition, Tenant shall not have the right to continue to exercise
the Right of Self Help pursuant to this Subsection (ii)).
(See Section 3 of Addendum #3, which addresses Tenant's recovery of the
reasonable costs and expenses incurred by Tenant in exercising its Right of Self
Help.)
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15. PARKING.
All parking areas on the Premises shall be available to Tenant and its
Affiliates. Except for Tenant's share of Taxes and Operating Costs associated
with the parking areas, Tenant will not be charged for parking. If necessary in
Landlord's reasonable judgement to protect property, permit adequate security,
prevent unauthorized use or entry, increase safety or promote the orderly or
efficient flow of traffic, Landlord may: change signs, lanes and the direction
of traffic within the parking areas; change, eliminate or add parking spaces or
areas devoted to parking (provided that Tenant's parking is not reduced); allow
parking with a validation, valet, sticker or other system; promulgate reasonable
rules and regulations that do not materially adversely affect any of Tenant's
parking rights; and take any other actions deemed necessary by Landlord, as long
as such actions conform with this Lease.
16. DAMAGE OR DESTRUCTION.
16.1 Repairs. Subject to the rest of this Article and the rest of this
Lease, Landlord will repair damage to the Premises and the Building caused by
fire or other casualties to the extent insured against under standard "all risk"
casualty policies. However, Landlord is not obligated to repair damage for which
Landlord has no liability if and to the extent specifically so provided under
other provisions of this Section or the rest of this Lease or to undertake
repairs unless insurance proceeds are available, spend more than the net
insurance proceeds it actually receives and is permitted to retain for any
repair or replacement ("Landlord's Insurance Proceeds") (except if and to the
extent that Tenant agrees in writing to advance, and in fact advances as needed,
all costs in such repairs), or repair or replace any damage to Tenant's Work,
Tenant's Property or any Alterations (except to the extent that damage to such
Alterations is covered by Landlord's casualty insurance policy). Except as may
otherwise be required by then applicable Laws or as provided in this Lease,
Landlord will attempt to restore the damaged portions to their prior condition.
Landlord will proceed diligently to complete repairs within a reasonable time
after receiving notice of the damage, required approvals, building permits and
licenses and the insurance proceeds payable on account of the damage, all of
which Landlord will pursue diligently, but in no event will this diligent
pursuit be deemed to require any legal action by or on behalf of Landlord,
except if and to the extent that Tenant agrees in writing to advance, and in
fact advances as needed, all costs in connection with such legal action and such
legal action does not result in any Liabilities to Landlord.
16.2 Election to Terminate. Landlord has the option either to (a) repair
the casualty damage, or (b) terminate this Lease by delivering written notice
within ninety (90) days after the damage occurs, if: (i) the damage occurs
during the last two (2) years of the term, as the term already may have been
extended pursuant to this Lease, and in Landlord's reasonable determination the
repairs would take more than one hundred fifty (150) days or one-third (1/3) of
the remaining term, whichever is less, to complete (unless Tenant validly
exercises a previously unexercised Extension Option in accordance with this
Lease within thirty (30) days after receipt of written notice from Landlord that
Landlord intends to terminate this Lease in accordance with this Subsection (i)
or unless Tenant within such 30-day period agrees in writing to advance, and in
fact advances as needed, all costs in excess of Landlord's Insurance Proceeds in
order to complete such repairs); or (ii) Tenant is in default; or (iii) in
Landlord's reasonable judgement the repairs would take more than two (2) years
from the date of the damage to complete or cost more than the insurance proceeds
that are reasonably likely to be made available as a result of such casualty
(unless within thirty (30) days after receipt of written notice from Landlord
that it intends to terminate this Lease in accordance with this Subsection (iii)
Tenant agrees in writing to advance, and in fact advances as needed, all costs
in excess of Landlord's Insurance Proceeds in order to complete such repairs.
Tenant also has the right to terminate this Lease for such damage
if: (x) the damage denies Tenant access to the Premises, or causes more than
thirty percent (30%) of Tenant's parking spaces to become unusable (and Landlord
cannot replace those lost spaces reasonably promptly and in reasonable proximity
to the Premises, whether by the use of valet parking, or otherwise), or causes
at least 85% of the useable area of the Building to become entirely
untenantable, Landlord elects or is required under this Lease to repair the
damage, and except for delays for which Tenant is responsible under this Lease,
Landlord fails to substantially complete the repairs it is required to make (or
restore access or restore or replace parking spaces, as applicable) within two
(2) years after
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the damage occurs, Tenant delivers its written termination notice to Landlord
within fifteen (15) days after the end of Landlord's two (2)-year repair period
and Landlord fails to substantially complete those repairs (or restore access or
restore or replace parking spaces, as applicable) within sixty (60) days after
receiving such notice. If Landlord's repairs are deemed to be substantially
completed (or Landlord has restored access or restored or replaced parking
spaces, as applicable) within this sixty (60)-day period, Tenant's termination
notice will be null and void and this Lease will continue in existence; or (y)
the damage denies Tenant access to the Premises, or causes more than thirty
percent (30%) of Tenant's parking spaces to become unusable (and Landlord cannot
replace those lost spaces reasonably promptly and in reasonable proximity to the
Premises, whether by the use of valet parking, or otherwise) or causes at least
85% of the useable area of the Building to become entirely untenantable,
Landlord notifies Tenant specifically and in writing that the repairs that
Landlord is required to make probably will take longer than two (2) years to
substantially complete (or that Landlord cannot restore access or restore or
replace parking spaces, as applicable, within two (2) years) and Tenant delivers
to Landlord a written termination notice within fifteen (15) days after
receiving Landlord's notice; or (z) the damage occurs during the last two (2)
years of the term (as it may have been extended) and the damage denies Tenant
access to the Premises, or causes more than thirty percent (30%) of Tenant's
parking spaces to become unusable (and Landlord cannot restore or replace those
lost spaces reasonably promptly and in reasonable proximity to the Premises,
whether by the use of valet parking, or otherwise) or causes at least 85% of the
useable area of the Building to become entirely untenantable, Landlord notifies
Tenant specifically and in writing that the repairs that Landlord is required to
make probably will take longer than one hundred fifty (150) days or one-third
(1/3) of the remaining period until the expiration of the term, whichever is
less, to substantially complete (or that Landlord cannot restore access or
restore or replace parking spaces, as applicable, within such period) and Tenant
delivers to Landlord a written termination notice within fifteen (15) days after
receiving Landlord's notice.
16.3 Abatement of Rent. If the Building or any portion thereof is damaged
by casualty so that it is untenantable for more than two (2) consecutive
business days, base rent and Taxes and Operating Costs will abate in proportion
to the degree to which Tenant's use of the Premises is impaired, as reasonably
determined by Landlord, from the date of the damage until Landlord has
substantially completed the repairs it is required to make and gives Tenant
access to the Premises, or Tenant reoccupies or can reoccupy the damaged part of
the Premises, whichever is earlier. The abatement of base rent, Taxes and
Operating Costs will not exceed the net amount of rental loss insurance
collected by Landlord for or by reason of such casualty. The abatement of base
rent, Taxes and Operating Costs described above is Tenant's sole remedy and
compensation in connection with any damage, destruction or repairs, except for
Tenant's right to terminate as permitted in this Article, or unless Landlord
willfully fails to attempt to complete with diligence the repairs it is required
or elects to make.
16.4 Consequences of Termination. If this Lease is terminated per this
Article 16 or Article 17 but Tenant holds over in the Premises, then despite the
second to last sentence of Section 24.1, the most recent annual base rent will
not be doubled, and any abatement of rent that applied prior to the termination
will continue to apply to the same extent and for the same period that it would
have absent the termination. However, the rest of Section 24.1 will continue to
apply. Notwithstanding anything to the contrary, after a termination of this
Lease per this Article 16 or Article 17: Tenant shall remove Tenant's Property
from the Premises as quickly as reasonably practicable, but in any event within
sixty (60) days after such termination; Tenant assumes all risk of loss and/or
damage to Tenant's Property from any source, and waives against Landlord and its
Affiliates all Liabilities in connection therewith; Tenant shall cooperate with
Landlord at Tenant's expense to minimize any interference with Landlord's
activities on the Premises; and upon Landlord's request, Tenant shall
immediately remove (or relocate to an unaffected part of the Building, if any,
or the Premises) the items of Tenant's Property specified by Landlord if, in
Landlord's good faith belief, such removal or relocation is necessary to avoid
the risk of additional damage, injury or death or to comply with applicable
Laws, and if Tenant does not so remove or relocate those items of Tenant's
Property as so required, those items shall be deemed abandoned by Tenant and
Landlord shall have all of the rights set forth in the second sentence of
Article 3.
16.5 Reconstruction Costs. "Reconstruction Costs" means the costs advanced
by Tenant, if any, to perform Landlord's repairs up to the same level of fit and
finish that existed immediately prior to the casualty damage if and to the
extent that Tenant specifically has been granted the right
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in this Article 16 to advance such costs. Reconstruction Costs shall not include
any costs to repair or replace Tenant's Work, Tenant's Property or any
Alterations, nor any advances that are subsequently repaid to Tenant (whether by
insurance or otherwise).
17. CONDEMNATION.
(a) If all or substantially all of the Premises is condemned, taken
or appropriated by any public or quasi-public authority under the power of
eminent domain, police power or otherwise, or if there is a conveyance in lieu
thereof ("Condemned" or a "Condemnation"), this Lease will terminate as of the
day before the Condemnation.
(b) If more than twenty-five percent (25%) of the usable area of the
Building is Condemned, either Landlord or Tenant may terminate this Lease as of
the day prior thereto by delivering written notice to the other within fifteen
(15) days after the Condemnation. Tenant also will have the right to terminate
this Lease subject to the terms of and in the manner described in Section (16.2
(x), (y) and (z) if the Condemnation denies Tenant access to the Building or
effectively renders the Building untenantable in the same manner, to the same
extent and for the same periods as a casualty as described in those Sections, or
at least thirty percent (30%) of Tenant's parking spaces are Condemned and are
not restored or replaced by Landlord and the ratio of the number of Tenant's
parking spaces Condemned compared to the rentable area of the Building Condemned
at the same time (if any) is materially greater than the ratio of Tenant's total
initial parking spaces compared to the initial rentable area of the Building, in
each case effective as of the date of Condemnation.
(c) If part of the Premises is Condemned and this Lease is not
terminated, Landlord will make the necessary repairs so that, to the extent
reasonably possible, the remaining part of the Premises will be a complete
architectural unit. Otherwise, Landlord's restoration will be conducted as
described in Section 16.1, mutatis mutandis, except that Landlord will not be
required to begin repairs until a reasonable time after it receives any
necessary approvals, building permits and licenses and substantially all of the
proceeds of any awards granted for the Condemnation, and then will proceed
diligently with the repairs. As of the date of Condemnation, base rent will
abate in proportion to the area of the Building Condemned.
Except for Tenant's rights to receive its share of Net Proceeds as set forth in
Addendum #3, all proceeds, income, rent, awards and interest in connection with
any Condemnation will belong to Landlord, whether awarded as compensation for
diminution of value to the leasehold improvements, or the unexpired portion of
this Lease, or otherwise. Except for Tenant's right to receive Net Proceeds as
set forth in Addendum #3, Tenant waives all claims against Landlord and the
condemning authority with respect thereto, and in connection with a
Condemnation, but nothing in this Section prevents Tenant from bringing a
separate action against the condemning authority for moving costs or for lost
goodwill (as long as this separate action does not diminish Landlord's
recovery).
18. ASSIGNMENT AND SUBLETTING.
18.1 Landlord's Consent Required. Tenant will not, and does not have the
right or power to, voluntarily, involuntarily or by operation of any Laws, sell,
convey, mortgage, subject to a security interest, license, assign, sublet or
otherwise transfer or encumber all or any part of Tenant's interest in this
Lease or the Premises, or allow anyone other than Tenant's employees (or
employees of Tenant's current or future joint venturers or development partners
who are temporarily working on joint projects with Tenant and who will not, in
the aggregate, occupy more than 25,000 square feet of space in the Building) to
occupy the Building or the Premises (singularly or collectively, "Transfer"),
without in each instance first obtaining Landlord's prior written consent
(unless Landlord's consent specifically is not required per Section 18.5(c)) and
complying with this Article and any attempt to do so without this consent (which
may be withheld arbitrarily unless otherwise specifically set forth in this
Article) and compliance will be null and void and a default, unless otherwise
specifically elected by Landlord in writing.
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18.2 Notice. Tenant will notify Landlord in writing at least thirty (30)
days before any proposed or pending Transfer (or as soon as reasonably possible
in the case of the Transfer pursuant to Section 18.5 (c) if thirty (30)-day
advance notice is not possible, but in any case before such a Transfer) and will
deliver to Landlord such information as Landlord may reasonably request in
connection with the proposed or pending Transfer and the proposed Transferee,
including, without limitation, a copy of the final executed Transfer documents,
current financial statements prepared or reviewed by an independent certified
public accountant, a current Dun & Bradstreet report (if available) and other
reasonably available financial information about and banking references for the
proposed Transferee, and information as to the type of business and business
history of the proposed Transferee. All of this information must be certified as
true and correct by a senior, responsible officer of the party providing the
information. The financial information received by Landlord from the Transferee
will be treated as confidential information, unless the information is otherwise
publicly available or is obtained by Landlord from other sources, and in any
event Landlord may disclose it to Landlord's lenders, attorneys, accountants,
prospective purchasers and their agents, to be treated by them as confidential
to the same extent as by Landlord.
18.3 Reasonable Consent. Landlord will not unreasonably withhold or delay
its consent to an assignment or sublease by Tenant, but Landlord may withhold
its consent to any other Transfer (including, without limitation, any
hypothecation or assignment for security purposes) arbitrarily and in its sole
discretion. Tenant agrees that Landlord's withholding of consent to a proposed
sublease or assignment will be deemed reasonable if Tenant is in default or any
of the other material terms and conditions of this Article have not been
complied with, or if any of the following conditions are not satisfied: (a) the
subtenant or assignee will use the Building and the Premises only for the uses
permitted in Section 1.1(h) and otherwise in accordance with this Lease, and the
business and reputation of the subtenant or assignee are reasonably acceptable
to Landlord and Landlord's Mortgagees (and Landlord's Mortgagees will not
unreasonably withhold or delay their consent); (b) the subtenant or assignee is
reputable and creditworthy and has the independent financial ability to perform
its obligations under its assignment or sublease without undue financial burden
in Landlord's reasonable judgment (which reasonable judgment shall be deemed
satisfied if the subtenant or assignee has a net worth, credit rating and
financial capability at least equal to Tenant's when Tenant executed this
Lease), and it is not then subject to any bankruptcy or reorganization plan,
proceeding or order, and no receiver is managing its affairs or assets; and (c)
there will be no more than an aggregate of six (6) subleases of the Premises at
any one time. These conditions are not exclusive and Landlord may consider other
factors deemed to be relevant in determining if Landlord should grant or
reasonably withhold its consent.
18.4 No Release of Tenant. Whether or not Landlord consents, no Transfer
will release or alter any of the Transferor's or Tenant's Liabilities hereunder,
including, without limitation, the joint and several obligations of the
Transferor and Tenant to pay rent and perform all of Tenant's other obligations
under this Lease, except that, provided that there is then no default by Tenant
under this Lease, but notwithstanding any other provisions of this Lease to the
contrary, an assignor will be released (a "Released Assignor") from further
obligations under this Lease as of the date that the following conditions are
satisfied:
(a) There is a valid assignment of this Lease by the assignor in
accordance with the terms of this Article to an assignee who has a net worth,
Moody's or Standard & Poor's credit rating and financial capability at least
equal to those possessed by PictureTel Corporation when PictureTel Corporation
executed this Lease or equal to those possessed by the assignor just prior to
the assignment (whichever are better), or the assignor validly assigns this
Lease to and merges into or consolidates with a Permitted Assignee and thereby
ceases to exist. PictureTel Corporation's, credit rating as of the date of its
execution of this Lease is deemed to be Baa2 (Moody's) and BBB (Standard &
Poor's).
(b) The assignee (including a Permitted Assignee) unconditionally
assumes in writing for Landlord's benefit this Lease and all of the assignor's
and Tenant's Liabilities including, without limitation, those that arose prior
to the assignment, and notwithstanding any other provision of this Lease, upon
such assignment and assumption the assignor shall have no further obligations
under this Lease and may cease its existence without any violation of any
provision of this Lease.
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The acceptance of rent by Landlord from any person other than Tenant is not a
waiver by Landlord. Consent to one Transfer will not be deemed to be consent to
any subsequent Transfer. If Tenant or any Transferee defaults under this Lease,
Landlord may proceed directly against the Transferee and/or against Tenant
and/or against the Transferor without proceeding or exhausting its remedies
against the other. After any assignment, or after sublease(s) aggregating more
than fifty percent (50%) of the area of the Building with an initial term
(including options) of at least seventy-five percent (75%) of the remaining term
of this Lease at the time of such Transfer, Landlord may consent in its
arbitrary discretion to subsequent Transfers of or amendments to this Lease
without notifying Tenant or any other person, without obtaining consent thereto,
and without relieving Tenant or a Transferor of its Liabilities under this Lease
(as it may be amended), provided that unless Tenant or a Transferor consents in
writing, Tenant or such Transferor (as applicable), will not become liable by
reason of any such Transfer or amendment to the extent of any increase in
Tenant's or such Transferor's (as applicable) aggregate obligations and
liabilities under this Lease as set forth in such Transfer or amendments, or for
increases in the scope of any indemnities owed to Landlord (e.g., an additional
act or omission requiring indemnification, as opposed to an increase in the
potential liability under an existing indemnity), or for any increase in the
Lease term, except for: (a) Extension Options exercised pursuant to and in
accordance with Addendum #2 hereto or otherwise agreed to by Tenant or
Transferor (as applicable); or (b) other extensions agreed to by a Transferee,
in each case if such other extension is permitted in accordance with the terms
of a written agreement between Tenant or the transferor and such Transferee,
provided that within thirty (30) days after such extension has been entered into
Tenant receives notice, or in fact otherwise becomes aware, that such extension
has been entered into. Subject to the following, but notwithstanding anything
else to the contrary, Tenant and a Transferor will not be relieved of any
Liabilities under this Lease if and to the extent that Landlord grants or
consents to any waivers under this Lease to or for the benefit of any Transferee
(but if, prior to a breach by Tenant or any Transferee, Landlord waives in
writing the performance by the Transferee of any obligation that Tenant
otherwise would be required to perform under this Lease, that waiver also shall
apply with respect to Tenant [or such Transferor, as applicable]). Landlord's
waivers with respect to a Transferee will not affect the rights (if any) of
Tenant or the Transferor (as applicable) against the Transferee for any breach
of this Lease or any assignment, sublease or other agreement (as applicable) by
the Transferee. However, all of such rights against the Transferee will be
subject and subordinate to Landlord's rights under this Lease against the
Transferee in the event of a default under this Lease.
18.5 Additional Terms.
(a) Tenant will pay Landlord's reasonable attorneys' fees and
other costs in connection with any request for Landlord's consent to a Transfer.
This Article is binding on and will apply to every Transferee, at every level.
The surrender of this Lease or its termination will not be a merger, but
Landlord will have the right in its arbitrary discretion to terminate all
subleases and the occupancy rights of all Transferees. Tenant will pay to
Landlord as additional rent: all consideration paid or payable for or by reason
of any assignment of this Lease (other than an assignment to a Permitted
Assignee), and in the case of a sublease, the amount by which the sublease rent
and other consideration paid or payable exceeds the base rent, Taxes and
Operating Costs payable by Tenant under this Lease for the sublease term
(prorated if the area subleased is less than the entire area of the Building),
in each case after Tenant first recovers its bona fide, reasonable out-of-pocket
costs paid to third parties unaffiliated with Tenant or the subtenant or
assignee to obtain the subtenant or assignee (including without limitation,
attorneys fees, brokerage commissions, new tenant improvements made solely for
the subtenant or assignee), and Tenant recovers any free rent granted. At
Landlord's option, Landlord may collect all or any part of this additional rent
directly from the payor. Tenant will promptly deliver to Landlord copies of all
executed transfer documents, all collateral agreements and all later amendment.
(b) An assignee will be deemed to have assumed all of Tenant's
Liabilities under this lease and will be deemed to be bound by this Lease, and
Tenant and the assignee will indemnify Landlord and hold it harmless from all
Liabilities in connection with the assignment, although this indemnity will not
affect any liability that Landlord owes to Tenant or others if and to the extent
specifically set forth in the terms of this Lease, and it is also understood
that Tenant's and any assignee's Liabilities and indemnities relating to the use
and occupancy of the Premises will remain as set forth in this Lease and any
amendments thereto. To confirm the foregoing, a prospective
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assignee will be required to execute and deliver to Landlord an unconditional
written assumption of Tenant's Liabilities under this Lease and the indemnity
described above. Tenant and the assignee will be deemed to be jointly and
severally liable for all Liabilities of the Tenant under this Lease. A sublease
will be deemed to be subject and subordinate to this Lease in all respects;
Tenant and the subtenant will indemnify Landlord and hold it harmless from all
Liabilities in connection with the sublease (although this indemnity will not
affect any liability that Landlord owes to Tenant or others if and to the extent
specifically set forth in the terms of this Lease, and it is understood that
Tenant's Liabilities and indemnities relating to the use and occupancy of the
Premises remain as set forth in this Lease and any amendments thereto); the
subtenant will acquire no rights or claims against Landlord or its Affiliates;
if this Lease is terminated or Landlord rightfully reenters or repossesses the
Premises, Landlord may terminate the sublease, or at its option, become the
sublessor under the sublease and the subtenant will attorn to Landlord, but
Landlord will not be liable for Tenant's acts or omissions, subject to any
existing defenses or offsets against Tenant or bound by any amendment to the
sublease made without Landlord's prior written consent. Sublessees will not have
the right or power to make further Transfers, and any attempt to do so will be
null and void and a default unless otherwise specifically elected by Landlord in
writing. Tenant will make each prospective Transferee aware of the terms of this
Article and will deliver to each prospective Transferee a true and correct copy
of this Lease prior to any Transfer. Each document of assignment, sublease or
other Transfer, at every level, must include or explicitly incorporate the terms
of this Article. Landlord may require confirming and/or additional assurances
and agreements for its protection from Tenant and the assignee or subtenant,
each of whom agrees to give such assurances and execute such agreements, in each
case consistent with the terms of this Lease. Notwithstanding anything to the
contrary, except for a valid assignment or sublease to a Permitted Assignee or a
Permitted Sublessee, respectively, Tenant will not, and will not have the right
or power to, assign or convey to, or sublease or otherwise Transfer more than
20,000 square feet in the Building to, any then-current tenant that leases more
than 20,000 square feet in any project which lies within the "Project Area" as
depicted in Exhibit "K" hereto, and of which, at such time, Landlord or any of
its Control Affiliates is the owner, or a general partner in the Owner, or a
shareholder (in a closely held corporation) of at least forty percent (40%) of
the issued and outstanding voting shares of the owner or a general partner in
the owner, and Landlord may arbitrarily withhold its consent to such a Transfer.
(c) If Tenant is a corporation, the Transfer, directly or
indirectly, by one or more transactions of more than forty percent (40%) of
Tenant's capital stock (but if Tenant is a public corporation whose stock is
regularly traded on a national stock exchange or in the over-the-counter market
and quoted on NASDAQ, stock purchases in the ordinary course of business on the
open market will not be deemed to be Transfers of stock for purposes of this
Subsection (c)), or any dissolution, merger, consolidation or other
reorganization of Tenant, or if Tenant becomes a subsidiary or division of
another entity, or the Transfer of substantially all of Tenant's assets, will be
deemed to be an assignment of this Lease. Notwithstanding anything to the
contrary herein contained, an assignment or sublease by Tenant to an entity that
is controlled by, controls or is under common control with Tenant, or to an
entity resulting from a merger, consolidation or reorganization with Tenant, or
to a purchaser of substantially all of the assets or shares of Tenant, will be
deemed to be a permitted assignment or sublease, as applicable, that does not
require Landlord's or Landlord's Mortgagees' consent provided that the rest of
this Article is complied with, the Transferee (if an assignee) unconditionally
assumes this Lease and all of Tenant's Liabilities (including, without
limitation, those arising before the assignment) in writing, and the Transferee
has a net worth, Moody's or Standard & Poor's credit rating, and financial
capability at least equal to PictureTel Corporation's when PictureTel
Corporation executed this Lease, as set forth in Section 18.4(a) (and such
Transferee will be a "Permitted Assignee" or a "Permitted Sublessee," as
applicable). As a material inducement to Landlord, Tenant agrees that it will
make each potential Transferee contemplated by this clause (including any
potential purchasers or candidates for merger, consolidation or reorganization)
aware of this clause and the rest of this Lease, deliver a copy of this clause
and the rest of this Lease to such party prior to entering into such an
agreement with such party and make the written assumption described herein and
the compliance with this Article a condition to the effectiveness of such an
agreement.
(d) An assignee pursuant to a valid assignment and assumption of
this Lease in accordance with the terms of this Article shall be regarded as the
Tenant under this Lease with all
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of the rights and Liabilities of the Tenant, except as otherwise specifically
provided in this Lease, but this shall not affect the assignor's continuing
liability under this Lease as set forth in Section 18.4.
19. MORTGAGEE PROTECTION; UNPERMITTED FINANCING; LANDLORD'S LOAN DEFAULTS.
19.1 Subordination and Attornment. This Lease is subordinate to all
Superior Leases and Mortgages (defined in Section 24.4), and Tenant will attorn
to each person or entity that succeeds to Landlord's interest under this Lease,
provided that such person or entity agrees in writing not to disturb Tenant's
rights under this Lease as long as Tenant is not in default. This Section is
self-operative, but if requested to confirm a subordination and/or attornment or
non-disturbance, Tenant will execute subordination and/or attornment and/or
non-disturbance agreements furnished by Landlord or Landlord's lessor or
mortgagee under any of the Superior Leases and Mortgages (a "Landlord's
Mortgagee") within twenty (20) days after request and provided that such
agreements: materially substantively conform to typical institutional forms of
agreements then in use and do not result in a material adverse change in any of
the material terms of this Lease, and provided that any such subordination
agreements shall provide that the lender shall agree to concurrently deliver to
Tenant any notices of Landlord's default delivered to Landlord and to accept
from Tenant a cure of such defaults (if and to the extent that such defaults are
curable by Tenant) within the cure periods for such defaults granted to Landlord
under such loans; or materially substantively conform to one or more of the
forms attached as Exhibit "J" hereto. However, if Landlord or Landlord's
Mortgagee elects in writing, this Lease will be superior to the Superior Leases
and Mortgages specified, regardless of the date of recording, and Tenant will
execute an agreement confirming this election on request.
19.2 Mortgagee's Liability. The obligations and Liabilities of Landlord,
Landlord's Mortgagees or their successors under this Lease will exist only if
and for so long as each of these respective parties owns fee title to the
Premises or is the lessee under a ground lease of the Premises. Tenant will be
liable to Landlord's Mortgagees or their successors if any of those parties
become the owner of the Premises for any payment of base rent made more than
thirty (30) days in advance of the due date for such payment as set forth in
this Lease. Landlord's Mortgagees and their successors will not be liable for:
(a) acts or omissions of prior owners; (b) the return of any security deposit
not delivered to them; or (c) amendments to this Lease made without their
consent (if their consent is required under a Superior Lease or Mortgage).
19.3 Mortgagee's Right to Cure. No act or omission (if any) which
otherwise entitles Tenant under the terms of this Lease or by any Laws to be
released from any Lease obligations or to terminate this Lease will result in
such a release or termination unless Tenant first gives written notice of the
act or omission to Landlord and Landlord's Mortgagees and those parties then
fail to correct or cure the act or omission within a reasonable time thereafter
(which will not be less than sixty [60] days and which, in any case, will be
long enough to allow the Landlord's Mortgagees sufficient time within which to
complete such a correction or cure in a commercially reasonable and diligent
manner). Nothing in this Section or the rest of this Lease obligates Landlord's
Mortgagees to correct or cure any act or omission or is meant to imply that
Tenant has the right to terminate this Lease or be released from its obligations
except as may otherwise be permitted in this Lease (although if Landlord or
Landlord's Mortgagees fail to cure as set forth above, then nothing in this
clause shall prevent Tenant from exercising any of its rights and remedies as
specifically set forth in this Lease). Landlord will (and upon Tenant's written
request shall), and/or Landlord's Mortgagees may, give notice to Tenant in
writing of the identity of any mortgagee of the Premises and Tenant may rely on
such notice(s) in complying with this Article.
19.4 Unpermitted Financing. So long as Tenant is not in default and is
entitled to continue to receive a share of Net Proceeds in accordance with
Addendum #3 and/or to exercise a Purchase Option in accordance with Addendum #4,
Landlord agrees not to use the Premises or any portion thereof to secure any
indebtedness other than:
(a) The initial acquisition, construction/development, and/or
permanent financing in connection with the Premises and any additional advances
thereunder and any extensions,
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renewals, consolidations, replacements or modifications thereof, so long as the
proceeds thereof are used for the purposes set forth in Subsection (b) below; or
(b) Financing, the proceeds of which are: used to repay all or
part of the financing described in Subsection (a) above; or used to benefit the
Premises or pay any Liabilities in connection therewith or as required under
this Lease; or are included in Cash Proceeds; or used to pay for any development
fees, management fees or fees in lieu thereof payable to Landlord or its
Affiliates pursuant to this Lease or in connection with Landlord's Work or in
connection with the construction of any additional buildings on the Premises or
the enlargement of or other modification of the Building or the rest of the
Premises.
Secured financing that is prohibited pursuant to this Section 19.4 is called the
"Unpermitted Financing."
19.5 Landlord's Loan Defaults. If either:
(a) Landlord defaults under any loans the lender of which is the
beneficiary under the Letter of Credit, and as a result of Landlord's default
such lender/beneficiary draws under the Letter of Credit (not including any
draws of the type described in Sections 24.17(b) or (e)), and Landlord's default
did not arise as a result of Tenant's breach of its obligations under this Lease
(e.g., Tenant's failure to pay rent in full when due hereunder) and at the time
of Landlord's default Tenant is not in default under this Lease; or
(b) Landlord defaults under any mortgage loan secured by the
Premises or any portion thereof and the Letter of Credit is not drawn as a
result thereof, and Landlord's default did not arise as a result of Tenant's
breach of its obligations under this Lease and at the time of Landlord's default
Tenant is not in default under this Lease (e.g., Tenant's failure to pay rent in
full when due hereunder), and Tenant exercises its rights to cure Landlord's
default; or
(c) The beneficiary of the Letter of Credit draws under the Letter
of Credit and such draws are deemed to be LC Advances under Section 24.17(f);
THEN, if and to the extent that Landlord does not reimburse Tenant for the
amounts drawn under the Letter of Credit as set forth in Subsection (a) above
and/or the amounts paid by Tenant to the mortgagee to cure Landlord's default as
set forth in Subsection (b) above and/or pay to Tenant as and when required
amounts due under the LC Note (including for purposes of this Section only
amounts, if any, that remain due under the LC Note after funds from a permanent
loan have been received by Landlord and used to prepay Tenant as provided under
the LC Note) as described in Section 24.17(f) (collectively, the "Cure
Payments"), notwithstanding anything to the contrary in this Lease: (i) as
described in Section 3 of Addendum #3, Net Proceeds first will be distributed to
Tenant to repay the unrepaid Cure Payments; and (ii) if there are any unrepaid
Cure Payments as of the date that the loan secured by the Letter of Credit and
the mortgage loan and any refinancing thereof are fully paid, Tenant may offset
against base rent an amount equal to the difference between the monthly base
rent due from Tenant, less the monthly debt service (multiplied by 1.2) due to
any then-existing Landlord's Mortgagees, until the Cure Payments have been
repaid in full. For purposes of this Section, Landlord's default under the
applicable loan(s) shall be deemed to be a breach of Landlord's obligations
under the applicable loan(s) which is not cured within applicable notice and
cure periods under such loans. Such loans shall provide that: (A) the lender(s)
shall deliver notices of such defaults to Tenant concurrently with delivery to
Landlord; and (B) that the lender(s) will accept a cure of such defaults by
Tenant (if and to the extent that such defaults are curable by Tenant) within
the cure periods for such defaults granted to Landlord under such loans.
20. ESTOPPEL CERTIFICATES; FINANCIAL STATEMENTS.
(a) Tenant will from time to time, within twenty (20) days after
written request by Landlord (which request will be made in accordance with
Section 24.16), execute and deliver an estoppel certificate in form satisfactory
to Landlord or its designees which will certify (except as may be truthfully and
accurately noted to the contrary by Tenant therein) such information that is
available to Tenant concerning this Lease or Tenant or its Affiliates as
Landlord or its designees may
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request. Tenant understands that Landlord's timely receipt of these Estoppel
certificates may be critical and Tenant agrees that if it fails to execute and
deliver estoppel certificates as required, Landlord's good faith representations
concerning the matters covered by the estoppel certificate will conclusively be
presumed to be correct and binding on Tenant and its Affiliates.
(b) Within ninety (90) days after the end of each fiscal year of
Tenant that falls within the term of this Lease, Tenant will prepare and/or
obtain, at no cost or expense to Landlord, annual audited financial statements
for Tenant and any assignee of this Lease and any sublessee of more than 30,000
square feet in the Building (including, without limitation, a balance sheet,
income statement and statement of sources and uses of funds) prepared in
accordance with generally accepted accounting principles and signed by an
independent certified public accountant (the "Financial Statements"). Within ten
(10) days after Landlord's written request from time to time, Tenant shall
deliver to Landlord (and if requested, to Landlord's Mortgagees) copies of the
most recent annual and quarterly Financial Statements, whether or not audited
(provided, however, that for so long as Tenant and/or the assignee and/or the
sublessee is a public company, such public company shall not be required to
release its Financial Statements to Landlord or Landlord's Mortgagees until it
releases them or is permitted to release them to the public, whichever is
earlier).
21. DEFAULT.
The occurrence of one or more of the following events will be a default by
Tenant under this Lease: (a) [INTENTIONALLY OMITTED]; (b) the failure to pay
rent or any other required amount within ten (10) days after written notice that
the payment is due, but even if Tenant has not paid in full within the first ten
(10)-day period, Tenant will not be in default unless it fails to pay in full
within ten (10) days after an additional written notice that payment is due
(except that no such additional notice will be required if Tenant has failed to
pay rent when due more than twice in any twelve (12)-month period); (c) as
provided in Articles 23 and 25; (d) a Transfer or attempted Transfer in
violation of Article 18; (e) the failure to maintain its required insurance
policies (unless such insurance policies are not generally offered by
responsible insurance companies, in which case Tenant must maintain the closest
form of policy then generally offered by responsible insurance companies, and in
which case Landlord's insurance obligations will be similarly modified); or (f)
the failure to observe or perform any other obligation, term or condition within
the time period specified in this Lease and if such failure continues for an
additional five (5) days after the expiration of such prior period and the
delivery of a subsequent written notice; if no time period is specified, it will
be a default if this failure continues for thirty (30) days after written notice
from Landlord to Tenant, but if more than thirty (30) days are reasonably
required to cure, Tenant will not be in default if Tenant promptly begins to
cure within the thirty (30)-day period and then diligently completes the cure as
soon as possible but within seventy-five (75) days after the notice of default
is given, or such longer period as may be otherwise permitted in this Lease.
22. REMEDIES FOR DEFAULT.
22.1 General. If Tenant defaults, Landlord may at any time thereafter,
with or without notice or demand, do any or all of the following in its
arbitrary discretion: (a) give Tenant written notice stating that the Lease is
terminated, effective on the giving of notice or on a date stated in the notice,
as Landlord may elect, in which event this Lease will terminate without further
action; (b) in any manner permitted by law or this lease, and with or without
notice, and with or without terminating this Lease, terminate Tenant's right of
possession and enter and repossess the Premises, and expel Tenant and Tenant's
Affiliates, and remove their property and effects, without being guilty of
trespass; and (c) pursue any other right or remedy now or hereafter available to
Landlord under this Lease or at law or in equity.
22.2 Tenant's Obligations. If Tenant defaults:
(a) All rent due at the time of the default will be paid immediately
and Tenant also will pay such costs as Landlord may incur for attorneys' fees
and reasonable costs, inspection fees, brokerage fees, putting the Premises in
good order, condition and repair (fire and casualty excepted), but not including
costs to improve the Premises for a new tenant, and, in addition, Tenant
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specifically agrees to pay an amount equal to the amount (if any) set forth in
Exhibit "H" hereto applicable to the month in which the default occurs (the
"Unamortized Costs").
(b) Landlord may, at its sole option and in its arbitrary
discretion, re-let all or any portion of the Premises on terms satisfactory to
Landlord in its arbitrary discretion, either in its own name or otherwise, for a
term or terms which may, at Landlord's option, be more or less than the balance
of the term of this Lease and pursuant to one or more leases, and Landlord may
grant concessions, tenant allowances and/or free rent, among other things.
(c) Unless and until Landlord elects to accelerate the rent due
pursuant to Section 22.2(e) and Tenant pays all the amounts due thereunder,
whether or not the Premises are re-let, Tenant will pay punctually to Landlord
all of the rent and other sums and perform all of Tenant's obligations for the
entire Lease term (assuming the original expiration date, as extended) in the
same manner and at the same time as if this Lease had not been terminated.
(d) If Landlord re-lets the Premises, the date that the new tenant
begins to pay base rent to Landlord will be referred to as the "New Rent Payment
Date." Subject to the rest of this Subsection, Tenant will be entitled to a
credit (the "Credit") against the amounts owed by Tenant in an amount equal to:
(a) the total rent stream payable by the new tenant to Landlord only for the
period starting on the New Rent Payment Date and ending on the original
expiration date of this Lease, as it may have been extended by Tenant prior to
the default (and if the amounts owed by Tenant to Landlord have been accelerated
pursuant to Subsection (e) below, then the total rent stream owed by the new
tenant will be discounted to the date of such acceleration or the New Rent
Payment Date, whichever is later, at the prime rate then charged by the Bank of
Boston on such date); less (b) the costs and expenses incurred by Landlord to
relet the Premises to such new Tenant (including, without limitation, marketing
fees, brokerage fees, legal fees and the costs to repair and improve the
Premises for such new tenant). The Credit to be received by Tenant will never
exceed the amounts actually owed by Tenant to Landlord and Landlord will not be
required to pay any amounts to Tenant by reason of the Credit. Neither the
Credit nor any other credit will be given to Tenant for any rent received or
projected to be received from any reletting for any period after the original
expiration date of this Lease, as it may have been extended by Tenant prior to
the default.
(e) At Landlord's option, Landlord may, by written notice to Tenant
at any time after Tenant's default, elect to recover, and Tenant will thereupon
pay, as liquidated damages, an amount equal to the total rent stream which would
have accrued to Landlord under this Lease for the remainder of the Lease term as
accelerated (assuming the original expiration date, as extended) if the default
had not occurred, discounted to the date of Landlord's election at the then
prime rate charged by the Bank of Boston (or its successor), plus all of the
unpaid expenses described in Sections 22.2(a) (except for the Unamortized Costs)
and 22.2(f).
(f) No action of Landlord in connection with any re-letting, or
failure to re-let or collect rent under such re-letting, will operate or be
construed to release or reduce Tenant's Liabilities hereunder. Without limiting
any of the foregoing provisions, and in addition to any other amounts that
Tenant is otherwise obligated to pay, Tenant agrees that Landlord may recover
from Tenant all costs and expenses, including reasonable attorneys' fees and
costs, incurred by Landlord in enforcing this Lease from and after Tenant's
default.
(g) Any amount drawn under the Letter of Credit pursuant to Section
24.17(c) or any amount of the cash security deposit applied by Landlord pursuant
to Section 24.17(c) shall be credited against amounts owed by Tenant to Landlord
under this Section 22.2, whether for base rent, additional rent, Unamortized
Costs or liquidated damages, but among them as specified by Landlord.
22.3 Redemption. Tenant waives any and all rights of redemption granted by
or under any Laws if Tenant is evicted or dispossessed for any default by
Tenant, or if Landlord obtains possession of the Premises by reason of any
default by Tenant.
22.4 Performance by Landlord. If Tenant fails to perform any of its
obligations under this Lease, Landlord, without waiving or curing the default or
failure, may, but will not be obligated to, perform Tenant's obligations for the
account and at the expense of Tenant. Landlord will attempt
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to provide Tenant with oral or written notice before performing Tenant's
obligations, but if Landlord believes that such actions are necessary due to an
emergency or to prevent damage or injury or protect health, safety or property,
Landlord need not give notice before performing Tenant's obligations. Tenant
will pay on demand all reasonable costs and expenses incurred by Landlord in
connection with Landlord's performance of Tenant's obligations.
22.5 Post-Judgment Interest. The amount of any judgment obtained by
Landlord against Tenant in any legal proceeding arising out of Tenant's default
under this Lease will bear interest until paid at the Bank of Boston's (or its
successor's) prime rate plus three percent (3%), or the maximum rate permitted
by law, whichever is less. Notwithstanding anything to the contrary contained in
any Laws, with respect to any damages that are certain or ascertainable by
calculation, interest will accrue from the day that the right to the damages
vests in Landlord, and in the case of any unliquidated claim, interest will
accrue from the day the claim arose.
23. BANKRUPTCY PROVISIONS [SEE EXHIBIT "F"].
24. GENERAL PROVISIONS.
24.1 Holding Over. Tenant will not hold over in the Premises after the end
of the Lease term without the express prior written consent of Landlord, which
may be withheld arbitrarily. However, provided that Tenant is not in default,
Tenant may extend the Lease Term on the same terms and conditions provided that
Tenant delivers an unconditional extension notice to Landlord at least six (6)
months before the end of the term (or any extensions thereof) and specifies in
that notice the length of extension period, which cannot be more than three (3)
months. If Tenant validly exercises this extension right, the term will be
deemed extended for the period specified in Tenant's notice (but not for more
than three (3) months), and such extension will be part of the Lease term and
will not be considered a holding over by Tenant, but there will be no further
extension rights. This extension right is applicable only at the end of the
Lease term, as extended. Landlord will diligently attempt to include in its
lease with any succeeding or prospective tenant provisions disclaiming liability
for consequential damages (i.e., damages for lost business or revenue, as
opposed to actual damages or penalties) to any such tenant, and/or provisions
limiting such succeeding or prospective tenant's remedies solely to the
termination of the Lease, as a result of Landlord's failure to substantially
complete and deliver space to such tenant as required, but Tenant will indemnify
Landlord for, and hold Landlord harmless from, any and all Liabilities arising
out of or in connection with any holding over, including, without limitation,
any claims made by any succeeding or prospective tenant and any loss of rent
suffered by Landlord. If, despite this express agreement, any tenancy is created
by Tenant's holding over, except as specifically set forth in the next sentence,
the tenancy will be a tenancy at sufferance terminable immediately at Landlord's
sole option on written notice to Tenant, but otherwise subject to the terms of
this Lease, except that the most recent annual base rent will be doubled (except
as specifically set forth in Section 16.4). Nothing in this Article or elsewhere
in this Lease permits Tenant to hold over or in any way limits Landlord's other
rights and remedies if Tenant holds over (except as specifically set forth in
16.4).
24.2 Entry By Landlord. Landlord and its designated representatives at all
times shall have the right to enter the Premises, and Landlord will retain (or
be given by Tenant) keys to unlock all the doors to or within the Building,
excluding doors to Tenant's vaults and files. Landlord in good faith will
attempt to give Tenant reasonable advance (which will not require more than
twenty-four (24) hours prior) written notice to Tenant or to a responsible
officer of Tenant or Tenant's designated facilities manager, or oral notice to a
responsible officer of Tenant or Tenant's designated facilities manager, prior
to entering the Building and not to unreasonably disturb the conduct of Tenant's
business by such entry, but Landlord need not give prior notice and will have
the right to use any means necessary to enter the Building if Landlord believes
there is an emergency or that entry is necessary to prevent damage or injury or
protect health, safety or property. Entry to the Premises or the Building and
the exercise of Landlord's rights in accordance with this Lease will not, under
any circumstances, be deemed to be a default, a forcible or unlawful entry into
or a detainer of the Premises or the Building or an eviction of Tenant from the
Premises or the Building or any portion thereof, nor will it subject Landlord to
any Liabilities or entitle Tenant to any compensation, abatement of rent or
other rights and remedies.
24.3 Brokers. Tenant represents and warrants that it has had no dealings
with any agent, broker, finder or other person who is or might be entitled to a
commission or other fee from Landlord
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in connection with this or any related transaction, except for Tenant's Broker.
Landlord will incur Liabilities for brokerage commissions or other compensation
to Tenant's Broker only pursuant to a written agreement (if any) executed and
delivered by Landlord and Tenant's Broker.
24.4 Quiet Enjoyment. So long as Tenant pays all rent and pays and
performs its other Liabilities as and when required, Tenant may quietly enjoy
the Premises without hindrance or molestation by Landlord or any person lawfully
claiming through or under Landlord, subject to the terms of this Lease and the
terms of any Superior Leases and Mortgages and other agreements or matters of
record or to which this Lease is subordinate. As used in this Lease, the term
"Superior Leases and Mortgages" means all present and future ground leases,
underlying leases, mortgages, deeds of trust or other encumbrances, and the
documents and agreements in connection therewith, and all renewals,
modifications, consolidations, replacements or extensions thereof and advances
made thereunder, affecting all or any portion of the Premises, but not including
any of the same securing or relating to an Unpermitted Financing.
24.5 Security. Tenant is solely responsible for providing security for the
Premises and Tenant's personnel within the Premises. Without limiting the
generality of this Section, Tenant agrees that: (a) Landlord may, but will not
be required to, supply security personnel and systems for the Building or the
Premises or Tenant's personnel, and remove or restrain unauthorized persons and
prevent unauthorized acts; (b) Landlord will incur no Liabilities for failing to
provide security personnel or systems or, if provided, for acts, omissions or
malfunctions of the security personnel or systems (although this is not meant to
imply that Tenant will have liability therefor or be required to indemnify
Landlord therefor, unless Tenant is otherwise liable therefor or required to
indemnify Landlord therefor pursuant to the other terms of this Lease); and (c)
Landlord and its Affiliates make no representations or warranties of any kind in
connection with the security or safety of the Premises or the Building. Subject
to the terms and conditions in this Lease, Tenant will have the right to install
a security system for the Building at Tenant's sole cost and expense. Tenant
will keep Landlord fully apprised and give to Landlord's designated
representatives the means necessary to bypass the security system and enter the
Building in the event of an emergency.
24.6 Obligations; Successors; Recordation. If Tenant consists of more than
one person or entity, the obligations and liabilities of those persons or
entities are joint and several. Time is of the essence of this Lease. Subject to
the restrictions in Article 18 or elsewhere in this Lease, this Lease inures to
the benefit of and binds Landlord, Tenant and their respective successors and
assigns and anyone who acquires an interest in this Lease, or in the case of
Landlord anyone who acquires title to the Premises. Tenant will not record this
Lease, but each party agrees on the written request of the other, to execute a
notice of lease in recordable form and in customary form reasonably satisfactory
to Landlord's attorney.
24.7 Late Charges. If any rent or other amounts payable by Tenant are not
received within five (5) days after the due date more than twice in any calendar
year, Tenant will pay to Landlord on demand a late charge equal to five percent
(5%) of the overdue amount, and if not received within ten (10) days after the
due date, the amounts also will bear interest from the due date until paid at
the interest rate in Section 22.5. Notwithstanding the previous sentence, for
the first and second times in any calendar year that any rent or other amounts
payable by Tenant are not received within five (5) days after the due date, if
Landlord accordingly incurs late charges from one or more of its lenders, then
Tenant shall pay such late charges up to a maximum of five percent (5%) of the
amount overdue from Tenant. Collection of these late charges and interest will
not: be a waiver or cure of Tenant's default or failure to perform; be deemed to
be liquidated damages, an invalid penalty or an election of remedies; or prevent
Landlord from exercising any other rights and remedies.
24.8 Accord and Satisfaction. Payment by Tenant or acceptance by Landlord
of less than the full amount of rent due is not a waiver (unless such acceptance
is accompanied by a written waiver signed by Landlord specifying that such
acceptance is a waiver and specifying the amount being waived), but will be
deemed to be on account of amounts next due, and no endorsements or statements
on any check or any letter accompanying any check or payment will be deemed an
accord and satisfaction or binding on Landlord. Landlord may accept the check or
payment without prejudice to any of Landlord's rights and remedies, including,
without limitation, the right to recover the full amount due.
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24.9 Prior Agreements; Amendments; Waiver. This Lease is an integrated
document and contains all of the agreements of the parties with respect to any
matter covered or mentioned in this Lease, and supersedes all prior agreements
or understandings.
This Lease may not be amended except by an agreement in writing signed by
Landlord and Tenant. All waivers must be in writing, specify the act or omission
waived and be signed by the party charged with the waiver. No other alleged
waivers will be effective, including, without limitation, Landlord's acceptance
of rent (except as specifically provided otherwise in Section 24.8), collection
of a late charge or application of a security deposit. Landlord's waiver of any
specific act, omission, term or condition will not be a waiver of any other or
subsequent act, omission, term or condition.
24.10 Representations; Inability to Perform. Except as may be specifically
set forth as representations and warranties in this Lease, Landlord and its
Affiliates have not made, and Tenant is not relying on, any representations or
warranties of any kind, express or implied, with respect to the Premises or this
transaction. Landlord will not be in default nor incur any Liabilities if it
does not fulfill any of its obligations, or is delayed in doing so, because of
accidents, breakage, strike, labor troubles, war, sabotage, governmental
regulations or controls, inability to obtain materials or services, acts of God,
or any other cause, whether similar or dissimilar, beyond Landlord's reasonable
control, but will not be deemed to limit in any way Landlord's repair and
maintenance obligations under Section 12.1 or its repair and/or restoration
obligations under Articles 16 and 17, except to the extent that such repair,
maintenance or restoration activities are affected by such events or causes.
24.11 Legal Proceedings. In any action or proceeding involving or relating
in any way to this Lease, the court or other person or entity having
jurisdiction in such action or proceeding will award to the party in whose favor
judgment is entered the actual attorneys' fees and costs incurred. Subject to
Article 14, Tenant also will indemnify Landlord for, and hold Landlord harmless
from and against, all Liabilities incurred by Landlord if Landlord becomes or is
made a party to any proceeding or action: (a) brought against any person or
entity (other than a permitted Assignee under Section 18.5(c) or any assignee
pursuant to an assignment that caused the assignor to become a Released
Assignor) holding any interest under this Lease or using the Premises by license
of or agreement with Tenant (provided that Tenant's indemnity obligations in
this case will not exceed the indemnity obligations that Tenant would have had
under Article 14 if Tenant "stood in the shoes" of such other person or entity
and the action or proceeding was brought against Tenant); or (b) brought by any
person or entity (other than an assignee under a valid assignment of this Lease
if and to the same extent that Tenant would have had the right to bring such
action or proceeding against Landlord under the same circumstances) holding any
interest under this Lease or using the Premises by license of or agreement with
Tenant; or (c) necessary to protect Landlord's interest under this Lease in a
proceeding under the Bankruptcy Code or in connection with the matters described
or contemplated in Exhibit "F" hereto. Unless prohibited by law, Tenant waives
the right to trial by jury in all actions involving or related to this Lease,
the Premises or any collateral or subsequent agreements between the parties, and
any right to impose a counterclaim in any proceeding brought for possession of
the Premises as a result of Tenant's default (although this waiver of
counterclaim will not be deemed to prohibit Tenant from bringing any claims in a
separate non-consolidated action). Tenant also submits to and agrees not to
contest the sole and exclusive jurisdiction of the state and federal courts
located in Massachusetts to adjudicate all matters in connection with this Lease
or involving Landlord or Landlord's Affiliates in any way, and Tenant agrees
that it will bring all suits and actions only in such Massachusetts courts and
not to seek a change of venue. In any circumstance where a party is obligated to
indemnify or hold harmless the other party under this Lease, that obligation
also will include the obligation to protect the other party and defend it with
counsel acceptable to the other party or, at the other party's election, the
other party may employ its own counsel and the indemnifying party will pay when
due all attorneys' fees and costs. These obligations to indemnify, hold
harmless, protect and defend will survive the expiration or termination of this
Lease.
24.12 Ownership; Invalidity; Remedies; Choice of Law. As used in this
Lease, the term "Landlord" means only the current owner or owners of the fee
title to the Premises. Upon each conveyance (whether voluntary or involuntary)
of fee title, the conveying party will be relieved of all Liabilities and
obligations contained in or derived from this Lease or arising out of any act,
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occurrence or omission occurring after the date of such conveyance. Landlord may
Transfer all or any portion of its interests in this Lease or the Premises
without affecting Tenant's obligations and Liabilities under this Lease. Tenant
has no right, title or interest in the name of the Building or of the Premises,
and may use these names only to identify its location. Any provision of this
Lease which is invalid, void or illegal will not affect, impair or invalidate
any of the other provisions and the other provisions will remain in full force
and effect. Landlord's rights and remedies are cumulative and not exclusive.
This Lease is governed by the laws of Massachusetts applicable to transactions
to be performed wholly therein.
24.13 Triple Net Lease; Consent. The parties acknowledge and agree that
this is intended to be, to the fullest extent possible, a "triple net" lease,
and all costs and expenses in connection with the Premises in addition to the
base rent are intended to be paid or reimbursed by Tenant unless otherwise
stated in this Lease (but this shall not be deemed to affect Landlord's
obligations to pay portions of the Net Proceeds to Tenant to the extent set
forth in Addendum #3). Notwithstanding anything to the contrary, Landlord will
not be required under any circumstances to agree to any amendments,
modifications, waivers, increases or decreases in any of the terms of this Lease
or any of the rights and obligations of the parties hereunder, whether or not
such agreement would be reasonable under the circumstances. In any dispute
involving Landlord's withholding of consent or approval or its exercise of
judgement, the sole right and remedy of Tenant and its Affiliates is declaratory
relief (i.e., that such consent or approval should be granted), and Tenant and
its Affiliates waive all other rights and remedies, including, without
limitation, claims for damages.
24.14 Presumptions; Exhibits; Submission. This Lease will be construed
without regard to any presumption or other rule requiring construction or
interpretation for or against the party drafting the document. The titles to the
Articles and Sections of this Lease are not a part of this Lease and will have
no effect on its construction or interpretation. Whenever required by the
context of this Lease, the singular includes the plural and the plural includes
the singular, and the masculine, feminine and neuter genders each include the
others, and the word "person" includes individuals, corporations, partnerships
or other entities. All exhibits, addenda and riders attached to this Lease are
incorporated in this Lease by this reference. The submission of this Lease to
Tenant or its broker, agent or attorney for review or signature is not an offer
to Tenant to lease the Premises or the grant of an option to lease to Premises.
This Lease will not be binding unless and until it is executed and delivered by
both Landlord and Tenant.
24.15 Cooperation. If Landlord finds it necessary to enter the Building to
perform its obligations or exercise its rights under this Lease, Tenant will
cooperate reasonably with Landlord, and this cooperation will include moving
machinery, equipment or Alterations within the Building and allowing Landlord
sufficient space within the Premises to enable Landlord to perform any work that
Landlord has the right or is required to perform under this Lease.
24.16 Notices. Unless otherwise specifically stated in this Lease, all
notices, demands or communications required or permitted under this Lease (the
"Notices") will be in writing and personally delivered (by messenger or
recognized national overnight carrier), or sent by certified mail, return
receipt requested, postage prepaid. Notices to Tenant prior will be delivered to
the address for Tenant in Section 1.1 or to such other address as may be
specified by Tenant to Landlord in writing. Notices to Landlord will be
delivered to the addresses for Landlord in Section 1.1 or to such other address
as may be specified by Landlord to Tenant in writing. Notices will be effective
on the earlier of: delivery; or, if mailed, four (4) days after they are mailed
in accordance with this Section.
24.17 Letter of Credit.
(a) Upon the execution and delivery of this Lease, Tenant will
obtain and deliver to Landlord an irrevocable, unconditional standby letter of
credit in accordance with the terms and conditions of this Section (the "Letter
of Credit"). The Letter of Credit will be in the amount of $12.5 Million, will
be issued initially by Bank of Boston (or its successor) or Chemical Bank and
subsequently by any issuer that meets the criteria in Section 24.17(e), will
name Landlord (or, at Landlord's request from time to time, a current lender to
Landlord) as the beneficiary thereof and will
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have an initial term of at least one (1) year and, with renewals, an aggregate
term (as renewed) as set forth below. The terms of the Letter of Credit shall be
as set forth in this Section 24.17 and in form reasonably acceptable to the
beneficiary thereof. The beneficiary shall have the right to draw under the
Letter of Credit on one or more occasions from time to time during its term and
in accordance with the terms hereof simply upon presentation to the issuer of a
sight draft executed by the beneficiary or its authorized representative and
without further condition, and the issuer shall pay upon presentation of such
draft without deduction or offset of any type. The Letter of Credit shall be
assignable in whole but not in part, and at Landlord's request from time to
time, it shall be reissued in favor of a new beneficiary in accordance with the
terms of this Lease. Provided that Tenant is not in default and is entitled to
continue to receive a share of Net Proceeds in accordance with Addendum #3
and/or to exercise a Purchase Option in accordance with Addendum #4, Landlord
agrees not to request that any of its lenders be named as a beneficiary under
the Letter of Credit with respect to any Unpermitted Financing supplied by such
lenders.
(b) Each loan obtained from time to time by Landlord in compliance
with this Lease which is secured by the Letter of Credit (other than the initial
mortgage construction loan) sometimes is referred to as the "Letter of Credit
Loan." Until and unless the Letter of Credit is drawn upon, starting as of one
(1) year after the Commencement Date, and on each annual anniversary thereafter
(or, if the Letter of Credit Loan has not funded within one (1) year after the
Commencement Date, then starting as of fifteen (15) months and fifteen (15) days
after the Commencement Date, and on each annual anniversary thereafter), the
face amount of the Letter of Credit shall be reduced in an amount equal to the
annual principal reduction that would result from a direct reduction loan
amortization schedule, assuming an interest rate equal to the interest rate used
to calculate principal amortization under the Letter of Credit Loan (such
schedule to be provided or approved by the lender of the Letter of Credit Loan),
which will have the effect of reducing the Letter of Credit to zero over the
initial term of the Lease (as it may be extended pursuant to Section 4(b)) .
However, subject to the foregoing but notwithstanding anything else to the
contrary, even if the Letter of Credit has been drawn upon, if and to the extent
that those amounts are repaid to Tenant, Tenant shall thereupon cause the face
amount, and the amount that may again be drawn, under the Letter of Credit to be
increased by an amount equal to the amount so repaid. (For example, if $2
Million were to be drawn under the Letter of Credit pursuant to Section
24.17(f), and if that $2 Million were then repaid, the face amount and the
amount that could be drawn under the Letter of Credit again would be $12.5
Million.) Tenant shall cause the Letter of Credit to be renewed continuously on
the same terms as described above for successive one (1)-year terms (or longer
terms) so that the Letter of Credit is continuously maintained for a term
expiring at the end of the initial term of the Lease (as it may be extended
pursuant to Section 4(b)). Each succeeding Letter of Credit shall be effective
on or before the date that the then-existing Letter of Credit expires. Tenant's
failure to deliver these renewals of the Letter of Credit to the beneficiary at
least thirty (30) days prior to each expiration date shall be a default under
this Lease, and at the beneficiary's option, and notwithstanding anything to the
contrary, the beneficiary shall have the immediate right thereon and thereafter
to draw under the Letter of Credit for all or any portion thereof; provided,
however, that if Tenant delivers the required renewal of the Letter of Credit to
the beneficiary before the expiration of the existing Letter of Credit and
before the beneficiary has drawn under the existing Letter of Credit, then
Tenant shall be deemed to have cured such default.
(c) The Letter of Credit is security for the timely payment and
performance of all of Tenant's Liabilities in connection with this Lease,
including, without limitation, Tenant's obligation to pay base rent, additional
rent and any amounts due under any Addendum hereto, and the Unamortized Costs if
Tenant defaults, and the obligations under Landlord's loan(s) from its
lender(s). If Tenant defaults under this Lease or there is a default under such
loan(s) or if otherwise permitted under the loan documents, the beneficiary may,
but shall not be obligated to, draw under the Letter of Credit on one or more
occasions, and the beneficiary's draw(s) under or failure to draw down all or
any portion of the Letter of Credit in any particular instance will not be
deemed to be a waiver or election of any rights and remedies of any type, a
limitation on Landlord's or the beneficiary's right to damages, a payment of
liquidated damages or an accord or satisfaction.
(d) [INTENTIONALLY OMITTED]
- 27 -
<PAGE> 32
(e) Tenant shall cause the Letter of Credit to be replaced by a
Letter of Credit issued by another recognized bank located and in good standing
in the United States that meets the financial criterion described below and is
otherwise reasonably acceptable to the beneficiary: (i) on demand by the
beneficiary if the issuer ever fails to meet the financial criterion described
below; or (ii) if Tenant wishes to replace the Letter of Credit with a Letter of
Credit issued by another bank. The financial criterion referred to above is the
requirement that the issuer will maintain ratings from Moody's and Standard &
Poor's at least equal to those enjoyed by the initial issuer of the Letter of
Credit on the date that the Letter of Credit is issued. The beneficiary shall
have the immediate right thereon and thereafter to draw under the Letter of
Credit for all or any portion thereof if the Letter of Credit is not replaced as
and when required by an issuer meeting the financial criterion referred to
above, and the cash proceeds thereof shall be held and, if necessary, applied,
by the beneficiary in the same manner as set forth in Subsection (d) above.
(f) In addition to the other circumstances set forth in this Lease
pursuant to which the beneficiary of the Letter of Credit may draw thereunder,
the beneficiary may draw under the Letter of Credit in accordance with the terms
of Exhibit "M" or terms substantially similar thereto.
Any amounts drawn by the beneficiary under the Letter of Credit
(not including draws of the type described in Sections 24.17(b) and (e), or
draws resulting from Tenant's default under this Lease or any other agreements
between Tenant and the beneficiary or Landlord's default under a loan arising as
a result of Tenant's breach of its obligations under this Lease) shall be
referred to as the "LC Advances," and shall be treated as a loan made by Tenant
to Landlord, which shall be repayable on the terms set forth in a promissory
note executed by Landlord in favor of Tenant in the form attached as Exhibit "L"
hereto (the "LC Note").
24.18 Other Defined Terms.
(a) "Affiliates" means: a party's internal partners, and the
directors, officers, agents, employees, parent, subsidiaries, invitees,
customers, licensees, concessionaires, contractors, subcontractors, successors,
assigns, subtenants, and representatives of the party or its internal partners.
(aa) "Control Affiliates" means a party's internal partners, and the
directors, officers, employees, parent, subsidiaries, successors or assigns of
the party or its internal partners, or an entity in which any of them owns at
least 20% of the outstanding interests or voting shares.
(b) "Laws" means: laws, codes, decisions, ordinances, rules,
regulations, any CC&R's or deed restrictions (or the equivalent) to which the
Premises may be subject, licenses, permits (including without limitation the
Andover Site Plan Special Permit and any amendments thereto), and directives of
governmental and quasi-governmental officers, including, without limitation,
those relating to building and safety, fire prevention, health, energy
conservation, Hazardous Substances and environmental protection.
(c) "Liabilities" means: obligations, costs, damages, claims,
injuries, liens, liabilities and judgments, including, without limitation,
attorneys' fees and costs (whether or not suit is commenced or judgment
entered).
(cc) "Related Entities" means a party's successors, assigns, parent
or subsidiaries, or any person that controls, is controlled by or is under
common control with that party, and the successors or assigns of such person.
(d) "Systems and Equipment" means: all HVAC, plumbing, mechanical,
electrical, lighting, water, gas, sewer, safety, sanitary and any other utility
or service facilities, systems and equipment, and all pipes, ducts, poles,
stacks, chases, conduits and wires.
(e) "Default," when applied to Tenant, and whether or not used with
an initial capital, will have the meaning set forth in Section 21.
- 28 -
<PAGE> 33
24.19 No Partnership. Notwithstanding anything to the contrary, neither
this Lease nor the performance of any of the terms and conditions thereof are
intended to create or imply, nor shall they create or imply, any partnership,
joint venture, trust, fiduciary relationship or agency relationship between
Landlord and Tenant (or any of their respective Affiliates).
25. HAZARDOUS SUBSTANCES.
Without limiting the generality of any portion of this Lease, Tenant and
its Affiliates will:
(a) Not store, handle, transport, use, process, generate, discharge
or dispose of any hazardous, toxic, corrosive, dangerous, explosive, flammable
or noxious substances, gasses or waste, whether now or hereafter defined under
any Laws or otherwise (collectively, "hazardous substances"), from, in or about
the Building or the rest of the Premises, or create any release of any hazardous
substances, nor permit any of the foregoing to occur, except for customary and
reasonable amounts of office supplies and other supplies reasonably used in the
conduct of Tenant's permitted research and development, light manufacturing and
warehousing activities which may contain or consist of reasonable amounts of
hazardous substances, and then only strictly in accordance with applicable Laws.
If any of the foregoing prohibited activities occur, or if Landlord in good
faith believes that any of the foregoing prohibited activities have occurred or
are likely to occur or that Tenant and its Affiliates are not complying fully
with the requirements of this Article, in addition to any other rights and
remedies of Landlord, Tenant and its Affiliates immediately will cease the acts
or omissions and in addition to any other rights and remedies (all of which are
cumulative), at Landlord's request Tenant will take such actions as may be
required by Laws and as Landlord may in good faith direct to cure or prevent the
problem. Tenant and its Affiliates will comply fully with all Laws and insurance
requirements in connection with or related to hazardous substances, whether now
or hereafter existing, including, without limitation, CERCLA, SARA, RCRA, TSCA,
CWA, Chapter 21E of Massachusetts General Laws and any other Laws promulgated by
the EPA, OSHA or Commonwealth of Massachusetts.
(b) Immediately pay, and indemnify Landlord and its Affiliates for
and hold them harmless from, all Liabilities in connection with or arising
directly or indirectly from any breach by Tenant or its Affiliates of their
obligations in this Article, including, without limitation, Liabilities to any
lenders and the costs of any of the following, whether required by Landlord, any
lenders, applicable Laws or insurance requirements or otherwise: any "response
actions" or "responses"; any surveys, "audits", inspections, tests, reports or
procedures deemed necessary or desirable by Landlord or governmental or
quasi-governmental authorities to determine the existence or scope of any
hazardous substances or Tenant's compliance with this Article, and any actions
recommended to be taken in connection therewith; compliance with any applicable
Laws and insurance requirements; any requirements, directives or plans for the
prevention, containment, processing, storage, clean-up or disposal of hazardous
substances; the release and discharge of any resulting liens; and any other
injury or damage. On the expiration or earlier termination of this Lease, Tenant
will leave the Building and the Premises free of hazardous substances stored,
handled, transported, used, processed, generated, discharged or disposed of in,
on, from or about the Building, or the Premises by Tenant or its Affiliates.
(c) Immediately deliver to Landlord copies of any notices,
information, reports, and communications of any type received or given in
connection with hazardous substances, including, without limitation, notices of
violation and settlement actions from or with governmental or quasi-governmental
authorities.
- 29 -
<PAGE> 34
Tenant's failure to comply with the requirements of this Article will be a
material default under this Lease, but if the failure was not intentional, then
if Tenant immediately begins to cure the failure and diligently begins and
completes all required remediation, disposal and other responsive actions in
accordance with the Lease and applicable Laws and guidelines and all necessary
repairs to the Building or the Premises, Tenant will be deemed to have cured the
default (although Tenant's indemnity obligations and other Liabilities still
will remain). All of Tenant's obligations and Liabilities under this Article
will survive the expiration or earlier termination of this Lease.
IN WITNESS WHEREOF, intending to be legally bound, each party has executed
this Lease as a sealed instrument as of the date first set forth above.
<TABLE>
<CAPTION>
"LANDLORD"
<S> <C>
Executed: March 19, 1997
200 MINUTEMAN LIMITED PARTNERSHIP,
a Massachusetts limited partnership
WITNESS: By: NIUNA-200 MINUTEMAN, INC.,
general partner
/s/ William D. Krasnow By:/s/ John Kusmiersky
- -------------------------------- -------------------------------------
Name Printed: William D. Krasnow John Kusmiersky, President
"TENANT"
Executed: March 19, 1997
PICTURETEL CORPORATION,
WITNESS: a Delaware corporation
/s/ William D. Krasnow By: /s/ Lawrence M. Bornstein
- -------------------------------- ---------------------------
Name Printed: William D. Krasnow (Signature)
Name: Lawrence M. Bornstein
Title: Vice President
Authorized Signature
WITNESS:
Thomas M. Zimmer By: /s/ Les B. Strauss
- ------------------------------ -----------------------------
Name Printed: Thomas M. Zimmer (Signature)
Name: Les B. Strauss
Title: Vice President and CFO
Authorized Signature
</TABLE>
- 30 -
<PAGE> 35
EXHIBIT "A"
[TRACT MAP]
<PAGE> 36
EXHIBIT B
MARCH 13, 1997
PAGE 1 OF 2
PARCEL DESCRIPTION
PARCEL "F-1"
A CERTAIN PARCEL OF LAND LOCATED IN ANDOVER, COUNTY OF ESSEX, MASSACHUSETTS,
BEING SITUATED NORTHERLY OF RIVER ROAD AND EASTERLY OF 1776 DRIVE, BEING SHOWN
AS PARCEL "F-1" ON A PLAN ENTITLED, "PLAN OF LAND PREPARED FOR NIUNA - 100
RIVER, INC.", ANDOVER, MA, SCALE: 1"=120' DATED: FEBRUARY 10, 1997, PREPARED BY
OWEN HASKELL, INC.
SAID PARCEL "F-1" BEING FURTHER BOUNDED AND DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHWEST CORNER OF THE PARCEL HEREIN DESCRIBED AT A POINT ON
THE NORTHERLY SIDELINE OF RIVER ROAD AND THE EASTERLY SIDELINE OF 1776 DRIVE;
THENCE,
BY THE EASTERLY SIDELINE OF 1776 DRIVE THE FOLLOWING FOUR COURSES:
N 35 DEGREES 27' 07" W SEVENTY AND 35/100 FEET (70.35'),
BY A CURVE TO THE RIGHT HAVING A RADIUS OF TWO THOUSAND FOUR HUNDRED
FORTY EIGHT AND 00/100 FEET (2448.0'), A LENGTH OF EIGHT HUNDRED
TWO AND 95/100 FEET (802.95'),
BY A CURVE TO THE RIGHT HAVING A RADIUS OF NINE HUNDRED FORTY EIGHT AND
00/100 FEET (948.00'), A LENGTH OF THREE HUNDRED SEVENTY FOUR AND
81/100 FEET (374.81'),
N 04 DEGREES 29' 00" E FORTY FIVE AND 02/100 FEET (45.02') TO A POINT
AT THE SOUTHERLY CORNER OF PARCEL "F-2", THENCE
EASTERLY AND SOUTHERLY BY PARCEL "F-2" THE FOLLOWING ELEVEN COURSES:
N 04 DEGREES 47' 34" E EIGHT AND 08/100 FEET (8.08'),
BY A CURVE TO THE RIGHT HAVING A RADIUS FOUR HUNDRED FORTY THREE AND
00/100 FEET (443.00'), A LENGTH OF EIGHT HUNDRED FORTY AND 96/100
FEET (840.96'),
S 66 DEGREES 28' 06" E TWENTY FIVE AND 18/100 FEET (25.18'),
BY A CURVE TO THE RIGHT HAVING A RADIUS ONE HUNDRED AND 00/100 FEET
(100.00'), A LENGTH OF THIRTY ONE AND 75/100 (31.75'),
BY A CURVE TO THE LEFT HAVING A RADIUS OF SIXTY AND 00/100 FEET
(60.00'), A LENGTH OF SIXTY FOUR AND 75/100 (64.75'),
S 20 DEGREES 06' 04" E TEN AND 83/100 FEET (20.83'),
S 22 DEGREES 25' 37" W NINETY THREE AND 43/100 FEET (93.43'),
<PAGE> 37
EXHIBIT "B"
MARCH 13, 1997
PAGE 2 OF 2
S 13 DEGREES 33' 06" E ONE HUNDRED FIFTY FOUR AND 96/100 FEET (154.96'),
S 05 DEGREES 50' 02" W EIGHTY FOUR AND 74/100 FEET (84.74'),
S 25 DEGREES 22' 02" E FIVE HUNDRED NINE AND 20/100 FEET (509.20'),
S 46 DEGREES 34' 44" E SEVENTY TWO AND 67/100 FEET (72.67'), TO A POINT
ON THE NORTHERLY SIDELINE OF OLD RIVER ROAD; THENCE,
S 44 DEGREES 30' 20" W TWO HUNDRED NINETY THREE AND 33/100 FEET (293.33') BY THE
NORTHERLY SIDELINE OF OLD RIVER ROAD TO A POINT AT THE LAND NOW OR
FORMERLY OF 145 RIVER ROAD REALTY TRUST; THENCE,
N 45 DEGREES 29' 40" W TWO HUNDRED TWENTY TWO AND 68/100 FEET (222.68'),
S 44 DEGREES 30' 20" W TWO HUNDRED TWELVE AND 20/100 FEET (212.20') TO A
POINT ON THE EASTERLY SIDELINE OF LAUREL LANE; THENCE,
BY SAID LAUREL LANE THE FOLLOWING FOUR COURSES:
N 53 DEGREES 43' 16" W ONE HUNDRED AND 29/100 FEET (100.29'),
BY A CURVE TO THE RIGHT HAVING A RADIUS OF FORTY AND 00/100 FEET
(40.00'), A LENGTH OF FORTY FIVE AND 82/100 FEET (45.82')
BY A CURVE TO THE LEFT HAVING A RADIUS OF FORTY AND 00/100 FEET
(40.00'), A LENGTH OF ONE HUNDRED SEVENTY ONE AND 47/100 FEET
(171.47')
S 53 DEGREES 43' 16" E FORTY AND 00/100 FEET (40.00') TO A POINT AT THE
LAND NOW OR FORMERLY OF LAFRENIER; THENCE,
S 60 DEGREES 43' 25" W NINETEEN AND 30/100 FEET (19.30'),
S 64 DEGREES 20' 20" W EIGHTY FIVE AND 70/100 FEET (85.70')
S 40 DEGREES 56' 53" E TWO HUNDRED EIGHTY AND 50/100 FEET (280.50') AND,
S 46 DEGREES 13' 47" E ONE HUNDRED FIFTY THREE AND 59/100 FEET (153.59')
TO A POINT ON THE NORTHERLY SIDELINE OF OLD RIVER ROAD; THENCE,
BY THE NORTHERLY SIDELINE OF OLD RIVER ROAD THE FOLLOWING THREE COURSES:
S 30 DEGREES 48' 20" W FIFTY SEVEN AND 22/100 FEET (57.22'),
S 30 DEGREES 21' 16" W NINETY FIVE AND 33/100 FEET (95.33'),
S 54 DEGREES 32' 53" W SIXTY EIGHT AND 88/100 FEET (68.88') TO A POINT ON THE
EASTERLY SIDELINE OF 1776 DRIVE AND THE POINT OF BEGINNING.
PARCEL "F-1" CONTAINING 879,757 SQUARE FEET OR 20.196 ACRES, MORE OR LESS.
<PAGE> 38
EXHIBIT "C"
WORKLETTER
1. General Conditions.
1.1 Landlord will construct Landlord's Work in accordance with applicable
Laws in effect at the time, except that Landlord makes no agreements,
representations or warranties concerning compliance with the Americans with
Disabilities Act or any rules, regulations, guidelines or additional legislation
issued in connection therewith. (The previous sentence is not meant to change
the obligations of the parties pursuant to Section 11(d).) Landlord conclusively
shall be deemed to have complied with all applicable Laws in effect at the time
with respect to Landlord's Work when and if Landlord obtains a Certificate of
Occupancy for the Building. Subject to Section 2(a), Tenant and its contractors
may have access to the Building for the purpose of preparing the Building for
Tenant's occupancy before Landlord's Work has been substantially completed, but
only with Landlord's prior written approval. After any entry by Tenant or its
contractors, all of Tenant's Lease obligations will be immediately effective
except for the obligation to pay base rent, Taxes and Operating Costs. All
construction, materials, services, licenses, approvals, costs, installations and
equipment to or for the Premises other than Landlord's Work are called "Tenant's
Work," and will be performed by Tenant at Tenant's sole cost and in a good and
workmanlike manner and subject to the rest of the terms of this Lease. Subject
to Section 2(a), Tenant will not interfere in any way with Landlord's Work,
whether in connection with Tenant's Work or otherwise. If Landlord's Work is
delayed or made more expensive due to: any act or omission of Tenant or its
Affiliates (including, without limitation, any delay of or failure to complete
Tenant's Work [subject to Section 2(a)], any requested or required changes to
Exhibit "C" agreed to by Landlord, or any failure or delay in submitting the
information in Exhibit "CC" or other plans, specifications, drawings,
requirements, information or approvals, or changes or inaccuracies in any of the
foregoing that are or are supposed to be submitted by or on behalf of or
approved by Tenant); or the inclusion in Exhibit "C" or other Tenant
specifications of "long lead" items or services that cannot reasonably be
obtained in sufficient time to be incorporated in Landlord's Work in the normal
course of Landlord's construction schedule (and Tenant's failure to delete or
substitute for those items or services), then Tenant will be responsible for the
delays and additional cost, Landlord's Work will be deemed substantially
completed when it would have been completed but for the delays (and at minimum
any delays will be subtracted from the date of actual substantial completion in
determining when substantial completion will be deemed to have occurred), and
Tenant will pay any additional cost to Landlord as additional rent within
fifteen (15) days after receipt of Landlord's bill. Furthermore, if a delay for
which Tenant is responsible results in an increased interest rate on Landlord's
loans, then Tenant will pay as additional rent the increased amounts payable by
Landlord as and when Landlord is obligated to pay such amounts. Within ten (10)
days after Landlord's request, Tenant will execute and deliver to Landlord a
certificate confirming the date of substantial completion of Landlord's Work.
Tenant's certificate is for purposes of confirmation only and will not affect
the actual date of substantial completion.
1.2 Landlord intends that: Gilbane Building Company (or an affiliated
entity) will act as the construction manager, or in an equivalent capacity, with
respect to Landlord's Work; and that Gilbane Building Company (or an affiliated
entity) will guaranty the maximum price for Landlord's Work. With respect to
Landlord's Work, at least the "major trades" will be competitively bid to
subcontractors, and Landlord will award those subcontracts to the lowest bidder,
except that Landlord may award a subcontract to any of the bidding
subcontractors if: (a) the lowest bidder takes exception to the bid documents;
or (b) the initial bid or subsequent revised bid of the subcontractor chosen by
Landlord is within 5% of the lowest responsive and timely bid received.
1.3 Notwithstanding anything to the contrary, Landlord's Work will not
include, and Landlord will not be responsible for, any labor or services in
connection with Tenant's security or alarm systems, and Tenant's data,
telecommunications, audio, visual, computer, cafeteria or fitness-related
equipment or installations or any piping, wiring, cabling or conduits associated
with any of the foregoing or any hookups thereof.
1.4 The rest of this Workletter is attached and is incorporated herein by
this reference.
EXHIBIT "C"
<PAGE> 39
EXHIBIT "C"
200 Minuteman Road, Andover, MA 01810
PictureTel Workletter
Burt Hill Project 96690.00
1. INTRODUCTION
A. The Landlord will construct a new 200,000 square foot
office/research and development building, with associated driveways,
parking areas and utility infrastructure during a period of
approximately 15 months beginning June 1997.
B. The site address is 200 Minuteman Road, Andover, MA 01810. Based on
Landlord's current understanding (which may change per Section
1.1(c) of the Lease), the land area is approximately 879,757 square
feet, comprising approximately 20.196 acres, which are zoned
Industrial D according to Andover Town Zoning Bylaw. The new 3-story
building will contain 67,900 square feet on the Ground Floor, 65,860
square feet on the Second Floor and 66,240 square feet on the Third
Floor.
2. GENERAL INTENT
A. It is the intent of this Workletter to describe the new building
improvements for the use by the Tenant. Certain plans and
specifications for the new building, a list of which is attached to
this Workletter and which have been prepared by the Landlord's
architect and engineers, are intended to be incorporated herein by
this reference. In the event any inconsistency or other
irreconcilable difference is found between the provisions of this
Workletter and information contained in the plans and
specifications, the provisions of this Workletter are intended to
govern.
B. The quality standard of finish tenant improvements, unless otherwise
specified to the contrary, will be equal to the standard at Tenant's
100 Brickstone Square, Andover facilities. For unit quantities of
finish Tenant Improvements, see 3.D below. Also under this
Workletter, the new base building and core systems and equipment
will be constructed by the Landlord in good working condition
conforming with applicable building codes, otherwise to perform
equal to those at Tenant's 100 Brickstone Square facilities, unless
specified to the contrary herein.
C. Any changes from the standards established above requested by the
Tenant as to the quality or quantity of construction and/or
installation provided under this Workletter by the Landlord shall be
at the Tenant's sole cost and may be undertaken at the Landlord's
discretion, due regard being given to consideration of their impact
upon construction and occupancy schedules, the availability of
Tenant funding, and similar issues which may affect the performance
of the Landlord under the Workletter.
3. NEW BUILDING AREA USES
A. Shipping, receiving, service dock, utility room and support spaces:
approximately 1,800 square feet.
B. Cafeteria, kitchen and seating area, approximately 6,600 square
feet, which is included in the area described in 3.E below. Landlord
will provide design consulting services of Hammer Design Consultants
and Burt Hill Kosar Rittelmann Associates at Landlord's expense.
Tenant will provide all equipment, appliances and millwork. Landlord
will provide rough-in and final hook-up.
C. Lobby and entry vestibule, approximately 3,600 square feet.
D. Offices, conference rooms and labs to be constructed throughout the
balance of the new building, except for space dedicated to elevator
shafts, bathroom cores,
EXHIBIT "C"
Page 1 of 5
<PAGE> 40
stairwells and mechanical shafts, in a ratio
of enclosed-to-open space equal to the ratio
at Tenant's 100 Brickstone Square, Andover
facilities.
E. Recap of new building areas:
67,900 Ground Floor
65,860 Second Floor
66,240 Third Floor
-------
200,000 TOTAL NEW BUILDING
4. SITE
A. Site features will include bituminous paved parking areas, striped
to accommodate a minimum of 667 parking spaces including handicap,
visitor and employee parking.
B. Building entry stairs and plazas will be granite pavers with thermal
finish and sidewalks will be brick/concrete with broom finish.
C. Parking lot lighting mounted on lamp posts and exterior entrance
lighting will be operational with photo-electric sensor controls
with manual overrides.
D. Landscaping surrounding the new building and ornamental trees and
shrubbery at the entry areas and throughout the site will be
installed and enhanced at the Landlord's discretion, the budget for
which will be approximately $130,000.
E. Foundation and underslab drainage will be provided as required by
site conditions and the Andover Conservation Commission.
5. STRUCTURE
A. Building foundations will be cast-in-place concrete spread footings
and foundation walls. The ground floor slab will have continuous
perimeter insulation.
B. The primary structure will be steel columns on a 30' by 30' grid
with composite steel girders, beams and composite (steel deck and
concrete) floor slabs on the second and third floors and a steel
mesh-reinforced concrete slab on grade.
C. The structural capacity of the ground floor = 100 lb/sf and the
structural capacity of the second and third floors = 80 lb/sf live
load plus 20 lb/sf partition load for a total of 100 lb/sf; the roof
structural capacity = 30 lb/sf.
6. BUILDING EXTERIOR
A. The new building exterior will be a curtain-wall system with fixed,
insulated thermally broken windows and aluminum insulated
sandwich-type panels with a premium paint finish.
B. The ground floor will be an aluminum and insulated glass storefront
system constructed on a concrete knee wall.
7. ROOF
A. The roof will be a single ply ballasted rubber roof over rigid
insulation on steel deck, with roof structural members sloped to
internal drains.
B. Natural daylight in the atrium will be supplemented by clerestory
windows built on the atrium roof.
EXHIBIT "C"
Page 2 of 5
<PAGE> 41
8. LIGHTNING PROTECTION SYSTEM
A. A lightning protection system equivalent to that existing at 100
Minuteman Road will be provided for the building and all rooftop
equipment.
9. ELEVATORS AND CENTRAL CORE
A. Four elevators will be provided: Three hydraulic passenger elevators
and one hydraulic combination passenger and freight elevator. Each
passenger elevator will be 3,500 lb. capacity, minimum 6' 8" wide by
5' 5" deep car. The freight elevator will be 4,500 lb. capacity
minimum 5' 8" wide by 7' 9 1/2" deep car.
B. The new building will have a central core consisting of an elevator
lobby and a three-story atrium. Finishes at the Ground Floor of the
Atrium and at the elevator lobbies will include stone flooring,
carpeting and painted gypsum wallboard. On either side of the
elevator lobbies will be a service core accommodating toilet rooms,
employee kitchen/coffee stations, and electrical/data rooms. On the
ground floor, a security guard station/fire command center will be
located adjacent to the elevator lobby.
10. LOADING DOCKS
A. A two-bay loading dock will be constructed at the exterior of the
new building, with an adjacent interior shipping/receiving area.
B. A concrete pad will be poured adjacent to the loading dock, sized to
accommodate one full-size dumpster with direct access from the
loading dock.
C. The loading dock area will be screened by earth berming and
shrubbery.
11. HVAC SYSTEM
A. The Landlord will provide a complete heating, ventilating and air
conditioning (HVAC) system for the Tenant's use. Heat loads
consistent with those at the Tenant's facilities at 100 Brickstone
Square, Andover, will be provided by the Tenant to facilitate the
Landlord's design of the HVAC system.
B. All HVAC equipment will be controlled by an automatic temperature
control ATC system located at a terminal in the building engineer's
office within the new building.
C. The Landlord will consider design input from the Tenant's engineers
in connection with the ATC system, which input is to give due regard
to schedule and cost implications.
12. ELECTRIC SYSTEM
A. The Landlord will provide power supply from Massachusetts Electric
Company, including distribution panels, transformers, wiring,
devices, and an emergency power system, including an emergency
generator and fuel supply equipment, as required by applicable
building codes for life safety purposes. Landlord to provide any
required supply power conduit, boxes and pull strings to make system
operable.
B. The Landlord will provide ceiling-mounted 277-volt two/three-lamp
deep cell parabolic light fixtures with electronic ballasts.
C. The Landlord will provide emergency lighting in the new building, as
required by building code, including exterior corridors leading to
fire exits.
D. The Landlord will provide standard wall outlets for data and
telecommunications. The standard outlet consists of a rough box
plaster ring and pull string to the ceiling plenum above. The Tenant
is responsible for all other Tenant system components from the point
of connection at the base building telephone closet to the final
point
EXHIBIT "C"
Page 3 of 5
<PAGE> 42
of use devices. The data/telephone system and cabling will be
furnished and installed by the Tenant.
E. All security systems will be furnished and installed by the Tenant.
13. LIFE SAFETY
A. The Landlord will provide a code-required fire alarm system (and
suppression system in the cafeteria, if required by applicable
building codes) and associated equipment as required for and
consistent with the described occupancy.
B. The new building will have three fire exit stair towers and one open
monumental stair. One stair tower will extent to the roof. The fire
exit stair towers will be finished with painted gypsum wall board on
the interior with concrete-filled steel pan-type stairs with rubber
tread covers and rubber tile on the floors and landings. Stair
railings will be 1 1/2" diameter tubular steel, painted. The
monumental stair will be a steel stair with granite treads and
landings and a painted steel plate balustrade.
14. PLUMBING SYSTEM
A. Two toilet rooms per gender per floor will be provided, containing
water closets, lavatories and (in the men's room) urinals. The
number of fixtures will comply with building code requirements based
on a new building maximum occupant load of 667 people. Toilet room
finishes will be 2"x2" ceramic mosaic tile on the floors and 4"x4"
tiles on the walls, Corian lavatory countertops and metal toilet
partitions, all in manufacturer's standard colors. Ceilings will be
gypsum wallboard painted. Toilet fixtures and finishes, included
tile and lighting, will be consistent with the quality at the
Tenant's 100 Brickstone Square facilities.
B. Two coffee stations per floor will be provided, and will include
plastic laminate-covered base and overhead built-in cabinetry, with
a single bowl stainless steel sink. Floors will be finished with
vinyl composition tile. Appliances will be furnished by the Tenant.
C. Plumbing, piping and other fixtures will be supplied as required by
applicable building codes to accommodate the needs of the base
building central equipment, such as floor drains, rain water drains,
leaders, risers and connections to the public water supply and
sewage and storm drain systems.
D. An ADA-accessible water fountain will be provided outside each set
of toilet rooms.
E. Accessible toilet fixtures will be provided as required by ADA.
15. FIRE SUPPRESSION
A. The Landlord will provide fire suppression system components, as
required by code, including all central equipment, piping and
controls (stand pipe risers, hose valves, enunciator, etc.)
sprinkler distribution piping, and sprinkler heads in building
common areas, including lobbies, toilet rooms, mechanical rooms,
electrical closets, etc.
B. Sprinkler heads will be provided in Tenant areas in a regular grid
pattern per high- density open plan configuration. Drops will not be
uniformly centered in the ceiling tile unless the Tenant directs so
at the Tenant's own cost. The Landlord will coordinate sprinkler
drops to avoid interference with the light pattern, HVAC diffusers
and other ceiling mounted components that are being provided by the
Landlord. The Landlord will also modify sprinkler locations in
enclosed spaces such as offices in order to coordinate with
partitions, light fixtures and diffusers.
EXHIBIT "C"
Page 4 of 5
<PAGE> 43
16. FINISHES
A. The new building office and conference/training rooms, and related
support spaces, will be improved with ceiling, wall and floor
finishes and other components equal proportionately in quality and
quantity to those at Tenant's 100 Brickstone Square, Andover,
facilities.
B. The typical ceiling heights will be 10' feet throughout the first,
second and third floors, except the lobby atrium, which will be to
the roof.
C. All exterior windows will be provided with new, building-standard
blinds equal to those at Tenant's 100 Brickstone Square, Andover,
facilities.
D. Landlord will provide a kitchen, cafeteria and seating area (See
Section 3.B above). The kitchen area will be finished with ceramic
tile walls and floors. Ceilings will be as follows: 2'x4' washable
metal pan or vinyl wrapped ceiling tiles in kitchen area, 2'x4'
acoustical tile panels in servery, and 4'x4' painted nubby ceiling
tiles in seating area.
NOTE: THE TENANT'S SPACE PLANNER AND DESIGN ARCHITECT WILL PROVIDE THE
LAYOUT AND SPECIFICATIONS FOR TENANT IMPROVEMENTS PER EXHIBIT "CC"
OF THE LEASE WORKLETTER. THE FIT AND FINISH WILL BE CONSISTENT WITH
THAT AT THE TENANT'S 100 BRICKSTONE SQUARE, ANDOVER, FACILITIES. THE
LANDLORD'S ARCHITECT WILL PROVIDE CADD DRAWING DISKS OF THE BASE
BUILDING TO THE TENANT'S DESIGN ARCHITECT FOR USE IN PLANNING THE
SPACE LAYOUT.
EXHIBIT "C"
Page 5 of 5
<PAGE> 44
EXHIBIT "CC"
PICTURETEL INITIAL INFORMATION
1. PictureTel will deliver the following information to Landlord on or
about August 1, 1997: detailed floor plans/layouts for the Building, including
the size and location of all offices, conference rooms, training rooms and other
areas, prepared to 1/8" scale, with architectural features included (e.g. high
wall versus low wall); equipment loads, BTU requirements, amperage requirements
and similar requirements for all areas; PictureTel's choices and specifications
for hardware, floor and wall finishes, and other design elements and other
information and specifications sufficient to enable Landlord to produce final
plans, drawings and specifications for Landlord's Work.
2. The goal of Landlord's design team is to produce GMP pricing documents
on or about September 1, 1997. Therefore, in addition to the information to be
delivered as described above. Tenant will direct its professionals to deliver to
Landlord's design team design documents on a weekly basis or otherwise as often
as predictable, and to deliver sufficient information for all of the Building to
Landlord's design team in sufficient time so that Landlord's design team can
reasonably attempt to meet the September 1, 1997 target date.
EXHIBIT "CC"
Page 1 of 1
<PAGE> 45
EXHIBIT "D"
BASE RENT
1. AS OF THE COMMENCEMENT DATE, THE ANNUAL BASE RENT FOR THE PREMISES WILL
BE THREE MILLION SEVEN HUNDRED AND FIFTY THOUSAND DOLLARS ($3,750,000) PER
ANNUM, WHICH WILL BE PAYABLE IN EQUAL MONTHLY INSTALLMENTS IN ADVANCE AS SET
FORTH IN SECTION 5(a) OF THE LEASE. The annual base rent during the Extension
Options shall be determined in accordance with Exhibit "DD" hereto.
[SEE SECTION 5(b) OF THE LEASE FOR POSSIBLE RENT CREDITS IN CONNECTION
WITH THE LETTER OF CREDIT.]
EXHIBIT "D"
Page 1 of 1
<PAGE> 46
EXHIBIT "DD"
BASE RENT DURING EXTENSION OPTIONS
The annual base rent for each year of each Extension Option will be the
"Fair Rental Value" of the Premises determined as follows separately for each
Extension Option, but not less than the scheduled annual base rent under the
Lease for the year immediately preceding the applicable Extension Option term
(without giving effect to any abatements or reductions in that rent):
(a) If Landlord and Tenant can't agree on the annual base rent for
each Lease Year of the applicable Extension Option term at least eight (8)
months before the beginning of that Extension Option term, then unless otherwise
agreed in writing by Landlord and Tenant, Landlord and Tenant will try to agree
in writing on a single appraiser at least seven (7) months before the beginning
of that Extension Option term. If Landlord and Tenant can't agree on a single
appraiser within this time period, then Landlord and Tenant each will appoint,
in writing, one appraiser not later than six (6) months before the beginning of
the that Extension Option term. Within fifteen (15) days after their
appointment, the two appointed appraisers will appoint a third appraiser. If the
two appraisers can't agree, a third appraiser will be appointed by the American
Institute of Real Estate Appraisers (or if this organization refuses to act or
no longer exists, then by an organization deemed by Landlord to be reasonably
equivalent) not later than five (5) months before the beginning of that
Extension Option term. If either Landlord or Tenant fails to appoint its
appraiser within the prescribed time period, the single appraiser appointed will
determine the Fair Rental Value. If both parties fail to appoint appraisers
within the prescribed time periods, then the first appraiser validly appointed
by a party will determine the Fair Rental Value. Appraisers must have at least
five (5) years' experience in the appraisal of office property in the area in
which the Premises is located and be members of professional organizations such
as the American Institute of Real Estate Appraisers or the equivalent.
Landlord and Tenant will instruct the appraiser(s) to complete and
submit their determination of the Fair Rental Value not later than four (4)
months before the beginning of that Extension Option term.
(b) For purposes of this Lease, the term "Fair Rental Value" means:
ninety-five percent (95%) of the annual net base rent that a ready and willing
tenant would pay for the Premises during each year of that Extension Option term
to a ready and willing landlord of the Premises, taking into account free
parking and other economic benefits of this Lease in determining that rent,
assuming that the Premises was exposed for lease on the open market for a
reasonable period of time, could be used for any lawful use and was improved to
its then-existing level, and assuming the following factors, among others, also
are taken into account and given effect: improvements, if any, agreed to be made
by Landlord, the location of the Premises, the Lease term, and tenant
improvement and other leasing concessions then being given by other landlords of
comparable space. If only a single appraiser is appointed as described above,
then that appraiser will determine the Fair Rental Value. Otherwise, the Fair
Rental Value will be the arithmetic average of the two (2) of the three (3)
appraisals which are closest in amount, and the third appraisal will be
disregarded.
(c) If for some reason the Fair Rental Value is not determined
before the beginning of that Extension Option period, then Tenant will pay to
Landlord base rent at the scheduled rate most recently payable until the Fair
Rental Value is determined. When the Fair Rental Value is determined, Landlord
will notify Tenant, and Tenant will pay to Landlord, within thirty (30) days
after receipt of such notice, any difference between the base rent actually paid
by Tenant to Landlord and the new base rent determined hereunder (if the new
base rent is higher).
EXHIBIT "DD"
Page 1 of 1
<PAGE> 47
EXHIBIT "E"
RULES AND REGULATIONS
1. Any person whose presence on the Premises at any time shall, in
the reasonable judgment of the Landlord, be prejudicial to the safety,
character, reputation and interests of the Premises may be denied access to the
Premises or may be ejected therefrom. In case of invasion, riot, public
excitement or other commotion the Landlord may prevent all access to the
Premises or the Building during the continuance of the same, by closing the
doors or otherwise, for the safety of Tenant or protection of property. The
Landlord shall in no way be liable to Tenant or its Affiliates for damages or
loss arising from the admission, exclusion or ejection of any person to or from
the Premises under the provisions of this rule, as long as Landlord acts
reasonably under the circumstances as they appear to Landlord at the time.
2. No awnings or other projections over or around the windows shall
be installed by Tenant, and all window blinds used or installed by Tenant or its
Affiliates shall be of the same type in order to provide a uniform exterior
appearance.
3. Tenant shall not encumber or obstruct, or permit the encumbrance
or obstruction of, or store or place any materials, outside of the Building, or
in any entrances, corridors, elevators, fire exits or stairways of the of the
Building so as to create any unsafe or unlawful condition.
4. Nothing shall be done or permitted by Tenant which would impair
or interfere with any of the Systems or Equipment or the proper and economic
servicing of the Building or the Premises, nor shall there be installed by
Tenant any Systems or Equipment or other equipment of any kind which, in
Landlord's reasonable judgment, could result in such impairment or interference.
No dangerous, inflammable, combustible or explosive object or material shall be
brought into the Building or onto the Premises by Tenant or with the permission
of Tenant, except strictly in accordance with this Lease.
5. Whenever Tenant shall submit to Landlord any plan, agreement or
other document for Landlord's consent or approval, Tenant agrees to pay Landlord
as additional rent, on demand, a processing fee in a sum equal to the reasonable
fees payable to any architects, contractors, engineers and attorneys engaged by
Landlord to review said plan, agreement or document, and costs, expenses or fees
required to be paid by Landlord to or at the direction of Landlord's Mortgagees
in order to secure approval of said plan, agreement or document, if and to the
extent that their approval is required.
6. No acids, vapors, hazardous or other materials shall be
discharged or permitted to be discharged into the waste lines, ducts, vents or
flues which may damage them or any other portions of the Building or the
Premises. The water and wash closets and other plumbing fixtures in or serving
the Building shall not be used for any purpose other than the purpose for which
they were designed or constructed, and no sweepings, rubbish, rags, acids or
other foreign substances shall be deposited therein. All damage resulting from
any misuse of the fixtures shall be borne by Tenant, if it shall have caused the
same, subject to Section 8.3 of the Lease.
7. Landlord shall have the right to prohibit any advertising by
Tenant which impairs the reputation of the Building or the Premises, and upon
written notice from Landlord, Tenant shall refrain from or discontinue such
advertising.
8. All third party movers used by Tenant shall be appropriately
licensed and shall maintain reasonable insurance coverage (proof of such
coverage shall be delivered to Landlord prior to movers providing service in, on
or to the Premises.
9. The Premises shall not be used for lodging or sleeping or for any
immoral or illegal purposes.
EXHIBIT "E"
Page 1 of 1
<PAGE> 48
EXHIBIT "F"
BANKRUPTCY PROVISIONS
This Article is incorporated into the Lease as Article 23:
23. BANKRUPTCY OR INSOLVENCY.
23.1 Tenant's Interest Not Transferable. Neither Tenant's interest in this
Lease nor any estate hereby created in Tenant nor any interest herein or therein
will pass to any trustee or receiver or assignee for the benefit of creditors or
otherwise by operation of law except as may specifically be provided pursuant to
the Bankruptcy Code, 11 U.S.C. Section 101 et seq. (the "Bankruptcy Code").
23.2 Default and Termination. If:
(a) Tenant or Tenant's Guarantor, if any, or its executors,
administrators, or assigns, will generally not pay its debts within a reasonable
and customary time after they become due or will admit in writing its inability
to pay its debts, or will make a general assignment for the benefit of
creditors; or
(b) Tenant or Tenant's Guarantor, if any, will commence any case,
proceeding or other action seeking reorganization, arrangement, adjustment,
liquidation, dissolution or composition of it or its debts under any law
relating to bankruptcy, insolvency, reorganization or relief of debtors, or
seeking appointment of a receiver, trustee, custodian or other similar official
for it or for all or any substantial part of its property; or
(c) Tenant or Tenant's Guarantor, if any, will take any corporate,
partnership or other action to authorize or in furtherance of any of the actions
set forth above in subsection (a) or (b); or
(d) Any case, proceeding or other action against Tenant or Tenant's
Guarantor, if any, will be commenced seeking to have an order for relief entered
against it as debtor, or seeking reorganization, arrangement, adjustment,
liquidation, dissolution or composition of it or its debts under any law
relating to bankruptcy, insolvency, reorganization or relief of debtors, or
seeking appointment of a receiver, trustee, custodian or other similar official
for it or for all or any substantial part of its property, and such case,
proceeding or other action remains undismissed or unstayed for a period of sixty
(60) days, then it will be a default hereunder and this Lease and all rights of
Tenant hereunder will automatically cease and terminate as if the date of such
event were the original expiration date of this Lease and Tenant will vacate and
surrender the Premises but will remain liable as herein provided.
23.3 Rights and Obligations Under the Bankruptcy Code.
(a) Upon the filing of a petition by or against Tenant under the
Bankruptcy Code, Tenant, as debtor and as debtor in possession, and any trustee
who may be appointed agree as follows: (i) to perform all obligations of Tenant
under this Lease, including, but not limited to, the covenants regarding the
operations and uses of the Premises until such time as this Lease is either
rejected or assumed by order of the United States Bankruptcy Court; (ii) to pay
monthly in advance on the first day of each month as reasonable compensation for
use and occupancy of the Premises an amount equal to all base rent and other
rent otherwise due pursuant to this Lease; (iii) to reject or assume this Lease
within sixty (60) days of the filing of a petition under any Chapter of the
Bankruptcy Code or under any Law relating to bankruptcy, insolvency,
reorganization or relief of debtors (any such rejection being deemed an
automatic termination of this Lease); (iv) to give Landlord at least thirty (30)
days prior written notice of any proceeding relating to any assumption of this
Lease; (v) to give at least thirty (30) days prior written notice of any
abandonment of the Premises (any such abandonment being deemed a rejection and
automatic termination of this Lease),
EXHIBIT "F"
Page 1 of 2
<PAGE> 49
unless the Bankruptcy Court has otherwise extended the period for acceptance or
rejection; (vi) to all other things of benefit to Landlord otherwise required
under the Bankruptcy Code or under any Law relating to bankruptcy, insolvency,
reorganization or relief of debtors; (vii) to be deemed to have rejected this
Lease in the event of the failure to comply with any of the above; and (viii) to
have consented to the entry of an order by an appropriate United States
Bankruptcy Court providing all of the above, except that if and to the extent
that any of the above provisions, if enforced, would violate the Bankruptcy Code
then in existence, then such provisions shall be conformed to the Bankruptcy
Code then in existence.
(b) No default under this Lease by Tenant, either prior to or
subsequent to the filing of such petition, will be deemed to have been waived
unless expressly done so in writing by Landlord.
(c) Included within and in addition to any other conditions or
obligations imposed upon Tenant or its successor in the event of assumption
and/or assignment are the following: (i) the cure of any monetary defaults and
the reimbursement of pecuniary loss by the time of the entry of the order
approving such assumption and/or assignment (pecuniary loss will include,
without limitation, any attorneys' fees and costs and expert witness fees
incurred by Landlord in protecting its rights under this Lease, including
representation of Landlord in any proceeding commenced under the Bankruptcy Code
or under any Law relating to bankruptcy, insolvency, reorganization or relief of
debtor); (ii) the deposit of an additional sum equal to three (3) months' base
rent; (iii) the use of the Premises only as set forth in this Lease; (iv) the
reorganized debtor or assignee of such debtor in possession or of Tenant's
trustee demonstrates in writing that it has sufficient background including, but
not limited to, substantial experience in operating businesses in the manner
contemplated in this Lease and meet all other reasonable criteria of Landlord as
did Tenant upon execution of this Lease; (v) meet all other criteria of 11
U.S.C. Section 365(b)(3); and (v) the prior written consent of any mortgagee to
which this Lease has been assigned as collateral security; and (vi) the Premises
at all times remains a single unit and no Alterations or physical changes of any
kind may be made unless in compliance with the applicable provisions of this
Lease, except that if and to the extent that any of the above provisions, if
enforced, would violate the Bankruptcy Code then in existence, then such
provisions shall be conformed to the Bankruptcy Code then in existence.
(d) Any person or entity to whom this Lease is assigned pursuant to
the provisions of the Bankruptcy Code will be deemed without further act or deed
to have assumed all of the obligations arising under this Lease on or after the
date of such assignment. Any such assignee will upon demand execute and deliver
to Landlord an instrument confirming such assumption.
23.4 Construction. The terms of this Article will be in addition to, but
not exclusive of, any rights or remedies of Landlord in Article 22 and elsewhere
in this Lease or otherwise available at law or in equity, and will not be deemed
to limit Landlord, except as may be required by law.
EXHIBIT "F"
Page 2 of 2
<PAGE> 50
EXHIBIT "G"
LANDLORD'S SERVICES
In addition to Landlord's obligations in Article 12 and the rest of
this Lease, Landlord shall furnish (as part of Operating Costs) the following
services during the term of the Lease and any renewals:
I. Outside Maintenance:
A. All parking areas and access ways will be plowed of snow and
ice and sanded as reasonably required and practicable. All
paths and walkways will be shoveled of snow and sanded as
reasonably required and practicable.
B. All landscaped areas and exterior grounds shall be kept in a
neat appearance.
C. Lighting of all parking areas and roadways.
II. Miscellaneous Services:
A. Render pest control services as reasonably required.
B. Wash exterior windows at least once per year.
III. Janitorial Services: None, Tenant responsible for all Janitorial
Services.
IV. Trash: Tenant will have access to trash compactor(s) (or the
equivalent) for standard office-usage trash disposal. Landlord provides
hauling from compactor.
Landlord will provide or hire the personnel necessary to provide the
services set forth herein, including, if necessary, on-site personnel
(and the costs related to all of such personnel shall be part of
Operating Costs).
EXHIBIT "G"
Page 1 of 1
<PAGE> 51
EXHIBIT H
UNAMORTIZED COSTS
<TABLE>
<CAPTION>
Month (starting after Month (starting after
month in which the month in which the
Commencement Date Commencement Date
occurs). Prior to the occurs). Prior to the
Commencement Date, Commencement Date,
the Unamortized Costs the Unamortized Costs
shall be $16.25 Million AMOUNT shall be $16.25 Million AMOUNT
- --------------------------------------------- ---------------------------------------------
<S> <C> <C> <C>
$16,250,000.00
1 16,219,702.71 55 14,196,788.26
2 16,189,178.20 56 14,151,091.89
3 16,158,424.75 57 14,105,052.79
4 16,127,440.65 58 14,058,668.40
5 16,096,224.17 59 14,011,936.13
6 16,064,773.56 60 13,964,853.36
7 16,033,087.08 61 13,917,417.48
8 16,001,162.95 62 13,869,625.82
9 15,968,999.38 63 13,821,475.73
10 15,936,594.59 64 13,772,964.51
11 15,903,946.77 65 13,724,089.46
12 15,871,054.08 66 13,674,847.84
13 15,837,914.70 67 13,625,236.92
14 15,804,526.77 68 13,575,253.91
15 15,770,888.44 69 13,524,896.03
16 15,736,997.82 70 13,474,160.46
17 15,702,853.01 71 13,423,044.38
18 15,668,452.13 72 13,371,544.93
19 15,633,793.23 73 13,319,659.23
20 15,598,874.39 74 13,267,384.38
21 15,563,693.67 75 13,214,717.48
22 15,528,249.08 76 13,161,655.58
23 15,492,538.67 77 13,108,195.71
24 15,456,560.42 78 13,054,334.89
25 15,420,312.34 79 13,000,070.12
26 15,383,792.39 80 12,945,398.36
27 15,346,998.55 81 12,890,316.56
28 15,309,928.75 82 12,834,821.65
29 15,272,580.93 83 12,778,910.52
30 15,234,953.01 84 12,722,580.06
31 15,197,042.87 85 12,665,827.13
32 15,158,848.40 86 12,608,648.55
33 15,120,367.48 87 12,551,041.13
34 15,081,597.95 88 12,493,001.65
35 15,042,537.65 89 12,434,526.87
36 15,003,184.39 90 12,375,613.54
37 14,963,535.99 91 12,316,258.36
38 14,923,590.23 92 12,256,458.01
39 14,883,344.87 93 12,196,209.16
40 14,842,797.67 94 12,135,508.44
41 14,801,946.36 95 12,074,352.47
42 14,760,788.68 96 12,012,737.82
43 14,719,322.31 97 11,950,661.07
44 14,677,544.94 98 11,888,118.74
45 14,635,454.24 99 11,825,107.35
46 14,593,047.86 100 11,761,623.37
47 14,550,323.43 101 11,697,663.26
48 14,507,278.57 102 11,633,223.45
49 14,463,910.88 103 11,568,300.34
50 14,420,217.92 104 11,502,890.30
51 14,376,197.27 105 11,436,989.69
52 14,331,846.46 106 11,370,594.83
53 14,287,163.03 107 11,303,702.01
54 14,242,144.46 108 11,236,307.49
</TABLE>
<PAGE> 52
EXHIBIT H
UNAMORTIZED COSTS
<TABLE>
<CAPTION>
Month (starting after Month (starting after
month in which the month in which the
Commencement Date, Commencement Date
occurs). Prior to the occurs). Prior to the
Commencement Date, Commencement Date,
the Unamortized Costs the Unamortized Costs
shall be $16.25 Million AMOUNT shall be $16.25 Million AMOUNT
- --------------------------------------------- ---------------------------------------------
<S> <C> <C> <C>
109 11,168,407.51 164 6,532,393.78
110 11,099,998.28 165 6,429,214.44
111 11,031,075.98 166 6,325,261.27
112 10,961,636.76 167 6,220,528.44
113 10,891,676.75 168 6,115,010.12
114 10,821,192.04 169 6,008,700.41
115 10,750,178.70 170 5,901,593.37
116 10,678,632.75 171 5,793,683.04
117 10,606,550.21 172 5,684,963.38
118 10,533,927.05 173 5,575,428.31
119 10,460,759.22 174 5,465,071.74
120 10,387,042.63 175 5,353,887.49
121 10,312,773.16 176 5,241,869.36
122 10,237,946.67 177 5,129,011.10
123 10,162,558.99 178 5,015,306.40
124 10,086,605.89 179 4,900,748.91
125 10,010,083.15 180 4,785,332.24
126 9,932,986.49 181 4,669,049.94
127 9,855,311.60 182 4,551,895.53
128 9,777,054.15 183 4,433,862.46
129 9,698,209.77 184 4,314,944.15
130 9,618,774.06 185 4,195,133.94
131 9,538,742.58 186 4,074,425.16
132 9,458,110.86 187 3,952,811.06
133 9,376,874.41 188 3,830,284.86
134 9,295,028.68 189 3,706,839.71
135 9,212,569.11 190 3,582,468.72
136 9,129,491.09 191 3,457,164.95
137 9,045,789.99 192 3,330,921.40
138 8,961,461.13 193 3,203,731.03
139 8,876,499.80 194 3,075,586.73
140 8,790,901.26 195 2,946,481.34
141 8,704,660.74 196 2,816,407.66
142 8,617,773.41 197 2,685,358.44
143 8,530,234.42 198 2,553,326.34
144 8,442,038.90 199 2,420,304.00
145 8,353,181.90 200 2,286,283.99
146 8,263,658.48 201 2,151,258.84
147 8,173,463.63 202 2,015,220.99
148 8,082,592.32 203 1,878,162.86
149 7,991,039.48 204 1,740,076.80
150 7,898,799.99 205 1,600,955.09
151 7,805,868.70 206 1,460,789.97
152 7,712,240.43 207 1,319,573.61
153 7,617,909.95 208 1,177,298.12
154 7,522,871.99 209 1,033,955.57
155 7,427,121.24 210 889,537.95
156 7,330,652.37 211 744,037.20
157 7,233,459.97 212 597,445.20
158 7,135,538.64 213 449,753.75
159 7,036,882.89 214 300,954.62
160 6,937,487.23 215 151,039.49
161 6,837,346.10 216 0.00
162 6,736,453.91
163 6,634,805.02
</TABLE>
<PAGE> 53
EXHIBIT "I"
[INTENTIONALLY OMITTED]
EXHIBIT "I"
Page 1 of 1
<PAGE> 54
EXHIBIT "J"
ESTOPPEL CERTIFICATE
[Name & Address of Lender]
- --------------------------
- --------------------------
- --------------------------
- --------------------------
RE: Proposed Loan to 200 Minuteman Limited Partnership (the
"Landlord") Secured by a $12.5 Million Letter of Credit issued
by The First National Bank of Boston (the "Letter of Credit')
delivered by PictureTel Corporation (the "Tenant")
Dear Sir or Madam:
We are the tenant under the terms of a certain lease (together with any
amendments, options, extensions and renewals listed below, the "Lease") demising
premises which comprise all of the property located at 200 Minuteman Road,
Andover, Massachusetts (the "Real Property"). We understand that you, Lender,
will rely on this Certificate in connection with a proposed $ Million
loan (the "Loan) to Landlord. The Letter of Credit will be Lender's security for
the Loan.
Tenant certifies that:
(a) It occupies the premises demised by the Lease.
(b) The material business terms of the Lease are as follows:
Landlord: 200 Minuteman Limited Partnership.
Lease Date:
Lease Commencement Date:
Subleases (if any): N/A
Amendments and Modifications (if any):
Current Monthly Base Rent:
Current Expense Reimbursement: The Lease is triple net, and
operating costs, insurance and real estate taxes are payable
by Tenant per the terms of the Lease.
Square Footage: Approximately 200,000 s.f.
Expiration Date:
Renewals or Extension Options (if any): Seven 10-year
extension options.
Security or other Deposit: The Letter of Credit.
Uncompleted Tenant Improvements (if any): Landlord's Work has
been substantially completed, subject to minor punchlist
items.
EXHIBIT "J"
Page 1 of 2
<PAGE> 55
Unpaid Tenant Allowances (if any): N/A.
Other Financial Obligation of Landlord (if any): N/A
(c) The Lease is Tenant's entire agreement with the Landlord.
(d) Tenant has accepted and currently occupies the leased
premises, is paying full rent under the Lease, and neither (i)
presently asserts any Landlord default, claim against
Landlord, matured right of setoff, or right to pay reduced
rent nor (ii) knows of any fact which, with the giving of
notice or the passage of time, or both, could give rise to any
such default claim or right.
(e) Tenant neither (i) presently asserts any matured right to
terminate or to cancel the Lease nor (ii) knows of any fact
which, with the giving of notice or the passage of time or
both, could give rise to any such right.
(f) Tenant does not presently intend to vacate its premises any
time prior to the lease's expiration date and knows of no fact
which could give rise to any such intent.
(g) Tenant is not the debtor in any bankruptcy or state insolvency
case and is not the subject of any receivership, winding up,
liquidation or similar proceeding.
(h) Tenant agrees that no future modification or amendment of the
Lease relating to the Letter of Credit will be enforceable
unless the modification or amendment has been consented to in
writing by the Lender.
Very truly yours,
Tenant: PictureTel Corporation
By:
----------------------------
Title:
-------------------------
Date:
--------------------------
EXHIBIT "J"
Page 2 of 2
<PAGE> 56
Pre-Closing
EXHIBIT J
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
- --------------------------------------------------------------------------------
Space Above This Line for Recorder's Use
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
THIS AGREEMENT, is made this day of , 199 by
having its principal office and place of business located at
("Tenant"), and
John Hancock Mutual Life Insurance Company, having its principal place of
business located at 200 Clarendon Street, John Hancock Place, P.O. Box 111,
Boston, MA 02117 ("Lender"), with reference to the following facts:
RECITALS
A. On , ("Landlord") and
Tenant entered into a certain lease ("Lease") covering certain space
("Premises") in the building located at , which
property is more particularly described in the Mortgage (as hereinafter
defined) ("Property");
B. Lender has agreed to make a loan ("Loan") to Landlord, which
Loan is to be evidenced by a note and secured, inter alia, by a first [deed of
trust/mortgage] in favor of Lender and upon the terms and conditions described
therein, which shall be recorded in the Official Records of
(said mortgage and all amendments, modifications, renewals, substitutions,
extensions, consolidations and replacements are hereinafter collectively
referred to as "Mortgage");
C. It is a condition precedent to obtaining the Loan that (i) the
Mortgage unconditionally be and remain at all times a first lien or charge upon
the Property prior and superior to the Lease; (ii) Tenant specifically and
unconditionally subordinate the Lease to the lien or charge of the Mortgage and
(iii) Tenant attorn to Lender and its successor and assigns in the event of the
foreclosure or other proceeding to enforce the Mortgage;
NOW THEREFORE, in consideration of the mutual benefits accruing to the
parties hereto and other valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, and in order to induce Lender to enter into the
above-referenced Loan, Lender and Tenant hereby agree as follows:
<PAGE> 57
1. Subordination. The Mortgage is and shall unconditionally be and
remain at all times a lien or charge upon the Property prior and superior to
the Lease, the leasehold estate created thereby and all rights and privileges
of Tenant or any other tenant thereunder, and the Lease, the leasehold estate
created thereby and all rights and privileges of Tenant or any other tenant
thereunder are hereby unconditionally subjected and made subordinate to the lien
or charge of the Mortgage.
2. Lender's Exercise of Remedies. In the event of (a) the institution
of any foreclosure, trustee's sale or other like proceeding, (b) the appointment
of a receiver for the Landlord or the Property, (c) the exercise of rights to
collect rents under the Mortgage or an assignment of rents, (d) the recording by
Lender or its successor or assignee of a deed in lieu of foreclosure for the
Property, or (e) any transfer or abandonment of possession of the Property to
Lender or its successor or assigns in connection with any proceedings affecting
Landlord under the Bankruptcy Code, ll U.S.C. Section 101 at seq. (any such
foreclosure, recording of a deed in lieu of foreclosure, or transfer or
abandonment of the Property referred to in the preceding clauses (a) through (e)
is hereinafter called a "Transfer", and Lender or any successor or assignee of
Lender taking title to the Property in connection with a Transfer is hereinafter
called the "Transferee"), such Transferee shall not; (i) be liable for any
damages (including, without limitation, consequential damages) or other relief
or be subject to any offsets, defenses or counterclaims of any kind attributable
to any act, omission or waiver (express or implied) of Landlord or any prior
landlord under the Lease, or otherwise; (ii) be obligated to complete any
construction or improvements at the Property, Premises or elsewhere agreed to be
done by Landlord or any prior landlord under the Lease, or otherwise, or to
reimburse Tenant for any prior construction work done by Tenant, or be subject
to any offsets, defenses or counterclaims therefor, (iii) be bound by any
prepayment by Tenant or more than one month's installment of rent unless such
prepayment has been specifically approved in writing by Lender, or be liable or
responsible for any security deposit or other sums which Tenant may have paid
under the Lease unless such deposit or other sums have been physically delivered
to Transferee, (iv) be bound by any modification of or amendment to the Lease,
unless such amendment or modification shall have been approved in writing by
Lender, (v) be bound by any notices given by Tenant to Landlord unless a copy
thereof was then simultaneously given to Lender, (vi) be required after a fire,
casualty or condemnation of the Property or Premises to repair or rebuild the
same to the extent that such repair or rebuilding requires funds in excess of
the insurance or condemnation proceeds specifically allocable to the Premises
and arising out of such fire, casualty or condemnation which have actually been
received by Transferee, and then only to the extent required by the terms of the
Lease, (vii) be responsible to provide any additional space at the Property or
elsewhere for which Tenant has any option or right under the Lease, or
otherwise, unless Transferee at its option elects to provide the same, and
Tenant hereby releases Transferee from any obligation to provide the same, and
agrees that Tenant shall have no right to cancel the Lease and shall possess no
right to any claim against Transferee as a result of the failure to provide any
such additional space, or (viii) be liable for or incur any obligation with
respect to any representations or warranties of any nature set forth in the
Lease or otherwise, including, but not limited to, representations or warranties
relating to any latent or patent defects in construction with respect to, the
Property or the Premises, Landlord's title or compliance of the Property or
Premises with applicable environmental, building, zoning or other laws,
including, but not limited to, the Americans with Disabilities Act and any
regulations pursuant thereto.
<PAGE> 58
3. Attornment and Non-Disturbance. Except as set forth in Paragraph 2
above, provided (a) Tenant complies with this Agreement, (b) Tenant is not in
default under the terms of the Lease and no event has occurred which, with the
passage of time or the giving of notice or both, would constitute a default
under the Lease, (c) the Lease is in full force and effect, both as of the date
Lender files a lis pendens, or otherwise commences a foreclosure action, or at
any time thereafter, and (d) Tenant shall be in possession of the Premises, no
default under the Mortgage and no proceeding to foreclose the same will disturb
Tenant's possession under the Lease and the Lease will not be affected or cut
off thereby, and notwithstanding any such foreclosure or other Transfer of the
Property to Transferee, the Lease will be recognized as a direct lease from
Transferee to Tenant upon the Transfer for the balance of the term thereof.
Tenant shall attorn to Transferee, including Lender if Lender becomes a
Transferee, as the landlord under the Lease. Said attornment is subject to the
limitations of Transferee's obligations set forth in Paragraph 2 above and shall
be effective and self-operative without the execution of any further instruments
upon Transferee succeeding to the interest of the landlord under the Lease.
Within ten (10) days after receipt of a written request therefor from
Transferee, Tenant agrees to provide Transferee a written confirmation of its
attornment to Transferee and any other matter set forth in this Agreement.
Failure to provide such written confirmation shall not derogate from Tenant's
obligations to Transferee hereunder.
4. Miscellaneous.
(a) This Agreement shall inure to the benefit of the parties hereto
their successors and assigns; provided, however, that in the event of the
assignment or transfer of the interest of Transferee, all obligations and
liabilities of Transferee under this Agreement shall terminate, and thereupon
all such obligations and liabilities shall be the responsibility of the party to
whom Transferee's interest is assigned or transferred; and provided further that
the interest of Tenant under this Agreement may not be assigned or transferred
except to the extent the assignment of Tenant's interest in the Lease is
permitted under the Lease.
(b) Tenant acknowledges that it has notice that the Lease and the rent
and all other sums due thereunder have been assigned to the Lender as part of
the security for the note secured by the Mortgage and upon written notice from
Lender of a default under the Mortgage, Tenant shall pay its rent and all other
sums due under the Lease directly to Lender.
(d) Anything herein or in the Lease to the contrary notwithstanding,
in the event that Transferee shall acquire title to the Property, Transferee
shall have no obligation, not incur any liability , beyond Transferee's then
interest in the Property, and Tenant shall look exclusively to such interest
<PAGE> 59
of Transferee in the Property for the payment and discharge of any obligations
imposed upon Transferee hereunder or under the Lease, or otherwise, subject to
the limitation of Transferee's obligations provided for in Paragraph 2 above.
(e) This agreement is the whole and only agreement between the
parties hereto with regard to the subordination of the Lease to the lien or
charge of the Mortgage, and shall supersede and cancel all other subjection or
subordination agreements including, but not limited to, those provisions, if
any, contained in the Lease which provide for the subjection or subordination
of said Lease to a deed of trust or to a mortgage or mortgages. This Agreement
may not be modified in any manner or terminated except by an instrument in
writing executed by the parties hereto.
(f) This Agreement shall be deemed to have been made in the state
where the Property is located and the validity, interpretation and enforcement
of this Agreement shall be determined in accordance with the laws of such state.
(g) In the event any legal action or proceeding is commenced to
interpret or enforce the terms of, or obligations arising out of, this
Agreement, or to recover damages for the breach thereof, the party prevailing
in any such action or proceeding shall be entitled to recover from the
non-prevailing party all reasonable attorneys' fees, costs and expenses
incurred by the prevailing party.
(h) Any notices or communications required or permitted to be given or
made hereunder shall be deemed to be so given or made when in writing and
delivered in person or sent by United States registered or certified mail,
postage prepaid, or by nationally recognized overnight courier service,
directed to the parties at the following addresses or such other addresses as
they may from time to time designate in writing:
Lender: John Hancock Mutual Life Insurance Company
Real Estate Investment Group
Attention: Mortgage Investments, T-53
P. O. Box 111
Boston, MA 02117
Reference Loan No. ___________
Tenant: ___________________________________
___________________________________
___________________________________
___________________________________
Notices of communications mailed in the U.S. mail shall be deemed to be
served on the third business day following mailing, notices or communication
served by hand or by overnight courier shall be deemed served upon receipt.
The parties hereto represent and warrant that their respective
signatories to this Agreement have been duly authorized by the Tenant and
Lender, as applicable.
<PAGE> 60
IN WITNESS WHEREOF, this Agreement has been signed and delivered as of
the date and year first above set forth.
TENANT:
__________________________________
By:_______________________________
Its:______________________________
duly authorized
LENDER:
JOHN HANCOCK MUTUAL LIFE INSURANCE
COMPANY
By:________________________________
Its:_______________________________
duly authorized
STATE OF )
) ss.
COUNTY OF )
On this day of , 19 , before me, the
undersigned, a Notary Public in and for the said , residing
therein, duly appeared , to me personally
known, who by me duly sworn, did say that he/she is a
of
, [that the seal affixed to the foregoing instrument
is the corporate seal of said corporation, and that said instrument was signed
and sealed in behalf of said corporation by authority of its Board of
Directors] and as the free act and deed of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal in said County the day and year in this certificate first above written.
_____________________________
Notary Public in and for said
___________________________
My commission expires:
_____________________
<PAGE> 61
THE COMMONWEALTH OF MASSACHUSETTS )
) ss.
COUNTY OF SUFFOLK )
On this day of , 19 , before me, the undersigned, a
Notary Public in and for the said Commonwealth, residing therein, duly
commissioned and sworn, personally
appeared , to me personally known,
who by me duly sworn, did say that he/she is a
of John Hancock Mutual Life
Insurance Company, that the seal affixed to the foregoing instrument is the
corporate seal of said corporation, and that said instrument was signed and
sealed on behalf of said corporation by authority of its Board of Directors and
as the free act and deed of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal in said County the day and year in this certificate first above written.
___________________________________
Notary Public in and for said
Commonwealth
My commission expires:
_______________________
1192(a)
12/2/94
<PAGE> 62
TENANT ESTOPPEL CERTIFICATE
OF
[TENANT'S NAME]
TO: John Hancock Mutual Life Insurance Company ("John Hancock")
RE: Lease Between [Landlord]
and [Tenant] for space located
at [Suite No. ]("Leased Premises")
J.H. Loan No.
Ladies and Gentlemen:
For good and valuable consideration and as an inducement to the making of a
mortgage/deed of trust loan by John Hancock to
[Name of Borrower] covering the Leased Premises, the undersigned, as Lessee
under that certain lease ("Lease") dated [Fill In] made
with , as Lessor, hereby certifies that (1) the
undersigned has entered into occupancy of the Leased Premises on ,
which Leased Premises is acknowledged to contain [rentable/usable]
square feet; (2) said Lease is in full force and effect and has not been
modified, supplemented or amended in any way (except by agreements dated
[Fill In]; (3) the same represents the entire agreement between
the parties as to this leasing, (4) the term of the Lease expires on
; (5) there are no options to extend the term except as follows:
; (6) there are no options to purchase the Leased Premises or
any rights of first refusal except as follows: ;
(7) all conditions under the Lease to be performed by the Lessor prerequisite
to the full effectiveness of the Lease have been satisfied; (8) all of the
construction, repair and improvements contemplated by the Lease to be performed
by Lessor have been performed by Lessor and have been completed satisfactorily
in accordance with the terms of the Lease, and that no other construction,
repair and improvements are contemplated under the Lease; (9) there are no sums
or credits due Lessee from Lessor under the Lease; (10) on this date there
exists no factual circumstance or condition which, with notice or the lapse of
time, or both, would give rise to any obligation on the part of Lessor, would
constitute a default on the part of Lessor, would constitute a defense to the
enforcement of the Lease by Lessor or an offset against the rents or other
charges due the Lessor under the Lease, or would constitute the basis for a
claim or cause of action against the Lessor; (11) the minimum rental obligation
under the Lease in effect is $ per annum, the current monthly
additional rental is $ , the minimum and additional rental to
has been paid, and no rental had been paid in advance; (12) a security
deposit in the amount of $ was paid by Lessee to Lessor on
, 19 ; (13) the Tenant is not using the Leased Premises in violation of any
applicable laws, rules, ordinances or regulations, including, but not limited
to, any applicable environmental laws, rules or regulations (collectively
"Laws"), there are no regulatory actions or other claims pending or threatened
against the Tenant in connection with any such Laws, Tenant has not received
any notice from any third party or governmental authority alleging a violation
of any such Laws, and Tenant shall immediately notify Lessor and John Hancock
in writing of any existing, pending or threatened action by any local, state or
federal governmental authority and of any third party claims of which Tenant is
aware arising out of the violation or alleged violation of any Laws; (14) there
has not been filed by or against the Tenant nor, to the best knowledge and
belief of Tenant, is there threatened against or contemplated by Tenant, a
petition in bankruptcy, voluntary or otherwise, any assignment for the benefit
of creditors, any petition seeking reorganization or arrangement under
bankruptcy laws of the United States or of any state hereof, or any other
action brought under said bankruptcy laws; and (15) to the best of Tenant's
knowledge, there has not been any assignment, hypothecation or pledge of
Lessor's interest in the Lease or rents accruing under the Lease, other than to
John Hancock.
The undersigned, as Lessee, hereby agrees that from this date forward it (i)
will not pay any rent due under the Lease more than thirty (30) days in advance
of its due date; (ii) agrees to give prompt, written notice to John Hancock, as
holder of a mortgage/deed of trust covering the Leased Premises, of any default
of the Lessor in the obligations of Lessor under said Lease, if such default is
of such a nature as to give the Lessee a right to terminate the Lease, to
reduce rent thereunder, or to credit or offset any amounts against future
rents, (iii) will not seek to terminate the Lease or claim a partial or total
eviction until giving such notice and providing John Hancock at least sixty
(60) days from the date of such notice to remedy such default, or such
reasonable additional time if the default is of such a nature that it cannot be
cured within such sixty (60) day period, provided John Hancock has commenced
the curing of such within such sixty (60) day period and is diligently pursuing
the cure of such default, provided, however, Lessee hereby acknowledges that
John Hancock shall be under no obligation to remedy such default, (iv) agrees
that if John Hancock succeeds to the interest of the Lessor under the Lease
that John Hancock shall not be liable for any act or omission of the Lessor or
subject to any offset or defenses which the Lessee might have against the
Lessor and shall have no obligation, nor incur any liability, beyond John
Hancock's then interest in the Leased Premises and (v) will not modify, amend
or cancel the Lease without the prior written consent of John Hancock.
All notices to John Hancock shall be by certified mail, return receipt
requested addressed to: John Hancock Mutual Life Insurance Company, John
Hancock Place, P.O. Box 111, Real Estate Investment Group, Attention: Mortgage
Investments, T-53, Boston, MA 02117.
The Tenant acknowledges having read this Certificate and understands the
certifications and representations made herein, and hereby executes this
Certificate, which shall take effect as a sealed instrument, intending reliance
hereon by John Hancock. The undersigned signatory represents and warrants that
he or she is duly authorized to execute this Certificate on behalf of the
Tenant.
<PAGE> 63
TENANT'S NAME:
BY:_________________________________ Date: ______________________
Name:
_________________________________
Title: Its ____________ President
STATE OF )
)ss.
COUNTY OF )
On this day of , 19 , before me, the
undersigned, a Notary Public in and for the said , residing
therein, duly commissioned and sworn, personally
appeared to me personally known, who by me duly sworn, did say that he/she
is a of ,
[that the seal affixed to the foregoing instrument is the corporate seal of
said , and that said instrument was signed and
sealed in behalf of said .
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal in said County the day and year in this certificate first above written.
_______________________________
Notary Public in and for said
____________________
My commission expires:
_____________________
1196(a)
12/27/94
<PAGE> 64
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
THIS AGREEMENT, is made this 10th day of July, 1996 by PICTURETEL
CORPORATION, a Delaware corporation, having its principal office and place of
business located at the Tower at Northwoods, 222 Rosewood Drive, Danvers,
Massachusetts 01923 ("Tenant") and Life Investors Insurance Company of America,
an Iowa corporation, having its principal place of business located at 4333
Edgewood Road, N.E., Cedar Rapids, Iowa 52499 ("Lender"), with reference to the
following facts:
RECITALS
A. 100 Minuteman Limited Partnership, a Massachusetts limited
partnership ("Landlord"), and Tenant entered into a certain lease, dated as of
October 10, 1995, and amended by Amendment #1 to Lease dated July 10, 1996
(collectively, together with any extensions, renewals of replacements thereof
the "Lease"), covering land and a building, and other improvements thereon
located in Andover, Massachusetts, which property is more particularly described
in the Mortgage (as hereinafter defined ("Property"));
B. Lender has agreed to make a loan ("Loan") to Landlord, which Loan
is to be evidenced by a note and secured, inter alia, by a first mortgage and
security agreement in favor of Lender and upon the terms and conditions
described therein, which shall be recorded in the registry of Deeds, Essex
County (said mortgage and security agreement, and all amendments,
modifications, renewals, substitutions, extensions, consolidations and
replacements are hereinafter collectively referred to as "Mortgage");
C. It is a condition precedent to obtaining the Loan that (i) the
Mortgage unconditionally be and remain at all times a first lien or charge upon
the Property prior and superior to the Lease and to any rights of offsets,
defenses, or credits that Tenant may have under Section 19.5 of the Lease in
connection with that certain Letter of Credit issued by Bank of Boston, dated
October 10, 1995, in the original face amount of $10,000,000 and any renewals,
replacements or amendments thereof (the "Letter of Credit"); (ii) Tenant
specifically and unconditionally subordinates the Lease and its rights under
the Letter of Credit to the lien or charge of the Mortgage; and (iii) Tenant
attornment to Lender and its successor and assigns in the event of the
foreclosure of other proceeding to enforce the Mortgage;
NOW, THEREFORE, in consideration of the mutual benefits accruing to the
parties hereto and other valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, and in order to induce Lender to enter into the
above-referenced Loan, Lender and Tenant hereby agree as follows:
1. Subordination. The Mortgage is and shall unconditionally be and
remain at all times a lien or change upon the Property prior and superior to
the Lease and any rights or offset, credit, deduction, reimbursement or payment
that
-1-
<PAGE> 65
tenant may have in connection with the Letter of Credit under Section 19.5 of
the Lease and/or the "LC Note" (as defined in the Lease)/the leasehold estate
treated thereby and all rights and privileges of Tenant or any other tenant
thereunder, and the Lease, the leasehold estate created thereby and all rights
and privileges of Tenant or any other tenant under the Lease, including,
without limitation, in connection with the Letter of Credit under Section 19.5
of the Lease and/or the LC Note, are hereby unconditionally subjected and made
subordinate to the lien or charge of the Mortgage.
2. Lender's Exercise of Remedies. In the event of (a) the institution
of any foreclosure, trustee's sale or other like proceeding, (b) the
appointment of a receive for the Landlord or the Property, (c) the exercise of
rights to collect rents under the Mortgage or an assignment of rents, (d) the
recording by Lender or its successor or assignee of a deed in lieu of
foreclosure for the property, or (e) any transfer or abandonment of possession
of the Property to Lender or its successor or assigns in connection with any
proceedings affecting Landlord under the Bankruptcy Code, 11 U.S.C. Section 101
et seq. (any such foreclosure, recording of a deed in lieu of foreclosure, or
transfer or abandonment of the Property referred to in the preceding clauses
(a) through (e) is hereinafter called a "Transfer", and Lender or any successor
or assignee of Lender taking title to the Property in connection with a
Transfer is hereinafter called the "Transferee", such Transferee shall not: (i)
be liable for any damages (including, without limitation, consequential
damages) or other relief or be subject to any offsets, defenses or
counterclaims of any kind attributable to any act, omission or waiver (express
or implied) of Landlord or any prior landlord under the Lease, including,
without limitation, in connection with the Letter of Credit under Section 19.5
of the Lease and/or the LC Note, or otherwise; (ii) be obligated to complete
any construction or improvements at the Property, Premises, or elsewhere agreed
to be done by Landlord or any prior landlord under the lease, including,
without limitation, Landlord's obligations under that certain Agency Agreement
between Landlord and Tenant dated October 10, 1995, and Landlord's obligation
of construction contained in Exhibit C to the Lease, or otherwise, or to
reimburse Tenant for any prior construction work done by Tenant, or be subject
to any offsets, defences or counterclaims therefor, (iii) be bound by an
prepayment by Tenant of more than one month's installment of rent unless such
prepayment has been specifically approved in writing by Lender, or be liable or
responsible for any security deposit or other sums which Tenant may have paid
under the Lease unless such deposit or other sums have been physically
delivered to Transferee, (iv) be bound by any modification of or amendment to
the Lease, unless such amendment or modification shall have been approved in
writing by Lender, (v) be bound by any notices given by Tenant to Landlord,
(vi) be required after a fire, casualty or condemnation of the Property or
Premises to repair or rebuild the same to the extent that such repair or
rebuilding requires funds in excess of the insurance or condemnation proceeds
specifically allocable to the Premises and arising out of such fire, casualty
or condemnation which gave actually been received by Transferees, and then
only to the extent required by the terms of the Lease, (vii) be responsible to
provide any additional space at the Property or elsewhere for which Tenant has
any option or right under the Lease, or otherwise, unless Transferee at its
option elects to provide the same, and Tenant hereby releases Transferee from
any obligation to provide the same, and
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<PAGE> 66
agrees that Tenant shall have no right to cancel the Lease and shall possess no
right to any claim against Transferee as a result of the failure to provide any
such additional space, (viii) be liable for or incur any obligation with
respect to any representations or warranties of any nature set forth in the
Lease or otherwise, including, but not limited to, representations or
warranties relating to any latent of patent defects in construction with
respect to the Property or the Premises, Landlord's title or compliance of the
Property or Premises with applicable environmental, building, zoning or other
laws, including, but not limited to, the Americans with Disabilities Act and
any regulations pursuant thereto, or (ix) be subject to the obligation to
reimburse or credit against rent those amounts paid by Tenant to the issuer of
the Letter of Credit, which right is set forth in Section 5(b) of the Lease.
3. ATTORNMENT AND NON-DISTURBANCE. Except as set forth in Paragraph 2
above, provided (a) Tenant complies with this Agreement, (b) Tenant is not in
default under the terms of the Lease and no event has occurred which, with the
passage of time or the giving of notice or both, would constitute a default
under the Lease, (c) the Lease is in full force and effect, both as of the date
Lender files a lis pendens, or otherwise commences a foreclosure action, or at
any time thereafter, and (d) Tenant shall be in possession of the Premises, no
default under the Mortgage and no proceeding to foreclose the same will disturb
Tenant's possession under the Lease and the Lease will not be affected or cut
off thereby, and notwithstanding any such foreclosure or other Transfer of the
Property to Transferee, the Lease will be recognized as a direct lease from
Transferee to Tenant upon the Transfer for the balance of the term thereof.
Tenant shall attorn to Transferee, including Lender if Lender becomes a
Transferee, as the Landlord under the Lease. Said attornment is subject to the
limitation of Transferee's obligations set forth in Paragraph 2 above and shall
be effective and self-operative without the execution of any further
instruments upon Transferee succeeding to the interest of the Landlord under
the Lease. Within ten (10) days after receipt of a written request therefor
from Transferee, Tenant agrees to provide Transferee a written confirmation of
its attornment to Transferee and any other matter set forth in this Agreement.
Failure to provide such written confirmation shall, at Transferee's sole
option, constitute a default under the Lease, but failure to receive such a
written confirmation from Tenant shall not derogate from Tenant's obligations
to Transferee hereunder.
4. MISCELLANEOUS.
(a) This Agreement shall inure to the benefit of the parties hereto,
their successors and assigns; provided, however, that in the event of the
assignment or transfer of the interest of Transferee, all obligations and
liabilities of Transferee under this Agreement shall terminate, and thereupon
all such obligations and liabilities shall be the responsibility of the party
to whom Transferee's interest is assigned or transferred; and provided further
that the interest of Tenant under this Agreement may not be assigned or
transferred except to the extent the assignment of Tenant's interest in the
Lease is permitted under the Lease.
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<PAGE> 67
(b) Tenant acknowledges that it has notice that the Lease and the rent
and all other sums due thereunder have been assigned to the Lender as part of
the security for the note accrued by the Mortgage and upon written notice from
Lender of a default under the Mortgage, Tenant shall pay its rent and all other
sums due under the Lease directly to Lender.
(c) Tenant covenants and acknowledges that it has certain rights and
options to purchase the Property or the real property of which the Property is a
part, as set forth in Addendum 4 and 5 of the Lease and elsewhere in the Lease,
and Tenant hereby expressly agrees that such rights shall be subject and
subordinate to the Mortgage and such rights are hereby waived and released as
against Transferee.
(d) Anything herein or in the Lease to the contrary notwithstanding,
in the event that Transferee shall acquire title to the Property, Transferee
shall have no obligation, nor incur any liability, beyond Transferee's then
interest in the Property, and Tenant shall look exclusively to such interest of
Transferee in the Property for the payment and discharge of any obligations
imposed upon Transferee hereunder or under the Lease, or otherwise, subject to
the limitation of Transferee's obligations provided for in Paragraph 2 above.
(e) This Agreement is the whole and only agreement between the parties
hereto with regard to the subordination of the Lease to the lien or charge of
the Mortgage, and shall supersede and cancel all other subjection or
subordination agreements, including, but not limited to, those provisions, if
any, contained in the Lease which provide for the subjection or subordination
of said Lease to a deed of trust or to a mortgage or mortgages. This Agreement
may not be modified in any manner or terminated except by an instrument in
writing executed by the parties hereto.
(f) This Agreement shall be deemed to have been made in the state
where the Property is located and the validity, interpretation and enforcement
of this Agreement shall be determined in accordance with the laws of such state.
(g) In the event any legal action or proceeding is commenced to
interpret or enforce the terms of, or obligations arising out of, this
Agreement, or to recover damages for the breach thereof, the party prevailing
in any such action or proceeding shall be entitled to recover from the
non-prevailing party all reasonable attorneys' fees, costs and expenses
incurred by the prevailing party.
(h) Any notices or communications required or permitted to be given or
made hereunder or under the Lease with respect to or involving the Lender as a
Landlord's Mortgagee shall be governed by this provision, and the parties hereto
expressly acknowledge that this provision shall control the Lender's obligation
to provide notice. Tenant agrees that Section 19.5(A) of the Lease is amended
as follows: Lender will make a good faith effort to provide notice to Tenant in
the event of default by Landlord, and shall in the Loan Documents list Tenant
as an additional party to receive a courtesy copy of any default notice sent by
Lender to Landlord, but Lender shall not be obligated to provide such notice
and Lender will not be liable for the failure to provide notice to Tenant, nor
will such failure be a default under the Lease. Notice shall be deemed to be so
-4-
<PAGE> 68
given or made when in writing and delivered in person or sent by United States
registered or certified mail, postage prepaid, or by nationally recognized
overnight courier service, directed to the parties at the following addresses
or such other addresses as they may from time to time designate in writing:
Lender: APGON USA Realty Advisors, Inc.
Attention: Gary Whittington, Esq.
4333 Edgewood Road, N.E.
Cedar Rapids, IA 52499
Tenant: PictureTel Corporation
Attention: Chief Financial Officer
The Tower at Northwoods
222 Rosewood Drive
Danvers, MA 01923
Notices or communications mailed in the U.S. Mail shall be deemed to be
served on the third business day following mailing, notices or communication
served by hand or by overnight courier shall be deemed served upon receipt.
The parties hereto represent and warrrant that their respective
signatories to this Agreement have been duly authorized by the Tenant and
Lender, as applicable.
(i) In the event Landlord exercises its option to repair the Property in
the event of damage pursuant to Section 16.2 of the Lease. Tenant hereby agrees
to provide an additional estoppel letter to Lender confirming Tenant's
obligation to continue to perform in accordance with the Lease.
(j) Tenant agrees to establish the collection account required by
Section 5(a) of the Lease, at the written request of Lender, so long as the
Loan is encumbering the Property.
(k) Tenant also agrees to furnish to Lender all financial information
it must provide to Landlord under Section 20(b) of the Lease.
- 5 -
<PAGE> 69
IN WITNESS WHEREOF, this Agreement has been signed and delivered as of
the date and year first above set forth.
TENANT:
PICTURETEL CORPORATION
/s/ Lawrence M. Bornstein
------------------------------------
By: Lawrence M. Bornstein
Its: Vice President - PictureTel Corp.
LENDER:
LIFE INVESTORS INSURANCE
COMPANY OF AMERICA
------------------------------------
By:
Its:
Consented to by Landlord:
100 MINUTEMAN LIMITED PARTNERSHIP
BY NIUNA-MINUTEMAN, INC.,
Its General Partner
/s/ John Kusmiersky
------------------------------------
By: John Kusmiersky
Its: President
- 6 -
<PAGE> 70
STATE OF MASSACHUSETTS )
) ss.
COUNTY OF ESSEX )
Before me personally appeared the above-named Lawrence M. Bornstein, of
PictureTel Corp., as aforesaid, and acknowledged the foregoing instrument to be
his free act and deed as Vice President of PictureTel Corp. and the free
act and deed of Lawrence M. Bornstein.
/s/ Kathleen M. Cummings
-----------------------------
Notary Public
My Commission Expires:
My Commission Expires Nov. 10, 2000
STATE OF MASSACHUSETTS )
) ss.
COUNTY OF ESSEX )
Before me personally appeared the above-named John Kusmiersky, of
NIUNA-Minuteman, Inc., as aforesaid, and acknowledged the foregoing instrument
to be his free act and deed as President of NIUNA-Minuteman, Inc. and the free
act and deed of John Kusmiersky.
/s/ Kathleen M. Cummings
-----------------------------
Notary Public
My Commission Expires:
My Commission Expires Nov. 10, 2000
<PAGE> 71
SUBORDINATION, NONDISTURBANCE AND ATTORNMENT AGREEMENT
THIS AGREEMENT, made this 26th day of August, 1996, by and among
PictureTel Corporation, a Delaware corporation with offices at 100 Minuteman
Road, Andover, Massachusetts 01810 (hereinafter called "Tenant"), 50 Minuteman
Limited Partnership, a Massachusetts limited partnership with offices c/o
Brickstone Properties, Inc., 300 Brickstone Square, Andover, Massachusetts
01810 (hereinafter called "Landlord") and MELLON BANK, N.A., a national banking
association having a mailbag address at 1735 Market Street, Real Estate Finance
- - 4th Floor, Philadelphia, Pennsylvania 19103 (hereinafter called "Mortgagee").
W I T N E S S E T H :
WHEREAS, the Tenant has entered into a certain lease (the "Lease")
dated August 26, 1996, with Landlord covering premises located in Andover,
Massachusetts (the "Premises") and more particularly described in Exhibit "A"
attached hereto and incorporated herein; and
WHEREAS, the Mortgagee has agreed to make a mortgage loan (the "Loan")
to Landlord secured by, among other security, a mortgage (the "Mortgage"; which
term includes all modifications, renewals, replacements, consolidations and
extensions thereof) on the Premises from Landlord and a certain Assignment of
Leases and Rents from Landlord to Mortgagee (the "Assignment"; which term
includes all modifications, renewals, replacements, consolidations and
extensions thereof) pertaining to the Premises; and
WHEREAS, Mortgagee has been requested by Tenant and Landlord to enter
into a nondisturbance agreement with Tenant,
NOW, THEREFORE, in consideration of the premises and mutual covenants
hereinafter contained and other valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and in order to induce Mortgagee
to make the Loan to Landlord, the parties hereto covenant and agree as follows:
1. The Lease and any extensions, renewals, replacements or
modifications thereof, and all of the right, title and interest of the Tenant
in and to said Premises are and shall be subject and subordinate to the
Mortgage and to all of the terms and conditions contained therein, except as
otherwise set forth in this Agreement. With respect to the obligations to make
available insurance proceeds to restore the Premises as a result of fire or
other casualty, so long as no other event of default has occurred under the
Mortgage, to the extent there is an inconsistency between the Lease and the
Mortgage, the Lease shall govern.
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<PAGE> 72
2. In the event of foreclosure of said Mortgage, or in the event
Mortgagee comes into possession, makes entry upon or acquires title to the
Premises as a result of the enforcement or foreclosure of the Mortgage or the
promissory note, or the Assignment or as a result of any other means, Mortgagee
agrees that the Lease shall not thereby be terminated and further agrees that
Tenant shall not be disturbed in its possession of the premises demised under
the Lease for any reason other than one which would entitle the Landlord to
terminate the Lease under its terms or would cause, without any further action
by such Landlord, the termination of the Lease or would entitle such Landlord
to dispossess the Tenant from such demised premises.
3. Tenant agrees with Mortgagee that, if the interests of Landlord
in the Premises shall be transferred to and owned by Mortgagee by reason of
foreclosure or other proceedings brought by it, or by any other manner, or if
Mortgagee takes possession of or makes entry upon the Premises pursuant to the
Mortgage, the Assignment or any other document evidencing or securing the Loan,
Tenant shall be directly bound to Mortgagee under all of the terms, covenants
and conditions of the Lease for the balance of the term thereof remaining and
nay extensions or renewals thereof which may be effected in accordance with any
option therefor in the Lease, with the same force and effect as if Mortgagee
were the Landlord under the Lease, and Tenant does hereby attorn to Mortgagee
as its Landlord, said attornment to be effective and self-operative without the
execution of any further instruments on the part of any of the parties hereto
immediately upon Mortgagee succeeding to the interest of the Landlord in the
Premises. Tenant agrees, however, upon the election of and written demand by
Mortgagee within twenty (20) days after Mortgagee receives title to the
Premises to execute an instrument in confirmation of the foregoing provisions,
satisfactory to Mortgagee, in which Tenant shall acknowledge such attornment
and shall set forth the terms and conditions of its tenancy.
4. Tenant agrees with Mortgagee that, if Mortgagee shall succeed
to the interest of Landlord under the Lease, Mortgagee shall not be (a) liable
for any act, waiver, representation (express or implied), or omission of any
prior landlord (the term "prior landlord" as used in this Section 4 includes,
without limitation, the Landlord) under the Lease or otherwise, or (b) subject
to any offsets, counterclaims or defenses which Tenant might have against any
prior landlord, or (c) bound by any rent, percentage rent or additional rent or
charges which Tenant might have paid for more than one month in advance to any
prior landlord, or (d) bound by any security deposit or tax and/or insurance
escrow which Tenant may have paid to any prior landlord, except to the extent
such deposit and escrowed funds are in an escrow fund controlled by Mortgagee,
or (e) bound by any amendment or modification of the Lease or any consent by any
prior landlord under the Lease to any assignment or sublease of the lessee's
interest in the Lease made without Mortgagee's prior written consent, or (f)
bound by any provision in the Lease which obligates the Landlord to erect or
complete any building or to perform any construction work or to make any
improvements to the Premises or any parts thereof, (including, without
limitation, "Landlord's Work", as defined in the Lease), provided that nothing
herein shall require Tenant to pay rent under the Lease except as provided in
the
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<PAGE> 73
Lease or (g) bound with respect to breaches other than those occurring during
Mortgagee's possession of the Premises or ownership of the landlord's interest
under the Lease or (h) bound by any of the provisions contained in Section 19.4
(Unpermitted Financing), Addendum #3 (Net Proceeds), Addendum #4 (Purchase
Options) or Addendum #5 (Right of Offer to Purchase). Notwithstanding the
provisions of clause (f), above, Tenant agrees that Mortgagee shall have the
election (but not the obligation) to complete, directly or indirectly, the
Landlord's Work in accordance with the Lease, with Tenant being obligated to
accept such as performance under the terms of the Lease. In addition, Tenant
agrees to look solely to the landlord's interest in the Premises or if the
Mortgagee acquires fee title to the Premises, to the Mortgagee's interest in the
Premises for recovery of any judgment from Mortgagee, it being specifically
agreed that neither Mortgagee nor anyone claiming under the Mortgagee shall ever
be personally liable for any such judgment. Tenant further agrees with Mortgagee
that Tenant will not voluntarily subordinate the Lease to any lien or
encumbrance without Mortgagee's prior written consent.
5. Tenant hereby acknowledges that all of Landlord's right, title and
interest as lessor under the Lease (and in any guarantees of Tenant's
obligations thereunder) are being duly assigned to the Mortgagee pursuant to the
terms of the Mortgage and/or the Assignment and that pursuant to the terms
thereof all rental payments under the Lease shall continue to be paid to
Landlord in accordance with the terms of the Lease unless and until Tenant is
otherwise notified in writing by the Mortgagee. Upon receipt of any such written
notice from the Mortgagee, Tenant covenants and agrees to make payment of all
rental payments and other charges and payments then due or to become due under
the Lease directly to the Mortgagee or to the Mortgagee's agent designated in
such notice, whether or not the Mortgagee has made entry or become mortgagee in
possession pursuant to the Mortgage or the Assignment, and to continue to do so
until otherwise notified in writing by the Mortgagee. Landlord hereby
irrevocably directs and authorizes Tenant to make rental payments directly to
the Mortgagee following receipt of such notice, and covenants and agrees that
Tenant shall have the right to rely on such notice without any obligation to
inquire as to whether any default exists under the Mortgage or the Assignment or
the indebtedness secured thereby, and notwithstanding any notice or claim of
Landlord to the contrary, and that Landlord shall have no right or claim against
Tenant for or by reason of any rental payments made by Tenant to the Mortgagee
following receipt of such notice Tenant further acknowledges and agrees: (a)
that under the provisions of the Mortgage and/or Assignment, the Lease (and any
guarantees thereof) cannot be terminated (nor can Landlord accept any surrender
of the Lease) or modified in any of its terms, or consent be given to the waiver
or release of Tenant from the performance or observance of any obligation under
the Lease or to any assignments or subleases thereof not permitted by the terms
of the Lease without the prior written consent of the Mortgagee, which consent
shall not be unreasonably withheld, and without the prior written consent of the
Mortgage no rent may be collected or accepted by Landlord more than one month in
advance; (b) that the interest of Landlord as lessor under the Lease (and in any
guarantees of Tenant's obligations thereunder) have been assigned to the
Mortgagee for the purposes specified in Mortgage and/or Assignment and
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<PAGE> 74
the Mortgagee assumes no duty, liability or obligation under the Lease, except
only under the circumstances, terms and conditions specifically set forth in
the Mortgage and/or the Assignment, copies of which are being recorded
concurrently herewith; and (c) that a default by Tenant under the Lease (as
"default" is defined in the Lease) which is not cured within the earlier of (i)
the applicable cure period provided under the Lease or (ii) the thirty (30) day
period following the occurrence of such default will constitute, at Mortgagee's
election, an event of default under the Loan with the Mortgagee having no
obligation to provide Tenant with any notice thereof or cure opportunity
therefor and notwithstanding the existence of any longer cure period provided
to Tenant under the Lease.
6. Tenant, as lessee under the Lease, hereby covenants and agrees to
give the Mortgagee written notice properly specifying wherein the landlord
under the Lease has failed to perform any of the covenants or obligations of
the landlord under the Lease, simultaneously with the giving of any notice of
such default to the landlord under the provisions of the Lease. Tenant agrees
that the Mortgagee shall have the right, but not the obligation, within sixty
(60) days after receipt by the Mortgagee of such notice (or within such
additional time as is reasonably required to correct any such default or is
provided for in the Lease, whichever is longer) to correct or remedy, or cause
to be corrected or remedied, each such default before the lessee under the
Lease may take any action under the Lease by reason of such default. Such
notices to the Mortgagee shall be delivered in duplicate to:
Mellon Bank, N.A.
1735 Market Street
Real Estate Finance - 4th Floor
Philadelphia, Pennsylvania 19103
with a copy to:
Michael J. Moran, Esquire
Goulston & Storrs
400 Atlantic Avenue
Boston, MA 02110
or to such other address as the Mortgagee shall have designated to Tenant by
giving written notice to Tenant at:
PictureTel Corporation
100 Minuteman Road
Andover, MA 01810
Attn: Chief Financial Office
<PAGE> 75
with a copy to:
Thomas Zimmer, Esq.
One Militia Drive
Lexington, MA 02173
or to such other address as may be designated by written notice from Tenant to
the Mortgagee. All written notices required or permitted hereunder shall be
sent by registered or certified mail, return receipt requested, or by
recognized overnight delivery service (such as Federal Express) by telex or fax
with confirmation in writing mailed first-class, in all cases with postage and
charges prepaid, and shall be considered effective when received or refused.
7. Tenant and Landlord acknowledge that Mortgagee is the beneficiary
under the Letter of Credit (as defined in the Lease) and notwithstanding
anything contained in the Mortgage or other Loan documents to the contrary,
Mortgagee agrees that it will draw under the Letter of Credit only in
accordance with Section 8.15 of that certain construction loan agreement
between Mortgagee and Landlord of even date herewith, a copy of which section
is attached hereto and incorporated herein. Each of Tenant and Landlord agree
with Mortgagee, notwithstanding anything to the contrary contained in the Lease,
that until such time as all of the conditions to Mortgagee's obligation to
advance the final $10,000,000 of loan proceeds under the Loan have been
satisfied, (a) the face amount of the Letter of Credit shall not be reduced as
set forth in Section 24.17(b) of the Lease (although the face amount shall be
reduced as provided in the Lease starting one year after the "Commencement
Date" (as defined in the Lease) if such conditions have then been satisfied);
and (b) the Mortgagee shall not be subject to any restriction in the Lease that
seeks to prevent draws under the Letter of Credit prior to substantial
completion of Landlord's Work (although draws shall remain subject to Section
8.15 attached); and until all indebtedness secured by the Mortgage is repaid,
(c) Tenant shall not seek to exercise any rights it may have under the Lease to
substitute for the Letter of Credit by a cash deposit or otherwise unless
Mortgagee gives its prior consent to such substitution; (d) the Letter of Credit
secures, inter alia, all obligations of Landlord to Mortgagee under the Loan;
and (c) the form of the Letter of Credit and the issuer thereof (and all
replacements and subsequent issuers thereof) shall be subject to Mortgagee's
approval at all times, which approval shall not be unreasonably withheld (i) as
to any issuer meeting the requirements of Section 24.17(c) of the Lease (and
First National Bank of Boston and Chemical Bank are hereby approved as issuers)
and (ii) as to any form that is no less favorable to Mortgagee than the form of
letter of credit attached hereto as Exhibit LC. Tenant further acknowledges
and agrees with Mortgagee that all rights of and liabilities owed to Tenant
(whether arising directly or indirectly, by operation of law, contract or
otherwise) on account of any draws made under the Letter of Credit by Mortgagee
in accordance with Section 8.15 attached are expressly subordinated in all
respects, including the right to payment and lien status, to the Loan and its
prior repayment to Mortgagee and all security and collateral provided to
Mortgagee in connection with the Loan. Such subordination shall not be affected
or impaired by any
-5-
<PAGE> 76
act or omission on the part of Mortgagee in connection with the Loan, any
noncompliance by Landlord with any obligation owed Mortgagee under the Loan or
any waiver, failure to perfect, release, amendment, restraint, compromise or
settlement of any obligations owed Mortgagee under the Loan or with respect to
any of the security provided to Mortgagee in connection with the Loan. So long
as any of the indebtedness under the Loan is committed or outstanding, Tenant
(i) agrees not to exercise or enforce any of its rights and remedies (whether
arising directly or indirectly, by operation of law or otherwise) against
Landlord or any of Landlord's assets on account of draws made by Mortgagee
under the Letter of Credit in accordance with Section 8.15 attached, except to
the extent strictly necessary to prevent the lapse of Tenant's rights and
remedies against Landlord (as opposed to the pursuit of such rights or
remedies). Tenant further agrees to provide directly to any lender who
refinances the Loan the benefit of the foregoing terms and conditions of this
Section 7 (except for those in clause (c) above).
8. Tenant and Landlord agree with Mortgagee that, prior to the
establishment of any collection account for the receipt and disbursement of
rent under the Lease (as set forth in Section 5(a) of the Lease), they will
notify Mortgagee of their intent to set up such account and obtain Mortgagee's
prior written consent therefor which will not be unreasonably withheld or
delayed. Once established such account shall not be changed, without
Mortgagee's prior written consent. In the event there occurs any event of
default under the Loan or a condition exists or event occurs that with the
passage of time and/or giving of notice could constitute an event of default
under the Loan, Tenant and Landlord agree, at Mortgagee's election, to
cooperate with Mortgagee in having the funds from such account transferred to
an account immediately controlled solely by Mortgagee.
9. Provided that Tenant is not in default under the Lease, Mortgagee
agrees to give Tenant written notice of any default by Landlord under the
Mortgage (and if a notice of default is given to the Landlord, then
concurrently with giving notice of such default to Landlord) and to accept from
Tenant a cure of any such default (if such default is curable by Tenant) within
the same cure period, if any, allowed to Landlord under the Mortgage or 10 days
after delivery of such notice, whichever is greater.
10. This Agreement shall bind and inure to the benefit of the parties
hereto, their successors and assigns. Whenever a reference is made herein to a
requirement for Mortgagee's consent, such reference shall mean that Mortgagee
may give or withhold consent in its sole discretion, except as otherwise
expressly provided in this Agreement. As used herein, the term "Tenant" shall
include the Tenant, its successors and assigns, and the term "Landlord" shall
include the Landlord and its successors and assigns. The foregoing references
to successors and assigns of Tenant and Landlord is not intended to and does
not constitute a consent by Landlord or Mortgagee to any assignment or sublease
by Tenant of its interests under the Lease or any consent by Mortgagee to any
assignment by Landlord of its interests under the Lease. The words
"foreclosure" and "foreclosure sale" as used herein shall be deemed to include
the acquisition of Landlord's estate in the Premises by voluntary deed (or
assignment) in lieu of foreclosure, and the word "Mortgagee" shall include the
Mortgagee herein specifically named and any of its
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<PAGE> 77
successors and assigns, and anyone who shall have succeeded to Landlord's
interest in the Premises by, through or under foreclosure of the Mortgage,
including, without limitation, any purchaser of the Premises through
foreclosure or any successor or assign thereof.
10. This Agreement shall not be modified or amended except in writing
signed by all parties hereto.
11. The use of the neuter gender in this Agreement shall be deemed to
include any other gender, and words in the singular number shall be held to
include the plural, when the sense requires.
IN WITNESS WHEREOF, the parties hereto have placed their hands and
seals, the day and year first above written.
WITNESS: TENANT:
PICTURETEL CORPORATION,
a Delaware corporation
/s/ William D. Krasnow By: /s/ Lawrence H. Bornstein
- -------------------------- -----------------------------
Its: Vice President
----------------------------
Hereunto duly authorized
WITNESS: LANDLORD:
50 MINUTEMAN LIMITED
PARTNERSHIP,
a Massachusetts limited partnership
By: NIUNA-50 MINUTEMAN, INC.
a Massachusetts corporation,
its sole general partner
(illegible) By: /s/ John Kusmiersky
- --------------------------- ---------------------------
John Kusmiersky
Its: President
Hereunto duly authorized
-7-
<PAGE> 78
WITNESS: MORTGAGEE:
MELLON BANK, N.A.
/s/ Carol D. Lynn By: /s/ Ronald J. Bloom
------------------- ---------------------------
Name: Ronald J. Bloom
-------------------------
Its: Vice President
-------------------------
Hereunto duly authorized
<PAGE> 79
EXHIBIT K
THE "PROJECT AREA"
[MAP]
<PAGE> 80
EXHIBIT "L"
$12,500,000 Andover, Massachusetts
, 1997
PROMISSORY NOTE
This Promissory Note is entered into pursuant to Section 24.17(f) of
that certain Lease, dated as of , 1997, between PictureTel Corporation
and the Undersigned (the "Lease"), and is the "LC Note" referred to therein.
FOR VALUE RECEIVED, the Undersigned, 200 Minuteman Limited Partnership,
a Massachusetts limited partnership, promises to pay to PictureTel Corporation
("PictureTel"), or to its order, at such address as may be designated by
PictureTel, the sum of all amounts which shall have been drawn by the
beneficiary under any Letter of Credit issued by the First National Bank of
Boston or any other entity on behalf of PictureTel in favor of the Undersigned
or one of the Undersigned's lenders pursuant to the Lease and which amounts are
treated as "LC Advances" pursuant to Section 24.17(f) of the Lease (and if no
such amounts are drawn, then no amounts shall be due under this Promissory
Note), with interest on any such amounts accruing from the date of the draw to
the date the first payment is due PictureTel hereunder, at the Interest Rate or
Interest Rates specified herein below, with such accrued interest as of the date
the first payment is due hereunder converting to principal as of the date such
first payment is due, in monthly installments with interest as provided herein
or as otherwise provided herein.
The applicable Interest Rate at any time with respect to any such
amounts drawn under the Letter of Credit shall be:
(a) for the period that the initial construction loan to the
Undersigned remains outstanding, the average interest rate of all borrowings
under that initial construction loan (hereafter the "Construction Rate"),
provided however, that if the Undersigned does not obtain a permanent loan
within 15-1/2 months after the Commencement Date, or if the Undersigned has
obtained a permanent loan and amounts remain due PictureTel under this Note, the
applicable Interest Rate shall be the Construction Rate plus 75 basis points,
unless there is a material adverse change to PictureTel's financial condition,
in which case the applicable Interest Rate shall be the same rate payable on the
first mortgage loan encumbering the Premises,
(b) after the date that the initial construction loan is no longer
outstanding, the same rate payable on the first mortgage loan encumbering the
Premises;
provided however, that if at any time there is no first mortgage loan
encumbering the Premises, then during such period the Interest Rate shall be the
stated rate of the first mortgage loan most recently encumbering the Premises.
Notwithstanding anything to the contrary, payments otherwise due
hereunder shall be subject to the following:
(a) All such payments shall be subject and subordinate in all respects
to the prior payment in full of all amounts then due under the first mortgage
loan.
(b) The amount of each such payment, when added to the monthly amounts
payable under the first mortgage loan, shall not exceed the base rent paid by
PictureTel under the Lease for that month, and each such payment shall be
reduced if necessary so as not to exceed such limit.
(c) Any deficits or reductions in or failure to pay such payments
resulting from the operation of clauses (a) or (b) immediately above shall not
be deemed defaults hereunder, but the unpaid amounts shall be added to the
principal balance due hereunder as of the date they otherwise would have been
due from the Undersigned.
(d) If there is a "default" (as defined in the Lease) under the Lease,
in addition to any rights under the Lease, the Undersigned may offset and deduct
against the amounts payable by it
EXHIBIT "L"
Page 1 of 2
<PAGE> 81
hereunder the amounts due to the Landlord under the Lease. The "Tenant" (as
defined in the Lease) shall not have the right to offset or deduct against the
amount payable by it under the Lease any amounts due to PictureTel hereunder
except as may be specifically set forth in the Lease with respect to amounts
drawn under the Letter of Credit.
The first monthly installment payable to PictureTel pursuant to this
Promissory Note shall be due beginning the first day of the first full month for
which PictureTel is obligated to pay base rent to the Undersigned under the
Lease. The amount of the principal payable on the first such installment and
each subsequent installment shall be that monthly amount which is necessary to
fully amortize the then outstanding principal balance due PictureTel hereunder
(including any interest which has accrued prior to the date the first such
installment is due) in equal monthly installments over the initial term of the
Lease, assuming an interest rate of nine percent (9%) per annum. The amount of
interest payable each month shall be calculated by applying the applicable
Interest Rate to the then remaining principal balance. If after the first
installment is due additional amounts are drawn under the Letter of Credit and
treated as "LC Advances" or principal is prepaid by the Undersigned, the amount
of principal due in each monthly installment from that date forward shall be
determined in the same manner as set forth above but using the increased or
decreased principal amount, as the case may be, and assuming amortization over
the then remaining initial term of the Lease at the same assumed nine percent
(9%) interest rate.
This Note shall be due and payable in full without further notice or
demand if: (i) the Undersigned shall fail within fifteen (15) days after written
notice from PictureTel to make any payment when due hereunder, unless Tenant is
then in default under the Lease; or (ii) if the Undersigned defaults under the
first mortgage loan encumbering the Premises and the lender successfully
completes a foreclosure thereunder, provided that such default did not arise as
a result of Tenant's breach of its obligations under the Lease and provided that
the Tenant is not then in default under the Lease. However, in any such event
the provisions of Subsections (a), (b), (c) and (d) in the last full paragraph
starting on Page 1 of this Note still will apply.
The Undersigned may prepay the principal amount outstanding in whole or
in part without penalty. The Undersigned shall partially or entirely prepay the
principal amount outstanding and all accrued interest if and to the extent that
the Undersigned receives proceeds from the funding of a permanent loan that are
in excess of all amounts due under any first mortgage loan then encumbering the
Premises. Payments under this Note will be applied first against interest due
and any excess to the principal amount outstanding.
Amounts due hereunder shall be payable in lawful money of the United
States of America, in immediately available funds, at the place PictureTel may
designate from time to time in writing to the Undersigned.
In case any payment herein provided for shall not be paid when due, the
Undersigned promises to pay all reasonable cost of successful collection and
enforcement of this Note, including all reasonable attorneys' fees.
This Note shall be governed by, and construed in accordance with, the
laws of the Commonwealth of Massachusetts.
The Undersigned and all endorsers of this Note hereby waive
presentment, demand, notice of nonpayment, protest and all other demands and
notices in connection with the delivery, acceptance, performance or enforcement
of this Note.
This Note is not negotiable and may not be assigned or pledged by
PictureTel, except that this Note may be assigned to a permitted assignee under
the Lease.
This Note will take effect as a sealed instrument.
200 Minuteman Limited Partnership
By: Niuna-200 Minuteman, Inc., general partner
By:
-----------------------------------
John Kusmiersky, President
Hereunto Duly Authorized
EXHIBIT "L"
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EXHIBIT "M"
BENEFICIARY'S RIGHTS
The lender of the Letter of Credit Loan, as beneficiary under the
Letter of Credit, may draw under the Letter of Credit from time to time on one
or more occasions on the occurrence of an event of default as defined in the
Loan Agreement, and any amendments thereto, between Landlord and such lender .
EXHIBIT "M"
Page 1 of 1
<PAGE> 83
ADDENDUM #1
ROOFTOP COMMUNICATIONS EQUIPMENT
Subject to the following and the rest of this Article and this Lease,
Tenant may install satellite dishes and other communications equipment and
antennas of reasonable size on the roof of the Building in a mutually agreeable
location, or in another mutually agreeably location. Notwithstanding anything to
the contrary, Tenant will be responsible for all Liabilities in connection with
these satellite dishes and antennas and associated Systems and Equipment,
including, without limitation, installation, removal, operation, maintenance,
insurance, taxes and other costs and fees, and any necessary alterations or
improvements to the Building or the rest of the Premises. Tenant also will be
solely responsible for securing all federal, state and local permits in
connection with the installation and operation of these satellite dishes and
antennas prior to installation and for complying with all applicable Laws. If
these satellite dishes and antennas are on a roof, Tenant will secure from the
membrane roofing manufacturer certification that the installation is compatible
with all design requirements and that this installation will not void the
existing roof warranty. This certification must be delivered to Landlord before
installation begins. Tenant also will use only a manufacturer-authorized roofing
contractor for any work that requires the penetration of the existing membrane
roofing system. Upon the expiration or earlier termination of this Lease,
Tenant, at its expense, will remove these satellite dishes or antennas and all
associated Systems and Equipment and repair all damage. Notwithstanding anything
to the contrary, Landlord will have no Liabilities in connection with these
satellite dishes or antennas and associated Systems and Equipment, and Tenant
will indemnify Landlord for and hold it free and harmless from all Liabilities
arising out of or in connection with these satellite dishes or antennas and all
associated Systems and Equipment.
ADDENDUM #1
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ADDENDUM #2
EXTENSION OPTIONS
1. Grant of Extension Options. Landlord grants to Tenant seven (7)
options (the "Extension Options") to extend the Lease term for additional terms
of ten (10) years each on the same terms and conditions as this Lease, except
that there will be no further right to extend and except as set forth below.
Except as specifically set forth in Section 4 below, the Extension Options can
be exercised only by Tenant delivering unconditional written notice of exercise
to Landlord on or before the later of: two (2) years before the expiration of
the then-current term; or fifteen (15) days after Landlord's written notice to
Tenant of Tenant's failure to exercise, which notice may be given at any time
after two (2) years before the expiration of the then-current term. If for any
reason Landlord does not actually receive Tenant's unconditional written notice
of exercise when required, at Landlord's election the Extension Options will
lapse and become null and void and there will be no further right to extend the
Lease term. If Tenant does not validly exercise an Extension Option, that
Extension Option and all subsequent Extension Options shall, at Landlord's
election, lapse and become null and void. The Extension Options are personal to
the Tenant originally named in this Lease and may not be exercised by anyone
else (except for an assignee pursuant to a valid assignment of this Lease, and
then only if prior to the date for exercise set forth in this Lease the assignor
and the assignee deliver to Landlord a jointly executed and unconditional
written notice stating that the specific Extension Option may be exercised by
the assignee; provided that notwithstanding anything to the contrary, if there
is a valid assignment of this Lease then thereafter only the assignee will have
the right to exercise any Extension Options and such exercise shall be subject
to the terms above). The Extension Options are granted to and may be exercised
by Tenant on the express condition that, at the time of the exercise and at all
times before the beginning of each Extension Option period, Tenant is not in
default (and has not committed acts which would constitute a default with the
passage of time or the giving of notice). TIME IS ABSOLUTELY OF THE ESSENCE.
2. No Additional Work. Landlord will not be required to perform or pay
for any work or other improvement to the Premises, and subject to the other
terms of this Lease Tenant will accept the Premises in its then "as is"
condition in all respects. The annual base rent for each Lease Year of each
Extension Option period will be as set forth in Exhibit "DD."
3. Cancellation. Tenant shall not have the right or power to exercise
any Extension Options if this Lease has expired or been terminated pursuant to
its terms.
4. [INTENTIONALLY OMITTED]
ADDENDUM #2
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ADDENDUM #3
NET PROCEEDS
1. Cash Proceeds. "Cash Proceeds" means: all cash proceeds actually
received by or on behalf of Landlord that Landlord is permitted to retain (for
example, if Landlord must refund an overpayment to Tenant or a third party, the
amount refunded will not be deemed to be "retained" by Landlord nor shall it be
a part of Cash Proceeds hereunder) from the sale, leasing (including base rent
and additional rent), assignment, subleasing, initial financing (including,
without limitation, the initial financing secured by the Premises and any
financing secured by the Letter of Credit, but subject, however, to Addendum
#7), refinancing, encumbrance, Condemnation or other disposition of all or any
portion of the Premises or any interest therein (including any additional
buildings constructed on the Premises), and any casualty and rental insurance
proceeds received by or on behalf of Landlord that Landlord is permitted to
retain in connection with all or any portion of the Premises, any loans,
advances or capital contributions made to Landlord, indemnities paid by Tenant
to Landlord and any interest or investment income received by Landlord on such
cash proceeds. Notwithstanding the foregoing, Cash Proceeds do not include any
amounts paid to or receivable by Landlord for, as a result of or in connection
with: an exercise of any Purchase Options; Tenant's defaults, or any judgments,
settlements or awards paid by Tenant or its Affiliates; amounts drawn under the
Letter of Credit or the application(s) of any cash security deposit, or any late
charges or interest payable by Tenant; the Transfer of any interest in Landlord
or in any of its partners or other Control Affiliates; or development fees,
management fees or fees in lieu thereof payable to Landlord or its Affiliates
pursuant to this Lease or in connection with Landlord's Work or in connection
with the construction of any additional buildings on the Premises or the
enlargement or other modification of the Building or the rest of the Premises;
or any Net Proceeds distributed or distributable to Landlord pursuant to Section
3 below.
2. Costs. "Costs" means: all bona fide costs and expenses of any type
paid by Landlord or its Affiliates, or reasonably anticipated by Landlord to be
payable by Landlord or its Affiliates, for, as a result of or in connection with
all or any portion of the Premises or any interest therein or any ownership,
operation, management, maintenance, repair, restoration, replacement,
improvement, leasing (other than the payment of Net Proceeds hereunder),
financing, refinancing or Transfer by Landlord thereof (whether or not included
as part of Operating Costs, but not including any sale or conveyance to any of
Landlord's Control Affiliates), or the establishment and maintenance of
Landlord's existence in good standing as an entity, or any rights or Liabilities
in connection with any of the foregoing, including, without limitation, costs
and expenses for: the acquisition, sale or other disposition of all or any
portion of the Premises and any rights appurtenant thereto (including, without
limitation, all costs for due diligence, investigations, remedial work, closing
costs, escrow and title fees, legal fees, professional fees and commissions);
Landlord's Work and all other labor, services and materials supplied to or for
the benefit of the Premises (including any additional buildings constructed on
the Premises) and/or Tenant under or in connection with this Lease (including,
without limitation, costs for designers, architects, engineers, draftsmen,
supervision, permits and approvals, development fees (other than those payable
to Landlord or its Affiliates which are excluded from Cash Proceeds as set forth
in Section 1 above), fees, profit and savings payable to construction managers,
contractors and subcontractors, and all other reasonably related "hard" and
"soft" costs); financing, refinancing and encumbrance of the Premises or any
interest therein (including, without limitation, payment of all principal,
interest, fees, commissions, appraisals, escrow and title fees, other closing
costs, interest rate hedges, "caps" or "floors," and other costs in connection
therewith and other amounts owed under any of the loan documents); the repayment
of all bona fide capital contributions, loans or advances made by Landlord or
its partners or their respective Affiliates (including, without limitation, the
repayment of such amounts and commercially reasonable interest on such loans and
a commercially reasonable rate of return on such contributions or advances,
which in any case will be at least equal to the Bank of Boston's (or its
successor's) prime rate plus one percent (1%), or the maximum rate permitted by
law, whichever is less, and commercially reasonable closing costs, commissions
and/or loan fees or similar fees in order to obtain such loans, contributions or
advances); the payment and performance of all of Landlord's Liabilities and the
exercise of Landlord's rights under or in connection with this Lease or the
Premises or agreements in connection therewith (including, without limitation,
costs for
ADDENDUM #3
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<PAGE> 86
Taxes, Operating Costs, amounts in connection with Hazardous Substances and
environmental protection, compliance will all Laws, indemnity and defense costs,
and other costs in connection therewith and other amounts owed under any of the
loan documents); attorneys' fees and other costs in connection with the defense
or prosection of any litigation, proceedings, claims or counterclaims or as
otherwise deemed necessary by Landlord; judgments, claims, awards or
settlements, whether due to the fault of Landlord or its partners or otherwise;
an amount per calendar year equal to forty percent (40%) of an amount (the "Tax
Payments") equal to: Landlord's taxable income (if any) in the prior calendar
year (other than the taxable income resulting solely from the sale or the
conveyance of the Premises) less the amounts paid to Landlord for that prior
calendar year pursuant to this Subclause of this Section 2, and if in any year
the Tax Payments are not fully paid, then the unpaid Tax Payments shall cumulate
and be paid as Costs as soon as there are sufficient Cash Proceeds; the
preparation of Landlord's annual audited financial statements and any other
information to be provided by Landlord under this Lease (including audits of Net
Proceeds) and tax returns; corporate or partnership license fees, filing fees,
business and franchise taxes and fees, and similar charges; and reserves deemed
reasonably necessary by Landlord in connection with any of the foregoing. Unless
otherwise specifically agreed and set forth in this Lease (e.g., with respect to
the interest rate on loans or the return on capital, or with respect to
management fees or fees in lieu thereof, or budgeted development fees), amounts
payable as Costs by Landlord to any of its Affiliates for services rendered
shall not exceed the prevailing rates that would be payable to unaffiliated
third parties in an arms-length transaction. Costs do not include any of the
above amounts which are directly paid by Tenant or which are funded by
insurance.
3. Payment of Net Proceeds. "Net Proceeds" means, from time to time, an
amount equal to the positive amount, if any, obtained by taking an amount equal
to the current amount of Cash Proceeds and deducting therefrom an amount equal
to the current amount of Costs. Prior to any distribution of Net Proceeds to any
of Landlord's Control Affiliates, Landlord first will pay to Tenant Net Proceeds
in amount equal to: the unrepaid Reconstruction Costs (if any) until the
Reconstruction Costs have been repaid in full; and the unrepaid Cure Payments
(if any) until the unrepaid Cure Payments have been repaid in full; and the
reasonable costs and expenses incurred by Tenant in good faith to third parties
in validly exercising its Right of Self Help as set forth in Section 14.4, but
excluding therefrom any of such costs and expenses that otherwise would qualify
as Operating Costs under Article 7. Thereafter, Landlord will pay to Tenant
one-half (1/2) of all Net Proceeds available for distribution at the same times
as Net Proceeds are distributed by Landlord to its Control Affiliates. These
payments to Tenant will be deemed to be a reduction in Tenant's rent already
paid from time to time under this Lease (although they may not be credited,
offset or deducted against Tenant's current or future rent payments owed).
Payments of Net Proceeds to Tenant during any year shall be subject to an annual
reconciliation for that year (which shall occur after the end of that year), and
any amounts overpaid to Tenant or owed by Landlord shall be adjusted in cash
between the parties within thirty (30) days after such annual reconciliation is
delivered. Upon Tenant's written request in each instance, Landlord will furnish
to Tenant reasonable backup information for its annual reconciliations,
including copies of Landlord's most recent financial statements. Within ninety
(90) days after delivery of each of Landlord's annual reconciliations, and upon
at least fourteen (14) days' prior written notice to Landlord, not more than
once in each calendar year Tenant may audit Landlord's books and records
applicable to the period after the last annual reconciliation in order to verify
the accuracy of Landlord's calculation of Net Proceeds. Such audit will be
conducted only during regular business hours where Landlord maintains its books
and records (which Landlord agrees will be in Massachusetts or California) and
Tenant will deliver a copy of the audit to Landlord within fifteen (15) days
after receipt by Tenant. All audits will be conducted at Tenant's cost and
expense and shall be conducted only by Tenant or its designated professional
representatives.
4. Termination of Rights. Notwithstanding anything to the contrary, as
of the date of the first occurrence of any or all of the following, at
Landlord's election all of Tenant's rights and Landlord's obligations under or
in connection with this Addendum will terminate and lapse completely, except
that the entity that is the Landlord immediately prior to the occurrence of any
or all of the following shall remain obligated to pay to Tenant (or at such
entity's election credit against amounts owed by Tenant to such entity) Tenant's
share of undistributed Net Proceeds (if any) existing as of the date of such
occurrence:
ADDENDUM #3
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<PAGE> 87
(a) The termination or expiration of this Lease in accordance
with its terms.
(b) A default by Tenant under this Lease.
(c) The closing of any Purchase Option, or the closing of
another bona fide sale or other conveyance by Landlord of all or any portion of
the Premises, or any interest therein (which shall not be deemed to include an
interest in Landlord), which sale or conveyance is not prohibited under this
Lease, but Tenant's rights and Landlord's obligations with respect to Net
Proceeds shall continue with respect to the portions of the Premises or
interests therein, if any, still retained by Landlord and with respect to any
Net Proceeds received by Landlord in connection with such sale or other
conveyance (except with respect to a sale pursuant to a Purchase Option or a
sale associated with an "LC Return" as defined in Subsection (d) below).
(d) The sale or other conveyance by Landlord of all or any
portion of the Premises or any interest therein, which sale or conveyance is not
prohibited under this Lease, provided that prior to or on or about the closing
of such sale or conveyance, the Letter of Credit is returned to Tenant undrawn
(or if drawn upon, with any outstanding LC Advances repaid in full) and with no
obligation on the part of Tenant to supply additional Letters of Credit under
this Lease, and in such event Tenant shall not have any continuing rights nor
shall Landlord have any continuing obligations with respect to Net Proceeds,
whether received by Landlord in connection with such sale or conveyance or
otherwise. The return of the Letter of Credit to Tenant as described above is
called the "LC Return."
5. Unaffected Parties. Notwithstanding anything to the contrary,
Tenant's rights and Landlord's obligations under this Addendum will not be
binding on and will not affect or otherwise apply in any way to:
(a) Any party that, in a bona fide transaction, purchases or
otherwise acquires all or any portion of the Premises or any interest therein,
or its successors, assigns and purchasers, or their respective Affiliates
(unless any such sale or conveyance is prohibited under this Lease); or
(b) Landlord's Mortgagees, whether or not they take title to
or acquire all or any portion of the Premises or any interest therein, and their
successors, assigns and purchasers, or their respective Affiliates.
6. Personal Rights. Notwithstanding anything to the contrary, the
rights granted to Tenant under or in connection with this Addendum are granted
to and may be exercised only by the Tenant originally named in this Lease, and
they may not be exercised by anyone else (other than by an assignee to whom such
rights have been entirely assigned pursuant to a valid assignment of this Lease,
if at the time of such assignment the assignor and the assignee deliver to
Landlord a jointly executed written notice stating unconditionally that the
assignee has the right to exercise such rights), and Tenant shall not, and shall
not have the right or power to, otherwise assign or Transfer any of these
rights. If at the time of a valid assignment the assignor and the assignee
deliver to Landlord a jointly executed written notice directing Landlord to pay
a portion of the Net Proceeds otherwise payable to the assignee instead to the
assignor, then Landlord will continue to pay that portion of the Net Proceeds to
the assignor until and unless Landlord receives from the assignor and the
assignee a jointly executed written notice changing such direction to Landlord
and then Landlord shall pay in accordance with the new direction.
ADDENDUM #3
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ADDENDUM #4
PURCHASE OPTIONS
1. Grant and Exercise. Provided that this Lease is in full force and
effect and subject to the terms hereof, Landlord grants to Tenant two (2)
options (the "Purchase Options") to purchase the Premises from Landlord, which
Purchase Options must be exercised during the following periods:
(a) The first (1st) Purchase Option can be exercised only
during the first month of the fifth (5th) Lease Year.
(b) The second (2nd) Purchase Option can be exercised only
during the first month of the tenth (10th) Lease Year.
The Purchase Options can be exercised only by Tenant delivering unconditional
written notice of exercise to Landlord as and when required together with a
cashier's check or the wire transfer of funds to Landlord in an amount equal to
five percent (5%) of the total purchase price under the applicable Purchase
Option. These funds shall be placed by Landlord into a separate interest-bearing
account or other mutually agreeable investment instrument and these funds and
all interest earned thereon collectively are called the "Deposit." When and if
the closing under the applicable Purchase Option occurs, the Deposit shall be
credited against the cash portion of the purchase price payable by Tenant
thereunder. If the Deposit is in excess of the cash portion of the purchase
price payable by Tenant, the excess shall be returned to Tenant as of the
closing. If for any reason Landlord does not actually receive this unconditional
written notice of exercise and the Deposit as and when required, at Landlord's
option the applicable Purchase Option will lapse and become null and void.
At Landlord's election, the Purchase Options and all of
Tenant's rights and Landlord's obligations under this Addendum and Addendum #5
shall lapse and become null and void if: (i) Tenant defaults under the rest of
this Lease at any time prior to the exercise of a Purchase Option or any closing
thereunder; or (ii) Tenant defaults under this Addendum, or defaults in
connection with any closing under, or fails to close as required after the
exercise of, a Purchase Option (a "Purchase Option Default"). If Tenant commits
a Purchase Option Default Tenant also shall waive as against Landlord and its
Affiliates all Liabilities and defaults (if any) of or by any of them under this
Lease that directly arise from or in connection with the Purchase Option
Default, and Landlord shall retain the Deposit as its sole and liquidated
damages for the Purchase Option Default, and if Tenant commits more than one
Purchase Option Default, at Landlord's election the Purchase Options and all of
Tenant's rights and Landlord's obligations under this Addendum and Addendum #5
shall lapse and become null and void. (A Purchase Option Default is not the same
as a default described in Section 4(c) of this Addendum.)
2. Purchase Price.
(a) The cash portion of the purchase price for the Premises
shall be payable by cashier's check or wire transfer of immediately available
funds to or at the direction of Landlord and will be payable in full on or
before the scheduled closing date. In addition to the cash portion of the
purchase price, as of the closing Tenant shall either repay in full all mortgage
loan(s) secured by the Premises, and any other loan secured by the Letter of
Credit (if separate from such mortgage loan(s)), other than those that are
Unpermitted Financing (the "Existing Loans") (including, without limitation, any
prepayment or "breakage" fees or similar charges) or assume the Existing Loans,
and in any case Tenant will cause the lender(s) to release Landlord and its
Affiliates as of the closing from all Liabilities in connection with the
Existing Loans and Tenant shall indemnify and hold Landlord and its Affiliates
harmless from all further Liabilities in connection with the Existing Loans. In
addition to the purchase price, Tenant shall pay all closing costs of any type
(other than Landlord's attorneys' fees and costs), including, without
limitation, commissions (if any) and the costs of deed stamps and documentary
and transfer taxes and fees, surveys, title insurance, escrows, recording and
other similar fees and costs. Base rent will be prorated between the parties as
of the closing date, but there will be no other prorations or adjustments.
ADDENDUM #4
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(b) The cash portion of the purchase price for the Premises
shall be never be less than zero, but otherwise shall be equal to the following
amounts:
(i) For the first (1st) Purchase Option, an amount
equal to: (x) ten (10) times the "Current Base Rent Amount" (defined below);
less (y) the "Existing Mortgage Balance" (as defined below). The "Current Base
Rent Amount" means the scheduled annual base rent payable under this Lease as of
the date of closing, without any deductions, offsets or abatements of any type,
and including, without limitation, scheduled annual base rent payable in
connection with any other space leased or agreed to be leased from Landlord in a
new building or new buildings, or an enlargement of the Building, on the
Premises. If an agreement has been entered into to lease such other space or a
right to lease such other space has been exercised prior to closing but the full
base rent applicable thereto has not commenced or cannot be accurately
determined as of the closing, then the scheduled annual base rent applicable to
that Purchase Option shall be reasonably estimated by Landlord. (As a
hypothetical example, if the scheduled annual base rent at the closing is $3.75
Million, the Current Base Rent Amount for the first (1st) Purchase Option would
be $3.75 Million.) The "Existing Mortgage Balance" means the outstanding
principal balance (not including any prepayment or "breakage" fees or similar
charges) as of the closing date under an exercised Purchase Option of any
Existing Loans.
(ii) For the second (2nd) Purchase Option, an amount
equal to: (x) eight and one-half (8 1/2) times the Current Base Rent Amount;
less (y) the Existing Mortgage Balance.
As a hypothetical example, if the second (2nd) Purchase Option is validly
exercised, the Current Base Rent Amount is $3.75 Million, and as of the closing
the Existing Mortgage Balance is $20 Million, then the cash portion of the
purchase price payable to Landlord would be only $11.875 Million and Tenant
would repay or assume the existing $20 Million mortgage loan secured by the
Premises, for a total purchase price of $31.875 Million.
3. Closing. The closing under an exercised Purchase Option will occur
at a location in Massachusetts and on a date specified by Landlord pursuant to
written notice to Tenant, which date will be: during the last four (4) months of
the fifth (5th) Lease Year (for the first (1st Purchase Option); and during the
last four (4) months of the tenth (10th) Lease Year (for the second (2nd)
Purchase Option). At the closing, Landlord will execute and deliver to Tenant a
Massachusetts Quitclaim Deed (which will be subject to all matters of record and
all title and survey exceptions), an affidavit of Landlord stating Landlord's
U.S. taxpayer identification number and that Landlord is not a "foreign person"
within the meaning of Section 1445(f)(3) of the Internal Revenue Code of 1986,
as amended or Landlord shall provide the necessary forms if Landlord is a
"foreign person") , and a blanket assignment to Tenant of all third party
guaranties, warranties, permits, certificates, consents and approvals pertaining
to the Premises that are assignable by Landlord, to the extent assignable at no
cost or Liabilities to Landlord (unless Tenant advances such costs and
discharges such Liabilities, in which case they shall be assigned to the extent
assignable by Landlord).
4. Additional Terms.
(a) Tenant specifically acknowledges and agrees that Landlord
will sell and Tenant will purchase the Premises on an "as is with all faults"
basis, subject to all exceptions to and defects of title, whether or not of
record (but subject also to Tenant's rights and Landlord's obligations as set
forth below), and that Tenant will not rely on nor will Landlord or any of its
Affiliates be deemed to have made, any representations or warranties of any
kind, express or implied including, without limitation, those in connection with
the physical condition of the Premises (including, without limitation, any
matters involving Hazardous Substances or compliance with any Laws), or the
nature of title to the Premises, or the advisability of Tenant's purchase of the
Premises). However, until and unless Tenant otherwise agrees in writing or
defaults Landlord will not voluntarily execute any documents affecting title
that materially adversely affect Tenant's operations or that render title to the
Premises unmarketable (but easements, dedications or other documents for access,
drainage, utilities or services (including cabling), curb cuts, or as otherwise
may be needed to comply with applicable Laws or to enable Landlord to meet its
obligations under this Lease or in connection with the construction of any new
building(s) or the enlargement of the Building per this Lease, will not be
deemed to be violations of this restriction). If this restriction is violated
after the exercise of a Purchase Option, Tenant shall have the right to
terminate that Purchase Option without
ADDENDUM #4
Page 2 of 4
<PAGE> 90
liability and receive the Deposit back. Notwithstanding the foregoing, even if
Tenant has validly exercised a Purchase Option, Tenant shall have the right to
terminate that Purchase Option without liability (except for Landlord's
out-of-pocket costs) and shall not be required to close the purchase if, after
the exercise of the Purchase Option but prior to closing, there is a casualty
that causes damage of the type and to the extent described in Section 16.2(b)(x)
such that Tenant otherwise would have the right to terminate this Lease, and in
the reasonable judgement of a qualified independent contractor hired by Landlord
it will take more than two (2) years from the date of the damage to restore
access or restore or replace the destroyed parking spaces or substantially
complete the repairs that Landlord would have been required to make, and Tenant
notifies Landlord of its intent to terminate within thirty (30) days after
receiving the notice from Landlord's contractor, which shall be provided as soon
as reasonably practicable after the damage occurs. If these circumstances occur,
the closing date shall be extended as necessary to accommodate this thirty (30)-
day period. If Tenant does not so terminate, or if Tenant is not permitted to so
terminate as a result of a casualty, as of the closing Landlord will assign to
Tenant all casualty insurance proceeds otherwise payable to Landlord on account
of the damage and all rights and claims in connection therewith (other than
those which Landlord was entitled to receive for the period and/or for the work
and services performed prior to the closing). Notwithstanding anything to the
contrary, if Landlord is in the process of repairing or rebuilding casualty
damage and Tenant subsequently validly exercises a Purchase Option: Landlord
will continue the process of repairing or rebuilding as otherwise required in
this Lease until the closing date under the Purchase Option; Tenant will be
deemed to have waived its right to terminate this Lease under Article 16, and
its right to terminate the Purchase Option in connection with that casualty or
any repairs or rebuilding in connection therewith; Landlord will assign to
Tenant as of the closing all casualty insurance proceeds otherwise payable to
Landlord on account of the damage and all rights and claims in connection
therewith (other than those which Landlord was entitled to receive for the
period and/or for the work and services performed prior to the closing), and
Landlord shall assign to Tenant and Tenant shall assume all rights and
Liabilities of Landlord under the contracts entered into in connection with the
repair or rebuilding to the extent assignable and Tenant shall indemnify
Landlord and its Affiliates for and hold them harmless from all Liabilities in
connection therewith; and Landlord shall be obligated to continue to repair or
rebuild after the closing date only if and to the extent actually agreed to by
Landlord and Tenant in good faith and in writing at the time.
(b) As of the closing, Tenant and its Affiliates will be
deemed to have released and discharged Landlord and its Affiliates from, and to
have waived, all Liabilities of any type, known or unknown, including, without
limitation, Liabilities under or in connection with this Lease and/or the
Premises (except as set forth in the last sentence of Subsection (c) below). As
a condition to closing, Landlord may require that Landlord's Mortgagees release
Landlord and its Affiliates from Liabilities under or in connection with any
Superior Leases or Mortgages. From and after the closing, Tenant shall
indemnify, defend and hold Landlord free and harmless from all Liabilities under
or in connection with this Lease and/or the Premises and/or the purchase thereof
(except as set forth in the last sentence of Subsection (c) below).
(c) Time is of the essence in this Addendum. If Tenant
defaults hereunder after the closing under a Purchase Option or Tenant or
Landlord defaults under any of the documents delivered by it in connection
therewith, in addition to any rights and remedies available to each of the
respective parties, each party shall have all rights and remedies at law and in
equity, all of which are cumulative and not exclusive, including, without
limitation, the right to require specific performance. The exercise of a
Purchase Option or any closing as a result thereof shall not relieve Tenant or
Landlord from any Liabilities for any defaults under this Lease, nor will they
extinguish Liabilities for any indemnities or other obligations that survive
pursuant to the terms of the rest of this Lease or this Addendum.
(d) Notwithstanding anything to the contrary, as of the date
of the first occurrence of any of the following, at Landlord's election all of
Tenant's rights and Landlord's obligations under or in connection with this
Addendum will lapse and become null and void upon:
(i) The expiration of the Lease term (as validly
extended) or termination of this Lease in accordance with its terms prior to the
exercise of a Purchase Option or any closing thereunder; or
ADDENDUM #4
Page 3 of 4
<PAGE> 91
(ii) The bona fide purchase or other acquisition of all
or substantially all of the Premises by any person or entity (including, without
limitation, Tenant or its Affiliates) other than by any of Landlord's Control
Affiliates prior to the exercise of a Purchase Option and other than any sale or
conveyance which is prohibited under this Lease; or
(iii)[INTENTIONALLY OMITTED]
(e) Notwithstanding anything to the contrary, Tenant's rights
and Landlord's obligations under or in connection with this Addendum will not be
binding on and will not affect or otherwise apply in any way to Landlord's
Mortgagees or their successors, assigns and purchasers, or their respective
Affiliates, whether or not they take title to or acquire all or substantially
all of the Premises.
5. Personal Rights. Notwithstanding anything to contrary, the Purchase
Options are granted only to and may be exercised only by the Tenant originally
named in this Lease, and they may not be exercised by anyone else (other than by
an assignee to whom the right to exercise a Purchase Option has been assigned
pursuant to a valid assignment of this Lease, if at the time of such assignment
the assignor and the assignee deliver to Landlord a jointly executed written
notice stating unconditionally that the assignee has the right to exercise such
Purchase Option) and Tenant shall not, and shall not have the right or power to,
otherwise assign or otherwise Transfer any of the Purchase Options or any rights
in connection therewith. Tenant may assign this Lease without granting to the
assignee the right to exercise any or all of the Purchase Options, and in such
event Tenant will retain the rights to exercise any Purchase Options whose
exercise rights have not been validly assigned as set forth in this Addendum, if
and only if Tenant has not become a Released Assignor in connection with its
assignment of this Lease.
ADDENDUM #4
Page 4 of 4
<PAGE> 92
ADDENDUM #5
RIGHT OF FIRST OFFER TO PURCHASE
1. Grant of Rights.
(a) Subject to the terms of this Addendum, before Landlord
sells or conveys the Premises during the initial Lease term (other than pursuant
to a sale or conveyance to any of Landlord's Control Affiliates) Landlord shall
notify Tenant in writing (the "Offer Notice") of the purchase price and the
terms of payment thereof (e.g., all cash, or cash and purchase money financing
or assumption of debt) that Landlord intends to accept for the Premises (the
"Offer Price").
(b) Within ninety (90) days after delivery of the Offer
Notice, Tenant shall notify Landlord in writing that it unconditionally elects
one of the three (3) following alternatives:
(i) To purchase the Premises for the applicable Offer
Price and otherwise on the terms of this Addendum. (Tenant's election of the
alternative described in this Subsection (i) is referred to as the "Purchase
Election.")
(ii) To cause Landlord not to sell the Property, which
prohibition on sale shall be effective only during the first ten (10) Lease
Years. (Tenant's valid election of the alternative described in this Subsection
(ii) is referred to as the "No-sale Election.")
(iii) To permit Landlord to sell or convey the Premises
in accordance with this Addendum and to continue to lease the Premises on the
terms of this Lease. (Tenant's election of the alternative described in this
Subsection (iii) is called the "Existing Lease Election.")
(c) TIME IS ABSOLUTELY OF THE ESSENCE. If for any reason
Landlord does not actually receive Tenant's unconditional written notice of
election as and when required during the first nine (9) Lease Years, Tenant
shall be deemed to have elected the No-sale Election. If for any reason Landlord
does not actually receive Tenant's unconditional written notice of election as
and when required after the first nine (9) Lease Years, Tenant shall be deemed
to have elected the Existing Lease Election. At Landlord's election, all of
Tenant's rights and Landlord's obligations under or in connection with this
Addendum and Addendum #4 shall lapse and become null and void if Tenant defaults
hereunder or under the rest of this Lease at any time prior to any closing
hereunder, or if Tenant defaults in connection with any closing hereunder or
fails to close as required after its election of the Purchase Election (an
"Offer Default"). Any amounts payable under this Addendum in connection with the
Purchase Election are deemed to be amounts payable under the Lease, and any
default hereunder will be deemed to be a default under the Lease and in such
case Landlord shall be entitled to all rights and remedies hereunder and under
the rest of the Lease, including, without limitation, the right to require
specific performance from Tenant. If Tenant commits an Offer Default, Tenant
also shall indemnify and hold Landlord harmless from and against all Liabilities
incurred by Landlord that arise from or in connection with the Offer Default.
2. Purchase Election. If Tenant validly exercises the Purchase
Election, then Landlord shall sell and Tenant shall purchase the Premises and
the following terms and conditions of Addendum #4 are incorporated herein and
shall apply with respect to this Addendum and such sale and purchase as if it
were the sale and purchase under an exercised Purchase Option: Section 2(a)
(except that the applicable purchase price and the terms of the payment thereof
shall be as set forth in the Offer Price, or if there is an outstanding mortgage
or mortgages on the Premises at such time Tenant shall assume the mortgage(s)
and the cash portion of the Offer Price shall be deemed reduced by the
outstanding principal balance of the mortgage(s) assumed); Section 3 (except
that the closing date will be a date specified by Landlord that will be at least
three (3) months but no more than six (6) months after Tenant's notice of
election); and Sections 4(a), (b), (c) and (e).
3. No-sale Election. If Tenant validly elects the No-sale Election,
then:
ADDENDUM #5
Page 1 of 3
<PAGE> 93
(a) Until and unless Tenant otherwise agrees in writing, or
Tenant defaults under this Lease or Tenant's rights under this Addendum #5
terminate, or the tenth (10th) Lease Year expires (whichever is earliest),
Landlord will not sell or convey the Premises except to one of Landlord's
Control Affiliates or to Tenant or one of its Related Entities or pursuant to
the exercise of a Purchase Option; and
(b) If Tenant validly elects the No-sale Election with respect
to a particular Offer Notice and the No-sale Election subsequently terminates or
expires, if Landlord wishes to proceed with the transaction which is the subject
of that particular Offer Notice, Landlord shall deliver to Tenant another Offer
Notice for that transaction, and Tenant shall have the right to elect the
Purchase Election or the Existing Lease Election in connection therewith in
accordance with Section 1(b) of this Addendum, except that Tenant shall make
such election within thirty (30) days after delivery of the new Offer Notice,
rather than ninety (90) days as otherwise provided in Section 1(b).
4. Existing Lease Election.
(a) If Tenant validly elects (or is deemed to have elected)
the Existing Lease Election, then for the next twelve (12) months after Tenant's
election, Landlord may not sell or convey the Premises (other than pursuant to a
sale or conveyance to any of Landlord's Control Affiliates) for a purchase price
which is less than ninety-seven percent (97%) of the applicable Offer Price
without first delivering to Tenant a new Offer Notice with an Offer Price equal
to such new, lower purchase price. If Landlord delivers such a new Offer Notice,
then Tenant shall have the right to elect either the Purchase Election or the
No-sale Election (if the tenth (10th) Lease Year has not yet ended) or the
Existing Lease Election in accordance with the procedures established in Section
1 above, except that Tenant will have forty-five (45) days, and not ninety (90)
days, within which to respond to Landlord's new Offer Notice. If within twelve
(12) months after Tenant validly elects (or is deemed to have elected) the
Existing Lease Election in accordance with this Section 3 Landlord has not
executed a binding agreement to sell or convey the Premises for a purchase price
which is equal to or greater than ninety-seven percent (97%) of the new, lower
Offer Price, or if Landlord has entered into such a binding agreement within the
twelve (12)-month period but fails to close thereunder, then the terms and
conditions in Section 1 above again will apply.
(b) If Tenant validly elects (or is deemed to have elected)
the Existing Lease Election, then Tenant will have the right, upon written
request to Landlord, to participate reasonably and in good faith with Landlord
in the negotiations conducted by Landlord to sell or convey the Premises, which
negotiations will be subject to Landlord's control and direction. Tenant
acknowledges and agrees that the manner and substance of these negotiations are
critical to Landlord, and so Tenant will support Landlord's negotiating
positions (provided that, unless Tenant otherwise agrees, such negotiating
positions do not attempt to change Tenant's rights and obligations under this
Lease) and will not attempt to delay, obstruct or hinder these negotiations.
Landlord will have the right at any time and in its sole discretion to suspend,
terminate or continue such negotiations and, subject to Subsection (a) above,
Articles 6 and 7 of this Addendum and the parenthetical in the preceding
sentence, to accept or reject terms offered by prospective buyers and to execute
documents and agreements, binding or otherwise, in connection with a sale or
conveyance of the Premises. Tenant shall not have the right or power nor shall
it attempt to bind Landlord in connection with a sale or conveyance of the
Premises or to deal directly or negotiate alone with any prospective buyer or
its agents without Landlord's prior written consent.
5. Termination of Rights. Notwithstanding anything to contrary, at
Landlord's election all of Tenant's rights and Landlord's obligations under or
in connection with this Addendum will lapse and become null and void upon:
(a) The termination or expiration of the Lease term in
accordance with its terms, prior to any closing hereunder; or
ADDENDUM #5
Page 2 of 3
<PAGE> 94
(b) The bona fide purchase or other acquisition of all or
substantially all of the Premises other than by any of Landlord's Control
Affiliates prior to the valid exercise of the Purchase Election hereunder and
other than any sale or conveyance which is prohibited under this Lease; or
(c) As set forth in Section 9 below; or
(d) At the end of the initial Lease term.
6. No Sale to Direct Competitors. Unless and until Tenant's rights
under this Addendum have lapsed or terminated, Landlord shall not sell or convey
the Premises to: AT&T, Intel, Sony or VTEL Corp.
7. Restrictions on Landlord's Sale Rights. In addition to the other
restrictions and limitations set forth in this Addendum on Landlord's right to
sell or convey the Premises, until and unless Tenant defaults hereunder or the
rest of the Lease, or the Lease expires or terminates, Landlord agrees that it
will not sell or convey the Premises to anyone other than Tenant or any of its
Control Affiliates or any of Landlord's Control Affiliates: for the first five
(5) Lease Years; or other than for cash or cash equivalents (which will be
deemed to include, without limitation, purchase money financing and/or the
purchaser assuming or taking subject to debt).
8. Unaffected Parties. Notwithstanding anything to the contrary,
Tenant's rights and Landlord's obligations under or in connection with this
Addendum will not be binding on and will not affect or otherwise apply in any
way to Landlord's Mortgagees or their successors, assigns and purchasers or
their respective Affiliates, whether or not they take title to or acquire all or
substantially all of the Premises.
9. Personal Rights. Notwithstanding anything to contrary, the rights of
Tenant in this Addendum are granted only to and may be exercised only by the
Tenant originally named in this Lease, and they may not be exercised by anyone
else (other than by an assignee to whom such rights have been entirely assigned
pursuant to a valid assignment of this Lease pursuant to which Tenant has become
a Released Assignor, if at the time of such assignment the assignor and the
assignee deliver to Landlord a jointly executed written notice stating
unconditionally that the assignee has the right to exercise such rights) and
Tenant shall not, and shall not have the right or power to, otherwise assign or
otherwise Transfer any of its rights under or in connection this Addendum.
Tenant may assign this Lease without granting to the assignee the rights of
Tenant under this Addendum, and in such event: Tenant will retain those rights
if and only if Tenant has not become a Released Assignor in connection with its
valid assignment of this Lease; and Tenant no longer will have the right
thereafter to exercise the No-sale Election, and if Tenant fails to make its
written election as and when required it will be deemed to have elected the
Existing Lease Election.
ADDENDUM #5
Page 3 of 3
<PAGE> 95
ADDENDUM #7
BUDGET SAVINGS
1. Total Project Costs. "Total Project Costs" means all costs and
expenses of any type incurred or payable by Landlord or its Affiliates that
arise from or in connection with the acquisition of the Premises, the initial
financing (including without limitation any mortgage loans, loans secured by the
Letter of Credit and any permanent financing) of or for the Premises or
Landlord's Work, including, without limitation, costs and expenses for: the
purchase price for the Premises and any rights appurtenant thereto (including,
without limitation, all costs for due diligence, investigations, remedial work,
closing costs, escrow and title fees, legal fees, professional fees and
commissions); all labor, services and materials, designers, architects,
engineers, draftsman, supervision, permits and approvals, development fees, and
other fees, profit and savings payable to construction managers, contractors and
subcontractors, and all other "hard" and "soft" costs in connection with
Landlord's Work; all loan fees, commissions, appraisals, escrow and title fees,
other closing costs, interest rate hedges, "caps" or "floors," interest and
principal (if any) during the construction period and other costs in connection
with the initial financing of the Premises; and other Liabilities arising out of
or in connection with any of the foregoing or as set forth in Schedule 7AAA" to
this Addendum. (The parties acknowledge and agree that Schedule "7AAA" is for
illustrative purposes only, and is not binding in any way on the parties nor is
it a representation and warranty by Landlord of any type, express or implied.)
2. Application of Savings. If and to the extent that the total amount
that Landlord is able to draw down and retain under the initial financing of the
Premises exceeds the Total Project Costs (after the Total Project Costs are
finally determined), then those excess proceeds shall be used by Landlord for
any or all of the following uses: as an interest reserve; to purchase interest
rate protection for floating rate financing (including, without limitation, for
hedges, swaps, caps or floors); or to reduce the principal balance of any
financing, or capital contributions or advances made by or on behalf of Landlord
or its Control Affiliates.
ADDENDUM #7
Page 1 of 1
<PAGE> 96
ADDENDUM #7
SCHEDULE "7AAA"
TOTAL PROJECT COSTS
$ 2,500,000 Acquisition Price
900,000 Commissions and Fees
460,000 Closing Costs: Title, Survey, Env.,
Legal, Appraisal, Miscellaneous
1,350,000 Architectural & Engineering
21,250,000 Construction Hard Cost (Base, TI and
Site)
400,000 Operating Expenses
840,000 Developer's Overhead
1,350,000 Interest Reserve
600,000 Contingency
1,150,000 Site Improvements
500,000 MEPA and Town of Andover Costs
------------
$ 31,300,000 Subtotal
1,200,000 Cash Collateral Account for
------------ Construction Lender Contingency
$ 32,500,000 TOTAL PROJECT COSTS
============
SCHEDULE "7AAA"
Page 1 of 1
<PAGE> 1
EXHIBIT 10.2
June 11, 1997
Mr. Richard B. Goldman
90 Westerly Road
Weston, MA 02193
Dear Dick:
PictureTel Corporation is pleased to offer you an opportunity to join our
Company as Vice President, Chief Financial Officer and Corporate Officer
reporting to me.
The cash compensation in the offered position will contain two elements: an
annual base salary and an annual bonus opportunity under PictureTel's Management
Incentive Plan. The base salary for the position will be paid at the bi-weekly
rate of $7,307.69 ( this the equivalent of $190,000. annually based on 26 pay
periods in the year ). At the level of the offered position a full performance
and compensation review is scheduled during the quarter immediately following
the close of the fiscal year.
The payment of a bonus under the Management Incentive Plan is predicated on the
Company's achievement of the annual revenue and profitability objectives
established at the start of the fiscal year and your performance in meeting your
Individual Goals for the year. The bonus opportunity will be 0% - 40% of base
salary for full performance, but may range up to 80% of base salary for
performance in excess of the plan. The bonus, if any, is determined and paid in
the first quarter following the close of the fiscal year.
The Company will pay you a sign-on bonus in the amount of $10,000. This sign-on
bonus will be payable within thirty ( 30 ) days of your employment start date.
In addition, we will recommend to the Compensation Committee of the Board of
Directors your participation in PictureTel's Equity Incentive Plan. The option
recommendation presented will be for 80,000 shares. These shares will vest over
a four year period, with the first twenty-five ( 25 ) percent of the aggregate
number of shares vesting one ( 1 ) year following the date the option grant is
approved and six and one quarter ( 6.25 ) percent of the aggregate number of
shares vesting each quarter thereafter. The option price will be determined by
the Compensation Committee on the day your option grant is approved and will be
no less than the closing price as quoted on the National Market System of NASDAQ
on that date. Vesting is conditional on your continued full-time employment with
the company. Certain other restrictions may apply to your option grant as set
forth in the Equity Incentive Plan.
If you are involuntarily terminated by the Company for any reason other than for
cause, you would be entitled to receive a continuation of your then current base
salary for a period of six ( 6 ) months. However, if at the end of the six ( 6 )
months you are still unemployed, the Company will consider extending the
continuation of your base salary month to month for up to an additional m six (
6 ) months. You will be responsible for providing monthly verification of your
employment status in order to be eligible for the added salary continuation. For
purposes of this letter, cause shall be defined as and be limited to conviction
of a felony or willful misconduct or gross negligence in the performance of
duties which result in material harm to PictureTel.
<PAGE> 2
As an employee of PictureTel you will be entitled to participate in our medical
insurance benefit programs. We offer two options: ( 1 ) a competitive medical
and dental plan through John Hancock Insurance, or ( 2 ) membership in the
Harvard Community Health Plan, a Health Maintenance Organization. You will be
responsible for a portion of the premium cost, with payment arranged through
payroll deductions. A Section 125 reimbursement plan to help with daycare and
non-reimbursed medical expenses is available at your election, also through
payroll deductions.
In addition, PictureTel provides long-term disability, accidental death and
dismemberment, and life insurance coverage ( life benefit equal to two ( 2 )
times your annual salary ). The premiums for the disability and life insurance
are paid one hundred ( 100 ) percent by PictureTel.
Finally, we offer a 401(k) Retirement Plan and a Tuition Reimbursement Program.
You will be entitled to paid vacation, holiday and sick days in accordance with
PictureTel Policy.
This offer is contingent on your providing proof of eligibility for employment.
On your first day of employment, please bring with you either: ( a ) a valid
U.S. Passport, or ( b ) a birth certificate and a driver's license, or ( c ) an
original Social Security card and a driver's license. Orientation is normally
scheduled for 8:30 a.m. on Mondays.
Please indicate your acceptance of this offer and your anticipated start date by
completing and signing the enclosed copy of this letter, the PictureTel
Application for Employment, and the Proprietary Information Agreement. Return
all documents to Larry Bornstein as soon as practical.
If you have any questions regarding this offer, please do not hesitate to call
Larry or me. We look forward to your joining and being an important member of
our team.
Sincerely,
Norman Gaut
Chief Executive Officer, and
Chairman of the Board
ACCEPTED: ____________________________ Date: ____________
SS#: ________________ Anticipated Start Date: ________________
<PAGE> 1
EXHIBIT 11
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
June 29, June 29, June 29, June 29,
1997 1996 1997 1996
---- ---- ---- ----
(In thousands, except per share amounts)
<S> <C> <C> <C> <C>
CALCULATION OF EARNINGS PER SHARE:
PRIMARY:
Weighted average common shares outstanding during the period ... 34,162 33,176 34,115 32,996
Dilutive effect of stock options using the treasury stock method -- 2,877 990 3,091
---------------------------------------------------
Total common equivalent shares ....................... 34,162 36,053 35,105 36,087
---------------------------------------------------
Net income (loss) .............................................. $ (3,020) $ 8,488 $ 55 $ 15,957
Net income (loss) per share .................................... $ (0.09) $ 0.24 $ 0.00 $ 0.44
FULLY DILUTED:(1)
Weighted average common shares outstanding during the period ... 34,162 33,176 34,115 32,996
Diluted effect of stock options using the treasury stock method -- 3,078 990 3,226
---------------------------------------------------
Total common equivalent shares ....................... 34,162 36,254 35,105 36,222
---------------------------------------------------
Net income (loss) .............................................. $ (3,020) $ 8,488 $ 55 $ 15,957
Net income (loss) per share .................................... $ (0.09) $ 0.23 $ 0.00 $ 0.44
</TABLE>
- --------------------
(1)This calculation is submitted in accordance with Regulation S-K item
601(b)(11) although not required by Footnote 2 to Paragraph 14 of APB Opinion
No. 15 because it results in dilution of less than 3%.
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FORM PICTURETEL
CORPORATION'S BALANCE SHEET AND INCOME STATEMENT FOR THE PERIOD ENDED JUNE 29,
1997 AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH.
</LEGEND>
<MULTIPLIER> 1,000
<CURRENCY> U.S. DOLLARS
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> JUN-29-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> JUN-29-1997
<EXCHANGE-RATE> 1
<CASH> 43,077
<SECURITIES> 30,802
<RECEIVABLES> 129,952
<ALLOWANCES> (3,858)
<INVENTORY> 62,655
<CURRENT-ASSETS> 280,569
<PP&E> 114,379
<DEPRECIATION> (69,004)
<TOTAL-ASSETS> 351,117
<CURRENT-LIABILITIES> 85,624
<BONDS> 4,114
0
0
<COMMON> 342
<OTHER-SE> 261,037
<TOTAL-LIABILITY-AND-EQUITY> 351,117
<SALES> 230,460
<TOTAL-REVENUES> 230,460
<CGS> 125,763
<TOTAL-COSTS> 125,763
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 1,670
<INCOME-PRETAX> 85
<INCOME-TAX> 30
<INCOME-CONTINUING> 55
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 55
<EPS-PRIMARY> 0.00
<EPS-DILUTED> 0.00
</TABLE>
